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Madhya Pradesh High Court · body

2013 DIGILAW 1029 (MP)

Mamta Sharma v. State of M. P.

2013-08-29

K.K.TRIVEDI

body2013
JUDGMENT : This petition under Article 226 of the Constitution of India is directed against the order dated 12-7-2012, by which the petitioner, a widow of one Shri Ganesh Prasad Sharma, an Assistant Teacher who has died on 28-5-2012, has been asked to furnish a succession certificate for the purposes of grant of terminal dues of the said employee, on the ground that the petitioner was duly nominated as wife for the purposes of payment of all such claims of the said employee. This nomination was never cancelled or recalled, even modified. This being so, only the petitioner was entitled to receive the terminal benefits of her husband and there could not be any insistence for payment of such dues to the petitioner only after obtaining a succession certificate. In fact a dispute was raised by respondent No. 4, who was ex-wife of said late Shri Ganesh Prasad Sharma. A suit for divorce was filed under the Hindu Marriage Act by said Shri Ganesh Prasad Sharma in the Court of District Judge, Shahdol against the respondent No. 4, which suit was decreed on 18th November, 1987. Though a decree was granted ex parte, but there was no step taken by respondent No. 4, to get the ex parte judgment and decree set aside. After obtaining the decree said Shri Ganesh Prasad Sharma got married with the petitioner herein on 27-6-1989, and made nomination of his second wife in the service record. Only because a case was filed by respondent No. 4 for grant of maintenance against the husband of the petitioner under section 125 of Criminal Procedure Code along with her daughter and sons, and an order was passed on such an application by the Judicial Magistrate Class-I, Janjgir on 26-11-2002, the respondent No. 4 would not become entitle to claim any benefit with respect to the service dues of the husband of the petitioner ignoring the nomination already made. Thus, it is contended that the order impugned is bad in law. 2. This Court has entertained the writ petition, has issued the notices to the respondents and the return has been filed by respondents. It is contended that since there is a dispute raised, unless a succession certificate is produced, it would not be proper to release the terminal dues in favour of the petitioner only. 2. This Court has entertained the writ petition, has issued the notices to the respondents and the return has been filed by respondents. It is contended that since there is a dispute raised, unless a succession certificate is produced, it would not be proper to release the terminal dues in favour of the petitioner only. The respondent No. 4 has already approached the Civil Court seeking declaration that she is legally married wife of said Shri Ganesh Prasad Sharma, therefore, it would not be correct to say that no succession certificate could be demanded. These disputed facts are to be settled by the decisions of the Court and not by the authorities, therefore, such a claim made by the petitioner is misconceived. The respondent No. 4, though has not filed any return, but has adopted the stand taken by respondents No. 1 to 3 and contended that in view of the facts as have been stated by the respondents, a succession certificate is required to be produced. It is further contended that proceedings in this respect have been initiated by respondent No. 4 before the appropriate Forum and in case any direction is issued by this Court, the claim raised by respondent No. 4 for grant of succession certificate would be frustrated. 3. Heard learned counsel for the parties at length and perused the record. 4. It is not in dispute that there is a nomination of the petitioner as wife of the employee aforesaid Shri Ganesh Prasad Sharma duly made in the service record. This nomination has not been changed by said Shri Ganesh Prasad Sharma while he was in service. It is not in dispute further that said Shri Ganesh Prasad Sharma has died on 28-5-2012. It is also not in dispute that there was a Civil Suit filed against the respondent No. 4 by said Shri Ganesh Prasad Sharma for grant of decree of divorce under the Hindu Marriage Act, and that the said suit was decreed. It is also not in dispute that the said decree has not yet been annulled, set aside or revoked. A decree of Civil Court is not to be treated lightly. It is also not in dispute that the said decree has not yet been annulled, set aside or revoked. A decree of Civil Court is not to be treated lightly. It has to be seen that if any claim contrary to the decree granted is made by the respondent No. 4 without getting the said decree set aside from the competent Court, any such claim made by the respondent No. 4 would be hit by principles of estoppel as by operation of law and by operation of the judgment and decree, respondent No. 4 would be estopped to claim any benefit unless the decree is set aside by any higher Forum. That being so, merely because the respondent No. 4 has moved an application for grant of succession certificate, it cannot be a ground delaying the payment of terminal dues of deceased employee to a nominated wife, which according to law is legally married wife. 5. The effect of nomination has to be examined. The nomination is not to be treated as a Will for a good reason that a Will is executed in altogether different manner and not just mentioning a name of person in the appropriate column, prescribed in any form for submitting service details before the concerning authority. However, the nomination has to be treated as wish of the employee or his request for the purposes of disbursement of his/her terminal dues in case of death to any particular person. The nomination will not supersede the statutory provision of right of inheritance prescribed in various enactments. A nominee may be an authorised person to receive the terminal dues of an employee, but will not become absolute owner thereof. The other legal representatives, successor of the deceased employees, being coparceners in estate would also be entitled to their share if there is no specific Will made by the employee concerned. The Apex Court in the case of Smt. Sarbati Devi vs. Usha Devi, (1984) 1 SCC 424 has considered nominee's interest vis-a-vis the law of succession and has reached to the conclusion that a nominee may be entitled to receive the funds, but will retain the same as a trustee for other coparceners till their claims are decided by law in accordance to the law of succession governing them. Though the aforesaid decision is rendered in the case in respect of the claim made under the Life Insurance Act, 1938, but the statutory nomination has been considered by the Apex Court. 6. Similarly, in the case of Vishin Kanchandani and another vs. Vidya Lachmandas Kanchandani and another, (2000) 6 SCC 724 , the Apex Court interpreting the non-obstante clause has categorically held that a nominee is only the authorised person to receive the amount payable to the deceased and the said nominee is required to retain the said amount till the claims of other coparceners are settled in accordance to law. However, there is no requirement of producing any succession certificate in respect of grant of such benefit of payment for the purposes of discharge of duties of the holders of the amount. Again considering the effect of marriages and the provisions of the Hindu Marriage Act, the Apex Court in the case of Chaillamma vs. Tilaga and others, (2009) 9 SCC 299 has specifically held that unless there is a proof of the fact that marriage was not solemnised, an objector cannot say that the benefit of payment of the estate of deceased would not be made to a particular person. Similar was the situation examined by the Apex Court in the case of Shipra Sengupta vs. Mridul Sengupta and others, (2009) 10 SCC 680 , where presumption regarding valid execution of a Will and the effect of nomination was taken into consideration. Again the Apex Court has categorically said that a nominee alone will not become entitled to utilise the entire amount of a person as a beneficiary and he or she has to be treated as an authorised person to receive such amount and to keep the same for the purposes of its proper distribution amongst the members of the family. In view of these pronouncement, it is clear that a nominee is entitled to receive the amount of any deceased employee from the respondent-State, but is required to retain the same for the purpose of distribution of the said amount amongst all the legal heirs of the deceased employee. This is necessary because undisputedly, there is no Will executed by said deceased employee of the State Government in favour of the petitioner only. 7. This is necessary because undisputedly, there is no Will executed by said deceased employee of the State Government in favour of the petitioner only. 7. Yet, another aspect is to be examined whether an ex-wife, duly divorced in terms of the law would be entitled to claim any share in the property of the deceased employee or not. Law of succession is required to be examined interpreted and the claims are required to be settled. However, there is no dispute that there were certain children out of the wedlock of the deceased Ganesh Prasad Sharma with respondent No. 4 and the said children cannot be said to be illegitimate because they were born before the divorce had taken place. That being so, this aspect is required to be examined in view of the provisions of Hindu Succession Act and it has to be seen whether those persons would be granted any share in the property of the deceased Ganesh Prasad Sharma or not. This particular aspect is also required to be examined whether if a direction is given to release the entire amount in favour of petitioner, right of such persons would be prejudicially affected or not. The law of succession gives first preference to the legally married wife. In order of succession, the legitimate child has the right to succeed. That being so, it is necessary to direct that on release of the amount, the same is not fully utilised by the petitioner or else the interest of those who are entitled to a share in the said amount would be adversely affected. 8. Now the question of grant of family pension is to be considered. Whether the family pension is also to be apportioned or not ? The provisions of grant of family pension are very clear. The family pension is payable to a legally married spouse of the deceased Govt. servant. Naturally one who has been legally divorced would not be entitled to family pension. Further, the family pension goes to the sons who have not attained the majority and unmarried daughter after the death of spouse of the deceased Govt. servant. Therefore, only the petitioner would be entitled to family pension on account of death of her husband. servant. Naturally one who has been legally divorced would not be entitled to family pension. Further, the family pension goes to the sons who have not attained the majority and unmarried daughter after the death of spouse of the deceased Govt. servant. Therefore, only the petitioner would be entitled to family pension on account of death of her husband. This pension is not to be apportioned in view of the fact that the same would become estate or property of pensioner which could be inherited by her legal heirs and not by those who are differently related to deceased Govt. servant. That being so, no charge can be laid on such a property on account of an order of grant of maintenance to the legitimate children of deceased Govt. servant through a legally divorced wife. The family pension is to be paid to the petitioner only for these reasons. 9. Keeping in view the aforesaid, it is directed that only 50% amount of terminal dues be released in favour of the petitioner and remaining 50% amount be deposited in the name of petitioner in the Nationalised Bank in a fixed deposit for a period of five years, with a stipulation that the said amount would be released only after disposal of the succession application submitted by the respondent No. 4 before the Civil Court, in accordance to the orders of the Civil Court. The petitioner would be entitled to family pension which be sanctioned and paid to her within three months from the date of order. 10. The writ petition stands disposed of in terms of the aforesaid direction. There shall be no order as to costs. Order accordingly.