IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.447/2002
Hoorbanoo wd/o Sk. Sardar,
Shabnoorbee w/o Sk. Rashid,
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.
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.
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
(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.
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.
(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.