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IN THE COURT OF THE SENIOR CIVIL JUDGE :: KAVALI
Tuesday, this the 26th day of March, 2019
Present : Miss K.Sailaja,
Senior Civil Judge, Kovur.
(FAC) Senior Civil Judge, Kavali
O.S.No.73 of 2012
BETWEEN:
Edupalli Kondamma.... Plaintif
A N D
1. The Divisional Railways Manager,
Personal Branch, IV Floor,
Sanchalan Bhavan,
Secunderabad.
2. Mandala Annapoorna @ Laxmi....Defendants
This suit coming on 19.3.2019 for final hearing before me, in the presence of Sri P.Sunil Kumar Singh – advocate for the plaintiff and of Sri K.Srinivasulu Reddy, Advocate for the 1 st defendant and of Sri M.Jaya Prakash, Advocate for 2 nd defendant and having stood over for consideration till this day, this Court delivered the following—
J U D G M E N T
This suit is filed by the plaintiff against the defendants to declare that the plaintiff is the legal heir and also entitled to receive death benefits of Rs.1,48,464/- of Edupalli Venkata Sivaiah which lying with the 1st defendant and to restrain the 1st defendant to realize any benefits of
Edupalli Venkata Sivaiah to the 2nd defendant whatsoever manner permanently and for costs of the suit.
2.The averments made in the plaint, in brief, are that the plaintiff is the mother of deceased Edupalli Venkata Sivaiah. During the life time of
E.Venkata Seshaiah got married with the 2nd defendant. But, out of their - 2 - wedlock, they have no issues. There was some differences cropped up and they have taken divorce. D2 after divorce got married with one
Kondaiah of Nandyal of Kurnool District and residing there. Hence, the 2nd defendant is not the legal heir of deceased E.Venkata Sivaiah. The deceased Venkata Sivaiah died on 6.12.2004. During the life time of
E.Venkata Sivaiah, in the nomination paper at the column of wife, 2nd defendant name was mentioned. Even after divorce, E.Venkata Sivaiah did not change the name of the 2nd defendant in the column of nominee.
So, the 1st defendant did not release the death benefits to the plaintiff.
The plaintiff made lot of representations to the 1st defendant ever since 2005 after the death of Venkata Sivaiah for settling the death benefits and family pension. But, the 1st defendant did not chose to release the same and postponed with other pretext and demanding to produce the succession certificate. Accordingly, the plaintiff also filed succession certificate. Even after production of succession certificate, the 1st defendant did not chose to release the death benefits. Then, the plaintiff approached the Central Administrative Tribunal in O.A.608/2011 and the Hon’ble Tribunal was pleased to dismiss with a direction to approach the Civil Court. Hence, the suit.
3. D1 filed written statement contending that in response to the plaintiff’s representation, she was advised through letter that the records available in the office of 1st defendant clearly reveals that E.Venkata
Sivaiah had declared Smt.E.V.Laxmi as his wife in the family declaration submitted for the purpose of issuance of railway passes and medical identity card and if she has any objection for treating E.V.Laxmi as wife of the deceased employee she may file a petition in the Court of law duly impleading Smt.E.L.Laxmi and her children and obtain permanent - 3 - injunction restraining Smt.E.V.Laxmi and her children from receiving the settlement dues payable on the death of the employee. She was further directed to obtain a succession certificate in her favour from the competent Court. As Kondamma had failed to submit succession certificate within the stipulated time, payment of settlement dues of
E.V.Seshaiah had been arranged in favour of E.V.Laxmi and her children on 22.3.2007. E.Kondamma had failed to submit succession certificate on or before 31.7.2006 and submitted the same on 16.8.2007 after the settlement dues had been paid basing on the declaration made by late employee while he was alive. Though the plaintiff was informed to obtain a prohibitory order from the competent court, she failed to obtain orders and the Railway Administration will be constrained to disburse the amount to Smt.E.V.Laxmi and her children. Inspite of the above letter, the plaintiff did not chose to implead E.V.Laxmi as the respondent who is the defendant in the present suit in the succession O.P.60/06 filed by her
before the Court and obtain an exparte order.
D2 filed her written statement that she is not the legal heir of
Edupalli Venkata Sivaiah and as per law she has obtained divorce and remarried and she has no objection to disburse the amounts to the plaintiff. D2 also stated that plaintiff alone is the legal heir and she is not entitled to any benefits of Edupalli Venkata Sivaiah.
4. Basing on the above said pleadings the following ISSUES were framed for trial:
1) Whether the plaintiff is entitled for declaration, as prayed for?
2) Whether the plaintiff is entitled for permanent injunction, as prayed for?
3) To what relief?
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5.On behalf of the plaintiff, the plaintiff herself examined as PW1 and got marked Exs.A1 to A3. She also got examined PW2. On behalf of 1st defendant, Chief Staff Welfare Inspector in the office of 1st defendant was examined as DW1 and got marked Exs.B1 to B6. No evidence was adduced on behalf of 2nd defendant.
6.Heard on both sides.
ISSUE Nos.1 and 2:
7.The case of the plaintiff is that she is the only legal heir to the deceased E.Venkata Sivaiah. Though he was married with one Laxmi, she was divorced and got married another person. Therefore, she is not the legal heir and she is the only legal heir. She approached Railway authorities on several times for release of death benefits of E.Venkata
Sivaiah but the railway authorities failed to disburse the said amount.
8.The suit has been filed against the railway authorities i.e., employer of deceased E.Venkata Sivaiah and against wife of Venkata
Sivaiah. D2 filed her written statement stating that she has no objection to disburse the death benefits to the plaintiff. The only contestant in the suit is D1 i.e., Railway Department and D1 has submitted that in the
Employee Nomination Form of E.Venkata Sivaiah, the nominee was mentioned as E.V.Laxmi. The said Laxmi and her children approached them and plaintiff also approached and stated she is the only legal heir and they failed to file succession certificate. She failed to obtain the succession certificate within time. Hence, they have released the death - 5 - benefits to E.V.Laxmi who was nominated in the nomination form during the life time of E.Venkata Sivaiah.
9.The counsel for the plaintiff has pleaded that D2 is the wife and there is no dispute that D2 is wife and D2 admitted in her evidence that as per the record, 2nd defendant took divorce from E.V.Sivaiah on 26.7.2000 and in the maintenance case filed by D2 contended that immediately after her marriage with E.Venkata Sivaiah there are some disputes between them due to that they have no children. DW1 admitted that D2 has no children and D2 has obtained divorce from
E.Venkata Sivaiah. It is settled law that admitted facts need not be proved. There is no explanation from D1 authorities that how it is possible to get children of 11 years and 12 years and there is no explanation from the railway authorities on what identity they have given death benefits to E.V.Laxmi.
10.The counsel for D1 has pleaded that since E.V.Laxmi name was nominated as nominee in the declaration form by the deceased
E.Venkata Sivaiah during his life time, they have released the death benefits to the said E.V.Laxmi. He further contended that the plaintiff has approached them in the year 2004 she was advised through the letter dt.16.6.2005 as per the records available in the office of 1st defendant, 2nd defendant is the nominee and she was further advised to obtain a succession certificate by the competent court impleading the said Laxmi. But, without impleading the said E.V.Laxmi they have obtained succession certificate. The counsel for D1 contended that the said Kondamma failed to submit succession certificate within time.
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Accordingly, they have released the death benefits to the said E.V.Laxmi.
11.There is no dispute that the plaintiff is the mother of deceased
E.Venkata Sivaiah. It is an admitted case of both parties D2 is the legally wedded wife of deceased E.Venkata Sivaiah. The contention of the plaintiff is that the said E.V.Laxmi has taken divorce immediately after the marriage and she has no issues and after taking divorce she got married another person. Therefore, she is not the legal heir to the said
E.Venkata Sivaiah. PW1 has deposed in her evidence that during the life time of E.Venkata Sivaiah the nominee name of 2nd defendant was unchanged taking advantage and trying to swallow the above benefits, despite succession certificate, under influence of 2nd defendant, 1st defendant did not realize the death benefits of her son and she again approached the Tribunal in O.A.608/2011 and Hon’ble Court was pleased to dismiss with direction to approach the Civil Court. On behalf of D2, none were examined and she did not chose to contest her case, but she filed written statement that she has no objection to release the death benefits to the plaintiff. Ex.A2 is the decree passed in S.O.P.69/2006 and the said SOP was filed by the plaintiff herein showing nobody as respondents and succession certificate was granted in favour of the plaintiff for receiving all the benefits on behalf of her son from
S.C.Railway Department and also she is entitled for pension as per rules.
Ex.A3 is order in O.A.608/2011. The plaintiff also marked one decree certified copy in O.P.7/2000 stating that D2 who is the wife of deceased obtained divorce on 26.7.2000. PW2 one E.Nageswara Rao was examined as PW2 i.e., brother of E.V.Sivaiah. He has deposed in his evidence that his brother Venkata Sivaiah made her nominee as 2nd - 7 - defendant and also made efforts to withdraw the benefits and pension in her name. Despite her remarriage, now claiming the death benefits available. During his cross examination, he has deposed that D2 never claimed death benefits of deceased E.V.Sivaiah.
12.The Welfare Inspector of Divisional Railway was examined as DW1, he deposed that as the plaintiff failed to submit the succession certificate within time and submitted the same on 16.8.2007, the settlement dues had been paid to E.V.Laxmi and her children on 22.3.2007. Ex.B1 shows that some correspondence made by D.P.O
Railways and in Ex.B1 letter it is stated to PW1 that the records available in the office reveals that one E.Venkata Sivaiah had declared E.V.Laxmi as his wife and advised her to file a suit in the Court of law by impleading the Laxmi as respondent and obtain permanent injunction order against the said E.V.Laxmi and her children from receiving the settlement dues. The said letter was issued on 16.6.2005. Ex.B2 is a declaration given by the E.V.Laxmi stating that she is the wife of
E.Venkata Sivaiah and they got children by name E.V.Srinivasulu,
E.Venkateswarlu, E.V.Srikanth and A.Aruna Kumari. In the said declaration form, it is mentioned that the plaintiff is the mother of
E.Venkata Sivaiah. Ex.B3 is another notice issued to the plaintiff herein by Railway Divisional Manager informing the details of death benefits of
E.Venkata Sivaiah. Ex.B4 is the letter addressed to the plaintiff advised her to submit the succession certificate from the competent court on or
before 21.4.2006, failing which the case will be dealt in favour of Laxmi.
Ex.B5 is the letter addressed to E.Kondamma and E.V.Laxmi by the
Senior Divisional railway authorities stating that since both of them - 8 - claiming settlement dues of E.Venkata Sivaiah, they are advised to produce succession certificate from the competent court. Notices were issued to both of them. Ex.B6 is the acknowledgement from the plaintiff herein.
13.There is no dispute that the plaintiff is the mother of deceased
E.V.Sivaiah. It is also not in dispute that after the death of E.V.Sivaiah, plaintiff and one E.V.Laxmi have claimed death benefits. It is an admitted fact that during the life time, the deceased E.Venkata Sivaiah had nominated E.V.Laxmi as his wife. PW1 admitted in her evidence that even after he has obtained divorce from the E.V.Laxmi, his wife name is mentioned as E.V.Laxmi. The evidence on record shows that after the death of E.V.Sivaiah, the plaintiff has approached to the railway authorities and they have advised her to obtain a succession certificate.
The evidence on record further goes to show that D1 authority have released death benefits to one E.V.Laxmi. Their contention is that they have advised the plaintiff to obtain a succession certificate on or before 31.7.2006. But, she failed to submit the same and they have released the death benefits. As D1 authorities failed to release the death benefits, she has approached the Central Administrative Tribunal,
Hyderabad by showing the Railway Divisional Manager and one Shaik
Akbarunnisa, Shaik Shafi and Edupalli Lakshmi as parties to the said O.A.
and in the said O.A.No.608/2011 the authority has passed an order that it is not within the jurisdiction of Tribunal in terms of Section 14 of the
Administrative Tribunals Act, 1985 and further observed that to approach the competent Court. In the said O.A., it was observed that the P.P.O.
has already been issued in favour of the 5th respondent on 12.3.2007 - 9 - and in view of the legal complications the official respondents have initiated action to stop family pension authorised in favour of the 5th respondent.
14.The evidence on record shows that the plaintiff had been approached the railway authorities in the year 2004 and she was advised to file a succession certificate. Ex.A2 shows that she has obtained succession certificate. But, prior to obtaining succession certificate, it was informed to the plaintiff that E.V.Laxmi and her children were claiming death benefits. The plaintiff has got knowledge prior to obtaining succession certificate that E.V.Laxmi and children of
E.V.Laxmi are claiming death benefits. But, without showing them as parties the plaintiff has filed succession O.P. Even the plaintiff did not chose to implead the railway authorities who refused to issue death benefits as respondents in S.O.P.
15.The evidence on record shows that the plaintiff has approached the Tribunal and an order was passed in O.A.608/2011. In the plaint, it has been pleaded that 2nd defendant is the marital wife of the deceased
E.Venkata Sivaiah. She was divorced and remarried. Hence, she is not legal heir and only legal heir is plaintiff. The orders passed in
O.A.608/2011 and documents shows that already death benefits were issued to R5. The counsel for the plaintiff has pleaded that the 2nd defendant has no issues. But, surprisingly, one Akbarunnisa came to the picture and she got children and they are legal heirs of E.Venkata
Sivaiah. When it is the specific case of the 2nd defendant that she lived with E.Venkata Seshaiah with small period i.e., less than one year, there - 10 - is no explanation how they got children of 20 years of age. Admittedly, in this case, D2 filed written statement that she has no objection to issue death benefits in favour of mother i.e., E.Kondamma. But, order in
O.A.608/2011 shows that the plaintiff herein filed a petition against the
Railway Divisional Manager by impleading one Akbarunnisa, Shaik Shafi and E.Lakshmi stating that 5th respondent is seeking compensation towards her husband death benefits under the Workmen Compensation
Act and the said order shows that 5th respondent in the said O.A.
claiming compensation towards her husband death benefits. Therefore, the evidence shows that the real controversy in between the plaintiff herein and the respondents 3 to 5 in O.A.608/11. The suit has been filed after orders passed in O.A.608/11. But the plaintiff did not chose to implead the respondents 3 to 5 as parties the reasons best known to the plaintiff. Since the real controversy is in between them, they are necessary parties to the suit for proper adjudication of suit. Further, the documents filed by the defendant shows that there was some correspondence made by Railway authorities to Kondamma and in the said correspondence clearly shows that one Lakshmi was claiming the death benefits. It is a fact that one Lakshmi was shown as nominee of deceased E.Venkata Seshaiah and subsequently also her name was not changed. Ex.A3 clearly shows that as on the date of passing of the said order, death benefits already given to R5 in the said petition. There is no evidence that the said R5 and D2 are one and the same or different.
Further, the evidence on the record shows that as on the date of filing of the suit, the death benefits are released and the official respondents initiated the action to stop the family pension in favour of 5th respondent.
It seems that the death benefits already disbursed. But, by suppressing - 11 - the said fact, the plaintiff filed the suit as if the death benefits are in the hands of the 1st defendant. It is a settled law that the plaintiff who approached the Court of Law must come to the court with clean hands.
But, the plaintiff came to the court with unclean hands and by suppressing the real facts.
16.Further, the documents filed by the defendant shows that the correspondence has been made to the plaintiff vide letter dt.16.6.2005 stating to obtain interim orders from the competent Court. Therefore, the cause of action arose for the suit is on 16.6.2005. The suit for declaration has to be filed within three years under Article 58 of
Limitation Act. But, the present suit has been filed in the year 2012.
Though the orders were passed in the year 2011, the actual cause of action arose when the plaintiff has got knowledge that one Lakshmi is claiming the death benefits of the deceased. Therefore, the suit is also not filed within time. Though the plea of limitation is not taken by the defendant, as per Section 3 of Limitation Act, the suit can be dismissed on the ground that the suit is not filed within time. Therefore, in the light of the above discussion, I hold that the plaintiff approached the court with un clean hands by suppressing the facts and the suit is not filed within time. In the light of the above discussion, the suit is dismissed.
ISSUE NO.2:
17. In the result, the suit is dismissed with costs.
Dictated to the Stenographer Gr-II(SCJ Court, Kovur), transcribed by him,
corrected and pronounced by me in the open Court, this the 26 th day of March, 2019.
SENIOR CIVIL JUDGE, KOVUR
(FAC) SENIOR CIVIL JUDGE, KAVALI
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APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Plaintiff:
PW1: Edupalli Kondamma.
PW2: Edupalli Nageswara Rao.
For Defendants:
DW1: S.Subrahmanyam, Chief Staff Welfare Inspector, O/o Divisional
Railway Manager, Secunderabad.
DOCUMENTS MARKED
For Plaintiff:
Ex.A1: C.C.of Decree in O.P.7/2000 dt.5.3.1990. Ex.A2: C.C.of Succession certificate in SOP 69/2006 dt.17.3.1998. Ex.A3: C.C.of orders in O.A.608/2011 of C.A.T., Hyderabad.
For Defendants:
Ex.B1: Letter No.CP500/CNR/2004 dt.16.6.2005 issued to the plaintiff. Ex.B2: Declaration of family members and dependant relations issued by late E.V.Sivaiah dt.4.3.1996. Ex.B3: Letter No.CP500/CNR/2004, dt.3.2.2006 issued to the plaintiff. Ex.B4: Letter dt.31.3.2006 issued to the plaintiff. Ex.B5: Letter dt.12.7.2006 issued to the plaintiff and E.V.Laxmi. Ex.B6: Acknowledgement of plaintiff dt.13.2.2006.
SENIOR CIVIL JUDGE, KOVUR
(FAC) SENIOR CIVIL JUDGE, KAVALI