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Smt. Kamal Mahaling Patil vs Kum. Arati Vijay Patil on 8 March, 2019

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

SECOND APPEAL NO. 463 OF 2014
ALONGWITH

CIVIL APPLICATION NO. 1067 OF 2014

Smt. Kamal Mahaling Patil …..Appellant
(Original Applicant)
V/s.

1. Smt. Indubai Mahaling Patil
and Ors. ….Respondents
(Orig. Opponents)

****

Mr. Tejap S. Ingale, Advocate for the appellant.

Ms. Rati S. Sinhasane I/by. Mr. Umesh R. Mankapure,
Advocate for respondent no.1.

Mr. Nikhil Pawar, Advocate for respondent no.3.

CORAM : SANDEEP K. SHINDE, J.

Friday, 8 th March, 2019.

P.C. :

1. A praceipe has been moved for speaking to the

minutes of the judgment dated 28th February, 2019.

2. The learned Counsel for respondent no.1 and

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respondent no.3, submit that, their appearances have

inadvertently remained to be mentioned for the respective

respondents.

3. The correction in the appearances of the

respondent be carried out in the judgment dated 28th

February, 2019 and the judgment be corrected accordingly.

(SANDEEP K. SHINDE, J)

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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

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

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

Ms. Rati S. Sinhasane i/by. Mr. Umesh R. Mankapure,
Advocate for respondent no.1.

Mr. Nikhil Pawar, Advocate for respondent no.3.

CORAM : SANDEEP K. SHINDE, J.

Judg. Reserved On : 1.2.2019.

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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

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

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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 :

“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

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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.

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

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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 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.”

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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 :

“116. Family pension, 1964

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(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, such share or shares shall not lapse but

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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

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equal shares ”

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

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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 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)

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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 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

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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.

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,

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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
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

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(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 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

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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 :

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Thus, provision of Bihar Pension Rules, are akin to

Maharashtra Rules.

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13. Rule 116 of the Maharashtra Civil Services

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

Rule (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

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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
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

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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 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

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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

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.

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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
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".

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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

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,

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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 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

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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 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

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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 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

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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
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

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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.

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

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

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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

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8.3.2019

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

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8.3.2019

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

(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.

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20. In the case in hand, deceased Mahaling had

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

movable and immovable properties to the petitioner. The

learned Counsel therefore submits that the disposition

under 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 ?

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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 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

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8.3.2019

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 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.

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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.

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

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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)

Note : The judgment is corrected pursuant to speaking to
minutes order dated 8th March, 2019.

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