Important Point – Court cannot take other view than permissible in law.

This Appeal is directed against the judgment and order dated 17th February, 2010 passed by the Joint Civil Judge, Senior Division, Sangli while disposing of Misc. Application Nos. 168 of 2003 and 131 of 2006 by a common judgment.

2. Draupada Jaydeo Pawar and Indubai Jaydeo Pawar both claimed to be wives of the deceased Jaydeo Pawar, have filed these Misc. applications separately for succession and heirship certificate in their favour. (In order to avoid confusion, both the parties are addressed by their names).

3. As per the case of the Draupada, her marriage was solemnized with Jaydeo Pawar in the year 1979 and five children were born out of the said wedlock. Jaydeo died on 10th July, 2003 at village Ainwadi, Tal. Khanapur, Sangli. Before death Jaydeo had executed a Will dated 17th May, 2002 and he bequeathed the entire property in favour of his wife Draupada. After death of Jaydeo, Draupada applied for the Letters of Administration and on that basis she claimed that Jaydeo had married to her in the year 1979 and the second marriage with Indubai allegedly performed was solemnized in the year 1981 and therefore Indubai has no claim in the pension or other pensionary benefits of Jaydeo.

4. Per contra, Indubai claims that her marriage with Jaydeo was solemnized as per Hindu rites & ritual on 22nd June, 1981 & out of their wedlock she gave birth to one Shubhangi who is one of the applicant in these applications for succession certificate. It is the case of Indubai that after few years of marriage, Jaydeo neglected her and her daughter Shubhangi. Therefore she had filed an application for maintenance under Section 125 of Code of Criminal Procedure before the J.M.F.C., Sangli vide Misc. Application No. 225 of 1989. The said application was decided in favour of Indubai and the Court ordered Jaydeo to pay maintenance to her.

5. Miscellaneous Application No. 131 of 2006 for heirship was filed by Draupada and Miscellaneous Application No. 168 of 2003 for heirship was filed by Indubai. Both the parties adduced oral as well as documentary evidence to prove their respective claims as legally wedded wife of Jaydeo. The learned Judge of the trial Court appreciated the evidence and held that Draupada failed to prove her valid marriage with Jaydeo in the year 1979 however, the fact of marriage of Jaydeo with Indubai is believed by the trial Court and partly allowed the application filed by Draupada. During the pendency of the applications, Draupada died. In Miscellaneous Application No. 168 of 2003, the learned Judge directed to issue succession certificate in the name of the applicant Indubai to enable her to receive arrears of family pension and future family pension subject to payment of share of family pension amount if applicant Nos. 2 to 6 i.e. children of Draupada in Misc. Application No. 131 of 2006 are found entitled to those amounts. This order is challenged by applicant Nos. 2 to 6 in Misc. Application No. 131 of 2006 i.e. children of Draupada.

6. At the time of hearing the Appeal, the points of determination are formulated as under:

1) Whether Draupada was legally wedded wife of Jaydeo ?

2) Whether family pension is an Estate of the employer which can be bequeathed by Will ?

3) Under Rule 116(6)(a)(i) of Maharashtra Civil Services Rules, 1982 whether the family pension is payable equally to the second widow, when first widow is alive of Government servant ?

7. The learned counsel for the Appellants has submitted that Draupada got married with Jaydeo in the year 1979. In support of her case, many documents were filed by the Appellants. He submitted that Jaydeo before his death had executed a Will on 17th May, 2002 at Ainwadi, Tal. Khanapur. Therefore Draupada has filed Application No. 143 of 2004 for Letters of Administration and the learned Civil Judge, Senior Division, Sangli by its order dated 22nd August, 2005 issued the Letters of Administration in favour of Draupada about movable and immovable properties. He relied on the Wi