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2012 DIGILAW 601 (GAU)

N. Mari v. Joseph

2012-05-18

INDIRA SHAH

body2012
JUDGMENT Indira Shah, J. 1. This appeal is directed against the judgment and order dated 20.5.2010 passed by District Council Court, Mara Autonomous District Council, Siaha in RFA No. 7 of 2010 upholding the judgment and order passed by Subordinate District Council Court, Mara Autonomous District Council, Siaha, in case No. M/S No. 27 of 2009. I have heard Mr. Robert L. Hnamte, learned counsel for the appellant. None appears on behalf of the respondent. 2. The appellant herein is the wife of Shri A. Timothy Lakher, who died on 19.7.2009. The deceased was a Member of District Council (MDC in short) for 2 (two) terms in Mara Autonomous District Council (MADC). He was receiving pension of Rs. 5,000/- with other allowances and after his death, the family pension was paid to his spouse as per Mara Autonomous District Council (Salaries, Allowances & Pensions of Members) Rules 2003. The deceased prior to his marriage with the appellant, was married to another lady and she had 5 (five) children out of the said wedlock. Two children predeceased their father. Out of three, two are daughters and one is the son. After the death of the deceased, the appellant was declared to be legal heir of her deceased husband in respect of family Pensions as per order of Magistrate, Subordinate District Council Court, Mara Autonomous District Council, MADC, Siaha. 3. The authorities of the Mara Autonomous District Council (MADC) allowed the appellant to receive family pensions in respect of the deceased. Thereafter, the respondent filed a suit/application before the S.D.C.C. claiming the family pension of the deceased grandfather. According to respondent, the deceased had left a will dated 27.02.2005, whereby the pension was bequeathed in his favour. Although the appellant raised her objection verbally, the learned Trial Court decided and directed the appellant to pay Rs. 1,500/- retrospectively to the respondent/plaintiff with effect from January, 2010 and that any D.A. arrear for the period 2008-2010 shall be equally shared. 4. Judgment and order of the Trial Court was challenged in RFA No. 7 of 2010, which was upheld by the Appellate Court. The learned Appellate Court i.e. DCC framed the following issues: (1) Whether the present appeal is maintainable or not? (2) Whether the respondent can be made entitled to the pension benefit of the late husband of the present appellant? If so, to what extent and on what grounds? The learned Appellate Court i.e. DCC framed the following issues: (1) Whether the present appeal is maintainable or not? (2) Whether the respondent can be made entitled to the pension benefit of the late husband of the present appellant? If so, to what extent and on what grounds? (3) Whether the lower court commits any error of law or of fact as alleged by the appellant while deciding the case before it? Further, whether the note written by A. Timothy (L) referred as 'BIE TAINA' which may be considered as promissory note can be accepted as a valid WILL as per law ? (4) Whether the appellant is fully entitled to the pension benefit of her late husband? If so, to what extent? (5) Whether the appellant has presently been in enjoyment of any other benefit of her late husband and if so, to what extent? 5. The appellate court decided that the appeal is maintainable. While deciding the issue No. 2, it was held that the respondent can be made entitled to a pension benefit of the deceased on the ground that he would have continuously been getting the said benefit if the late A. Timothy was still alive as there never exited any objection to the provision of pension benefit to the respondent by the late A. Timothy as the said provision of pension benefit was made by the late A. Timothy to the respondent out of his natural love and affection. The appellate court also held that the purported 'will' was genuine as agreed by the parties. While deciding issue No. 4, the trial court as well as the appellate court held that the appellant cannot be made fully entitled to the pension benefits of her late husband. However, the appellant shall continue and enjoy the Army pension benefits fully and as to the family pension benefit from MADC, she shall be entitled to the extent, the lower court has granted to her. It was also held that the appellant has presently been enjoying Army pension benefit of her late husband besides pension benefits in Mara Autonomous District Council as ex-MDC. 6. It was also held that the appellant has presently been enjoying Army pension benefit of her late husband besides pension benefits in Mara Autonomous District Council as ex-MDC. 6. Learned counsel for the appellant has submitted that the alleged 'will' purported to be executed by the deceased was not attested by any witnesses and therefore, it cannot be a valid 'will' as per rules under section 6(2) of Lakher Autonomous District (Inheritance of Property) Act, 1982 (in short, 'the Act'). Section 6(2) of the Act says that the execution of a will shall be in the presence of not less than two witnesses and section 7 says that the testator of a will must give his or her signature in the presence of the witnesses. Sections 9 and 10 speak about the probate of the will. Here in this case, the will was not attested by any witnesses. No probate of the will was also obtained. 7. Clause 14 of the Mara Autonomous District Council (Salaries, Allowances and Pension of Members) Rules, 2003 deals with family pension in respect of the member of the Mara Autonomous District Council which reads as under:- 14. (1) When a sitting or former member dies his spouse or if he has no surviving spouse at the time of his death, his other family of the first preference, if any, shall be paid a family pension of two thousand five hundred rupees subject to the limitation in sub-section(2) (2) The period for which such family pension shall be payable to the widow or widower, son or daughter of a member shall be as follows:- (a) In the case of widow or widower up to date of death or re-marriage whichever is earlier. (b) In the case of a son, until he attains the age of 25 years. (c) In the case of an unmarried daughter, until she attains the age of 25 years or until she gets married, whichever is earlier? 8. Admittedly, in this case, the respondent has attained the age of 25 years and as per Rule 14, he is not entitled to get any family pension. The distribution of amount of family pension between the appellant and the respondent is against the rule. Therefore, the judgment and order passed by the appellate court upholding the judgment and order of the lower court are liable to be set aside. The distribution of amount of family pension between the appellant and the respondent is against the rule. Therefore, the judgment and order passed by the appellate court upholding the judgment and order of the lower court are liable to be set aside. Accordingly, the judgment and order, passed by the courts below, are set aside. 9. This appeal is allowed. Sent back the LCRs along with a copy of the judgment and order of this court. Appeal allowed.