Deceased employee sister is entitled to get family pension

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR

SECOND APPEAL NO.447/2002

Hoorbanoo wd/o Sk. Sardar,
Vs
Shabnoorbee w/o Sk. Rashid,

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CORAM:­ A. B. CHAUDHARI, J.

DATED :­ 30.03.2016
Citation: 2017(2) ALLMR 204

1. Being   aggrieved   by   judgment   and   order   dated 19.08.2002   in   Regular   Civil   Appeal   No.14/2000   passed   by Additional   District   Judge,   Buldana   thereby   confirming   the judgment   and   decree   dated   09.04.1996   in   Regular   Civil   Suit No.10/1995,   the   present   second   appeal   has   been   filed   by   the unsuccessful defendant no.1.

2. Heard Mr. Paliwal, learned counsel for the appellant and Ms. Deepali Sapkal, holding for Mr. A. S. Kilor, counsel for the respondent no.1.  None appeared for respondent no.2.

3. This Court, at the time of admission of the appeal on 04.07.2003 framed the following questions of law.

1. Is the Talak in the manner given – is legal?

2. What is the impact of the judgment reported in 2002 (3) Mah.L.J.602 on the present case?

4. Upon hearing learned counsel for the rival parties, I find that both these questions do not arise in the present matter. As a matter of fact, looking the judgment and facts on record, the only question arises in this instant second appeal, is as as under: (i) Whether   the   respondent­Shabnoorbee,   who   was the sister of the deceased Shaikh Sardar working as Safai Kamgar with the Municipal Council, Buldana, was entitled to claim a declaration and relief for getting pension as legal heir of Sheikh Sardar when in view of the definition of “Family” as defined Rule 116 (16) (b) of the Maharashtra Civil Services (Pension) Rules, 1982 does not cover the plaintiff­sister as legal heir entitled to pension of the deceased employee?

No, the respondent­Shahanoorbee is not entitled to pension?

5. Respondent­Shabnoorbee   claiming  to be  the   married sister of Sheikh Sardar, who was working as Safai Kamgar with Municipal Council, Buldana filed the suit in question for relief of declaration and permanent injunction.  She sought the declaration that she is the legal heir of the deceased Sheik Sardar and in that capacity was entitled to pension or of terminal benefits due to him. She also challenged the status of the appellant­Hoorbano as wife of   the   deceased   Sheikh   Sardar   on   the   ground   that   she   was divorced   by   Talaq   by   Sheikh   Sardar   during   his   lifetime   and, therefore, she was not a member of the family of Sheikh Sardar after his death in order to claim pension or terminal benefits due to Sheikh Sardar.

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6. Ms Sapkal, learned counsel for the respondent­ plaintiff, supported   both   the   impugned   judgments.   She   submitted   that under Section 137 of the Hanifi Law of Inheritance,  the deceased was entitled to succeed to the pensionary benefits or pension as legal heirs of Sheikh Sardar since the sister would have right in the property   namely;   the   pension,   particularly   because   Hoorbanoo widow of Sheikh Sardar was already divorced by Talak.

7. Mr.   Paliwal,   learned   counsel   for   the   appellantHoorbanoo contended that Talak allegedly given to her was not legal and proper particularly in the light of Full Bench judgment in Dagdu   Chotu   Pathan..vs..Rahimbi   Dagdu   Pathan;   2002   (3) Mh.L.J. 602.   He, therefore, submitted that as a matter of fact, Hoorbanoo received some pensionary benefits but because of the litigation   commenced   by   the   sister   of   respondent­plaintiff,   the Municipal Council, Buldana stopped her pension.   According to him   the   respondent­sister   was   not   entitled   to   the   pensionary benefit and as a result, none could get the benefit of pension due to filing of litigation by the deceased.

8. In my opinion, since the respondent­sister had gone to the Court with a suit for  claiming declaration and consequent pensionary benefits after the death of her brother Sheikh Sardar, it was wholly unnecessary to go into the question whether appellant Hoorbanoo was given Talak or was his wife, who was divorced or not.  The reason is that under the Pension Rules, the respondentplaintiff Shabnoorbee is not entitled to the pensionary benefits after the death of her brother, who was working as Safai Kamgar in Municipal Council, Buldana.  It cannot be disputed that grant of benefits   of   pension   to   a   Government   servant   or   his   family members would be clearly governed by the Pension Rules.   It is true   that   the   pension   may   be   a   property   as   contended   by Ms Sapkal but then the entitlement thereof due to the death of deceased employee would be governed by the statutory Pension Rules   framed   by   the   Government   and   not   by   the   rules   of succession under the personal law.  The reason is that the property namely; the pension is given by the Government and is not a matter of property coming in the hands of the legal heirs from their ancesters or the source contemplated by the personal law of parties.     It   is   clearly   the   prerogative   and   the   right   of   the Government to define and regulate as to whom and to what extent the property namely; the pension should be given after death of its employee.  Therefore, in my opinion, award of pension after death of   an   employee   would   not   be   governed   by   the   personal   laws namely; Mohammedan Law or Hindu Law or as the case may be.

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It   is   a   different   matter   that   as   a   beneficial   legislation   the Government may extend the benefits to the persons like sister of the deceased employee but then that is within the domain of the Government and the Legislature and not within the scope of the judicial review.   It is, therefore, clear from the above discussion that even if the respondent­ Shabnoorbee is sister or assuming the legal heir of deceased Sheikh Sardar, she would not be entitled to pension after his death in the light of the Rule 116 (16) (b) of the Pension Rules which reads thus:

“116. Family Pension 1964:
(1) to (15)…..
(16) For the purpose of this rule­
(a) …..
(b) “Family”,   in   relation   to   a   Government   servant means­ (i) wife in the case of a male Government servant, or husband in the case of a female Government servant.
(ii) a   judicially   separated   wife   or   husband,   such separation not being granted on the ground of adultery and the   person   surviving   was   not   held   guilty   of   committing adultery ;
(iii) son who has not attained the age of twenty one years and unmarried daughter who has not attained the age of twenty four years, including such son and daughter adopted legally before retirement.”

9. The above rules are relevant and would determine the entitlement of the person after death of the employee concerned. In that view of the matter, I think the question framed by me is the only relevant question which is required to be answered in the negative.

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10. In the above background, it was not necessary  to have an   issue   framed   as   to   whether   Hoorbanoo   was   given   Talak according to the law or not and, therefore, I think that point was wholly unnecessary.  The appeal, therefore, must succeed.  Since the appellant­Hoorbanoo was getting the pension for some time and because of the pendency of this litigation her pension was stopped,   I   think,   the   Municipal   Council,   Buldana   ought   to reconsider the issue regarding payment of arrests of pension and pension to the appellant ­Hoorbano.

11. In view of above, following order is passed.

ORDER

(i) Second Appeal No. 447/2002 is allowed.

(ii) Judgment and order dated 19.08.2002 in Regular Civil Appeal No.14/2000 passed by Additional District   Judge,   Buldana   and   judgment   and   decree dated 09.04.1996 in Regular Civil Suit No.10/1995 passed by Civil Judge Junior Division, Buldana are set aside.

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