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 respondentplaintiff
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 would be clearly governed by the Pension Rules. It is
true that the pension may be a property as contended by
Ms Sapkal but then the entitlement thereof due to the death of
deceased 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 reason is that the property
namely; the pension is given by the Government and is not a
matter of property coming in the hands of the legal heirs from
their ancesters or the source contemplated by the personal law of
parties. It is clearly the prerogative and the right of the
Government to define and regulate as to whom and to what extent
the property namely; the pension should be given after death of its
employee. Therefore, in my opinion, award of pension after death
of an employee would not be governed by the personal laws
namely; Mohammedan Law or Hindu Law or as the case may be.
It is a different matter that as a beneficial legislation the
Government may extend the benefits to the persons like sister of
the deceased employee but then that is within the domain of the
Government and the Legislature and not within the scope of the
judicial review. It is, therefore, clear from the above discussion
that even if the respondentShabnoorbee is sister or assuming the
legal heir of deceased Sheikh Sardar, she would not be entitled to
pension after his death in the light of the Rule 116 (16) (b) of the
Pension Rules which reads thus:
“116. Family Pension 1964:
(1) to (15)…..
(16) For the purpose of this rule
(a) …..
(b) “Family”, in relation to a Government servant
means (i) wife in the case of a male Government servant, or
husband in the case of a female Government servant.
(ii) a judicially separated wife or husband, such
separation not being granted on the ground of adultery and
the person surviving was not held guilty of committing
adultery ;
(iii) son who has not attained the age of twenty one years
and unmarried daughter who has not attained the age of
twenty four years, including such son and daughter adopted
legally before retirement.”
9. The above rules are relevant and would determine the
entitlement of the person after death of the employee concerned.
In that view of the matter, I think the question framed by me is the
only relevant question which is required to be answered in the
negative.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.447/2002
Hoorbanoo wd/o Sk. Sardar,V Shabnoorbee w/o Sk. Rashid,
CORAM: A. B. CHAUDHARI, J.
DATED : 30.03.2016
Citation: 2017(2) ALLMR 204
1. Being aggrieved by judgment and order dated
19.08.2002 in Regular Civil Appeal No.14/2000 passed by
Additional District Judge, Buldana thereby confirming the
judgment and decree dated 09.04.1996 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
04.07.2003 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) Mah.L.J.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 as under:
(i) Whether the respondentShabnoorbee, 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 Rule 116 (16) (b) of the Maharashtra Civil Services
(Pension) Rules, 1982 does not cover the plaintiffsister as
legal heir entitled to pension of the deceased employee?
No, the respondentShahanoorbee
is not entitled to pension?
5. RespondentShabnoorbee 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 appellantHoorbano 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 respondentplaintiff,
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 appellantHoorbanoo
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. 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 respondentplaintiff, the
Municipal Council, Buldana stopped her pension. According to
him the respondentsister 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 respondentsister 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 respondentplaintiff
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 would be clearly governed by the Pension Rules. It is
true that the pension may be a property as contended by
Ms Sapkal but then the entitlement thereof due to the death of
deceased 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 reason is that the property
namely; the pension is given by the Government and is not a
matter of property coming in the hands of the legal heirs from
their ancesters or the source contemplated by the personal law of
parties. It is clearly the prerogative and the right of the
Government to define and regulate as to whom and to what extent
the property namely; the pension should be given after death of its
employee. Therefore, in my opinion, award of pension after death
of an employee would not be governed by the personal laws
namely; Mohammedan Law or Hindu Law or as the case may be.
It is a different matter that as a beneficial legislation the
Government may extend the benefits to the persons like sister of
the deceased employee but then that is within the domain of the
Government and the Legislature and not within the scope of the
judicial review. It is, therefore, clear from the above discussion
that even if the respondentShabnoorbee is sister or assuming the
legal heir of deceased Sheikh Sardar, she would not be entitled to
pension after his death in the light of the Rule 116 (16) (b) of the
Pension Rules which reads thus:
“116. Family Pension 1964:
(1) to (15)…..
(16) For the purpose of this rule
(a) …..
(b) “Family”, in relation to a Government servant
means (i) wife in the case of a male Government servant, or
husband in the case of a female Government servant.
(ii) a judicially separated wife or husband, such
separation not being granted on the ground of adultery and
the person surviving was not held guilty of committing
adultery ;
(iii) son who has not attained the age of twenty one years
and unmarried daughter who has not attained the age of
twenty four years, including such son and daughter adopted
legally before retirement.”
9. The above rules are relevant and would determine the
entitlement of the person after death of the employee concerned.
In that view of the matter, I think the question framed by me is the
only relevant question which is required to be answered in the
negative.
10. In the above background, it was not necessary to have
an issue framed as to whether Hoorbanoo was given Talak
according to the law or not and, therefore, I think that point was
wholly unnecessary. The appeal, therefore, must succeed. Since
the appellantHoorbanoo was getting the pension for some time
and because of the pendency of this litigation her pension was
stopped, I think, the Municipal Council, Buldana ought to
reconsider the issue regarding payment of arrests of pension and
pension to the appellantHoorbano.
11. In view of above, following order is passed.
ORDER
(i) Second Appeal No. 447/2002 is allowed.
(ii) Judgment and order dated 19.08.2002 in
Regular Civil Appeal No.14/2000 passed by Additional
District Judge, Buldana and judgment and decree
dated 09.04.1996 in Regular Civil Suit No.10/1995
passed by Civil Judge Junior Division, Buldana are set
aside.
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