High Court
Case Details
WA 347/2008 BEFORE HON’BLE THE CHIEF JUSTICE MR. A.K. GOEL HON’BLE MR. JUSTICE A.K. GOSWAMI (A.K.Goel, C.J.)
Decision
This appeal has been preferred against order of learned Single Judge dis missing the writ petition of the appellant claiming part of family pension on de ath of her husband Jehidur Rahman. Late Jehidur Rahman was employed in the Assam Police and died on 12.9.20 03. He had married the appellant on 28.12.1984 even though he was already marrie d to Respondent No.4. Though both the widows made claim for family pension, the family pension was allowed in favour of the first wife-respondent as per rules. Aggrieved thereby, the appellant approached this Court and claimed family pensio n to the extent of 50 per cent. The claim was contested with the plea that under Rule 137 and 143 of the Assam Services (Pension) Rules, 1969 only one person could get the family pensi on and if he was survived by more than one widows, the eldest was entitled to th e same. Even if second marriage was permissible under the personal law, the Assa m Civil Services (Conduct) Rules, 1965 prohibited such marriage without prior pe rmission. Upholding the stand of the respondent, the writ petition was dismissed . Learned Single Judge relied upon an earlier view in a Single Bench judgment of this Court in Suraiya Sultana Vs. State of Assam, 2006 Supl. GLT 533. Learned counsel for the appellant submits that the view taken in Suraiya Sultana was contrary to earlier Single Bench judgment in Amina Khatun Vs. Jahur a Khatun, 2004 (Suppl.) GLT 67 and Saleha Begum Vs. State of Assam, 2004(3) GLT 108 and during pendency of this appeal, a Division Bench of this Court in Sirazu n Nessa -Vs.- State of Assam and others, 2011(4) GLT 751 has disapproved the vie w taken in Suraiya Sultana and approved the view in Amina Khatun. It was held th at pension being property was to be inherited as per applicable personal law not withstanding violation of the conduct rules which may permit an action to be tak en for misconduct, but did not affect the right to get pension. Learned counsel for the State points out that under Rule 137 of the Pens ion Rules, only the first widow was entitled to pension in case there are more t han one surviving widows. On due consideration, we are of the view that right of the second wife t o claim inheritance is not affected by the conduct rules as held by the Division Bench of this Court in Sirazun Nessa. Further, similar matter was considered in Rameshwari Devi v. State of Bihar, (2000) 2 SCC 431 and it was held : (cid:28)13. But then it is not necessary for us to consider if Narain Lal could have be en charged of misconduct having contracted a second marriage when his first wife was living as no disciplinary proceedings were held against him during his life time. In the present case, we are concerned only with the question as to who is entitled to the family pension and death-cum-retirement gratuity on the death of Narain Lal. When there are two claimants to the pensionary benefits of a deceas ed employee and there is no nomination wherever required the State Government ha s to hold an inquiry as to the rightful claimant. Disbursement of pension cannot wait till a civil court pronounces upon the respective rights of the parties. T hat would certainly be a long-drawn affair. The doors of civil courts are always open to any party after and even before a decision is reached by the State Gove rnment as to who is entitled to pensionary benefits. Of course, inquiry conducte d by the State Government cannot be a sham affair and it could also not be arbit rary. The decision has to be taken in a bona fide, reasonable and rational manne r. In the present case an inquiry was held which cannot be termed as a sham. The result of the inquiry was that Yogmaya Devi and Narain Lal lived as husband and wife since 1963. A presumption does arise, therefore, that the marriage of Yogm aya Devi with Narain Lal was in accordance with Hindu rites and all ceremonies c onnected with a valid Hindu marriage were performed. This presumption Rameshwari Devi has been unable to rebut. Nevertheless, that, however, does not make the m arriage between Yogmaya Devi and Narain Lal as legal. Of course, when there is a charge of bigamy under Section 494 IPC strict proof of solemnisation of the sec ond marriage with due observance of rituals and ceremonies has been insisted upo n. (cid:29) As regards pension rule providing for pension being given only to eldest wife, the object of the rule is to give valid discharge to the liability of the State. The eldest wife receives such pension in representative capacity. This r ule is akin to situations where person entitled to receive is held to receive it on behalf of all those entitled to the same. The pension rule may determine rig ht to receive but not entitlement. In Vishin N. Khanchandani vs. Vidya Lachmandas Khanchandani, (2000) 6 SC C 724, it was held : (cid:28) 12. The submission made on behalf of the appellants has no substance in view of sub-section (2) of Section 8 and the Statement of Objects and Reasons necessi tating the passing of the Act. Sub-section (1) of Section 8 provides that if any payment is made in accordance with the provisions of the Act to a nominee, the same shall be a full discharge from all further liabilities in respect of the su m so paid. Section 7 of the Act provides that after the death of the holder of t he savings certificates, payment of the sum shall be made to the nominee, if any , and sub-section (1) of Section 8 declares that such payment shall be a full di scharge from all further liabilities in respect of the sum so paid. However, sub -section (2) of Section 8 specifies that the payment made to the nominee under s ub-section (1) shall not preclude any executor or administrator or the legal rep resentative of the deceased holder of a savings certificate from recovering from the person receiving the same under Section 7; the amount remaining in the nomi nee’s hand after deducting the amount of all debts or other demands lawfully pai d or discharged by him in the due course of administration. In other words thoug h the nominee of the National Savings Certificates has a right to be paid the su m 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, however, subject to the exception of deductions mentioned in the sub-section. In the Statement of Objects and Reasons of the Act it is stated: (cid:28)The Post Office National Savings Certificates Ordinance, 1944 (42 of 1944), iss ued under Section 72 of the Ninth Schedule to the Government of India Act, 1935, as originally enacted and continued in force by virtue of the provisions of the India and Burma (Emergency Provisions) Act, 1940 (3 and 4 Geo. 6, Ch. 33) regul ates the sale and discharge of National Savings Certificates issued through the post office. Suggestions have been made from time to time that as the production of legal proof of succession involves considerable delay and expense, the holde rs of savings certificates may be allowed the right to nominate one or more pers ons to receive the amounts due in respect of such certificates in the event of t heir death without the production of succession certificate or other proof of ti tle. In seeking to amend that Ordinance for the above purpose, opportunity is ta ken to replace it by an Act of Parliament. (cid:29) 13. In the light of what has been noticed hereinabove, it is apparent that thoug h the language and phraseology of Section 6 of the Act is different from the one used in Section 39 of the Insurance Act, yet, the effect of both the provisions is the same. The Act only makes the provisions regarding avoiding delay and exp ense in making the payment of the amount of the National Savings Certificates, t o the nominee of the holder, which has been considered to be beneficial both for the holder as also for the post office. Any amount paid to the nominee after va lid deductions becomes the estate of the deceased. Such an estate devolves upon all persons who are entitled to succession under law, custom or testament of the deceased holder. In other words, the law laid down by this Court in Sarbati Dev i -Vs.- Usha Devi (1984) 1 SCC 424 holds the field and is equally applicable to the nominee becoming entitled to the payment of the amount on account of Nationa l Savings Certificates received by him under Section 6 read with Section 7 of th e Act who in turn is liable to return the amount to those in whose favour the la w creates a beneficial interest, subject to the provisions of sub-section (2) of Section 8 of the Act. (cid:29) Again in Vidhyadhari vs. Sukhrana Bai, (2008) 2 SCC 238, it was observed : (cid:28) 13. This Court in Rameshwari Devi v. State of Bihar, (2000) 2 SCC 431 has held that even if a government servant had contracted second marriage during the sub sistence of his first marriage, children born out of such second marriage would still be legitimate though the second marriage itself would be void. The Court, therefore, went on to hold that such children would be entitled to the pension b ut not the second wife. It was, therefore, bound to be considered by the High Co urt as to whether Vidhyadhari being the nominee of Sheetaldeen could legitimatel y file an application for succession certificate and could be granted the same. The law is clear on this issue that a nominee like Vidhyadhari who was claiming the death benefits arising out of the employment can always file an application under Section 372 of the Succession Act as there is nothing in that section to p revent such a nominee from claiming the certificate on the basis of nomination. The High Court should have realised that Vidhyadhari was not only a nominee but also was the mother of four children of Sheetaldeen who were the legal heirs of Sheetaldeen and whose names were also found in Form A which was the declaration of Sheetaldeen during his lifetime. In her application Vidhyadhari candidly poin ted out the names of the four children as the legal heirs of Sheetaldeen. No dou bt that she herself has claimed to be a legal heir which status she could not cl aim but besides that she had the status of a nominee of Sheetaldeen. She continu ed to stay with Sheetaldeen as his wife for long time and was a person of confid ence for Sheetaldeen who had nominated her for his provident fund, Life Cover Sc heme, pension and amount of life insurance and amount of other dues. Under such circumstances she was always preferable even to the legally wedded wife like Suk hrana Bai who had never stayed with Sheetaldeen as his wife and who had gone to the extent of claiming the succession certificate to the exclusion of legal heir s of Sheetaldeen. In the grant of succession certificate the court has to use it s discretion where the rival claims, as in this case, are made for the successio n certificate for the properties of the deceased. The High Court should have tak en into consideration these crucial circumstances. Merely because Sukhrana Bai w as the legally wedded wife that by itself did not entitle her to a succession ce rtificate in comparison to Vidhyadhari who all through had stayed as the wife o f Sheetaldeen, had borne his four children and had claimed a succession certific ate on behalf of children also. In our opinion, the High Court was not justified in granting the claim of Sukhrana Bai to the exclusion not only of the nominee of Sheetaldeen but also to the exclusion of his legitimate legal heirs. 14. Therefore, though we agree with the High Court that Sukhrana Bai was the onl y legitimate wife yet, we would choose to grant the certificate in favour of Vid hyadhari who was his nominee and the mother of his four children. However, we mu st balance the equities as Sukhrana Bai is also one of the legal heirs and besid es the four children she would have the equal share in Sheetaldeen’s estate whic h would be 1/5th. To balance the equities we would, therefore, choose to grant s uccession certificate to Vidhyadhari but with a rider that she would protect the 1/5th share of Sukhrana Bai in Sheetaldeen’s properties and would hand over the same to her. As the nominee she would hold the 1/5th share of Sukhrana Bai in t rust and would be responsible to pay the same to Sukhrana Bai. We direct that fo r this purpose she would give a security in the trial court to the satisfaction of the trial court. (cid:29) We thus hold that payment of family pension will be valid discharge of l iability of the State under the pension rules but will not debar the second wife to make claim under inheritance law or equity. Such dispute, if not mutually se ttled, can be raised before Civil Court. Accordingly, we modify the impugned order passed by the learned Single J udge by holding that the second widow will not be debarred from making a claim a gainst the first widow who, under the rules has exclusive right to receive pensi on. The second wife can claim such right, de hors the pension rules as per law o f inheritance or otherwise. The appeal is disposed of.