IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 573 of 2002()
1. DEVAKI, AGED 58 YEARS,
... Petitioner
Vs
1. K.DEVAYANI, AGED 50 YEARS,
... Respondent
2. K.SIVAKUMAR, AGED 27 YEARS OF DO. DO.
3. K.LATHIKA, AGED 22 YEARS,
4. THE GENERAL MANAGER SOUTHERN RAILWAY,
5. THE SENIOR DIVISIONAL PERSONNEL
6. THE BRANCH MANAGER, STATE BANK OF INDIA,
7. UNION OF INDIA, REPRESENTED BY THE
For Petitioner :SRI.JACOB SEBASTIAN
For Respondent :SRI.K.V.SADANANDA PRABHU,SR.SC.RAILWAYS
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :02/03/2010
O R D E R
THOMAS P. JOSEPH, J.
--------------------------------------
S.A.No.573 of 2002
--------------------------------------
Dated this the 2nd day of March, 2010.
JUDGMENT
Fight is between two ladies each claiming to be legally wedded wife of the
late Raman to the exclusion of the other. The said Raman was working as a
gangman in Southern Railway and retired on 31.5.1972. As Ext.A3 shows he
died on 13.7.1981. Before death for the purpose of drawing family pension he
had nominated appellant/defendant No.1 as per Ext.B1 stating that appellant is
his wife. After retirement Raman was drawing pension and after his death,
respondent Nos.1 to 3 approached railway authorities (respondent Nos.4 and 5)
with a request to extent benefits to them consequent to the death of Raman. On
27.9.1982 the Accountant General instructed the Sub Treasury Officer,
Ottappalam to pay life time pension arrears and other benefits to respondent
Nos.1 to 3. While so respondent No.4, General Manager of Southern Railway
informed respondent Nos.1 to 3 that pension has been sanctioned to the
appellant. Respondent Nos.1 to 3 challenged that order before the Central
Administrative Tribunal (for short, “the CAT”) in O.A.No.249 of 1990. The CAT
quashed the order granting pension to the appellant and directed respondent
No.4 to conduct enquiry as to who exactly is the legal representative of the late
Raman. Respondent No.4 conducted some enquiry which according to
respondent Nos.1 to 3 was not satisfactory and found that appellant is the
legally wedded wife of the late Raman and that benefits are payable to her.
SA No.573/2002
2
Aggrieved by that report respondent Nos.1 to 3 approached the civil court
seeking declaration that respondent No.1 is the legally wedded wife of the late
Raman and that she is entitled to the pensionary benefits. They sought for a
decree for prohibitory injunction restraining respondent Nos.4 and 5 from making
any payment to the appellant as legal representative of the late Raman.
Appellant contended that the civil court has no jurisdiction to try the suit since the
matter has already been taken before the CAT by respondent Nos.1 to 3 and an
order has been passed by that authority. A further contention is that respondent
No.1 is not the legally wedded wife of the late Raman and that appellant was
nominated by the late Raman to receive family pension as his wife. Learned
Additional Munsiff was of the view that the civil court had no jurisdiction to
decide the dispute regarding marital status of the parties since the CAT had
taken seizin of the matter and issued Ext.A6, judgment directing respondent
No.4 to conduct enquiry and decide the matter. Learned Additional Munsiff
also held that if at all the enquiry conducted by respondent No.4 is not proper
remedy of respondent Nos.1 to 3 was to approach the CAT and not to approach
the civil court. Holding so, the suit was dismissed. Respondent Nos.1 to 3 took
up the matter in appeal. First appellate court found that a suit for declaration as
to marital status is a suit of civil nature coming within the jurisdiction of civil
court, finding of the trial court that only the CAT can entertain a suit of that
nature is not sustainable and held on the evidence that respondent No.1 is the
SA No.573/2002
3
legally wedded wife of the late Raman and accordingly reliefs as prayed for
were granted to respondent Nos.1 to 3. That is under challenge in this Second
Appeal by way of urging following substantial questions of law:
i. In view of Ext.A6, judgment passed by CAT whether civil court
had jurisdiction to entertain the dispute relating to marital status of appellant and
respondent No.1 viz-a-viz the late Raman?
ii. Whether report of enquiry prepared by respondent No.4 which
merged in the judgment of the CAT (Ext.A6) could be challenged in the present
suit?
iii. Whether suit is barred by the General Principles of res judicata?
iv. On the materials on record has not the first appellate court legally
wrong in holding that respondent No.1 is the legally weded wife of the late
Raman.
Learned counsel for appellant raising the above points argued that in so far as
the CAT has power to decide the dispute regarding right for payment of family
pension it was incidental to the CAT to decide the marital status of the parties
concerned which was decided by the CAT as per Ext.A6, judgment directing
respondent No.4 to conduct a detailed enquiry into the matter. Thus report
SA No.573/2002
4
prepared by respondent No.4 merged in Ext.A6, judgment of the CAT and hence
any complaint regarding Ext.A5, report ought to have been preferred before the
CAT and not before the civil court. It is the contention of learned counsel that
after amendment of Section 11 of the Code of Civil Procedure (for short, “the
Code”) in 1976 incorporating Clause VIII to the Explanation to Section 11 even
decisions of the courts of limited jurisdiction notwithstanding that it had no
jurisdiction to decide the subsequent suit would operate as res judicata so far as
questions which were directly and substantially in issue between the parties or
their privies and decided finally by a competent court or Tribunal. Learned
counsel has placed reliance on the decision in Sulochana Amma v.
Narayanan Nair (1993(2) KLT 938). It is also argued by the learned
counsel that trial court has not entered a finding as to who is the legally wedded
wife of the late Raman, the suit was dismissed on a preliminary issue and hence
finding entered by the first appellate court is perverse, at any rate as all relevant
aspects of the matter were not taken into account. In response it is contended
by learned counsel for respondent Nos.1 to 3 that the CAT has no jurisdiction to
decide matter of this nature as dispute is regarding marital status and
declaration prayed for accordingly which are matters within the exclusive
jurisdiction of the civil court. Learned counsel contends that even as per Ext.A6
the CAT has not entered into that controversy and has only set aside order
granting pension to the appellant for reasons stated in Ext.A6. Contention that
Ext.A5 has merged in Ext.A6, judgment of the CAT cannot stand. On facts it is
SA No.573/2002
5
contended that first appellate court was legally correct in deciding the issue
even at the first instance in view of Order 41 Rule 24 of the Code on the
materials on record. It is contended that first appellate court was justified in
holding that respondent No.1 is the legally wedded wife of the said Raman.
2. To answer the question raised regarding jurisdiction of the civil
court it is necessary to refer to Ext.A6, judgment passed by the CAT. It is not
disputed that O.A. was preferred by respondent Nos.1 to 3 challenging the order
of respondent No.4 sanctioning family pension in favour of appellant. After
referring to the contentions raised by the parties before the CAT, that authority
stated in Ext.A6, in paragraph No.4,
“Having heard the arguments of learned counsel
on both sides, I am of the view that the disbursement of
the pensionary benefit due to a deceased Railway
servant will depend upon the provisions of Family
Pension Scheme for Railway Employees 1964. Under
the scheme the family includes wife and minor children
of the deceased Government servant. ……………..
There is no provision in the scheme for making a
nomination by the Railway Servant and disbursing the
pensionary benefits to such a nominee of the
SA No.573/2002
6
Government servant. This is supported by the recent
decision of the Supreme Court reported in Violet Issac
v. Union of India (1991 1) KLT 579)”.
The decision in Violet Issac’s case (supra) is that there is no provision for
nomination of any person by an employee as he has no title to the same and
family pension is payable to the persons referred to in the Railway Family
Pension Rules, 1964 which included wife in the case of male railway servants.
In paragraph No.6 of Ext.A6 the CAT directed that in the light of the factual
controversy (as to the marital status between appellant and respondent No.1) no
relief could be granted as prayed for by respondent Nos.1 to 3 and the proper
course in the circumstances of the case is to direct respondent No.4 (respondent
No.1 in the CAT) to conduct a detailed enquiry after summoning the parties
concerned as to who is the legally wedded wife of the late Raman and to
sanction pension to the person found entitled as a result of that enquiry. It is
pursuant to Ext.A6, judgment that respondent No.4 conducted the enquiry.
Ext.A5 is the report as per which respondent No.4 came to the conclusion that
appellant is the legally weded wife of the late Raman. Of course respondent
Nos.1 to 3 have their own version as to the manner in which respondent No.4
conducted that enquiry. That is not a matter required to be decided here. I am
unable to accept the contention of learned counsel for appellant that Ext.A5 has
merged in Ext.A6. True, under Section 14 of the Administrative Tribunals Act,
1985 (for short, “the Act”), the CAT has power to deal with all service matters as
SA No.573/2002
7
referred to therein. In this case even if it is assumed that to decide the question
regarding entitlement of family pension which according to the learned counsel is
a dispute relating to service, it was necessary for the CAT to enter a finding as
to who is the legally wedded wife of the late Raman, as I stated, Ext.A6 does
not involve any such finding. Ext.A6 only set aside the order for payment of
pension passed by respondent No.4 and directed a fresh enquiry into the matter.
It is nobody’s case stated that consequent to Ext.A5, report any of the
contesting parties have approached the CAT again either to accept Ext.A5,
report or with their grievance to that report and the CAT has passed any order.
So far as the dispute regarding marital status of respondent No.1 and appellant
is concerned the CAT has not passed any order even if it is assumed that the
CAT had the authority to decide that issue also being relevant for the decision
as to who is entitled to the family pension. Explanation VIII to Section 11 only
said that even decisions entered by a court or Tribunal of limited jurisdiction on
matters directly and substantially in issue before it would operate as res judicata
in the subsequent suit. To operate as res judicata, there must be a decision by
the Tribunal or court, be it of limited jurisdiction.
3. The Act does not also expressly or impliedly take away
jurisdiction of the civil court to entertain a suit for declaration as to marital status
of an employee and grant consequential reliefs with respect to sanction of
pension It has been held by the Supreme Court in Rajasthan State Road
SA No.573/2002
8
Transport Corporation and another v. Ban Mukund Bairwa
[(2009) 4 SCC 299] that the jurisdiction of the civil court is plenary and that
the bar should be express or implied. Apex Court in Raja Ram Kumar
Bhargava v. Union of India (AIR 1988 SC 752) has stated that when
jurisdiction of the civil court may be said to be ousted. When a right pre-existing
in common law is recognized by a special statute and a remedy for its
enforcement is also provided in that statute in the absence of an express bar
jurisdiction of the civil court is not ousted. If the right is created for the first time
by the special statute which provides a machinery for enforcement of that right,
implied bar of jurisdiction of the civil court would arise. None of these situations
arise in this case since the Act neither expressly nor impliedly ousts jurisdiction
of the civil court to entertain dispute of this nature and grant declaration and
consequential reliefs. Hence the contention that in view of Ext.A6, judgment and
consequent report, the jurisdiction of the civil court is ousted is something which
I am unable to accept. Trial court has gone wrong on the point and the first
appellate court has exercised the jurisdiction conferred on it.
4. Now the question is whether on account of respondent Nos.1 to 3
approaching the CAT with O.A.No.247 of 1990 which culminated in Ext.A6,
judgment and consequently Ext.A5, report the jurisdiction of the civil court is
ousted by the doctrine of election. There is no finding one way or other as to
the disputed marital status of respondent No.1 and appellant and as I already
SA No.573/2002
9
stated, none of the contesting parties have approached the CAT against Ext.A5,
report. The civil suit is not one to set aside Ext.A5, report but for declaration and
consequential reliefs which the civil court is competent to grant. Therefore
consequent to my finding that civil courts’ jurisdiction is not impliedly or
expressly barred by the provisions of the Act question of jurisdiction of civil court
being excluded by the doctrine of election also does not arise.
5. What remained is whether the first appellate court was legally
correct in deciding the disputed issue at the first instance and whether on facts
and evidence that court was justified in holding in favour of respondent Nos.1 to
3. So far as the first appellate court deciding the question of fact at the first
instance is concerned under Order 41 Rule 24 of the Code permits that. What
remained is whether the finding of the first appellate court is illegal and this
Court should interfere in the Second Appeal as if there is any substantial
question of law involved in that regard. Respondent No.1 has given evidence as
PW1 and though the year, month and date of her alleged marriage with the late
Raman is not stated in the plaint, in the evidence she stated that it was on a
Sunday in the month of June, 1970. She stated about the religious ceremony
herself and the late Raman underwent at the time of marriage. She produced
Ext.A1, ration card issued to the late Raman during 1981-82 to 1984-85 where
she is described as ‘wife’ and respondent No.2 is described as ‘daughter’ (of the
late Raman). Ext.A2 is copy of the proceeding of the Sub Divisional Magistrate
dated 5.12.1981 on an application preferred by respondent No.1 on 18.9.1981
SA No.573/2002
10
as regards the date of birth of respondent No.3. There name of the father of
respondent No.3 is stated as ‘Raman’. Ext.A4 is an extract of school admission
register dated 22.9.1981 concerning respondent No.2 where also name of the
father is stated as ‘Raman’. Ext.A7 is a letter dated 5.1.1988 issued to
respondent No.1 from the Railway authorities wherein she is described as wife of
the late Raman. Ext.A8 is the notice issued to respondent No.1 from the village
office describing her as wife of the late Raman. As against the above oral and
documentary evidence appellant gave evidence as DW1 and relied on Ext.B1.
As DW1 she asserted that she is the legally wedded wife of the late Raman but
she was not able to state about the year, month or date of the alleged marriage
either in the written statement or in her evidence. She produced Ext.B1 as per
which the late Raman nominated her to to draw family pension (it was under
challenge in Ext.A6). In Ext.B1 late Raman has described appellant as his
‘wife’. Now the question is whether finding of the first appellate court that
respondentNo.1 is the legally wedded wife of the late Raman is perverse or not
supported by any evidence as contended by the appellant.
6. Ext.A3 shows that late Raman died on 13.7.1981. Exts.A2 and A4
come after death of Raman but Ext.A1 shows that even during life time of the
late Raman respondent No.1 was treated by him as his wife. Respondent No.3
was treated as his daughter born in respondent No.1. Ext.A3 also states so. I
stated that Exts.A2 and A4 came after the death of Raman. But in Ext.A1
respondent No.3 was accepted by Raman as his daughter. Ext.B1, going by
SA No.573/2002
11
the contention raised by respondent Nos.4 and 5 was given in the year 1972. In
the plaint age of respondent No.2/plaintiff No.2 is given as 17 in the year 1992
in which case she should have been born in the year 1973 -1974 (in Ext.A4
the date of birth is stated as 15.3.1974). That being the situation, there is
substance in the evidence of respondent No.1 as PW1 that the late Raman and
herself were residing as husband and wife following the marriage she pleaded,
in June, 1970. I stated that Raman died on 13.7.1981. Thus there is
evidence to show that from 1970 onwards respondent No.1 and the late Raman
were residing as husband and wife. True, in Ext.B1 the very same Raman has
acknowledged appellant as his ‘wife’. But that comes in the year 1972 and as
the evidence goes, after the late Raman started residing with respondent No.1
as husband and wife. In the decisions in Mst. Lolo (dead) through her
L.Rs. and others v. Mst.Durghatiya and others (AIR 2001 Madhya
Pradesh 188) it is stated that living together continuously for a long period
and giving birth to children by itself does not give rise to any presumption of
valid marriage. That decision was rendered on the facts of the case where
there was dispute as to the existence of valid marriage. It is in the above
circumstance that it was held so. On the other hand, the Supreme Court in
S.P.S.Balasubramanyam v. Suruttayan alias Andali Padayachi
and others (AIR 1994 SC 133) and Tulsa and others v. Durghatiya
and others ((2008) 4 SCC 520) has stated that long cohabitation as
SA No.573/2002
12
husband and wife raises a presumption regarding marriage ofcourse rebuttable
in nature. In this case, presumption of marriage arising from long cohabitation of
the late Raman and respondent No.1 is sought to be rebutted by the evidence
of appellant as DW1 and Ext.B1. So far as the evidence of DW1 is concerned, it
is seen from her testimony that to many of the questions put to her she could
only plead ignorance. Though she claimed that herself and the late Raman
were residing together she was not able to produce any document to prove that.
When asked about the voters list, ration card and hospital card for allegedly
treating the late Raman, she could only keep mum. Evidence let in by the
appellant as DW1 was not satisfactory and is not sufficient to rebut the
presumption of marriage from long cohabitation of respondent No.1 and late
Raman. It is in the above circumstances that evidence of respondent No.1 was
preferred to that of appellant in the first appellate court concluding that
respondent No.1 is the legally wedded wife of the late Raman. I do not find
anything perverse in that finding nor any jurisdictional error in the matter.
7. Learned counsel for appellant submits that by virtue of the order
which was set aside as per Ext.A6, some amount has already been received by
the appellant. Learned counsel submits that appellant has nobody to look after
and has no income as well. Learned counsel requests that appellant may not
be asked to refund that amount. In the circumstance stated by the learned
counsel in exercise of the plenary power of this Court I direct that the amount
already received by the appellant need not be refunded to respondent Nos.1 to 3
or the railway authorities. Entitlement of respondent Nos.1 to 3 will be to get the
SA No.573/2002
13
benefits from the period subsequent to the period for which amount is already
paid to the appellant. Substantial questions of law framed above are answered
accordingly.
With the above direction Second Appeal is dismissed. Parties shall suffer
their respective cost.
C.M.P.No.1823 of 2002 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
cks
SA No.573/2002
14
Thomas P.Joseph, J.
S.A.No.573 of 2002
JUDGMENT
2nd March, 2010.