Supreme Court: In Agreement To Sell Property Under Joint Ownership, Onus Is On Plaintiff To Secure Consent Of All Co-Owners

 In view of the above, we hold that Defendant No. 1

lacked the authority to bind Defendant Nos. 6 to 8 in

the agreement to sell dated 06.06.1993. The General

Power of Attorney did not confer upon him the power

to sell the property on behalf of his sisters at the time

of the agreement, having been impliedly revoked by

the partition deed. The agreement was, therefore,

incomplete and unenforceable against Defendant

Nos. 6 to 8, who collectively held a majority share in

the property. The plaintiffs' knowledge of the

necessity of obtaining the sisters' consent, coupled

with their failure to secure such consent, renders the

agreement ineffective against Defendant Nos. 6 to 8.

Consequently, the agreement cannot be specifically

enforced against them, and the plaintiffs cannot

claim any right over their shares in the property

based on the said agreement.{Para 18}

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.613 OF 2017

JANARDAN DAS & ORS. Vs  DURGA PRASAD

AGARWALLA & ORS. 

Citation: 2024 INSC 778.

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Can brothers exclude their sisters from joint family property on the ground that dowry was paid at the time of their sisters' marriage?

The evidence on record shows that the joint family property was purported to be exclusively usurped by the brothers to exclude the sisters. Merely because one of the sisters deposed in favour of the brothers does not mean that the issue of family arrangement or oral partition was duly proved. There is no evidence about providing a sufficient dowry to the daughters of the house. However, even if it is assumed that some dowry was provided to the daughters, that does not mean that the daughters cease to have any right in the family property. The rights of the daughters could not have been extinguished in the manner in which they have been attempted to be extinguished by the brothers, post the father's demise. 

{Para 86}

IN THE HIGH COURT OF BOMBAY AT GOA

Second Appeal No. 89 of 2005

Decided On: 16.03.2023

Terezinha Martins David Vs. Miguel Guarda Rosario Martins and Ors.

Hon'ble Judges/Coram:

M.S. Sonak, J.

Citation: MANU/MH/1005/2023,2023 Lawweb (Bom HC ) 20.

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Whether court can infer existence of joint family property if two brothers are carrying on business jointly?

 The law is well settled that the burden is on the person who alleges that the property is a joint property of an HUF to prove the same. Reference in this behalf may be made to the judgments of this Court in Bhagwan Dayal v. Reoti Devi MANU/SC/0374/1961 : AIR 1962 SC 287. Both the parties have placed reliance on the this judgment. In this case this Court held that the general principle is that a Hindu family is presumed to be joint unless the contrary is proved. It was further held that where one of the coparceners separated himself from other members of the joint family there was no presumption that the rest of coparceners continued to constitute a joint family. However, it was also held that at the same time there is no presumption that because one member of the family has separated, the rest of the family is no longer a joint family. However, it is important to note that this Court in Bhagwati Prasad Sah and Ors. v. Dulhin Rameshwari Kuer and Ors. MANU/SC/0060/1951 : (1951) 2 SCR 603, it held as follows:

.... Except in the case of reunion, the mere fact that separated coparceners chose to live together or act jointly for purposes of business or trade or in their dealings with properties, would not give them the status of coparceners under the Mitakshara law.

The Privy Council in Appalaswami v. Suryanarayanamurti MANU/PR/0051/1947 : I.L.R. 1948 Mad. 440 held as follows:

The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property

The aforesaid view was accepted by this Court in Shrinivas Krishnarao Kango v. Narayan Devji Kango and Ors. MANU/SC/0126/1954 : (1955) 1 SCR 1. In D.S. Lakshmaiah and Ors. v. L. Balasubramanyam and Ors. MANU/SC/0639/2003 : (2003) 10 SCC 310 this Court held as follows:

The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available.

Similar view was taken in Mst Rukhmabai v. Lala Laxminarayan and Ors. MANU/SC/0186/1959 : (1960) 2 SCR 253 and Appasaheb Peerappa Chamdgade v. Devendra Peerappa Chamdgade MANU/SC/8597/2006 : (2007) 1 SCC 521. The law is thus well settled that the burden lies upon the person who alleges the existence of the Hindu Undivided Family to prove the same.

11. Normally, an HUF can only comprise of all the family members with the head of the family being karta. Some property has to be the nucleus for this joint family. There is cleavage of opinion as to whether two brothers of a larger group can form a joint family. But assuming that such a joint family could have been formed by Madhav Prashad and Umrao Lal the burden lies heavily on the Plaintiff to prove that the two of them joined together to form an HUF. To prove this, they will have to not only show jointness of the property but also jointness of family and jointness of living together.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 6875 and 6876-6877 of 2008

Decided On: 03.04.2020

Bhagwat Sharan (Dead) thr. L.Rs.  Vs. Purushottam and Ors.

Hon'ble Judges/Coram:

L. Nageswara Rao and Deepak Gupta, JJ.

Citation: MANU/SC/0354/2020, 2021(1) MHLJ 485

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Whether the widow of one brother can claim Benami joint ownership of the property if it is in the name of another brother?

Furthermore, it is essential to observe that the present appellant's claim also does not fall within the exception (iii) to Section 2(9)(A) of the Prohibition of Benami Property Transactions Act, 1988 which reads to the effect as under:-

"2. Definitions.-In this Act, unless the context otherwise requires,--

(8) "benami property" means any property which is the subject matter of a benami transaction and also includes the proceeds from such property;

(9) "benami transaction" means,--

(A) a transaction or an arrangement--

(a) where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; and

(b) the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration,

except when the property is held by--

(i) .

(ii) .

(iii) any person being an individual in the name of his spouse or in the name of any child of such individual and the consideration for such property has been provided or paid out of the known sources of the individual;

(iv) .",

as observed by this Court in Deepak Aggarwal & Anr. Vs. Shakuntala Devi (Supra), the benefit of the said provision also can only be considered to be in relation between the individual who has paid for the purchase of any property as consideration in the name of his spouse or in the name of the child of any such individual and can certainly not relate back to any other property or joint property or an HUF property or any trust property in relation to which there is only an averment made on behalf of the appellant in the written statement that the property in question was purchased with the funds of her deceased spouse or her father in law.

IN THE HIGH COURT OF DELHI

RSA No. 23/2019 and CM No. 4782/2019

Decided On: 21.07.2020

JAGRITI@GAYATRI Vs VIKAS SHARMA

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Whether daughters can claim right in property of their father as per his will if they have given no objection for mutation of property in the name of their brothers?

Merely because the daughters of the deceased had execute

d a no-objection certificate for mutation of the property in favour of their brothers would not defeat the right of the daughters to a share in the property when the will of the deceased categorically vested them with rights in the said property. The Court further observed that any averment in the no-objection certificate as regards the purport of the will, if found contrary to the contents of the will, could not be read against the daughters.

IN THE HIGH COURT OF DELHI

CS (OS) 263/2018 and IA No. 7445/2018 (u/O XXXIX R-1&2 CPC)

Decided On: 19.02.2020

 Chitta Ranjan Das Vs. Jyotsna Das

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

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Whether brother of deceased tenant is her family member entitled to get tenancy rights after her death?

 Section 3(g) defines 'family', in relation to landlord which includes the spouse that is husband or wife of a person, male lineal descendants which means his or her son, son's son, son's son's son and so on, parents, grandparents, unmarried, widowed, divorced daughter or granddaughter, etc. The definition given in the Clause is an inclusive one and is supposed to be construed in its technical meaning which implies what is not given has to be excluded as not forming part of the family of landlord or tenant. Therefore, sisters and brothers of landlord and tenant are excluded from his/her family. In the facts of present case, the Appellant being brother of deceased tenant cannot be held to be the 'family' as the inclusive list given under the Act clearly omits "brother and sister" and the same cannot be read therein as the list has to be read and interpreted strictly.

14. Assuming, for the sake of arguments that the Appellant is an heir of Lalita, for devolution of tenancy, on the death of Lalita, the Appellant has to be a 'tenant' within the meaning of Section 3(a) of the U.P. Act XIII of 1972. As per Section 3(a)(1), in the case of residential building, in the event of death of a tenant, for heirs to be treated as tenant, the statute requires them to prove that they have been normally residing with the deceased tenant at the time of his/her death. The term used in the Section is 'heir' which implies that not any of the family member residing with the tenant would succeed to the tenancy, but only the heirs of tenant normally residing with him/her. The words "normally residing with him" suggests that only those heirs would inherit the tenancy rights of deceased tenant who resided with him ordinarily in normal course and not temporarily. The legislative intent appears to be that only those heirs would inherit tenancy who normally resided with the tenant and not occasionally. In the present case, the Appellant claims that he has been carrying on business in the property along with his deceased sister Lalita and had been ordinarily living with her because of the medical business they were running. The Appellant being the brother of deceased-Lalita had no reason to normally reside with his married sister. Be it noted, in her written statement filed in the release application, Lalita has not averred that her brother-Appellant Durga Prasad was living with her and that he was taking care of her. As rightly held by the Courts below, Durga Prasad is neither a 'heir' within the meaning of Section 3(a) nor fall under the definition of 'family' as per Section 3(g) of the Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1305-06 of 2017

Decided On: 07.02.2017

 Durga Prasad  Vs. Narayan Ramchandaani (D) thr. L.Rs.

Hon'ble Judges/Coram:

Dipak Misra and R. Banumathi, JJ.

Citation: 2017(5) All MR 468(SC), AIR 2017 SC 915,(2017) 5 SCC69

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Whether brother of female hindu is entitled to inherit tenanted premises inherited by her from her husband?

 In the present case, the suit property was taken on rent by the
father-in-law of deceased tenant-Lalita that is Hem Ram Sharma and
after his death, his son Baldev (husband of Lalita) became tenant of the
suit property. Upon his death, Lalita became the tenant of the suit
property. Upon death of Lalita, in terms of Section 15(2)(b) of the Hindu
Succession Act, in the absence of any son or daughter of deceased
Lalita, the tenancy would devolve upon the heirs of her husband. Since

the appellant does not fall under the category of ‘heir’ of Lalita’s
husband, the tenancy of the suit property will not devolve on him nor
can he be called as an ‘heir’ under Section 3(a) of the U.P. Act XIII of
1972.
13. Section 3(g) defines ‘family’, in relation to landlord which includes
the spouse that is husband or wife of a person, male lineal descendants
which means his or her son, son’s son, son’s son’s son and so on,
parents, grandparents, unmarried, widowed, divorced daughter or
granddaughter, etc. The definition given in the clause is an inclusive
one and is supposed to be construed in its technical meaning which
implies what is not given has to be excluded as not forming part of the
family of landlord or tenant. Therefore, sisters and brothers of landlord
and tenant are excluded from his/her family. In the facts of present
case, the appellant being brother of deceased tenant cannot be held to
be the ‘family’ as the inclusive list given under the Act clearly omits
“brother and sister” and the same cannot be read therein as the list has
to be read and interpreted strictly.
14. Assuming, for the sake of arguments that the appellant is an heir
of Lalita, for devolution of tenancy, on the death of Lalita, the appellant
has to be a ‘tenant’ within the meaning of Section 3(a) of the U.P. Act

XIII of 1972. As per Section 3(a)(1), in the case of residential building,
in the event of death of a tenant, for heirs to be treated as tenant, the
statute requires them to prove that they have been normally residing
with the deceased tenant at the time of his/her death. The term used in
the section is ‘heir’ which implies that not any of the family member
residing with the tenant would succeed to the tenancy, but only the heirs
of tenant normally residing with him/her. The words “normally residing
with him” suggests that only those heirs would inherit the tenancy rights
of deceased tenant who resided with him ordinarily in normal course
and not temporarily. The legislative intent appears to be that only those
heirs would inherit tenancy who normally resided with the tenant and not
occasionally. In the present case, the appellant claims that he has been
carrying on business in the property along with his deceased sister
Lalita and had been ordinarily living with her because of the medical
business they were running. The appellant being the brother of
deceased-Lalita had no reason to normally reside with his married
sister. Be it noted, in her written statement filed in the release
application, Lalita has not averred that her brother-appellant Durga
Prasad was living with her and that he was taking care of her. 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.1305-06 OF 2017

DURGA PRASAD V  NARAYAN RAMCHANDAANI (D) THR. LRS. 
Citation: AIR 2017 SC 915,(2017) 5 SCC69,2017(5) All MR 468(SC)

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Whether offence can be registered against brothers if they get property mutated in their names excluding sisters?

 In the present case, it is admitted that six brothers excluded seven sisters and got the land mutated in their name. It is also admitted that the present petitioners sold 1/6th portion of the land by registered sale deed. The peculiar facts in the present case are that the brothers from the very beginning knew that there were seven sisters also. No consent was taken from the respondent No. 2. She was never informed and surreptitiously the land was mutated in the names of all the six brothers. The contention of the learned counsel for the petitioners that the land was sold by them, their names were recorded as owner of 1/6th share, however, the fact remains that revenue records are not records of title. When Anandibai died in the year 2000, 1/13th share devolved upon respondent No. 2. Mere entry in the revenue record do not extinguish the right already accrued to respondent No. 2, therefore, the argument raised by learned counsel for the petitioners that the land was sold by them and they were owner of 1/6th share is not acceptable. In the revenue proceedings, petitioner No. 2 was one of the party. She acted on behalf of the petitioner Nos. 1 and 3 before the Police Station, However, now the plea is taken independently by petitioner No. 1 that he was not party to the proceedings, and therefore, he had no knowledge about the revenue proceedings. In view of the aforesaid, the contents of the FIR shows that there was a dishonest intention on the part of all the six brothers. At this stage, no case is made out for quashment of the FIR and related proceedings using extra ordinary jurisdiction conferred on this Court under Section 482, Cr.P.C.

IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)

M. Cri. C. No. 547 of 2016

Decided On: 21.09.2016

 Mukesh Nigam and Ors. Vs. State of Madhya Pradesh and Ors.

Coram:Alok Verma, J.

Citation: 2017 CRLJ 620

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Whether proceeding under domestic violence Act can be conducted by brother of aggrieved woman?

 Under Section 12 of the D.V. Act, an aggrieved person or a
Protection Officer or any other person on behalf of the aggrieved person has
been given a right to file an application to the Magistrate seeking various
reliefs permissible under the Act.   The conditions necessary for preferring
such an application are that the application must be filed by an aggrieved
person or any other person on behalf of the aggrieved person and that the
aggrieved person must be a woman, who is or who has been in domestic
relationship with the respondent and who is subjected to any act of domestic
violence by the respondent.  In the present case, the application has been filed
on behalf of the respondent by her brother.   The reason being that, at the
time of filing of the application, the respondent was doing her fellowship in
medicine at Bangalore.  The brother of an aggrieved person would certainly
fall within the meaning of the expression “any other person on behalf of the
aggrieved person”, used in Section 12 of the D.V. Act.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO.656 OF 2015
Dr. Akshay s/o Navalkishor Lakhotiya,

­­ V
   Dr. Arti w/o Akshay Lakhotiya,

  CORAM   :  S. B. SHUKRE, J.

Dated :   15th DECEMBER, 2016.
Citation: 2017(2) MHLJ 235 Bom

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Whether brother of government servant above 18 years can claim pensionary benefits?

The learned Standing Counsel appearing for the respondent would draw the attention of this Court to the counter affidavit and also invited the attention of this Court to the Rule 45(5) of the Tamil Nadu Pension Rules and would submit that as per the said sub-rule, the family in relation to the Government Servants means brothers below the age of 18 years including the step brothers and admittedly the petitioner, even at the time of nomination, has crossed that age and as such, he cannot be given pensionary benefits and prays for dismissal of the writ petition.

 As rightly pointed out by the learned Counsel appearing for the respondent, as per sub rule 5 of Rule 45 of the Tamil Nadu Pension Rules, the petitioner herein cannot be considered as a family member unless at the time of nomination he was below the age of 18 years and admittedly it was not so. Though it is the vehement submission of the learned Counsel appearing for the petitioner that in terms of Rule 48 of the Tamil Nadu Pension Rules, the petitioner falls under the category of specified nominee, in the considered opinion of this Court, the said stand lacks merits and substance for the reasons that the proviso should be read inconsonance with the main provision and it cannot fall on exception and in the light of the definition of family members as per Rule 45(5), Rule 48 should be read in consonance with Rule 45 and therefore, the petitioner herein cannot be construed as a family member, though he was nominated along with his brother-in-law Sundaramoorthy, who according to the petitioner is no more.

In the High Court of Madras at Madurai

(Before M. Sathyanarayanan and J. Nisha Banu, JJ.)

B. Senthil Kumar 

v.

The District and Sessions Judge, III Additional District Court, District Court Premises, Madurai-625 020 .

W.P.(MD) No. 5372 of 2013

And

M.P.(MD) No. 1 of 2013

Decided on November 14, 2016

Citation: 2016 SCC OnLine Mad 10391

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Whether mother and sister can seek relief under DV Act against son/brother and his wife?

In view of the above discussion and in view of the fact that the decision of the Delhi High Court in Kusum Lata Sharma's case has not been disturbed by the Supreme Court, we are inclined to read down the provisions of section 2(q) of the DV Act and to hold that the provisions of "respondent" in section 2(q) of the DV Act is not to be read in isolation but has to be read as a part of the scheme of the DV Act, and particularly along with the definitions of "aggrieved person", "domestic relationship" and "shared household" in clauses (a), (f) and (s) of section 2 of the DV Act. If so read, the complaint alleging acts of domestic violence is maintainable not only against an adult male person who is son or brother, who is or has been in a domestic relationship with the aggrieved complainant- mother or sister, but the complaint can also be filed against a relative of the son or brother including wife of the son / wife of the brother and sisters of the male respondent. In other words, in our view, the complaint against the daughter-in-law, daughters or sisters would be maintainable under the provisions of the DV Act, where they are co- respondent/s in a complaint against an adult male person, who is or has been in domestic relationship with the complainant and such co- respondent/s. It must, of course, be held that a complaint under the DV Act would not be maintainable against daughter-in-law, sister-in- law or sister of the complainant, if no complaint is filed against an adult male person of the family.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 300 of 2013

Decided On: 25.09.2014

 Kusum Narottam Harsora  Vs. Union of India

Coram:
M.S. Shah, C.J. and M.S. Sonak, J.

Citaion; 2015(7) ALLMR 104

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When wife of brother of deceased husband will be treated as agnates under Hindu succession Act?

As noted earlier, neither Mahadu/his legal representatives nor Sonabai/her legal representatives classify as heirs in either Class-I or Class-II of the Schedule to the said Act. Therefore, there was no question of Mahadu/his legal representatives claiming any priority over the claim of Sonabai/her legal representatives. In fact, both claim as agnates and the First Appeal Court was entirely justified in decreeing the suit for partition upon the said basis.

23] Mr. Mankapure, faced with this position, faintly urged that Sonabai did not qualify as 'agnate' within the meaning assigned to this term under Section 3(1)(a) of the said Act, since according to him, Sonabai was not related to her husband Shivba 'by blood' . This contention, however, is no longer res integra. The Division Bench of this Court, in case of Nanasaheb Devre (supra), has precisely considered and rejected such contention.

24] The Division Bench of this Court in case of Nanasaheb Devre (supra), has held that the provisions of said Act were meant to codify the law relating to intestate succession among the Hindus and to achieve uniformity and certainty about various otherwise nebulous and shifting matters. This objective has, however, to be understood against the backdrop of existing interpreting system of personal law. Therefore, it would not be appropriate to begin with any legislative premise that the term related "by blood" has been introduced in any narrow sense. Rather, effort will have to be made to reach its applicative connotation. By reference to several precedents and principles, the Division Bench has held that conceptually, the Hindu marriage, as far as the wife is concerned, clearly brings out consanguine results, the wife merging and sharing the particles of the body of her husband and as such that of their common ancestor. Such kinship or consanguinity conceptually as well as physically cannot be less than of the blood relationship.

 Marriage is not only social but religious fact to a Hindu. It distinctively brings about union of two persons involving acceptance of a female into the family of the male spouse. Relation that ensues, is not restricted to male that marries but to the entire family of the male. Married wife in a family, thus becomes related to it wholly through her male spouse. The definition of the word "related" shows that to be related, persons could be treated as related to each other only if they belong to lawful or legitimate kinship. The definition makes reference to "kinship". The accepted modes by which such kinship results are clearly implied. Kinship is blood relationship. In social unit like family, marriage is an apparent mode of forging such relation. As far as the definition of "agnate" is concerned, the statute contemplates that this relationship should arise firstly, "by blood or adoption", and secondly, wholly through males. The words employed by the defining clauses having reference to blood will have to be understood and interpreted so as to further the obvious object of the Act and as far as possible to provide uniform system of succession.

Law is not merely a biological text tracing decent and ascent. It is a sociological sanction in favour of those who can claim succession to the deceased. Sociology and history of given law often speak through the legislated words. The choice of the words "by blood" in  the definition along with the word "adoption" is clearly intended to recognise all social modes resulting in the legitimate relationship.

The words "by blood" cannot be read as "by birth" so as to restrict them to genetical incidence of family, for legislature, had it intended, would have surely spoken in that way.

25] The Division Bench of this Court at paragraph '17' has observed thus:

What then is the meaning of the word blood ? Does it signify only the vital fluid that sustains the life or is it also indicative of relationship which results in kinship by known and accepted modalities ? There are various meanings assigned to the word "blood", including the one biologically attributed. From Webster's Third new International Dictionary, pages 236 and 237, the following relevant meanings can be extracted :

"Blood" : 1 a. the fluid that circulates in the principal vascular system of vertebrate animals carrying nourishment and oxygen to all parts of the body and bringing away waste products for excretion and that consists of a liquid plasma containing dissolved nutrients, waste products and other substances and suspended red blood cells, leukocytes, and blood plateles-see CIRCULATION, RESPIRATION; COAGULATI-ON;

2a. blood regarded as a vital principle :LIFEBLOOD;

broadly: LIFE, b : human blood regarded as a hereditary differentiating factor typical of and specific to a given family, stock lineage, or race (English-) : esp : the national royal-used with the (a prince of the-), c : the whole body of physical traits passed from parent to offspring whether in men, animals, or plant; d : relationship by decent from a common ancestor (the Delaware grape shows a strong strain or vinifera-) : KIN-SHIP CONSANGUINITY (-is  thicker than water), e : person related through a common familial or racial descent : KINDRED, LINEAGE, STOCK, RACE; also, obs : KINSMAN, RELATIVE.

The connotation of the word, therefore, is not merely biological but includes familial, racial and other recognised modes of kinship amongst men. It is futile to submit that the words related by blood should be equated with related by birth, though birth may be the primary incident of relationship between the two human beings. That is, however, of the only incident that brings about human relations into existence. When community of men develops and social relationship evolves, manifold relations come into being and in the context of relations, when the word blood is used, it suitably indicates the relationship by descent from a common ancestor or a kinship or consanguinity amongst a recognised social group. Marriage is an acknowledged social form bringing two beings together amongst the society of Hindus as a result of which the female enters the family of the male and becomes kindred of the family of the male and as such gets related as a kin of that family having common ancestor in the husbands family. The term by blood, therefore, in our view, has no biological or genetic limitation, but, including that, has a wider reach in the context of the personal law of Hindus and takes in female that enters by marriage the family of the male. Only because after the words by blood, the Legislature has put the words or adoption, thus indicating another legal form by which a person becomes the kin in the family, it is not possible to exclude the marriage from the connotation of the term "by blood". To have the relationship of the kind of agnate, it follows that relationship should arise wholly through males and should be a relationship of blood. As we have indicated, even prior to the present enactment, the applicative law held that as a result of marriage, a widow truly became gotraja sapinda in her husband's family. The principle on the basis of which the applicative judgments were rendered was clearly the principle to hold that by marriage the wife shared the community of the common particles of the body and was as such a relative by blood.

 26]     Applying   the  aforesaid   principles, 

  submission   of   Mr. 

                                                                               Mankapure that Sonabai or her legal representatives 

could not be included within the expression 'agnate'

 cannot be accepted. The first substantial 

question of law, will also have to be

 decided against the Appellants-Petitioners.

Bombay High Court

M.S.More D.H. R.M. More And Ors vs S.S.More D.H. Smt.S.S.More & Ors on 10 December, 2015

Bench: M.S. Sonak

Citation;2016(2) MHLJ341   

                

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Whether widow of deceased Employee can get family pension even though deceased had executed will in favour of his brother?

  On the death of a Railway employee, dispute arose among
his  wife,  sons,  daughters  and  brother  for  the  family
pension, gratuity and other emoluments.  The brother of  the
deceased  employee filed a civil suit in-the court  of Sub-
judge for   a   permanent   injunction   restraining  the
appellants.---the wife, sons and  daughter-from claiming  or
receiving   any   monetary   benefits from   the   Railway
Administration, contending that by a will dated 9.9.1984 of
the  deceased  employee,  he was  entitled  to receive  the
benefits  to  the deceased employee's  widow. The  Railway
Authority did not pay any amount, as an injunction had been
issued by the Civil Court.
     The  appellants there-upon made an  application  before
the Central Administrative Tribunal for a direction for  the
release  of the amounts on the grounds that the will  was  a
forged one, and the beneficiary was not entitled to  receive
pensionary benefits.
     The  Tribunal  held that since the dispute  related  to
rival  claims based on title arising from  relationship,  it
had  no jurisdiction to decide the same.  It  also  directed
transfer of the case to the Civil Court for trial.
     In  the  appeal  to this court  on  the  question was:
whether family pension payable under the service rules could
be bequeathed by means of a will.
     Allowing the appeal, this Court,
HELD:  1.  Family  Pension  Rules,  1964  provided  for  the
sanction  of  family pension to the survivors of  a  Railway
Employee.   Rule 801 provides that family pension  shall be
granted   to  the  widow/widower  and  where  there  is   no
widow/widower, to the minor children of a Railway  servant,
who  may have died while in service.  Under the  Rules, son
of
             283
the  deceased  is entitled  to family pension   until   he
attains   the  age  of 25 years,  an unmarried   daughter
is   also   entitled   to   family   pension till  she
attains   the age   of   25 years or   gets   married,
whichever   is earlier.   The Rules  do  not  provide  for
payment  of  Family  Pension  to   brother   or   any  other
family  member  or  relation  of  the  deceased    Railway
employee.    The Family  Pension  Scheme  under  the   Rules
is   designed to  provide   relief   to  the  widow  and
children   by  way  of compensation   for   the    untimely
death of   the  deceased  employee.  The  rules   do  not
provide    for  any   nomination with regard  to   family
pension,   instead  the  Rules  designate    the    persons
who   are   entitled   to  receive   the   family   Pension.
Thus, no   other   person except  those  designated  under
the   Rules  are  entitled   to   receive   family  pension.
[285E-H]
     2.  The  Family   Pension  Scheme   confers   monetary
benefit    on the  wife  and children  of  the   deceased
Railway    employee,   but   the   employee has no title  to
it.  The   employee   has  no  control  over the   family
pension   as he is not required to make any contribution  to
it.  The family pension Scheme is in the nature  of  welfare
scheme framed by  the Railway  administration  to  provide
relief to  the  widow and minor children  of  the  deceased
employee. [285H-286B]
     3. Since, the  Rules  do  not  provide  for  nomination
of any person by the deceased employee during his life time
for  the payment of family pension, he has no title  to  the
same.  Therefore,  it  does  not form  part  of  his  estate
enabling  him  to dispose of the same by  testamentary dis-
position. [286B-C]
[The   appellant   No.  1,   widow   of    the     deceased
Railway     employee is  entitled   to    receive  the
family  pension,  notwithstanding   the   will  alleged  to
have  been  executed  by  the  deceased  on   9.9.1984   in
favour  of   his brother.  As regards  appellant  Nos.   2
to    6    are  concerned,   they    are     not    minors,
therefore,  under  the Rules  they  are  not  entitled   to
any   family pension. 

Supreme Court of India

Smt. Violet Issac And Ors vs Union Of India And

 Ors on 8 February, 1991


Equivalent citations: 1991 SCR (1) 282, 

1991 SCC (1) 725





Bench: Singh, K.N. (J)

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