Order on Board

02-09-2021

1. This civil revision has been brought being aggrieved by the order dated

29-07-2017, passed in Civil Appeal No.5/2016, by the learned Second Additional District Judge Raigarh, dismissing the appeal and upholding the order dated 17-12-2015, passed by the First Civil Judge Class-I, Raigarh, in Succession Case No.15/2011.

2. The facts of the case in brief are these, that deceased Suresh Kumar Upadhyay was a member of Indian Army who has expired. The amount of gratuity, general provident fund and others are pending to be disbursed by respondent No.3 and 4 to the successors of the deceased soldier. The applicants are parents of the deceased Suresh Kumar Upadhyay. An application under Section 372 of the Indian Succession Act, 1925 (In short “the Act, 1925”) was filed before the Court of Civil Judge Class-I Raigarh praying for issuance of succession certificate for disbursement of the amount of service benefits of the deceased to the applicants and respondents No.1 and 2 jointly.

3. The learned Court of Civil Judge, Class-I passed the order dated 17-12-

2015, in which, it was held that applicant No.1 has no entitlement to receive the amount as he is not the first class successor according to Section 10 of the Hindu Succession Act, 1956. The application was partly allowed by granting succession certificate in favour of applicant No.2 and respondents No. 1 and 2. The applicants preferred appeal which has been decided by the impugned order, in which, the order of the Court below has been upheld and the appeal has been dismissed.

4. It is submitted by the learned counsel for the petitioners that the impugned order and the order of the Civil Judge Class-I, Raigarh both are erroneous, illegal and arbitrary. It is submitted that the Army regulations provides that the dependents of the deceased soldier shall have entitlement to receive the gratuity and the amount in G.P.F. The claim of the applicants and respondent No.1 and 2 has been enquired by the District Sainik Welfare Officer Ambikapur, Surguja and it was recommended that respondent No.1 may be paid 75% of the Special Family Pension, 75% of AGI benefit, 100% of Death-cum-Retirement Gratuity and 100% of amount payable from AWWA, Regimental Association and Army Headquarters. Recommendation was made to make payment of only 25% of the Special Family Pension and 25% of AGI benefit to applicant No.1 (applicant No.2 before the Court below). It is submitted that the applicants have entitlement for equal share in the service benefits of their son, therefore, the order of the appellate Court and the Court below both are erroneous and unsustainable. Prayer has been made to allow the revision petition.

5. Learned counsel for respondents No. 1 and 2 has opposed the revision petition and the submission made in that respect. It is submitted that respondent No.1 being the wife of the deceased soldier has entitlement to receive all the benefits and it is also held in the appellate order that the applicants are required to prove that they were fully dependent on the deceased-son, whereas, there is finding otherwise in the report given by the District Sainik Welfare Officer, Ambikapur. Reliance has been placed on the judgment of Hon'ble the Supreme Court in the case of Nitu Vs. Sheela Rani and others, reported in (2016) 16 SCC 229, in which it is held that parents of deceased officer are not included in the definition of family, if the deceased soldier was married at the time of his death. It is also held in this judgment that the provisions of Hindu Succession Act, 1956 are not applicable in the case of family pension. It is also submitted that concurrent finding has been given by both the courts below. Therefore, the petition filed is unsustainable.

6. I have heard the learned counsel for both the parties and perused the documents placed on record.

7. The first question for consideration before this Court is whether the pension, gratuity and other deposits with respect to any service