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2016 Supreme(Bom) 1059
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.B. Chaudhari, J.
HOORBANOO Wd/o SK. SARDAR – Petitioner
Vs.
SHABNOORBEE W/o SK. RASHID – Respondent
S.A. No. 447 of 2002
Decided On : 30-03-2016
For the Petitioner: V.K. Paliwal.
For the Respondents: Ms. Deepali Sapkal, A.S. Kilor.
The entitlement of pension after the death of an employee is governed by the statutory Pension Rules framed by the Government and not by the rules of succession under the personal law.
Headnote:
Pension Rules - Entitlement of Pension - Rule 116(16)(b) of the Maharashtra Civil Services (Pension) Rules, 1982 - The court held that the entitlement of pension after the death of an employee would be governed by the statutory Pension Rules framed by the Government and not by the rules of succession under the personal law. The property, namely the pension, is given by the Government and is not a matter of property coming into the hands of the legal heirs from their ancestors or the source contemplated by the personal law of parties. The court emphasized that the award of pension after the death of an employee would not be governed by personal laws such as Mohammedan Law or Hindu Law, but by the Pension Rules. The judgment also highlighted the definition of 'Family' under Rule 116(16)(b) and its relevance in determining the entitlement of the person after the death of the employee concerned.
Fact of the Case:
The respondent, claiming to be the married sister of a deceased employee, filed a suit seeking a declaration and relief for getting pension as a legal heir of the deceased. She challenged the status of the appellant as the wife of the deceased and sought entitlement to pension or terminal benefits due to the deceased employee.
Finding of the Court:
The court found that the respondent-sister was not entitled to the pensionary benefits after the death of her brother, as the entitlement of pension after the death of an employee would be governed by the statutory Pension Rules framed by the Government and not by the rules of succession under the personal law.
Issues: The main issue was whether the respondent-sister, as the legal heir of the deceased employee, was entitled to claim a declaration and relief for getting pension, and whether the appellant was entitled to pension or terminal benefits due to the deceased employee.
Ratio Decidendi: The court held that the entitlement of pension after the death of an employee would be governed by the statutory Pension Rules framed by the Government and not by the rules of succession under the personal law. It emphasized that the property, namely the pension, is given by the Government and is not a matter of property coming into the hands of the legal heirs from their ancestors or the source contemplated by the personal law of parties.
Final Decision: The Second Appeal was allowed, and the judgments and orders passed by the lower courts were set aside.
A.B. CHAUDHARI, J.
1. Being aggrieved by judgment and order dated 19-8-2002 in Regular Civil Appeal No. 14/2000 passed by Additional District Judge, Buldana thereby confirming the judgment and decree dated 9-4-1996 in Regular Civil Suit No. 10/1995, the present second appeal has been filed by the unsuccessful defendant No. 1.
2. Heard Mr. Paliwal, learned counsel for the appellant and Ms. Deepali Sapkal, holding for Mr. A.S. Kilor, counsel for the respondent No.1. None appeared for respondent No.2.
3. This Court, at the time of admission of the appeal on 4-7-2003 framed the following questions of law.
1. Is the Talak in the manner given – is legal?
2. What is the impact of the judgment reported in 2002 (3) Mh.L.J. (F.B.) 602 on the present case?
4. Upon hearing learned counsel for the rival parties, I find that both these questions do not arise in the present matter. As a matter of fact, looking the judgment and facts on record, the only question arises in this instant second appeal, is as under:
(i) Whether the respondent-Shabnoorbee, who was the sister of the deceased Shaikh Sardar working as Safai Kamgar with the Municipal Council, Buldana, was entitled to claim a declaration and relief for getting pension as legal heir of Sheikh Sardar when in view of the definition of “Family” as defined in Rule 116(16)(b) of the Maharashtra Civil Services (Pension) Rules, 1982 does not cover the plaintiff-sister as legal heir entitled to pension of the deceased employee? No, the respondent-Shahanoorbee is not entitled to pension?
5. Respondent-Shabnoorbee claiming to be the married sister of Sheikh Sardar, who was working as Safai Kamgar with Municipal Council, Buldana filed the suit in question for relief of declaration and permanent injunction. She sought the declaration that she is the legal heir of the deceased Sheik Sardar and in that capacity was entitled to pension or of terminal benefits due to him. She also challenged the status of the appellant-Hoorbanoo as wife of the deceased Sheikh Sardar on the ground that she was divorced by Talaq by Sheikh Sardar during his lifetime and, therefore, she was not a member of the family of Sheikh Sardar after his death in order to claim pension or terminal benefits due to Sheikh Sardar.
6. Ms. Sapkal, learned counsel for the respondent-plaintiff, supported both the impugned judgments. She submitted that under section 137 of the Hanifi Law of Inheritance, the deceased was entitled to succeed to the pensionary benefits or pension as legal heirs of Sheikh Sardar since the sister would have right in the property namely; the pension, particularly because Hoorbanoo widow of Sheikh Sardar was already divorced by Talak.
7. Mr. Paliwal, learned counsel for the appellant-Hoorbanoo contended that Talak allegedly given to her was not legal and proper particularly in the light of Full Bench judgment in Dagdu Chotu Pathan vs. Rahimbi Dagdu Pathan, 2002 (3) Mh.L.J. (F.B.) 602. He, therefore, submitted that as a matter of fact, Hoorbanoo received some pensionary benefits but because of the litigation commenced by the sister of respondent-plaintiff, the Municipal Council, Buldana stopped her pension. According to him the respondent-sister was not entitled to the pensionary benefit and as a result, none could get the benefit of pension due to filing of litigation by the deceased.
8. In my opinion, since the respondent-sister had gone to the Court with a suit for claiming declaration and consequent pensionary benefits after the death of her brother Sheikh Sardar, it was wholly unnecessary to go into the question whether appellant Hoorbanoo was given Talak or was his wife, who was divorced or not. The reason is that under the Pension Rules, the respondent-plaintiff Shabnoorbee is not entitled to the pensionary benefits after the death of her brother, who was working as Safai Kamgar in Municipal Council, Buldana. It cannot be disputed that grant of benefits of pension to a Government servant or his family members
