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2003 Supreme(Mad) 109
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE E. PADMANABHAN
K.Saroja - Appellant
Versus
Secretary to Government & Another - Respondents
WRIT PETITION NO:13507 OF 1998
Decided On : 29 January 2003
The main legal point established in the judgment is the entitlement of the surviving widow to the entirety of the family pension, the absence of specific rules or regulations governing the succession of family pension among co-widows, and the constitutional promise of family pension.
Headnote:
Mandamus - Freedom Fighter's Pension - G.O.Ms.No.1243 Political Pension Department-II, dated 8.10.1997 - 3214/69, dated 1.2.1969 - G.O.Ms.No.2064, Public dated 28.3.1966 - G.O.No.699, dated 18.3.1980 - Pension Rules - Succession of Family Pension - Joint Tenancy of Co-widows - Constitutional Promise of Family Pension - Testamentary Disposition of Family Pension
Fact of the Case:
The petitioner, widow of late Krishnasamy Padayachi, sought full pension as the sole surviving widow of the deceased pensioner. The State Government had been paying half of the pension to each of the two widows after the death of the pensioner.
Finding of the Court:
The court held that the petitioner is entitled to the entirety of the family pension, which was being paid to both the widows in equal moieties, and directed the respondent to pay all the arrears since the death of the co-widow and continue to pay the full family pension to the petitioner directly during her lifetime.
Issues: (A) Whether the surviving widow is entitled to payment of full family pension after the death of one of the two widows. (B) Whether the petitioner is entitled to the relief of mandamus prayed for.
Ratio Decidendi: The court relied on the absence of specific rules or regulations governing the succession of family pension among co-widows and interpreted the Pension Rules to grant the entirety of the family pension to the surviving widow. The court also emphasized the constitutional promise of family pension and the nature of joint tenancy of co-widows in the context of succession of family pension.
Final Decision: The writ petition was allowed, and the respondent was directed to pay all the arrears of pension to the petitioner and continue to pay the full family pension to the petitioner directly during her lifetime.
The petitioner prays for the issue of a writ of mandamus directing the respondent to implement G.O.Ms.No.1243 Political Pension Department-II, dated 8.10.1997 and pay Rs.1500 per month as Freedom Fighter's Pension as dependent of Krishnasamy Padayachi, Ex-Indian Army person, who was granted pension.
2. Heard Mr.M.V.Krishnan, learned counsel appearing for the petitioner and Mr.D.Malarvizhi, learned Government Advocate appearing for the respondents.
3. The petitioner, widow of late Krishnasamy Padayachi has approched this court seeking for a direction that the entire pension of Rs.1500/= per month has to be paid to her as the dependant of deceased Indian National Army pensioner. The petitioner's husband late Krishnasamy Padayachi was a soldier in the Indian National Army. The said Krishnasamy Padayachi during his life time receiving Freedom Fighters Pension as per the orders of the State Government. The pension sanction proceedings provides that pension will be paid to the freedom fighter and after his life time to the widow till death or remarriage or till the petitioner's income exceeds a particular sum.
4. The petitioner asserts that she has not remarried and she is entitled to payment of pension. The pension has been revised from time to time and a monthly pension of Rs.1500/= was being paid. The pension has also been subsequently revised at the time of death of the said Krishnasamy Padayachi. He had left his two widows and therefore the respondent was paying them one one half each. The other widow passed away and therefore the petitioner represented that she should be paid the full pension of Rs.1500/= per month. Despite several representations the respondents have not chosen to take any action. Hence the present writ petition to direct the respondents to pay the full pension as the sole surviving widow of the deceased pensioner Krishnasamy Padayachi.
5. On behalf of the respondents, the first respondent filed a counter. According to the respondents, late Krishnasamy Padayachi of Andimadam Village by virtue of membership with Indian Army was granted State Freedom Fighters Pension with effect from 21.7.1967 as per Freedom Fighters Pension Order No.3214/69, dated 1.2.1969. The said Krishnasamy Padayachi passed away on 24.8.1973 leaving two wives at the time of his death. The writ petitioner is the second wife and she applied for family pension without disclosing the existence of the first wife Rajammal of the deceased pensioner. Based upon the said representation, after enquiry the Government sanctioned one half of payment of Freedom Fighters Pension to the writ petitioner and the other half of the pension to the said Rajammal. Such order was passed after thorough investigation as per the report of the District Collector.
6. The Family Pension has been fixed and the petitioner was paid 50% of the Family Pension, namely Rs.750/= and the other widow Rajammal was paid the other half The said Rajammal, the first wife of the deceased-freedom fighter -pensioner expired on 9.11.1992. The petitioner applied for full pension including the 50% share that was being paid to Rajammal. The State Government by letter dated 22.10.1996 turned down the request as there is no provision in the Tamil Nadu Freedom Fighters Pension Rules annexed to G.O.Ms.No.2064, Public dated 28.3.1966 as amended by subsequent G.O.No.699, dated 18.3.1980 for sanction of full pension to the surviving wife on the demise of the freedom fighter's first wife. As per rule 7 of the Rules a share of pension payable to the first wife is payable till her death or remarriage. The petitioner is entitled to only one half and she cannot claim the other half even after the death of Rajammal. The petitioner is not entitled to the relief of mandamus prayed for as she has no legal right and the respondents pray for the dismissal of the writ petition.
7. The points that arise for consideration are:
(A) Whether on the death of one of the two widows the surviving widow will be
