JUDGMENT

DESAI, J.:— Whether a special family pension awarded by the President to the widow of a deceased officer who belonged to Air Force could be the subject-matter of a testamentary disposition by the deceased in his lifetime, presents the core problem in this petition.

2. Flt. Lt. Panj Rattan Singh, 5081 GD (P) was serving in Indian Air Force. He died in an air-craft accident arising out of and in the course of his employment of June 17, 1966. His survivors are the widow, Hardev Kaur respondent 2, his parents, the petitioner in this petition being the father of the deceased, two brothers and two sisters. Prior to his death he had made his last will and testament dated May, 14, 1959, whereby he bequeathed absolutely and for ever all his property both moveable and immoveable to his father, petitioner herein, and also appointed his father as the executor under his will. Further, during his lifetime the deceased had appointed by letter dated March 5, 1960, petitioner and Gurcharan Kaur, his father and mother respectively, nomines in respect of his provident fund. He had also nominated his parents, brothers and sisters by letter dated Dec. 10, 1958, to claim pensionary benefit which may accrue in the event of his death. By a subsequent communication dated January 29, 1966, he had declared his parents, two brothers and one unmarried sister as his dependents. The deceased had never referred to his wife as either his dependent or entitled to any pensionary benefit. It appears that his relations with his wife were far from cordial and actually he had filed a petition for annulment of the marriage which he had subsequently withdrawn with the result that the marriage was subsisting till the date of his death. Respondent 2 Hardev Kaur is thus the widow of the deceased.

3. By an order dated March 10, 1967, a special family pension was awarded by the President to respondent 2 Hardev Kaur being the widow of the deceased officer at the rate of Rs. 160/- p. m. By the same order she was also awarded gratuity in the amount of Rs. 2670/-. The deceased was a member of a general provident fund to which he was making his subscriptions. On his death the amount standing to his credit in the provident fund account and certain other amounts were to be paid to whosoever was legally entitled to the same.

4. On a petition filed by the petitioner, the will of the deceased was admitted to probate. In the probate proceedings the petitioner, inter alia, contended that over and above all other sums payable to the heirs and/or nominees of the deceased, the special family pension at the rate of Rs. 160/- p. m. and the gratuity of Rs. 2670/- awarded to respondent 2 Hardev Kaur by the President formed part of the estate of the deceased and under the will as well as the nomination he was entitled to collect the same. Probate proceeding was contested by respondent 2, widow of the deceased. The learned single Judge while granting probate excluded the aforementioned two times from it. Both the parties preferred appeal under the Letters Patent of the High Court. While disposing of both the appeals by a common judgment a Division Bench of the Punjab and Haryana High Court modified the probate granted to the petitioner by including the gratuity amount of Rs. 2670/- in the probate as forming part of the estate of the deceased but confirmed the order of the probate Court in respect of special family pension awarded to respondent 2.

5. Petitioner then filed a suit against the Union of India and respondent 2 for a declaration that the order awarding special family pension to respondent 2 widow of the deceased was illegal, unjust and improper. The trial Court decreed the suit but on appeal by respondent 2 widow, the first appellate Court set aside the decree of the trial Court and the decision of the appellate Court was confirmed in second appeal by the High Court. Hence this petition.

6. The only question argued by Mr. Hardev Singh, learned counsel for the petitioner before u