(2015) 416 KLW 642
IN THE HIGH COURT OF KERALA AT ERNAKULAM
B. KEMAL PASHA, J.
O.P.(C) No.3453 of 2013
Dated this the 24th day of July, 2015
IA.1492/2013 IN OP (SUCCESSION) NO. 33/2012 OF IST ADDITIONAL SUB COURT, THIRUVANANTHAPURAM
PETITIONER(S)
K.K.ALAMELU, AGED 63 YEARS, 111/29, ANANTHAM, M.L.A.ROAD, CHOTTANIKKARA, ERNAKULAM DISTRICT.
BY ADVS.SRI.BABU CHERUKARA SRI.SEVI VARGHESE SMT.ROSAMMA MATHEW SRI.P.A.SALIM SRI.ANZAR BASHEER SRI.K.S.GIREESAN
RESPONDENT(S)/PETITIONERS/1ST COUNTER PETITIONER
L. PUSHKALA AND 4 OTHERS
5. S C T I M S T, (SREE CHITRA TIRUNAL INSTITUTE OF MEDICAL SCIENCE AND TECHNOLOGY), REPRESENTED BY THE DIRECTOR, THIRUVANANTHAPURAM, PIN - 695 001.
R1-R4 BY ADVS. SRI.P.V.ANIL SRI.M.ANILPRASAD R5 BY ADV. SRI.T.R. RAVI, SC
J U D G M E N T
An application for succession certificate was filed by the legal heirs of deceased Venkiteswaran, who was working as an employee at the Sree Chithira Thirunal Institute of Medical Sciences and Technology, Thiruvananthapuram. He died while in service. He has nominated his sister, who is the petitioner herein, as the person entitled to receive his gratuity.
2. An application for succession certificate was filed by the wife and children of the deceased for availing the death cum retirement benefits of the deceased. The petitioner filed IA 1492 of 2013 in the succession OP for getting herself impleaded as the additional 2nd respondent. Through Ext.P10 order, the court below has dismissed the IA. The said order is under challenge.
3. Heard the learned counsel for the petitioner and the learned counsel for the respondents.
4. According to the learned counsel for the petitioner, the 1st respondent/wife was leading an adulterous life and thereby the marital life of deceased Venkiteswaran and the first respondent fell apart. Thereafter, he was residing along with his sister, who is the petitioner herein, and he has changed the nomination to the person to whom the gratuity has to be paid, into the name of the petitioner. Therefore, according to the learned counsel for the petitioner, the legal representatives have no role in the matter and the application for succession certificate itself is not maintainable, when the petitioner has been nominated as the nominee to receive the amount.
5. Per contra, the learned counsel for the respondents has argued that the nominee can only collect the amount at the most, and cannot appropriate it. Even if a valid nomination is made, the nominee can only collect the amount and has to pay the amount to the concerned persons who are entitled to succeed the deceased. Over and above it, it has been pointed out that in this case, the nomination of the petitioner itself is not valid. As per
Section 6 of the Payment of Gratuity Act, 1972
if an employee has a 'family' at the time of making a nomination, the nomination shall be made in favour of one or more members of his 'family'.
'Family' is also defined under Section 2(h), which says:-
“family” in relation to an employee, shall be deemed to consist of - (i) in the case of a male employee, himself, his wife, his children, whether married or unmarried, his dependent parents[and the dependent parents of his wife and the widow] and children of his predeceased son, if any.”
In this particular case, there is no case for the petitioner that a valid divorce was effected by dissolving the marriage of the deceased and the first respondent. Even though they were allegedly residing separately, the status of the first respondent as the wife of the deceased still continues. As far as the children are concerned, nobody can say that they are not members of the family of the deceased.
6. The question as to whether the deceased was being looked after and maintained by the wife and children, does not assume any importance at all. Even if it is admitted that the deceased was not being looked after and maintained by his wife and children, the right to succession cannot be denied to the wife and children.
7. The learned counsel for the respondents has relied on the decisions in
Sarbati Devi and another v. Usha Devi [AIR 1984 SC 346]
and
Vishin N. Khanchandani and another v. Vidya Lachmandas Khanchandani and another [(2000) 6 SCC 724]
wherein the question relating to nomination was considered. In the aforesaid cases it was held:
“The nominee of the National Savings Certificates has a right to be paid the sum due on such savings certificates after the death of the holder, yet he retains the said amount for the benefit of the persons who are entitled to it under the law of succession applicable in the case.”