Madras High Court
I.Jayaraj vs G.Dhanaraj (Died) on 25 September, 2020
Author: T.Raja
Bench: T.Raja
C.M.A.No.3431 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.09.2020
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
C.M.A.No.3431 of 2019
I.Jayaraj
S/o D.Issac .. Appellant
-vs-
1. G.Dhanaraj (died)
2. Saradha, D/o G.Dhanaraj
3. Jayakumar, S/o G.Dhanaraj
(R2 & R3 brought on record as L.Rs
of the deceased sole respondent vide
order of Court dated 8.8.2016 in
CMP Nos.10799 to 10801 of 2016 in
CMA No.SR281 of 2015) .. Respondents
Memorandum of Grounds of Civil Miscellaneous Appeal filed under Section 299
of the Indian Succession Act, against the judgment and decree dated 18.6.2013 passed
in S.O.P.No.1 of 2008 on the file of the Subordinate Judge, Harur, Dharmapuri District.
For Appellant :: Mr.K.Premkumar for
Mr.R.Prem Narayan
For Respondents :: Mr.D.Rameshkumar for R2 & 3
JUDGMENT
Heard learned counsel for the parties through video conferencing due to the 1/15 http://www.judis.nic.in C.M.A.No.3431 of 2019 Covid-19 pandemic.
2. Mr.I.Jayaraj has filed this civil miscellaneous appeal against the judgment and decree dated 18.6.2013 passed in S.O.P.No.1 of 2008 by the learned Subordinate Judge, Harur, Dharmapuri District.
3. Mr.K.Premkumar, learned counsel appearing for the appellant argued that the appellant married Soundari on 18.5.89 at the C.S.I.Church, Samiyapuram. They were blessed with two daughters and one son out of the wedlock. She was also appointed as a Teacher in the Government Girls Higher Secondary School, Harur. After entering service, she has nominated the appellant/husband as the only sole nominee to receive the family and other benefits in the event of her death. The service register book of the deceased Soundari also stands testimony to the said fact. While so, the appellant along with his wife late Soundari, their two daughters, namely, Anitha, Kamali and their son Kishore accompanied with mother in law and sister in law went to Velankanni on 26.12.2004. Learned counsel appearing for the appellant further submitted that unfortunately, the appellant's wife, their three children, mother in law and sister in law were washed away by the tsunami waves. However, the appellant was rescued after one day. The appellant being the husband and also nominated by his wife Soundari in the 2/15 http://www.judis.nic.in C.M.A.No.3431 of 2019 service record as the sole legal heir, is entitled to receive the service and retiral benefits from the Department as he is the legal nominee. When the legal position stands as above, the appellant's father in law, who is the father of late Soundari, wife of the appellant, wrongly laid a claim by filing a petition in S.O.P.No.1 of 2008 on the file of the Sub Court, Harur, Dharmapuri District to grant a succession certificate empowering him to get one half of the amount (Rs.2,35,000/- only) set out in the schedule therein and to grant such other relief, on the ground that the deceased Soundari, at the time of marriage, converted to Christianity and she was professing Christianity and she also died as a Christian, as the parties are governed by the provisions of the Indian Succession Act, the appellant's father in law has to be construed as the legal heir of the deceased Soundari, accordingly, he is also entitled to succeed to the estate of the deceased Soundari.
4. Opposing the above prayer, the appellant filed a detailed counter affidavit stating that Soundari was not professing Christianity. On the other hand, the appellant was nominated to receive the family and other benefits in the event of her death and the service register book of the deceased Soundari will further prove that the statement of his father in law is false and it was also stated that so far as the service benefits are concerned, as per the settled legal position, the family pension does not form part of the 3/15 http://www.judis.nic.in C.M.A.No.3431 of 2019 estate of the deceased, therefore, even if a claim is made on the basis of a Will that someone other than the one who is entitled to it, should be given the same, as per the judgment of the Apex Court in Smt Violet Issaac and others v. Union of India and others, (1991) 1 SCC 725, it is not legally sustainable. Mr.K.Premkumar, learned counsel appearing for the appellant, referring to yet another judgment of the Apex Court in the case of State of Gujarat through Chief Secretary and others v. Savitri Devi, (1996) 1 SCC 558 pleaded that when the Apex Court was faced with the question whether mother is a dependent, the Apex Court, in the said judgment, has answered clearly that in view of the express definition of the 'family' given under Rule 3 of the Gujarat State Revised Pension Rules, 1950, mother has not been included as a member of the family to claim any family pension from the Government, much less after a maximum period of ten years. On this basis, the Apex Court has further held that only the family members, namely, wife in the case of a male government servant or husband in the case of a female government servant, minor sons of the deceased and unmarried or minor daughters alone, are entitled to enjoy the family pension. While so, no other person can claim as a right of inheritance the benefit of family pension at the risk of the members of the deceased family.
5. Referring to Rule 45(5) of the Tamil Nadu Pension Rules, 1978, learned 4/15 http://www.judis.nic.in C.M.A.No.3431 of 2019 counsel appearing for the appellant further pleaded that for the purpose of Rule 45 and also Rules 46, 47, 48, 'family' in relation to a Government servant means, (i) wife or wives including judicially separated wife or wives in the case of a male Government servant; (ii) husband including judicially separated husband in the case of a female Government servant etc. Again referring to Rule 48, it was argued that the Government servant may make a nomination in Form 1 or Form 2, as the case may be, and if any nomination is made, after the death of such Government servant, the Death cum Retirement Gratuity shall be given only to the nominee, but not to any other person, he pleaded. Again referring to Rule 49(8)(ii), he further argued that if a deceased Government servant or pensioner leaves behind a widow or widower, the family pension shall become payable to the widow or widower, failing which to the eligible child, but not to anyone outside the family.
6. Again coming back to the judgment of the Apex Court in the case of Nitu v. Sheela Rani and others, (2016) 16 SCC 229, he has pleaded that the family pension does not form part of the estate of the deceased, therefore, even an employee has no right to dispose of the same in his Will that someone other than the one who is entitled to it, should be given the same. In the instant case, as per the provisions of the scheme, the appellant widower is the only family member who is entitled to the pension and 5/15 http://www.judis.nic.in C.M.A.No.3431 of 2019 therefore, the respondent father in law, who is not even alive today, as he died on 31.12.2015, would not get any right to pension on the ground that the Indian Succession Act would give him the succession benefits. On this basis, he prayed for allowing the civil miscellaneous appeal by setting aside the impugned order.
7. Mr.D.Rameshkumar, learned counsel appearing for the respondents 2 & 3 submitted that although the appellant is the husband of the deceased Soundari, who is the daughter of the respondent G.Dhanaraj, she was professing only Christianity. Therefore, the marriage was also solemnized on 18.5.89 at the C.S.I. Church, Samiyapuram. In addition thereto, as Soundari passed away while serving as a teacher in the Government Girls Higher Secondary School, Harur, for the purpose of inheritance, as per the provisions of the Indian Succession Act, the father of the deceased daughter, while filing Succession Original Petition No.1 of 2008 before the Sub Court, Harur, Dharmapuri District under Section 372 Part X of the Indian Succession Act, 1925 for granting the succession certificate to him to collect one half of the amount set out in the schedule to the petition, made it clear that as per Section 35 read with Sections 33(b) and 42 of the Indian Succession Act, Mr.G.Dhanaraj, being the father, shall take half share in the estate of late Soundari, for the reason that on the date of death, she was professing Christianity. To fortify the said claim, he has also produced 6/15 http://www.judis.nic.in C.M.A.No.3431 of 2019 the evidence of P.W.2, Church Pastor along with the original Baptism register. The trial Court also, after examining P.W.2, Church Pastor and the original Baptism register, came to the conclusion that the father of the deceased Soundari has proved that his daughter converted to Christianity and was professing Christianity till her death and no contra evidence was produced in this regard. On this basis, the succession original petition was allowed to the extent of enjoying only half of the service benefits. Therefore, when the trial Court has rightly considered the relevant provisions of the Indian Succession Act and also granted only half of the service benefits to the poor father of the deceased Soundari, that cannot be allowed to be taken away. Concluding his arguments, learned counsel for the respondents 2 & 3 further submitted that although Mr.G.Dhanaraj died on 31.12.2015 leaving behind his legal heirs, as the pension is also part of the estate, as per the aforementioned provisions, the legal heirs are entitled to make a claim over it, as they have been impleaded as parties. Again he has further pleaded that so far as the tsunami amount of Rs.2 lakhs is concerned, this can never be considered as part of the pension benefits. Similarly, the General Provident Fund, Death cum Retirement Gratuity, Special Provident Fund, Family Benefit Fund, Recurring Deposit are not forming part of the pension, hence, no interference is called for with the impugned order.
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8. But this Court has to see whether the appellant's case comes within the definition of 'family', as per the Tamil Nadu Pension Rules, 1978. In this context, it is relevant to extract Rule 45(5), Rule 48(1), Rule 49(8)(ii) of the Tamil Nadu Pension Rules, which read thus:-
“R.45(5). For the purposes of this rule and rules 46, 47 and 48 'family' in relation to a Government servant means,
(i) Wife or wives, including judicially separated wife or wives in the case of a male Government servant.
(ii) husband, including judicially separated husband in the case of a female Government servant.
(iii) sons including step sons, adopted sons and sons born through illegitimate wife.
(iv) unmarried daughters including step daughter, adopted daughters and unmarried daughters born through illegitimate wife.
(v) widowed daughters including step daughters, adopted daughters and widowed daughter born through illegitimate wife.
(vi) father, including adoptive parents in the case of individuals whose personal law permits adoption.
(vii) mother and step mother, including adoptive parents in the case of individuals whose personal law permits adoption.
(viii) brothers below the age of eighteen years, including step brothers.
(ix) unmarried sisters and widowed sisters, including step sisters.
(x) married daughters, and
(xi) Children of pre-deceased son.8/15
http://www.judis.nic.in C.M.A.No.3431 of 2019 R.48.Nomination.- (1) A Government servant shall make a nomination in Form 1 or Form 2, as may be as appropriate in the circumstances of the case conferring on one or more persons the right to receive the Death-
cum-Retirement Gratuity payable under rule 45.
R.49(8)(ii). If a deceased Government servant or pensioner leaves behind a widow or widower, the family pension shall become payable to the widow or widower, failing which to the eligible child.”
9. A proper reading of Rule 45(5) shows that 'family' in relation to a Government servant means wife or husband, sons including step sons, unmarried daughters, widowed daughters, father including adoptive parents in the case of individuals whose personal law permits adoption, etc. If we read Rule 48, it clearly shows that a Government servant shall make a nomination in Form 1 or Form 2 conferring on one or more persons the right to receive the Death-cum-Retirement Gratuity payable under rule
45. In the present case, it is an undisputed fact that the deceased Soundari, wife of the appellant, has nominated the appellant as the sole nominee, that has not been disputed by anyone. Therefore, when the appellant being the husband of the deceased Soundari, by virtue of Rule 48 of the Tamil Nadu Pension Rules read with Rule 49(8)(ii), the 9/15 http://www.judis.nic.in C.M.A.No.3431 of 2019 family pension shall become payable to the widower. This rule position has been vividly explained by the Apex Court also in the judgment in Nitu v. Sheela Rani and others, (2016) 16 SCC 229, wherein, in paragraph-17, it has been observed as follows:-
“17. It is pertinent to note that in this case the pension is to be given under the provisions of the Scheme and therefore, only the person who is entitled to get the pension as per the Scheme would get it. Similar issue had arisen before this Court in Violet Issaac v. Union of India, (1991) 1 SCC 725 and after considering the relevant provisions, this Court came to the conclusion that family pension does not form part of the estate of the deceased and therefore, even an employee has no right to dispose of the same in his Will by giving a direction that someone other than the one who is entitled to it, should be given the same. In the instant case, as per the provisions of the Scheme, the appellant widow is the only family member who is entitled to the pension and therefore, the respondent mother would not get any right in the pension. Of course, it cannot be disputed that if there are other assets left by late Shri Yash Pal, the respondent mother would get 50% share, if late Shri Yash Pal had not prepared any Will and it appears that late Shri Yash Pal had died intestate and no Will had been executed by him.”
10. Since the Apex Court also made it clear that family pension does not form 10/15 http://www.judis.nic.in C.M.A.No.3431 of 2019 part of the estate of the deceased and therefore, even an employee has no right to dispose of the same in his Will by giving a direction that someone other than the one who is entitled to it, should be given the same, the claim made by Mr.G.Dhanaraj is wholly unsustainable in law. Yet another judgment of the Apex Court in State of Gujarat through Chief Secretary and others v. Savitri Devi, (1996) 1 SCC 558 makes the position still clear that even the mother of a Government servant cannot be included as a member of the family to claim any family pension. Paragraphs 4, 5 & 6 of the said judgment read as follows:-
“4. The next question is whether the respondent is entitled to the family pension. The State of Gujarat made family pension under revised family pension scheme in 1972 enabling the dependents to get pension for a maximum period of 10 years. As mentioned in the preamble of the order itself:
"Under the existing orders (The Revised Pension Rules 1950, as amended) a government servant has to complete service of not less than 10 years in order to become eligible for the benefit of family pension and also duration of the pension is limited to a maximum period of 10 years. The existing provisions were not found to be adequate and as such the position has been reviewed and a fresh scheme has been drawn up which provides at 11/15 http://www.judis.nic.in C.M.A.No.3431 of 2019 varying rates a pension for the life to the widow of the deceased government servants as detailed.” 'Family' has been defined in Rule 3 of the Rules:
"Family" for purposes of this scheme will include the following relatives of the government servant:-
(a) wife, in the case of a male government servant;
(b) husband, in the case of a female government servant;
(c) minor sons; and
(d) unmarried or minor daughters.
Note 1-(c) and (d) will include children adopted legally before retirement/death.
Note 2-Marriage after retirement will not be recognised for purposes of this scheme."
5. A reading thereof clearly indicates that the family consists of the relatives, namely, the widow (if he happens to be married) of the deceased in case of male government servant and husband in case of female government servant and minor sons and unmarried or minor daughter. In the case of the children, legally adopted children, before retirement/death also would become members of the family. If the widow remarries, she becomes disentitled to the pension as she ceases to be the member of the family. Obviously, for this reason, the widow Savitri Devi was not given pension after her remarriage in 1976. 12/15 http://www.judis.nic.in C.M.A.No.3431 of 2019
6. The question is whether mother is a dependent. In view of the express definition of the family, mother has not been included as a member of the family to claim any family pension from the Government, much less after the maximum period of ten years. Under these circumstances, in either event, the decree of trial court as affirmed by appellate court and second appeal, are clearly illegal.”
11. Since the issue has been well settled as per the aforesaid judgments, the findings and the conclusions reached by the trial Court being unsustainable in law, are liable to be set aside and accordingly, the impugned judgment and decree passed by the trial Court are set aside. Before parting with the case, it may be mentioned herein that the original petitioner, the father of late Soundari also died on 31.12.2015, therefore, obviously, his legal heirs are not entitled to get the benefit, because pension does not form part of the estate of the deceased. The civil miscellaneous appeal stands allowed. Consequently, C.M.P.No.20128 of 2019 is closed. No costs.
Speaking/Non speaking order 25.09.2020
Index : yes/no
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C.M.A.No.3431 of 2019
To
1. The Subordinate Judge
Harur
Dharmapuri District
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T.RAJA, J.
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