This appeal is directed against the judgment and decree passed by the lower Court in O.S. No: 12 of 1998 dated 24.08.1998 by the 1st defendant. The brief facts submitted before the lower Court as per the pleadings of both parties are as follows

In the High Court of Judicature at Madras

Date :    05..12..2008



Coram :


The Hon'ble Mr. Justice V. Periyakaruppiah



A.S. No: 438 of 1999


Aboorvam ...  Apellant

-vs-

1.  Kalaimathi

2.  Minor Kirubakaran

3.  The Chief Secretary to
      Government of Pondicherry,
     Pondicherry.

4.  The Secretary to Government
of Pondicherry,
     Education Department,
     Pondicherry.

5.  The Secretary to Government
of Pondicherry,
     Finance Department,
     Pondicherry.

6.  The Chief Education Officer,
     Office of the Chief Education Officer,
     Bharathiar road,
     Karaikal Town. ...  Respondents
..  ..  ..


First appeal under Section 96 of C.P.C. against the judgment and decree dated 24.08.1998 made in O.S. No: 12 of 1998 on the file of the Court of the Additional District Judge, Pondicherry at Karaikal.

For appellant           :  Mr. G. Vasudevan for
     M/s. T. Susindran

For resp. 1 & 2         :  Mr. P. Palaninathan

For resp. 3 to 6        :  Mr. A.S. Bharathi,
              for Govt. Pleader (Pondy)
..  ..  ..


J U D G M E N T

This appeal is directed against the judgment and decree passed by the lower Court in O.S. No:  12 of 1998 dated  24.08.1998 by the 1st defendant.  The brief facts submitted before the lower Court as per the pleadings of both parties are as follows :

" (a)   The plaintiff is the widow of the one Pavadai who worked as Secondary Grade Teacher, Government Middle School, Thiruvetakudi, Kottucherry Commune.  First defendant is the mother-in-law of the plaintiff.  The plaintiff is married to the above said Pavadai on 26.06.1985 at Kanjanagaram, Mayiladuthurai.  The plaintiff's husband died on 21.10.1987 due to hypertension.  The second plaintiff is the son of the deceased Pavadai.  The deceased Pavadai when he was working as a Teacher has declared that his mother Apporvam, namely the 1st defendant herein, as nominee for the gratuity amount.  The deceased Pavadai did not change the name of the nominee after the marriage with the 1st plaintiff.  His failure to change the name is purely due to oversight.  The plaintiffs alone are entitled to receive the gratuity amount from the Education Department, Government of Pondicherry.   The 1st defendant is trying to withdraw the gratuity amount from the defendants on the ground that she is claiming to receive the gratuity amount as per the declaration made by the deceased Pavadai.  Hence, the other defendants are added as parties so that they would also be bound by the decision of this Court.  Plaintiffs alone are entitled to receive the gratuity amount of the deceased Pavadai and hence, the suit.
(b)  The 1st defendant would state that she is also one of the Class I heir of the deceased Pavadai.  The Government of Pondicherry is necessary party to the proceedings.  The relief of declaration of heirship and the relief of declaration that the plaintiffs are entitled to receive the gratuity amount are two different and distinct reliefs.  Hence, the Court fee paid is not proper.  The earlier suit filed in O.S. No: 88 of 1992 on the file of the Principal District Munsif, Karaikal, between the same parties was dismissed and against which no appeal is filed.  The dismissal of the suit is a bar for fresh suit and therefore, the suit is not maintainable and liable to be dismissed."
2.  The lower Court had, after going through the evidence adduced before it, come to the conclusion of decreeing the suit as prayed for with costs against the 1st defendant.  The 1st defendant who was aggrieved by the said judgment and decree has preferred this appeal.

3.  Heard the learned counsel for the appellant and the respondents.

4.  On a careful perusal of the grounds raised in the appeal memo and the arguments advanced by both sides and after perusal of the evidence adduced by both parties before the lower Court, the following points are framed for conclusion in this appeal, as follows :-

"1.  Whether the finding of the lower Court as to the entitlement of the gratuity amount payable to the plaintiffs and the 1st defendant on the death of the husband of the 1st plaintiff is not correct ?
2.  Whether the appeal has to be allowed ?
3.  To what relief the appellant is entitled for ? "

5.  Point Nos: 1 and 2 :-  The dispute in between the parties namely the plaintiffs and the 1st defendant was in respect of  the apportioning of the gratuity amount payable to the husband of the 1st plaintiff namely Pavadai.  The plaintiffs, are the wife and the son of the deceased Pavadai.  The 1st defendant is the mother of deceased Pavadai. The case of the  plaintiffs 1 and 2 was that they were entitled to the gratuity amount and, therefore, they filed a suit seeking a declaration that they were entitled to the said amount and for consequential relief of injunction against the 1st defendant from in any way disturbing the plaintiffs from claiming the amount available with the defendants 2 to 5.  The relationship of the deceased Pavadai with the plaintiffs 1 and 2 and the 1st defendant are not disputed in between them.  The only point to be decided is whether the plaintiffs are solely entitled to the said benefit on the death of the deceased Pavadai.  The lower Court had, after appraising the evidence. come to the conclusion that the 1st plaintiff (wife); the second plaintiff (son) and the 1st defendant (mother) are coming under Class I heir under 'The Hindu Succession Act' and had declared that all the three persons are entitled to  the gratuity benefits of the deceased Pavadai payable on his death.  The case of the plaintiffs and the evidence adduced thereon would disclose that the said deceased Pavadai died intestate and he had not executed any testimontary document for the future succession.  It is not the case of the both parties that some other person is also living as the legal representatives of the deceased Pavadai.  Therefore, the decision reached by the lower Court that the plaintiffs 1 and 2 and the 1st defendant were the legal representatives of the deceased Pavadai and were entitled to succeed the Estate of the deceased Pavadai are quite right.  The gratuity amount payable on the death of the deceased Pavadai at the hands of the defendants 2 to 5 is also one among the estate and it is also liable to devolve on them equally.  In such circumstances, the decision of the lower Court that the plaintiffs are not solely entitled to be declared as legal representatives but the plaintiffs 1 and 2 are entitled to two third only from and out of the gratuity amount need not be interfered.  The remaining one third share is admittedly payable to the 1st defendant.  In such circumstances, it has passed the decree of declaration in respect of the two third share of the plaintiffs 1 and 2 and the consequent injunction was also granted only to that extent.  However, the lower Court had come to a conclusion of decreeing the suit with costs.  It has also awarded cost against the 1st defendant, the mother of the deceased.  No doubt the mother is not actually disputing the entitlement of plaintiffs 1 and 2.  However,  it had awarded costs which is not found to be just.  Under these circumstances, this Court is inclined to set aside the order passed by the lower Court in respect of awarding of cost against the 1st defendant.  Therefore, it has become necessary to confirm the decision of decreeing the suit passed by the lower Court but the order passed by the lower Court in awarding cost alone is set aside.  To that extent the appeal is also liable to be allowed.

6.  For the foregoing discussion, the judgment and decree passed by the lower Court in passing the decree of declaration and injunction against the 1st defendant in respect of the two third share of the plaintiffs 1 and 2 is confirmed and the awarding of costs against the 1st defendant is set aside.  To that extent the appeal is allowed and both the points are answered accordingly.
7.  Point No: 3 :  In view of the decision reached in points 1 and 2, the appeal is partly allowed by setting aside the order of lower Court in awarding of cost against the 1st defendant in favour of the plaintiff alone and accordingly, the judgment and decree of the lower is modified. Connected miscellaneous petition is closed. There is no order as to the costs in this appeal also.





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To

1.  The Additional District Judge,
     Pondicherry at Karaikal.

2.  The Chief Secretary to
      Government of Pondicherry,
     Pondicherry.

3.  The Secretary to Government
of Pondicherry,
     Education Department,
     Pondicherry.

4.  The Secretary to Government
of Pondicherry,
     Finance Department,
     Pondicherry.

5.  The Chief Education Officer,
     Office of the Chief Education Officer,
     Bharathiar road,
     Karaikal Town