SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Smt. Kamal Mahaling Patil vs Kum. Arati Vijay Patil on 28 February, 2019

Rane * 1/32 * SA-463-2014
28.2.2019

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 463 OF 2014
ALONGWITH
CIVIL APPLICATION NO. 1067 OF 2014
(FOR STAY)

Smt. Kamal Mahaling Patil,
Age : 55 years, Occ. Household
R/o. Jirgyal, Tq. Jat,
Dist. Sangli ….Appellant
(Original Applicant)

VERSUS

1. Smt. Indubai Mahaling Patil
Age: 60 yrs, Occ. Household
R/o. Ambyal, Tq.Athani
Dist. Belgaum.
2. Shri. Vijay Mahaling Patil
(Deceased) through legal heirs-
2.1 Smt. Savitri Vijay Patil
Age : 40 yrs, Occ-Household

2.2 Kum. Arati Vijay Patil
Age : 15, Occ : Education
Both R/o. Mole, Tq. Athani
Dist. Belgaum.

3. Sou. Shevanta Ramchandra Sagar
Age : 44 yrs, Occ-Household
R/o. Ambyal, Tq. Athani
Dist. Belgaum.

4. Sou. Jyoti Bhimu Sejul
Age : 33 yrs, Occ-Household
R/o. Aymbal, Tq. Athani
Dist. Belgaum (Karnataka)

5. Shri. Sanjay Mahaling Patil
Age : 33 yrs, Occ- Service

::: Uploaded on – 04/03/2019 ::: Downloaded on – 22/03/2019 06:53:04 :::
Rane * 2/32 * SA-463-2014
28.2.2019

R/o. Jirgyal, Tq. Jat
Dist. Sangli.

6. Shri. Rajendra Mahaling Patil
Age : 31 yrs, Occ – Education
R/o. Jirgual, Tq. Jat
Dist. Sangli.

7. Sou. Suman Harischandra Narute
Age : 29 yrs, Occu- Household
R/o. Jaysingpur, Tq. Shirol,
Dist. Kolhapur
Railway Station Road,
B.H. Kulkarni Mala ….Respondents
(Orig. Opponents)

*****
Mr. Tejpal Ingale, Advocate for the appellants.

CORAM : SANDEEP K. SHINDE, J.

Judg. Reserved On : 1.2.2019.

Judg. Pronounced On : 28.2.2019.

JUDGMENT :

1. Heard learned Counsel for the parties.

1. Whether a Hindu woman who marries

a Hindu man during the subsistence of his first

marriage would be entitled to family pension

under the Maharashtra Civil Services

(Pension) Rules, 1982.

2. “Whether the family pension can be

::: Uploaded on – 04/03/2019 22/03/2019 06:53:04 :::
Rane * 3/32 * SA-463-2014
28.2.2019

bequeathed by a Will and does it form part of

the estate of the deceased ?

are the substantial questions of law, arising for determination

in this Second Appeal.

2. The facts giving rise to this appeal are as under :

. Mahaling Ramchandra Patil died on 5th May, 2001 at

Sangli and was a Primary Teacher in his lifetime. He opted

for voluntary retirement. On 12th March, 2001 he executed a

Will, registered it with the Sub-Registrar and bequeathed

family pension to his wife, Kamla Mahalinga Patil, who is the

appellant before this Court. The office of the Zilla Parishad,

Sangli called upon the appellant to produce a Succession

Certificate or a probate issued by the Court of competent

jurisdiction.

3. An application under Section 276 of the Indian

Succession Act was filed by the appellant being Probate

Application No. 104 of 2001. The Probate Court framed the

following five issues and answered it accordingly :

::: Uploaded on – 04/03/2019 22/03/2019 06:53:04 :::

Rane * 4/32 * SA-463-2014
28.2.2019

“1. Does applicant proved that the Will executed

by the testator is legal and valid ?

2. Does applicant proved that she is legally

wedded wife of deceased testator Mahaling

Ramchandra Patil ?

3. Is applicant entitled to grant of

probate/letters of administration ?

4. Whether the respondent proved that, being

the legally wedded wife, is she entitled to get

succession certifiate as prayed ?

5. What relief and order ?

4. The application was dismissed holding that the

appellant was not entitled to receive the family pension being

the second wife of the deceased, Mahalinga Ramchandra

Patil. The appellant carried the order passed in the Probate

Application in Regular Civil Appeal No. 76 of 2009, however,

it met with the same fate. The learned Appellate Court

dismissed the Appeal and confirmed the order passed by the

Probate Court in the Probate Application on 16th April, 2014.

::: Uploaded on – 04/03/2019 22/03/2019 06:53:04 :::

Rane * 5/32 * SA-463-2014
28.2.2019

5. It is against the order passed in Regular Civil

Appeal No. 76 of 2009, this Second Appeal is preferred.

6. Question no.1 fell for the consideration before the

Division Bench of this Court in the case of Smt. Chanda

Hinglas Bharati V/s. The State of Maharashtra reported

in (2016) 2 B.C.R. page 623. The Division Bench, upon

appreciating the provisions of Sections 5, 11 and 17 of the

Hindu Marriage Act has held that, marriage by a party with a

spouse living at the time of marriage is void.

7. The Division Bench has considered the provisions

of the Maharashtra Civil Services Rules and definition of

“Family” defined under Rule 9(16) of the Maharashtra Civil

Services (General Conditions of Services) Rules 1981, which

reads as under :

“9(16) “Family” means a Government
Servant’s wife or husband, as the case may be,
residing with the Government servant and
legitimate children and step-children residing
with and wholly dependent upon the Government
servant. It includes, in addition, parents, sisters

::: Uploaded on – 04/03/2019 22/03/2019 06:53:04 :::
Rane * 6/32 * SA-463-2014
28.2.2019

and minor brothers if residing with and wholly
dependent upon the Government servant.

Note 1.- Not more than one wife is included in the
term “family” for the purpose of these rules.”

8. The Division Bench, has also considered the

provisions of Rule 26(1) and (2) of the Maharashtra Civil

Services (Conduct) Rules, 1979 and held that Rule 26

prohibits the Government Servant from contracting the

marriage with a person having spouse living unless such

marriage is permissible under personal law applicable to such

Government Servant and other party to a marriage. That

contracting second marriage during the lifetime of the spouse

is a misconduct and subject to disciplinary action under the

provisions of the Maharashtra Civil Services (Discipline and

Appeal) Rules, 1979.

9. Rule 116(6) of the Maharashtra Civil Services

(Pension) Rules, 1982 frames and regulates the Family

Pension Scheme. The relevant Rule on which the appellant

has relied on for seeking the family pension, reads as under :

::: Uploaded on – 04/03/2019 ::: Downloaded on – 22/03/2019 06:53:04 :::

Rane * 7/32 * SA-463-2014
28.2.2019

“116. Family pension, 1964

(6) (a)(i) Where the Family Pension is payable to
more widows than one, the Family Pension shall
be paid to the widows in equal shares;

(ii) On the death of a widow, her share of the
Family Pension shall become payable to her
eligible child :

[Provided that if the widow is not survived by
any child, her share of the family pension shall
not lapse but shall be payable to the other widows
in equal shares, or if there is only one such other
widow, in full to her.]

(b) Where the deceased Government servant or
pensioner is survived by a widow but has left
behind eligible child or children from another wife
who is not alive, the eligible child or children shall
be entitled to the share of Family Pension, which
the mother would have received if she had been
alive at the time of the death of the Government
servant or pensioner.

[Provided that on the share or shares or of
family pension payable to such a child or children
or to a widow or widows ceasing to be payable,

::: Uploaded on – 04/03/2019 22/03/2019 06:53:04 :::
Rane * 8/32 * SA-463-2014
28.2.2019

such share or shares shall not lapse but shall be
payable to the other widow or widows and/or to
other child or children, otherwise eligible, in equal
shares, or if there is only one widow or child, in
full, to such widow or child.]

(c) Where the deceased Government servant or
pension is survived by a widow but has left behind
eligible child or children from a divorced wife or
wives, the eligible child or children shall be
entitled to the share of Family Pension which the
mother would have received at the time of the
death of the Government servant or pensioner
had she not been so divorced.]

[Provided that on the share or shares of
family pension payable to such a child or children
or to a widow or widows ceasing to be payable,
such share or shares shall not lapse but shall be
payable to the other widow or widows and or/to
other child or children otherwise eligible, in equal
shares, or if there is only one widow or child, in
full, to such widow or child.]

[(d) Where the family pension is payable to
twin children it shall be paid to such children in
equal shares ”

::: Uploaded on – 04/03/201922/03/2019 06:53:04 :::

 Rane                   * 9/32 *          SA-463-2014
28.2.2019

Provided that, when one such child ceases to
be eligible his/her share shall revert to the other
child and when both of them cease to be eligible,
the family pension shall be payable to the next
eligible single child or twin children, as the case
may be.]

10. The aforesaid Rule was considered by the Division

Bench and held that the Family pension cannot be made

payable to more than one Hindu widow in equal share if the

marriage between Male Hindu Government Servant and a

Woman (Widow) was performed after coming into force of the

Hindu Marriage Act, and thus held :

"12..................We find that the object of Sub
Rule 6 (a) (i) is to provide family pension to
more widows than one only in certain
contingencies and a woman contracting a
marriage with a man during the life time of
his wife would not be entitled to family
pension, unless such marriage is permissible
under the personal law applicable to such
person and also the other party to the
marriage. Admittedly, in the instant case,
petitioner Chanda and Hinglas Bharati are
Hindus and the marriage was solemnized

::: Uploaded on - 04/03/2019 22/03/2019 06:53:04 :::
Rane * 10/32 * SA-463-2014
28.2.2019

between Hinglas and petitioner Chanda in the
year 1993 during the subsistence of the
marriage of Hinglas Bharati with Smt.
Pushpa and during the life time of Pushpa. In
view of the provisions of various Laws,
pension is payable to the issues or children
born from the illegal or void marriages but
pension is not payable, at least under the
Maharashtra Civil Services (Pension) Rules
to a woman whose marriage with the
Government servant is void ab initio. Some
weightage would also be required to be given
to the word "widows" as expressed in Rule
116 (6) (a) (i) of the Maharashtra Civil
Services (Pension) Rules, 1982. Rule 116 (6)

(a) (i) of the Rules makes the pension
payable only to widows and a woman
claiming to have married a Hindu man
during the life time of his wife cannot be said
to be either his wife or his widow. On a
reading of the provisions of the Maharashtra
Civil Services (Pension) Rules, the
Maharashtra Civil Services (Conduct) Rules,
the Maharashtra Civil Services (General
Conditions of Services) Rules as also the
provisions of the
Hindu Marriage Act and
Hindu Succession Act, it appears that Rule
116 (6) (a) (i) of the Maharashtra Civil

::: Uploaded on - 04/03/2019 22/03/2019 06:53:04 :::
Rane * 11/32 * SA-463-2014
28.2.2019

Services (Pension) Rules, 1982 does not
provide pension to a woman who marries a
Hindu male Government servant during the
subsistence of his marriage with his wife and
during her life time. Even according to the
Hindu Succession Act, a woman like the
petitioner does not fall within the ambit of
the term 'heir' and is not entitled to inherit
the property of a Hindu male dying intestate,
though the issues born to the said woman
from a void wedlock would be entitled to
inherit the personal property of the Hindu
male dying intestate. We have already
mentioned herein above, few of the
circumstances in which the provisions of
Rule 116 (6) (a) (i) of the Rules could provide
pension to more widows than one. The
circumstances mentioned by us may not be
exhaustive and there may be other
circumstances under which more widows
than one could be entitled to family pension.
However, suffice it to state that family
pension would not be payable to a woman
who marries a Hindu Government servant
during the subsistence of his marriage and
during the life time of his wife, after
18.5.1955.

::: Uploaded on - 04/03/2019 22/03/2019 06:53:04 :::

 Rane                  * 12/32 *             SA-463-2014
28.2.2019

11. In the case of Rameshwari Devi v. State of Bihar

and Others, reported in AIR 2000 Supreme Court page

735 while dealing with the right of the second wife to claim

the pensionary benefit, Hon'ble Supreme Court has held :

"(i) that the marriage between Narain Lal
and Yogmaya Devi was in contravention of
clause (i) of
Section 5 of the Hindu Marriage
Act and was a void marriage.

(ii) Under Section 16 of this Act, children
of void marriage are legitimate.

(iii) Under the Hindu Succession Act, 1956,
property of a male Hindu dying intestate
devolve firstly on heirs in clause (1) which
include widow and son. Among the widow and
son, they all get shares (see
Sections 8, 10 and
the Schedule to the
Hindu Succession Act,
1956).

(iv) Yogmaya Devi (second wife) cannot be
described a widow of Narain Lal, her marriage
with Narain Lal being void.

(v) Sons of the marriage between Narain
Lal and Yogmaya Devi being the legitimate
sons of Narain Lal would be entitled to the
property of Narain Lal in equal shares along
with that of Rameshwari Devi and the son
born from the marriage of Rameshwari Devi

::: Uploaded on - 04/03/2019 22/03/2019 06:53:04 :::
Rane * 13/32 * SA-463-2014
28.2.2019

with Narain Lal."

12. The learned Counsel appearing for the appellant,

however, relied on the judgment of this Court in the case of

Kantabai, w/o. Dhulaji Sharma Ors. V/s. Hausabai

reported in 2015(3) Mh.L.J. 883, wherein the learned

Single Judge of this Court has held that, the ratio laid down

by the Supreme Court in the case of Rameshwari Devi (supra)

was in the context of the provisions of the Central Civil

Services (Conduct Rules), as well as, Bihar Government

Conduct Rules, 1976 which were not akin to Rule 116 of the

Maharashtra Civil Services (Pension). It is on this count,

learned Judge of this Court in Kantabai (supra), has held that

the ratio in the case of Rameshwari Devi (supra) cannot be

applied in view of the provisions of Rule 116 of the

Maharashtra Civil Services Rules. However, Rule 26 of the

Maharashtra Civil Services (Conduct) Rules, 1976 says, that

no Government servant shall enter into or contract a

marriage with a person having spouse living which is akin to

Rule 21 of the Central Civil Services (Conduct) Rules and

Rule 23 of the Bihar Government Servant's Conduct Rules,

1976. In fact, expression "Member of family" defined under

::: Uploaded on - 04/03/2019 ::: Downloaded on - 22/03/2019 06:53:04 :::
Rane * 14/32 * SA-463-2014
28.2.2019

Bihar Government Servant's Conduct Rules, 1976 reads :

"(c) "Member of family" in relation to
Government servant includes-

(1) The wife or husband as the case may be, of
the Government servant or not but does not
include a wife or husband, as the case may be,
separated from the Government servant by a
decree/order of a competent court.

(2) Son or daughter or step-son or step-daughter
of Government servant and wholly dependent on
him, but does not include a child or step child
who is no longer dependent on the Government
servant or of whose custody the Government
servant has been deprived by or under any law.

(3) Any other person related, whether by blood
or marriage, to the Government servant's wife or
husband and wholly dependent on the
Government servant."

Likewise, Rule 7 of the Bihar Family Pension Rules, 1950 are

analogues to Rule 116 of the Maharashtra Civil Services

(Pension) Rules, 1982. I reproduce Rules as it is :

::: Uploaded on - 04/03/2019 22/03/2019 06:53:04 :::

 Rane                  * 15/32 *           SA-463-2014
28.2.2019

Thus, provision of Bihar Pension Rules, are akin to

Maharashtra Rules.

13. Rule 116 of the Maharashtra Civil Services

(Pension) Rules, 1982 governs the family pension. Sub-Rule

::: Uploaded on - 04/03/2019 22/03/2019 06:53:04 :::
Rane * 16/32 * SA-463-2014
28.2.2019

(2) of Section 116 reads as under :-

"116(2). Without prejudice to the provisions
contained in sub-rule (4) where a Government
Servant dies-

(a) .....

(b) ....

(c) After retirement from service
and was, in receipt of pension on the
date of death.

The family of the deceased shall be entitled to
Family Pension." (emphasis supplied)

. The expression "Family" for the purposes of this Rule is

defined under Section 16(b) which reads as under :

16(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;

(emphasis supplied)

(iii) son who has not attained the age of
twenty-one years and unmarried
daughter who has not attained the

::: Uploaded on - 04/03/2019 22/03/2019 06:53:04 :::
Rane * 17/32 * SA-463-2014
28.2.2019

age of twenty-four years, including
such son and daughter adopted
legally before retirement.

Thus, the definition of "Family" includes wife (Clause (i)

hereinabove) and judicially separated wife (Clause (ii)) or

husband; such separation not being granted on the ground of

adultery and the person surviving was not held guilty of

committing adultery. Sub-Rule (6) provides that, where

family pension is payable to more widows than one (emphasis

supplied), the family pension shall be paid to the widows in

equal share. In my view, "being payable to more widows than

one" means payable to "a wife" and "a judicially separated

wife" and not a wife who performs second marriage with a

Government servant when his first marriage was subsisting.

Thus, the expression "payable to more widows" is to be

understood and interpreted in view of the term "family" as

defined under sub-rule (16) Clause (b) of Rule 116 of the

Maharashtra Civil Services (Pension) Rules, 1982. Even

otherwise, Rule 26 of the Maharashtra Civil Services

(Conduct) Rules, 1979 prohibits the Government servant

::: Uploaded on - 04/03/2019 22/03/2019 06:53:04 :::
Rane * 18/32 * SA-463-2014
28.2.2019

from contracting the second marriage having a spouse living

at the given point of time.

14. The close scrutiny of the Rule 116 reveals that,

under sub-rule 11, where a female Government servant or

male Government servant dies leaving behind a judicially

separated husband or wife and no child or children, the

Family Pension in respect of deceased shall be payable to the

person surviving, but shall not be paid to the persons

surviving, if such person was held guilty of committing

adultery. Therefore, the scheme under Rule 116

contemplates, when a judicially separated wife is not entitled

to claim family pension, if separation is granted on the

ground of adultery, then can it be argued that the second wife,

whose marriage is void, under the Hindu Marriage Act is

entitled to claim Family Pension ? The answer obviously is,

No.

15. Thus under, the scheme of family pension, under

Rule 116 of the Maharashtra Pension Rules, 1982, family

::: Uploaded on - 04/03/2019 22/03/2019 06:53:04 :::
Rane * 19/32 * SA-463-2014
28.2.2019

pension is payable to a wife and a judicially separated wife

and in this context the expression "Family pension is payable

to more widows than one" (emphasis supplied) is to be

understood. Thus, on the conjoint reading of provisions of

Rule 116 (2) read with 116(16)(h) read with 6(9)(i)of the

Maharashtra Civil Services (Pension) Rules with Section 26

of the Maharashtra Civil Services (Conduct) Rules, 1979, the

second wife with whom the marriage was performed by a

Hindu male Government servant during the subsistence of his

first marriage, is excluded from the definition of "Family"

under Rule 116 Sub-Rule (16)(b) of the Maharashtra Civil

Services (Pension) Rules, 1982 and as such not entitled to

claim the Family pension.

16. The Division Bench in the case of Chanda Hingas

(supra), has held thus;

"Some weightage would also be required to be
given to the word "widows" as expressed in Rule
116(6)(a)(i) of the Maharashtra Civil Services
(Pension) Rules, 1982. According to the Black
Law's Dictionary, "a widow would be a woman
whose husband has died and who has not

::: Uploaded on - 04/03/2019 ::: Downloaded on - 22/03/2019 06:53:04 :::
Rane * 20/32 * SA-463-2014
28.2.2019

remarried". As per the Oxford English Dictionary,
the widow would be a woman who has lost her
husband by death and who has not remarried
again". It appears from the dictionary meaning of
the word "widow" that a widow would be a woman
who is married and lost her husband. As the
marriage between a Hindu male Government
servant during the lifetime of his wife is void, the
marriage between the said Government servant
and the second wife would not be a marriage in
the eye of law. The woman performing the so
called 'marriage' with a Hindu Government
servant during the lifetime of his wife cannot be
said to be his widow".

17. Mr. Ingale, the learned Counsel appearing for the

petitioner has relied on the judgment of the Supreme Court in

the case of Vidhyadhari and Others vs. Sukhrana Bai and

Others, reported in 2008(3) Mh.L.J. 1. In the cited case,

an employee working with the Western Coalfields had died

while in service. Two applications were filed under Section

372 of the Indian Succession Act with respect to obtaining

movable properties of the deceased. One was filed by

Vidhyadhari (second wife) and another by Sukhrana Bai,

(first wife). The trial Court granted the application of the

::: Uploaded on - 04/03/2019 22/03/2019 06:53:04 :::
Rane * 21/32 * SA-463-2014
28.2.2019

second wife. However, the High Court granted the

application in favour of Sukhrana Bai, the first wife.

Vidhyadhari therefore filed an appeal before the Hon'ble

Supreme Court. It appears, the deceased had nominated his

second wife for receiving the amounts under the Provident

Fund Family Pension Scheme and therefore Vidhyadhari had

claimed the Succession Certificate on the basis of

nominations, besides her marriage with the deceased. The

trial Court, after appreciating the evidence held Vidhyadhari

to be the legal widow of the deceased employee, which finding

the High Court reversed and held that the first wife was

entitled to grant of Succession Certificate. In para-10 of the

said judgment, the Apex Court has observed thus :

"10. However, unfortunately, the High Court
stopped there only and did not consider the
question as to whether inspite of this factual
scenario Vidhyadhari could be rendered the
Succession Certificate. The High Court almost
presumed that Succession Certificate can be
applied for only by the legally wedded wife to the
exclusion of anybody else. The High Court
completely ignored the admitted situation that
this Succession Certificate was for the purposes of

::: Uploaded on - 04/03/2019 22/03/2019 06:53:04 :::
Rane * 22/32 * SA-463-2014
28.2.2019

collecting the Provident Fund, Life Cover Scheme,
Pension and amount of Life Insurance and amount
of other dues in the nature of death benefits of
Sheetaldeen. That Vidhyadhari was a nominee is
not disputed by anyone and is, therefore proved.
Vidhyadhari had claimed the Succession
Certificate mentioning therein the names of four
children whose status as legitimate children of
Sheetaldeen could not and cannot be disputed.

This Court in a reported decision in Rameshwari
Devis case (supra) has held that even if a
Government Servant had contracted second
marriage during the subsistence 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 but not the
second wife. It was, therefore, bound to be
considered by the High Court as to whether
Vidhyadhari being the nominee of Sheetaldeen
could legitimately 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 Indian
Succession Act as there is nothing in that Section

::: Uploaded on - 04/03/2019 22/03/2019 06:53:04 :::
Rane * 23/32 * SA-463-2014
28.2.2019

to prevent 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 life-time. In her
application Vidhyadhari candidly pointed out the
names of the four children as the legal heirs of
Sheetaldeen. No doubt that she herself has
claimed to be a legal heir which status she could
not claim but besides that she had the status of a
nominee of Sheetaldeen. She continued to stay
with Sheetaldeen as his wife for long time and was
a person of confidence for Sheetaldeen who had
nominated her for his Provident Fund, Life Cover
Scheme, 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 Sukhrana 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
heirs of Sheetaldeen. In the grant of Succession
Certificate the court has to use its discretion
where the rival claims, as in this case, are made
for the Succession Certificate for the properties of

::: Uploaded on - 04/03/2019 22/03/2019 06:53:04 :::
Rane * 24/32 * SA-463-2014
28.2.2019

the deceased. The High Court should have taken
into consideration these crucial circumstances.
Merely because Sukhrana Bai was the legally
wedded wife that by itself did not entitle her to a
Succession Certificate in comparison to
Vidhyadhari who all through had stayed as the
wife of Sheetaldeen, had born his four children
and had claimed a Succession Certificate on behalf
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."

18. In para-11 of its judgment, the Apex Court has

confirmed the finding of the High Court that Sukhrana Bai

(first wife) was the only legitimate wife. The Apex Court,

however, chose to grant Succession Certificate to

Vidhyadhari (second wife) who was the nominee of the

deceased and mother of his four children and therefore held

thus;

"However, we must balance the equities as
Sukhrana Bai is also one of the legal heirs and
besides the four children she would have the

::: Uploaded on - 04/03/2019 22/03/2019 06:53:04 :::
Rane * 25/32 * SA-463-2014
28.2.2019

equal share in Sheetaldeen's estate which would
be 1/5th. To balance the equities we would,
therefore, chose to grant Succession Certificate
to Vidhyadhari but with a rider that she would
protect the 1/5th share of Sukhrana Bai in
Sheetaldeen's properties and would handover
the same to her. As a nominee, she would hold
the 1/5th share of Sukhrana Bai in trust and
would be responsible to pay the same to
Sukhrana Bai".

. Thus, in the said cases, the deceased had died leaving

behind his first wife Sukhrana Bai and four children born

from the wedlock with the second wife. The Apex Court,

however, held that, Sukhrana Bai was the only legitimate wife

and no share in the property of the deceased was alloted to

the second wife, Vidhyadhari. Thus, in my view, the judgment

in the case of Vidhyadhari (supra) is of no assistance to the

appellant herein.

19. Mr. Ingale, the learned Counsel appearing for the

petitioner, has relied on the judgment of the Division Bench of

this Court in Writ Petition No. 11839 of 2015 (Smt.

::: Uploaded on - 04/03/2019 22/03/2019 06:53:04 :::

 Rane                  * 26/32 *             SA-463-2014
28.2.2019

Shakuntala w/o. Gulabrao Jagtap Versus. The State of

Maharashtra and Ors.) dated 12 th July, 2017. This

petition was preferred by the second wife of the deceased who

had worked as an Assistant Teacher (Music) and had retired

from the respondent School. Deceased husband had initially

got married with Chandrabhaga the first wife and from the

said wedlock, they had conceived a female child. Shakuntala-

the petitioner got married with Gulabrao on 16th June, 1974

with the consent of his first wife. The first wife died on 25th

November, 1992. Gulabrao died on 2nd June, 1996. The

Pension authority declined to grant pension to second wife on

the ground that second marriage had taken place when the

first wife was alive and as per the provisions of the Hindu

Marriage Act, 1955 her marriage was void and therefore

cannot claim the benefits of the family pension scheme. In

the said case, reliance was placed on the judgment of this

Court in the case of Kantabai (supra). However, in Kantabai

(supra), the law laid down by the Supreme Court in the case

of Rameshwari Devi v. State of Bihar and Others reported

in AIR 2000 Supreme Court 735 was not considered only

because provisions of Bihar Pension Rules, were not akin to

::: Uploaded on - 04/03/2019 22/03/2019 06:53:04 :::
Rane * 27/32 * SA-463-2014
28.2.2019

Maharashtra Civil Services (Pension) Rules, 1982. However,

Bihar Pension Rules are akin/analogues to Maharashtra

Rules, as could be seen, which are reproduced hereinabove.

Thus, in my view, the judgment in Writ Petition No. 11839 of

2015 is of no assistance to the petitioner. That from the

aforesaid discussion, I hold and conclude :

(i) marriages covered by Section 11 of the Hindu

Marriage Act are void i.e. void from inception and

have to be ignored as not existing in law at all when

such a question arises.

(ii)a woman performing the marriage with a Hindu

Government servant during the lifetime of his wife

cannot be said to be his "widow".

(iii)definition of "Family" under sub-rule 16 of Rule

116 of the Maharashtra Civil Services (Pension)

Rules, 1982 includes only wife and a judicially

separated wife with a rider that judicial separation

is not granted on the ground of adultery.

(iv)expression "Family pension is payable to more

widows than one" in terms of sub-rule (6) clause

::: Uploaded on - 04/03/2019 22/03/2019 06:53:04 :::
Rane * 28/32 * SA-463-2014
28.2.2019

(a) of Rule 116 of the Maharashtra Civil Services

(Pension) Rules, 1982 cannot be read in isolation

but has to be read and understood in context of

definition of "Family" defined under Rule 116(16)

(b) of the Maharashtra civil Services Pension

Rules, 1982, in as much as, pension is payable to

the "Family of deceased". (emphasis supplied).

Thus, taking into consideration the provisions of the scheme

of "Family pension" under Rule 116 and the definition of

"Family", I hold that a Hindu woman who marries a Hindu

man during the subsistence of his first marriage is excluded

from the scheme of Rule 116 of the Maharashtra Civil

Services Pension Rules and thus not entitled to the family

pension. I therefore answer Question no.1 in negative.

20. In the case in hand, deceased Mahaling had

executed a Will on 12 th March, 2001 and bequeathed his

movable and immovable properties to the petitioner. The

learned Counsel therefore submits that the disposition under

::: Uploaded on - 04/03/2019 ::: Downloaded on - 22/03/2019 06:53:04 :::
Rane * 29/32 * SA-463-2014
28.2.2019

the registered Will shall supersede, the provisions of the

Family pension scheme defined under Rule 116 of the said

Rules. This contention of the petitioner was rejected by the

learned trial Court on the ground that, right to pension is a

statutory right and not a property as defined under the

provisions of the Transfer of Property Act and therefore by

executing a Will deceased was not entitled to transfer the

right which was accrued to his legally wedded wife i.e. Indubai

Patil after his death.

21. Thus, the substantial question of law is;

"Whether the family pension can be

bequeathed by a Will and does it form part of the

estate of the deceased ?

22. In the case of Nitu Versus. Sheela Rani and

Others, reported in (2016) 16 Supreme Court Cases page

229, identical question fell for consideration before the

Hon'ble Supreme Court wherein the widow and mother of the

deceased claimed the family pension. While answering the

::: Uploaded on - 04/03/2019 22/03/2019 06:53:04 :::
Rane * 30/32 * SA-463-2014
28.2.2019

issue, the Hon'ble Supreme Court considered the definition of

"Family" for the purposes of the scheme and found that so far

as the mother is concerned, she has not been included in the

definition of the term "Family" and therefore held, mother

would not be entitled to be included in the family of late,

Yashpal as he was married. In para-16 the Apex Court has

held :

"16. So far as the provisions of the Hindu
Succession Act, 1956, are concerned, it is true
that the properties of a Hindu, who dies
intestate would first of all go to the persons
enumerated in class I of the schedule as per
the provisions of
Section 8 of the said Act and
therefore, so far as the properties of late Shri
Yash Pal are concerned, they would be divided
among the respondent mother and the
appellant wife, provided there is no other
family member of late Shri Yash Pal alive, who
would fall within class 1 heirs, but position in
this case, with regard to pension, is different."

23. Yet, in another judgment, the Hon'ble

Supreme Court in the case of Smt. Violet Issaac and Others

Versus. Union of India and Others, reported in (1991) 1

::: Uploaded on - 04/03/2019 22/03/2019 06:53:04 :::
Rane * 31/32 * SA-463-2014
28.2.2019

Supreme Court Cases page 725, has held that, Family

Pension Scheme under the Rule is designed to provide relief

to the widow and children by way of compensation for the

untimely death of the deceased employee. The Rules

designate the persons who are entitled to receive the family

pension. Thus, no other person except those designated

under the Rules are entitled to receive family pension. The

Family Pension scheme is in the nature of a welfare scheme

and therefore it does not (emphasis supplied) form part of his

estate enabling him to dispose of the same by testamentary

disposition.

24. In the case in hand, though a Will was

executed by the deceased, bequeathing his movable property

to the appellant but in view of the law laid down by the

Supreme Court in the aforesaid two cases, testamentary

disposition is of no consequence as the family pension does

not form part of the estate of the deceased. The question is

therefore answered accordingly.

::: Uploaded on - 04/03/2019 ::: Downloaded on - 22/03/2019 06:53:04 :::

 Rane                  * 32/32 *               SA-463-2014
28.2.2019

25. Thus, for the reasons stated hereinabove, the

Appeal fails and dismissed accordingly.

26. With the dismissal of the Appeal, the Civil

Application No. 1067 of 2014 taken out for stay does not

survive. The same is accordingly disposed of.

27. The learned Counsel for the appellant, at this stage,

seeks stay of the execution of the Succession Certificate

granted in favour of the respondent for a period of six weeks.

Accordingly, the execution of the Succession Certificate

issued by the Civil Judge Senior Division and confirmed in

Regular Civil Appeal no. 76 of 2009, is hereby stayed for a

period of six weeks.

(SANDEEP K. SHINDE, J)

::: Uploaded on - 04/03/2019 22/03/2019 06:53:04 :::

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2019 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

Web Design BangladeshWeb Design BangladeshMymensingh