IMPORTANT POINT
A conditional provision cannot be invoked unless the condition is fulfilled.

JUDGMENT

Navin Sinha, J.

The appellants are aggrieved by the denial of succession certificate under Section 372 of the Indian Succession Act, 1925 by the District Judge, East District, Gangtok, affirmed by the High Court in appeal. Consequentially appellant no. 1 stands denied the family pension which has been granted to respondent no. 1 alone.

2. The facts are undisputed. Appellant no. 1 is the first wife of the deceased Ram Chandra Nirola. The two children born from the wedlock, appellant nos.2 and 3 are adults today. The deceased, during the subsistence of his first marriage, solemnized a second marriage with respondent no. 1 on 09.05.1987. Three children were born from this second marriage. The deceased during his life time, on 30.06.2008 executed a Banda Patra (settlement deed), christened as a partition deed, by which he divided his movable and immovable properties between the two wives before his retirement on 30.06.2009. He expired subsequently on 13.04.2015. The appellants applied for a succession certificate, which was denied in view of the settlement deed dated 30.06.2008. The appeal also having been dismissed, the appellants are before this Court staking their claim for family pension under the Sikkim Services (Pension) Rules, 1990 (hereinafter called "the Pension Rules").

3. Mr. Manish Goswami, learned counsel for the appellants, submits that equitable distribution of the family pension between the two wives was a statutory right of appellant no. 1 under Rule 40(6) of the Pension Rules. Relying on Smt. Violet Issaac and ors. v.Union of India & ors., (1991) 1 SCC 725, it is submitted that family pension was not a part of the estate of the deceased to justify debarring the appellant no.1 by reference to the settlement deed. Rule 38 provides for nomination with regard to the entitlement to receive death-cum-retirement gratuity only, and not the receipt of family pension. In any event, a nomination only identifies the recipient who then is required to share it with other legal heirs. The second marriage with respondent no. 1 during the subsistence of the first marriage with appellant no. 1 was void in view of Rule 1 of the Rules to provide for registration and solemnization of a form of marriage in Sikkim vide Notification No.1520/H dated Gangtok, 03.01.1963 promulgated by His Highness the Maharaja of Sikkim (hereinafter called "the Sikkim Rules"). These rules held the field in Sikkim before the Hindu Marriage Act was extended to the State of Sikkim vide SO No.950(E) dated 12.10.1988 and the Act was enforced on 01.05.1989 vide SO No.311(E) dated 28.04.1989. Therefore, the second marriage itself being void, respondent no. 1 is not entitled to family pension. Alternatively, the appellant in any event cannot be denied an equal share in the family pension.

4. Mr. Manish Pratap Singh, learned counsel for the respondents, submits that in absence of any assertion that the marriage with respondent no. 1 was solemnised under the Sikkim Rules, the said rules have no application in facts of the case in view of Rule 27. The second marriage of respondent no. 1 with the deceased, during the subsistence of the first therefore does not stand invalidated. The deceased had nominated the respondent alone under Rule 38 of the Pension Rules for receipt of the family pension. The deceased consciously did not nominate appellant no.1 for receipt of family pension or for equal share in the same in view of the partition deed where he equitably balanced the interest of both his wives. The column for family pension contained provision for more than one name, but the deceased consciously did not nominate appellant no.1. Rule 40(6) does not vest a statutory right in appellant no.1 to demand equal share in the family pension. It is conditional in nature, only if the employee nominates more than one wife for purposes of family pension. The deceased did not nominate the appellant, therefore she has no claim for family pension. The other appellants having