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IN THE HIGH COURT OF GAUHATI (AIZAWL BENCH)
Indira Shah, J.
N. Mari – Appellants
Vs.
Joseph – Respondent
RSA No. 2 of 2011
Decided On: 18.05.2012
WILL - Family Pension Dispute - Lakher Autonomous District (Inheritance of Property) Act, 1982, Section 6(2), Section 7, Section 9, Section 10; Mara Autonomous District Council (Salaries, Allowances and Pension of Members) Rules, 2003, Clause 14
Fact of the Case:
The appellant, wife of a deceased District Council member, was receiving family pension after her husband's death. The respondent, claiming to be entitled to the pension through a will, filed a suit. The lower court directed the appellant to pay pension retrospectively to the respondent. The appellate court upheld this decision.
Finding of the Court:
The appellate court held that the respondent is entitled to the pension benefit of the deceased based on a purported will and that the appellant cannot be fully entitled to the pension benefits of her late husband. The appellant was found to be enjoying Army pension benefits as well.
Issues: 1. Maintainability of the appeal. 2. Entitlement of the respondent to the pension benefit. 3. Alleged error of law or fact by the lower court. 4. Entitlement of the appellant to the pension benefit. 5. Enjoyment of other benefits by the appellant.
Ratio Decidendi: The court found that the respondent can be entitled to the pension benefit of the deceased based on the purported will and that the appellant cannot be fully entitled to the pension benefits of her late husband. The court also noted that the appellant was enjoying Army pension benefits as well.
Final Decision: The judgment and order passed by the courts below were set aside, and the appeal was allowed.
Indira Shah, J.
1. This appeal is directed against the judgment and order dated 20.5.2010 passed by District Council Court, Mara Autonomous District Council, Siaha in RFA No. 7 of 2010 upholding the judgment and order passed by Subordinate District Council Court, Mara Autonomous District Council, Siaha, in case No. M/S No. 27 of 2009. I have heard Mr. Robert L. Hnamte, learned counsel for the appellant. None appears on behalf of the respondent.
2. The appellant herein is the wife of Shri A. Timothy Lakher, who died on 19.7.2009. The deceased was a Member of District Council (MDC in short) for 2 (two) terms in Mara Autonomous District Council (MADC). He was receiving pension of Rs. 5,000/- with other allowances and after his death, the family pension was paid to his spouse as per Mara Autonomous District Council (Salaries, Allowances & Pensions of Members) Rules 2003. The deceased prior to his marriage with the appellant, was married to another lady and she had 5 (five) children out of the said wedlock. Two children predeceased their father. Out of three, two are daughters and one is the son. After the death of the deceased, the appellant was declared to be legal heir of her deceased husband in respect of family Pensions as per order of Magistrate, Subordinate District Council Court, Mara Autonomous District Council, MADC, Siaha.
3. The authorities of the Mara Autonomous District Council (MADC) allowed the appellant to receive family pensions in respect of the deceased. Thereafter, the respondent filed a suit/application before the S.D.C.C. claiming the family pension of the deceased grandfather. According to respondent, the deceased had left a will dated 27.02.2005, whereby the pension was bequeathed in his favour. Although the appellant raised her objection verbally, the learned Trial Court decided and directed the appellant to pay Rs. 1,500/- retrospectively to the respondent/plaintiff with effect from January, 2010 and that any D.A. arrear for the period 2008-2010 shall be equally shared.
4. Judgment and order of the Trial Court was challenged in RFA No. 7 of 2010, which was upheld by the Appellate Court.
The learned Appellate Court i.e. DCC framed the following issues:
(1) Whether the present appeal is maintainable or not?
(2) Whether the respondent can be made entitled to the pension benefit of the late husband of the present appellant? If so, to what extent and on what grounds?
(3) Whether the lower court commits any error of law or of fact as alleged by the appellant while deciding the case before it? Further, whether the note written by A. Timothy (L) referred as 'BIE TAINA' which may be considered as promissory note can be accepted as a valid WILL as per law ?
(4) Whether the appellant is fully entitled to the pension benefit of her late husband? If so, to what extent?
(5) Whether the appellant has presently been in enjoyment of any other benefit of her late husband and if so, to what extent?
5. The appellate court decided that the appeal is maintainable. While deciding the issue No. 2, it was held that the respondent can be made entitled to a pension benefit of the deceased on the ground that he would have continuously been getting the said benefit if the late A. Timothy was still alive as there never exited any objection to the provision of pension benefit to the respondent by the late A. Timothy as the said provision of pension benefit was made by the late A. Timothy to the respondent out of his natural love and affection. The appellate court also held that the purported 'will' was genuine as agreed by the parties. While deciding issue No. 4, the trial court as well as the appellate court held that the appellant cannot be made fully entitled to the pension benefits of her late husband. However, the appellant shall continue and enjoy the Army pension benefits fully and as to the family pension benefit from MADC, she shall be entitled to the extent, the lower court has granted to her. It was also held that the appellant
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