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
28.2.2019and 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
28.2.2019Provided 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
28.2.2019between 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
28.2.2019Services (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
28.2.201911. 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
28.2.2019with 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
28.2.2019Bihar 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
28.2.2019Thus, 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 orhusband, 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
28.2.2019age 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
28.2.2019from 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
28.2.2019pension 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
28.2.2019remarried". 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
28.2.2019second 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
28.2.2019collecting 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
28.2.2019to 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
28.2.2019the 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
28.2.2019equal 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
28.2.2019Shakuntala 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
28.2.2019Maharashtra 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
28.2.2019the 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
28.2.2019issue, 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
28.2.2019Supreme 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
28.2.201925. 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 :::