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2007 DIGILAW 596 (GAU)

Chongtuokhawi v. Union of India and Ors

2007-09-05

T.VAIPHEI

body2007
Judgement This is an application under Article 226 of the Constitution of India filed by the petitioner for directing the Union of India and other authorities to release to her the family pension etc. in respect of the deceased Assam Regiment Personnel. 2. I have heard Mr. D. K. Thapa, the learned counsel for the petitioner and Mr. P. Dey, the learned Central Government Counsel, appearing for the Union of India and other authorities. None appeared for the respondent No. 7 despite proper service of notice upon him. 3. Shorn of unnecessary details, the case of the petitioner is that she is legally married wife of the late Joshua P. Dailova, who was a Sepoy bearing registration No. 4361900 in the 15th Assam Regiment and who died on 5-5-1998 while performing duty in "Operation Meghdoot" in Jammu and Kashmir. According to the petitioner, after the death of her deceased husband, she was turned out from her matrimonial home by her father-in-law., namely, Kaibuaia Mizo, (the respondent No. 7 herein), whereupon she had to take shelter at her parental house at Madanriting, Shillong. It is pleaded by the petitioner that the deceased had made her as his nominee in his service record and that after his death, she was paid some amounts by the respondent No. 2 by way of interim payment, but the larger sums payable to her including the family pension of her husband was denied to her. It is further pleaded that the respondent No. 7 had instituted Original (Declaration) Suit No. 4 of 2002 before the learned Civil Judge, Junior Division, Churachandpur, Manipur making a parallel claim to the said pensionary and other service benefits of her husband. As she was not in a position to contest the suit due to financial constraints, she was forced to reach a compromise agreement with the respondent No. 7 on certain terms and conditions. The learned Civil Judge, in terms of the compromise, thereupon passed the judgment dated 28-7-2003 decreeing the suit on compromise in the following manner :- (a) that the amount left by No. 4361900 Sepoy Late Joshua P. Dailoval of 15th Assam Regiment, by way of :- (i) Army Group Death benefits Rs. 3,75,000/- (ii) Amount of Arrears of salary Rs. 19,929/- (iii) Amount of Ex-gratia awards Rs. 5,00,000/- (iv) Amount of AFPP Fund and DLIS Rs. 41,389/- (v) Death-cum-Retirement Gratuity Rs.45,936/- Altogether Rs. 3,75,000/- (ii) Amount of Arrears of salary Rs. 19,929/- (iii) Amount of Ex-gratia awards Rs. 5,00,000/- (iv) Amount of AFPP Fund and DLIS Rs. 41,389/- (v) Death-cum-Retirement Gratuity Rs.45,936/- Altogether Rs. 9,82,254/- is to be shared amongst the plaintiff Shri Kaibuaia Mizo father of the said JP Dailoval and Smti Chawngtuokhawl w/o late JP Dailoval. The deceaseds father, the plaintiff herein shall get/enjoy 35% i.e. Rs. 3,43,788.90 P. (Rupees three lakhs forty three thousand seven hundred eighty eight and ninety paise) only out of the total amount herein before stated and the deceaseds wife Smt. Chawng-tuokhawl shall get/enjoy 65% i.e. Rs. 6,38,465.10P. (Rupees six lakhs thirty eight thousand four hundred sixty five and ten paise) only out of the total amount (9,82,254) left by JP Dailoval as they are the 1st class legal heirs of the deceased. (b) that the person who obtained 65% of the total amount of money left by JP Dailoval (deceased) shall not be entitled to obtain/enjoy the due arrear pension amount as well as any amount of pension which is to be given by the Army Authority. Hence the plaintiff Shri Kaibuaia Mizo shall be entitled to collect/obtain any pension amount which is obtainable due to the death of Joshua P. Dailoval. (c) that if any monetary benefit excluding the aforesaid total amount i.e. Rs. 9,82,254/- and the pension amount is lying in the name of late J. P. Dailoval the above named parties shall be entitled to enjoy the same at the percentage herein beforestated. (d) that any correspondence in accordance with the total amounts of debt shall be made between the concerned Army Authority and parties :- (i) The correspondence in respect of 35% of the total amount of debt shall be made between the concerned Army authority and the plaintiff. (ii) Likewise the correspondent in respect of the 65% of the total amount of the debt shall be made between the concerned Army Authority and the defendant. (e) that any correspondence regarding the pension amount shall be made between the plaintiff and the concerned Army Authority. In this very regard the defendant has no locus standi to interfere about the matter." 4. (e) that any correspondence regarding the pension amount shall be made between the plaintiff and the concerned Army Authority. In this very regard the defendant has no locus standi to interfere about the matter." 4. It is the case of the petitioner that a certified copy of the aforesaid judgment was jointly sent by her and her father-in-law to the respondent No.5 on 4-8-2003 with a request to release the said pensionary benefits in terms of the compromise decree. It appears from the letter dated 15-9-2003 of the Deputy Controller/Defence Accounts (P) (respondent No.4) that family pension would not be admissible to the father of the deceased as per the extant rules. The refusal on the part of the respondents to release the said pensionary benefits has now prompted the petitioner to file this writ petition for the reliefs noted earlier. 5. The Union of India contested the writ petition and filed their affidavit in opposition. The respondents authorities admit that the petitioner is the legally married wife/widow and next of kin of the deceased and that the deceased was swept away by avalanche while performing duty in "Operation Meghdoot", and was declared dead on 5-5-1998. As the nominee of the deceased, the petitioner was already paid some benefits in respect of the Army Central Welfare Fund and National Defence Fund, etc. but not the family pension, gratuity and ex-gratia award, which had already been processed. The payment of said family pension, etc. could not, however, be made due to the pendency of the civil suit and succession certificate case filed by the respondent No. 7, father-in-law of the petitioner making rival claims thereto. According to the answering respondents, the compromise decree dated 28-7-2003 passed by the learned Civil Judge, Junior Division, Churachandpur, Manipur in Original (Declaration) Suit No. 4 of 2002 is contrary to the provisions of the Pension Regulations for the Army, 1961 and the same is being challenged by filing a review petition before the same Court. It is pointed out by the answering respondents that a sum of Rs. 3,81,551/- has so far been paid to the petitioner on account of Army Group Insurance Fund/Deposit Link Insurance Scheme, Army Central Welfare Fund, National Defence Fund (Battle Casualty) and Disabled Army Personal Widows and Orphan. It is pointed out by the answering respondents that a sum of Rs. 3,81,551/- has so far been paid to the petitioner on account of Army Group Insurance Fund/Deposit Link Insurance Scheme, Army Central Welfare Fund, National Defence Fund (Battle Casualty) and Disabled Army Personal Widows and Orphan. The answering respondents, nevertheless, finally submits that this Court may pass appropriate directions in view of the different orders passed by different subordinate Courts. 6. It is submitted by Mr. D. K. Thapa, the learned counsel for the petitioner that once the respondent authorities find that the compromise decree dated 28-7-2003 is contrary to law, it ought to have released the pensionary benefits to the petitioner. Drawing my attention to Section 4 of the Pension Act, 1871, the learned counsel contends that the suit upon which the compromise decree in question was recorded was instituted in contravention of this provision since the requisite certificate was never obtained by the respondent No. 7 and his party. He, therefore, urges this Court to direct the respondent authorities to ignore the compromise decree and release the family pension to the petitioner without further delay. Mr. P. Dey, the learned CGC, referring me to paragraph 17 of the counter affidavit of the respondent authorities submits that appropriate directions may be issued by this Court by taking into account the different orders passed by different Courts of Manipur. 7. From the pleadings of the contesting parties, it is obvious that there is no dispute about the status of the petitioner as the legally married wife/widow of the deceased, while the respondent No. 7 is the father of the deceased sepoy and father-in-law of the petitioner. The answering respondents also fairly concede that under Clauses 216 and 217 of the Pension Regulations for Army, 1961, it is the wife/widow alone, if she is alive, who is entitled to draw both the family pension and other benefits in respect of the deceased. What then inhibits them from releasing those pensionary benefits to the petitioner appears to be the said compromise decree whereby it had been agreed upon by the petitioner and the respondent No. 7 to share amount payable under Army Group Death Benefits, Salary arrears, ex-gratia award, AFPP Fund and DLIS and Death-cum-Retirement Benefit, the total whereof comes to Rs. What then inhibits them from releasing those pensionary benefits to the petitioner appears to be the said compromise decree whereby it had been agreed upon by the petitioner and the respondent No. 7 to share amount payable under Army Group Death Benefits, Salary arrears, ex-gratia award, AFPP Fund and DLIS and Death-cum-Retirement Benefit, the total whereof comes to Rs. 9,82,254/- on 65% : 35% basis with the respondent No. 7 who only got 35% share, to receive the family pension. Before proceeding further, it may at this stage be appropriate to note that from Annexure-R-1 annexed to the affidavit-in-opposition of the answering respondents, it is obvious that one of the civil suits, namely, Original Suit No. 5 of 1999 filed by the petitioner before the Additional District Judge, Lamphelpat, Manipur stood disposed of on withdrawal in the terms of the order dated 3-1-2001 in Judicial Misc. Case No. 92 of 2000. Similarly, the document at page 34 of the affidavit-in-opposition of the answering respondents indicates that the succession case i.e. Original (succession) Suit No. 19/2001/1/2002 filed by the respondent No. 7 and others also stood disposed of on 8-8-2003 on their withdrawal, apparently due to the said compromise decree. Thus, both original Suit No. 5 of 1999 and Original (Succession) Suit No. 19/2001/1/2002 pending before the learned Civil Judge/Senior Division, Lamphelpat, Manipur and the learned Additional District Judge, Manipur West respectively are no longer pending as of now. 8. The principal question which then falls for consideration in this writ petition is as to whether the view taken by the respondent authorities that the compromise decree dated 28-7-2003 passed by the learned Civil Judge/Junior Division, Churachandpur, Manipur in Original (Declaration) Suit No. 4 of 2002 is contrary to the Pension Regulation for Army, 1961 is correct in law and if so, what is the effect? In other words, whether the said compromise decree is binding upon the army authorities or can be ignored if they decide to pay the family pension and other benefit in respect of the deceased in favour of the petitioner, who is admittedly the legally married wife/widow of the deceased ? Clause 216 of the Pension Regulations for Army, 1961 (a copy whereof is annexed to the affidavit in opposition of the answering respondents) is instructive, which reads thus :- "216. Clause 216 of the Pension Regulations for Army, 1961 (a copy whereof is annexed to the affidavit in opposition of the answering respondents) is instructive, which reads thus :- "216. The following members of the family of a deceased individual shall be viewed as eligible for the grant of a family pension, provided that they are otherwise qualified:- (a) Widow lawfully married. (b) Father (c) Mother (d) Son, actual and legitimate (e) Daughter, actual and legitimate." 9. From Regulation 216 of the Regulations, it is evident that family pension is admissible to (a) widow lawfully married, (b) father, (c) mother, (d) son, actual and legitimate and (e) daughter, actual and legitimate. Whether family pension is to be paid jointly to these family members or not is clarified by Regulation 220 (a)(i) which says that where there is a nomination, the pension shall be granted to the nominated heir, if he or she is alive. Regulation 218(a) explains that an individual may nominate any, but only one, of the relatives specified in Regulation 216 as heir to the family pension. Regulation 219 (iii) further defines the term "widow" to mean a widow (who?) has not remarried. A combined reading of Regulations 216, 217, 219 and 220 plainly shows that a widow who has not remarried has the first and paramount charge upon the family pension of army personnel. It is only when there is no widow left behind by the deceased or when the widow has remarried, then and then only the question of payment of family pension to the living heir mentioned in Regulation 216(b), (c), (d), and (e) will arise. In the instant case, the petitioner is undisputedly the widow of the deceased, who also nominated her as his nominee in his service book. There is no evidence to show that she has remarried after the death of her deceased husband. On the facts found, I am of the opinion that the army authorities have correctly appreciated the legal position by holding that the compromise decree dated 28-7-2003 is in contravention of the Pension Regulations for Army, 1961. 10. The compromise decree in question has been recorded by the learned Civil Judge, Junior Division, Churachandpur, under Order 23, Rule 3 of the Code of Civil Procedure, 1908 as evident from para 5 of the judgment. 10. The compromise decree in question has been recorded by the learned Civil Judge, Junior Division, Churachandpur, under Order 23, Rule 3 of the Code of Civil Procedure, 1908 as evident from para 5 of the judgment. The provisions of Order 23, Rule 3 are in the following terms :- "R. 3. Compromise of suit - Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise (in writing and signed by the parties), or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith (so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit). (Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment)." Thus, in order that the compromise should be recorded under this rule, the agreement or compromise must be lawful. The term "lawful agreement" excludes not only unlawful agreements i.e. the object or consideration for which is unlawful as defined in the Contract Act, but all agreements which on the face of them are void and, therefore, will not be enforced by the Court. Section 23 of the Contract Act states that the consideration or object of an agreement is lawful unless it is forbidden by law or is of such a nature that if permitted it would defeat the provisions of any law or is fraudulent or involves or implies injury to the person or property of another or the Courts regard it as immoral or opposed to public policy, and in each of these cases, the consideration or object of an agreement is said to be unlawful. According to Patna High Court in Baladeo Jha v. Ganga Prasad, AIR 1959 Pat 17 , the object of Section 12 of the Pensions Act is to prevent traffic in the pension as it is opposed to public policy and that it, therefore, by a compromise decree a division has been made between the parties with respect to the amount of pension, it would amount to traffic in the pension and will come within the mischief of S. 23 of the Contract Act. In the case at hand also, the effect of the compromise decree dated 28-7-2003 is to divide the family pension between the petitioner on the one hand and the respondent No. 7 and others in the suit on the other hand in violation of Regulation 216 read with Regulation 220(a)(i) of the Pension Regulations for Army, 1961. What is forbidden by law cannot a subject matter of a contract. Therefore, the recording of the compromise made by the learned Civil Judge in the decree in question is impermissible and is, therefore, void. 11. At this stage, I may also incidentally take note that the provisions of Pensions Act, 1871 are applicable to the personnel of the armed forces. Section 4 of the Act takes away the jurisdiction of a civil Court to entertain any suit relating to a pension unless the claim has been made before the Collector or other authorized officer and a certificate for the trial of the case has been obtained from such authorities. Section 12 of the Act is crucial for our purpose, which reads thus:- "12. Assignments, etc., in anticipation of pension, to be void- All assignments, agreements, orders, sales and securities of every kind made by the person entitled to any pension, pay or allowance mentioned in Section 11, in respect of any money not payable at or before the making thereof, on account of any such pension, pay or allowance, or for giving or assigning any future interest therein, are null and void." Thus, Section 12 of the Act makes an agreement with regard to a pension null and void. A compromise is a contract between the parties with the stamp of approval by a Court, but is nevertheless subject to all the infirmities of a contract. A compromise is a contract between the parties with the stamp of approval by a Court, but is nevertheless subject to all the infirmities of a contract. As noted earlier, under the Indian Contract Act, any agreement to do something, which is forbidden by law is null and void, and a decree based on such an agreement being unlawful is equally void. That apart, the compromise decree dated 27-7-2003 is also against the provision of law inasmuch as it has been obtained in a suit the entertainability whereof is prohibited by Section 4 of the pensions Act. Therefore, in any view of the matter, the compromise decree in question is unlawful and is null and void under Sections 4 and 12 of the Pensions Act, 1871. Consequently, the petitioner is not estopped from questioning the legality of the compromise decree in this proceeding and from claiming the family pension, etc. of her husband contrary to the compromise decree. The respondent authorities are perfectly justified in not acting upon the said compromise decree. Any lingering doubt one may have in this regard has now been removed by the Apex Court in Balvant N. Viswamitra v. Yadav Sadashiv Mule reported in (2004) 8 SCC 706 : ( AIR 2004 SC 4377 ) by holding that :- "9. The main question which arises for our consideration is whether the decree passed by the trial Court can be said to be "null" and "void". In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a Court lack inherent jurisdiction in passing a decree or making an order, a decree or order passed by such Court would be without jurisdiction, non est and void ab initio. A defect of jurisdiction of the Court goes to the roof of the matter and strikes at the very authority of the Court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a Court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings." 12. For what has been stated above, this writ petition is allowed. Such defect has always been treated as basic and fundamental and a decree or order passed by a Court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings." 12. For what has been stated above, this writ petition is allowed. The respondent authorities are directed to ignore the compromise decree dated 28-7-2003 passed by the learned Civil Judge, Junior Division, Churachandpur in Original (Declaration) Suit No. 4 of 2002. Consequently, they are directed to pay the family pension and other benefits payable to the legal heir of the deceased in favour of the petitioner within three months from the date of receipt of this judgment. As the respondents authorities have bona fide reason for withholding the payment, there shall be no order as to cost. Petition allowed.