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2018 DIGILAW 1439 (GAU)

Rama Mukherjee Bhowmik v. State of Assam

2018-09-26

SUMAN SHYAM

body2018
JUDGMENT : Suman Shyam, J. Heard Mr. M. Choudhury, learned senior counsel assisted by Mr. G. Goswami, learned counsel appearing for the writ petitioner. I have also heard Mr. D. Nath, Addl. Sr. Govt. Advocate, Assam, appearing for respondent Nos.1, 3 and 4, Mr. R. K. Talukdar, learned counsel appearing for respondent No.2 and Mr. D. Baruah, learned counsel appearing for respondent Nos.5 and 6, who are, in reality, one and the same person. Therefore, for the sake of convenience, both the respondents are here-in-below commonly referred to as the respondent No 6. 2. The dispute in this writ petition pertains to the competing claims of the two wives of Late Dr. Soumendra Mohan Mukherjee over their right to receive family pension. The facts of this case, shorn of unnecessary details, are briefly narrated herein below. 3. Dr. Soumendra Mohan Mukherjee (since deceased) was an employee of the Government of Assam. The writ petitioner is the first wife of late Dr. Soumendra Mohan Mukherjee and their marriage was solemnised on 07.03.1977. However, soon after their marriage, the petitioner had left her husband as a result of which Dr. Soumendra Mohan Mukherjee had remarried the respondent No 6 on 12.06.1987 and continued to live with her as husband and wife until his demise on 10.06.2009. During his life time, Dr. Soumendra Mohan Mukherjee had executed a Will dated 18.11.2006 bequeathing all his properties including his pensionary dues in favour of his second wife i.e. the respondent No.6 herein. After the death of her husband, the respondent No 6 had filed Title Suit (P) No.43/2010 before the Court of learned District Judge, Sonitpur, seeking probate in respect of the will and the said proceeding is pending disposal before the learned Court below. In the meantime, the respondent No. 6 had claimed her right to receive family pension and taking note of the Will as well as the nomination made by the deceased husband of the respondent No 6 in her favour, the respondent authorities had granted family pension to the respondent No.6. Having come to know about the same the petitioner has approached this Court by filing the instant writ petition inter-alia praying for a direction to pay the family pension to her on the ground that she was the legally married wife of Dr. Soumendra Mohan Mukherjee. 4. It appears that after the death of Dr. Having come to know about the same the petitioner has approached this Court by filing the instant writ petition inter-alia praying for a direction to pay the family pension to her on the ground that she was the legally married wife of Dr. Soumendra Mohan Mukherjee. 4. It appears that after the death of Dr. Mukherjee, the respondent No. 6 had received family pension for some time, but by the order dated 24.08.2018 passed in I.A. (Civil) No.4167/2017 arising out of WP(C) No.1328/2016, this Court had restrained the authorities from disbursing the family pension in favour of respondent No.6 as a result of which, payment of family pension has been stopped with effect from 24.08.2018. 5. Placing strong reliance on the decision of the Supreme Court in the case of Rameshwari Devi v. State of Bihar and Others, (2000) 2 SCC 431 Mr. Choudhury, has argued that there is no dispute as regards the marriage held between the petitioner and her late husband Dr. Soumendra Mohan Mukherjee and it is also the admitted fact that their marriage took place on a date prior to the marriage solemnized between the respondent No 6 and late Dr. Mukherjee. As such, submits Mr. Choudhury, the marriage between the respondent No 6 and the husband of the writ petitioner was clearly barred under the law since the same was solemnized during the subsistence of the first marriage with the writ petitioner. Hence, the marriage of respondent No 6 with the husband of the petitioner is liable to be declared as null and void. By referring to Rule 143 of the Assam Services (Pension) Rules, 1969, the learned senior counsel has argued that under the Rules only a legally married wife would be entitled to receive family pension and hence, the respondent No 6, not being a legally married wife, would not have any right to claim family pension. 6. Mr. Choudhury has further argued that family pension cannot be bequeathed by a Will and therefore, the learned District Judge would not have the jurisdiction to grant probate in respect of the Will in question, in so far as the bequeath of family pension is concerned. In support of his aforesaid argument Mr. Choudhury has relied and referred to the following decisions :- 1. [Jodh Singh v. Union of India and another, (1980) 4 SCC 306 ]. 2. In support of his aforesaid argument Mr. Choudhury has relied and referred to the following decisions :- 1. [Jodh Singh v. Union of India and another, (1980) 4 SCC 306 ]. 2. [ Smt. Violet Issaac and Others v. Union of India and Others, (1991) 1 SCC 725 ] 3. [Nitu v. Sheela Rani and Others, (2016) 16 SCC 229] 7. Mr. D. Baruah, learned counsel representing the respondent No.6, on the other hand, has submitted that the claim of the writ petitioner is based on several disputed questions of facts which cannot be gone into in a writ proceeding. Since, her prayer for grant of probate is pending disposal before the Court below, this writ petitioner should not be entertained by this court at this stage. It is also the submission of Mr. Barua that the writ petitioner had never cared to look after her husband and it is the respondent No. 6 who all along took care of him. As such, the writ petitioner cannot now claim family pension or any share in the property of her late husband since she had failed to discharge her duty as a wife. 8. Mr. R.K. Talukdar, learned counsel representing the respondent No.2, submits that his client has acted on the basis of the papers forwarded by the department and therefore, does not have any independent stand in the matter. 9. I have considered the submissions made by learned counsel for both the parties and have also perused the materials available on record. 10. At the very outset, it would be relevant to note herein that it is the undisputed position of fact that no children were born to Dr. Soumendra Mohan Mukherjee out of his marriage either with the petitioner or the respondent No.6. Therefore, save and except the writ petitioner and the respondent No.6, there is no other claimant to the estate of Dr. Soumendra Mohan Mukherjee. It is also not in dispute that Dr. Soumendra Mohan Mukherjee was a gazetted officer serving under the Government of Assam and therefore, he was entitled to pension. As a matter of fact, record reveals that late Dr. Soumendra Mohan Mukherjee had received pension after his retirement till the time of his death on 10.06.2009. 11. The right to receive family pension in case of an employee of the Government of Assam is governed by the Assam Services (Pension) Rules, 1969. As a matter of fact, record reveals that late Dr. Soumendra Mohan Mukherjee had received pension after his retirement till the time of his death on 10.06.2009. 11. The right to receive family pension in case of an employee of the Government of Assam is governed by the Assam Services (Pension) Rules, 1969. Rule 143 of the Assam Services (Pension) Rules, 1969 (For short Rules of 1969) defines a family as under :- "FAMILY DEFINITION 143. (i) Family for the purpose of rules in this Section will include the following relatives of the officer - (a) Wife, in the case of a male officer; (b) husband, in the case of a female officer; (c) minor sons; and (d) unmarried minor daughters." 12. Section III of the Rules of 1969 lays down the Pension Scheme of 1964 and according to Rule 137(1) falling under section III, a family pension not exceeding the amount specified in sub-rule (2) is to be granted to the family of an officer mentioned in the Rules, who dies when in service or after retirement after completion of not less than 20 (twenty) years of qualifying service. A conjoint reading of Rules 137(1) and 143 of the Rules of 1969 clearly goes to show that wife comes within the definition of family for the purpose of grant of family pension. The question that would, however, arise for consideration in this case is as to whether the respondent No.6 can be treated as wife of the deceased within the meaning of Rule 143. 13. An issue of similar nature came up for consideration before the Hon'ble Supreme Court in the case of Rameshwari Devi wherein the dispute was concerning the right of the two wives of the deceased Narain Lal to receive family pension and death-cum-retirement gratuity. The appellant in that case i.e. Rameswari Devi was the first wife of Narain Lal who had married the second time to respondent Yogmaya Devi while the appellant was still alive. Taking note of the fact that the marriage between Narain Lal and Jogmaya Devi was held during the currency of his marriage with his first wife Rameshwari Devi, the second marriage with Jogmaya Devi was found to be in contravention of clause (i) of Section 5 of the Hindu Marriage Act and therefore, was held to be void. Taking note of the fact that the marriage between Narain Lal and Jogmaya Devi was held during the currency of his marriage with his first wife Rameshwari Devi, the second marriage with Jogmaya Devi was found to be in contravention of clause (i) of Section 5 of the Hindu Marriage Act and therefore, was held to be void. The observations made in paragraph 14 of the said decision would be relevant in the facts of this case and are therefore, quoted herein below for ready reference :- "14. It cannot be disputed that the marriage between Narain Lal and Yogmaya Devi was in contravention of clause (i) of Section 5 of the Hindu Marriage Act and was a void marriage. Under Section 16 of this Act, children of void marriage are legitimate. Under the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolve firstly on heirs in clause (1) which include widow and son. Among the widow and son, they all get shares (see Sections 8, 10 and the Schedule to the Hindu Succession Act, 1956). Yogmaya Devi cannot be described a widow of Narain Lal, her marriage with Narain Lal being void. Sons of the marriage between Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal would be entitled to the property of Narain Lal in equal shares along with that of Rameshwari Devi and the son born from the marriage of Rameshwari Devi with Narain Lal. That is, however, legal position when Hindu male dies intestate. Here, however, we are concerned with the family pension and death-cum-retirement Gratuity payments which is governed by the relevant rules. It is not disputed before us that if the legal position as aforesaid is correct, there is no error with the directions issued by the learned single Judge in the judgment which is upheld by the Division Bench in LPA by the impugned judgment." 14. In the present case, there is no dispute about the fact that the marriage between the writ petitioner and her husband late Dr. Soumendra Mohan Mukherjee was never dissolved by a decree of divorce. Therefore, it is admitted position of fact that the marriage of the respondent No.6 with Dr. Soumendra Mohan Mukherjee took place during the currency of his marriage with the writ petitioner. Soumendra Mohan Mukherjee was never dissolved by a decree of divorce. Therefore, it is admitted position of fact that the marriage of the respondent No.6 with Dr. Soumendra Mohan Mukherjee took place during the currency of his marriage with the writ petitioner. Since the parties are all governed by the Hindu Law, hence, in view of the provision of Section 5(i) of the Hindu Marriage Act, the marriage between Dr. Soumendra Mohan Mukherjee and the respondent No.6 cannot be held to be valid and would have to be treated as void. As such, in view of the law laid down in the case of Rameshwari Devi the respondent No.6 cannot claim family pension as the legally married wife of Dr. Soumendra Mohan Mukherjee. 15. The other question as to whether special family pension can be bequeathed by means of a Will came up for consideration before the Supreme Court in the case of Jodh Singh wherein the Apex Court had observed that certain benefits such as special family pension becomes admissible on account of status that is acquired on the happening of certain things viz., on becoming a widow on the death of the husband. As such, pension by no stretch of imagination could ever form part of the estate of the deceased. Having held as above, the Supreme Court has made the following observations in paragraph 12 of the said decision which is reproduced herein below for ready reference :- "12. The real controversy is whether a special family pension admissible to a widow in her capacity as widow could ever form a part of the estate of the deceased which could be disposed of by testamentary disposition? Special family pension is payable to the widow on the death of the officer. It is not payable in his life time. What is not payable during life time of the deceased over which he has no power of disposition cannot form part of his estate. It is the event of his death that provides the eligibility qualification for claiming special family pension. Such qualifying event which can only occur on the death of the deceased and which event confers some monetary benefit on someone other than the deceased albeit related to the deceased, cannot form part of the estate of the deceased which he can dispose of by testamentary disposition. Such qualifying event which can only occur on the death of the deceased and which event confers some monetary benefit on someone other than the deceased albeit related to the deceased, cannot form part of the estate of the deceased which he can dispose of by testamentary disposition. Therefore, it is unquestionably established that special family pension sanctioned to the widow of an officer of the Indian Air Force by the President of India under Rule 74 of the Rules could not be subject-matter of testamentary disposition." 16. Following the decision in the case of Jodh Singh, in a subsequent decision in the case of Smt. Violet Issacc and Others the Supreme Court had held that the petitioners there-in, who were the widow and children of the deceased Railway employee, would be entitled to receive the family pension notwithstanding the Will alleged to have been executed by her deceased husband in favour of his brother. In that case also the deceased husband, who was employed under the Railways and had died in harness, had executed a will in favour of his brother bequeathing his properties including the family pension. On his death, a dispute arose between the widow of the deceased employee, his son, daughter and the brother regarding family pension, gratuity and other dues payable by the Railway administration. The widow of the deceased employee Smt. Violet Issac had made an application for family pension, gratuity and other dues but the Railway authorities did not pay any amount to the appellant since the claim of the widow and her sons and daughters was resisted by the brother on the ground that his deceased brother had made a nomination in his favour in the service book and further that his brother had executed a Will in his favour bequeathing all his properties including family pension, gratuity etc. 17. 17. In the case of Nitu the Supreme Court had the occasion to interpret the pari-materia provision of Rule 4(ii) of the Family Pension Scheme, 1964 containing similar provision as in Rule 143(i) of the Rules of 1969 and by following the law laid down in the case of Smt. Violet Issacc and Others had held as follows ;- "It is pertinent to note that in this case the pension is to be given under the provisions of the Scheme and therefore, only the person who is entitled to get the pension as per the Scheme would get it. Similar issue had arisen before this Court in the case of Violet Issaac (Smt.) v. Union of India, (1991) 1 SCC 725 and after considering the relevant provisions, this Court came to the conclusion that family pension does not form part of the estate of the deceased and therefore, even an employee has no right to dispose of the same in his Will by giving a direction that someone other than the one who is entitled to it, should be given the same. In the instant case, as per the provisions of the Scheme, the appellant widow is the only family member who is entitled to the pension and therefore, the respondent mother would not get any right in the pension. Of course, it cannot be disputed that if there are other assets left by late Shri Yash Pal, the respondent mother would get 50% share, if late Shri Yash Pal had not prepared any Will and it appears that late Shri Yash Pal had died intestate and no Will had been executed by him." 18. What crystallises from a careful analysis of the ratio of the aforesaid decisions of the Supreme Court is that family pension and gratuity payable to a deceased employee under the Pension Rules cannot be bequeathed by means of a Will so as to deprive the legal heirs who would come within the definition of family under the relevant Rules. In case of family pension, the right to receive the same shall be governed by the provisions of the rule and merely because the relationship between the deceased employee and his wife was not cordial during their lifetime, the same cannot be a ground to deny pension to the legally married wife. 19. In case of family pension, the right to receive the same shall be governed by the provisions of the rule and merely because the relationship between the deceased employee and his wife was not cordial during their lifetime, the same cannot be a ground to deny pension to the legally married wife. 19. Applying the ratio of the decisions referred to herein above to the facts of this case, I am of the considered opinion that since the respondent No.6 cannot be treated as the legally married wife of Late Dr. Soumendra Mohan Mukherjee hence she would not meet the requirement of Rule 143(i) of the Rules of 1969. As such, no family pension can be paid to the respondent No.6. 20. In so far as other properties of the deceased included in the Will dated 18.11.2006 is concerned, the right of the respondent No.6 to such estate of the deceased would undoubtedly depend on the outcome of the probate proceeding viz., Title Suit(P) No.43/2010 pending before the learned District Judge, Sonitpur and therefore, the said aspect of the matter need not be gone into in the present proceeding. 21. In view of what has been held above, it is hereby directed that the respondents would take necessary steps to make payment of family pension to the writ petitioner. It is, however, made clear that having regard to the peculiar facts of this case and for the ends of justice, no recovery shall be made from the respondent No.6 in respect of family pension that has already been paid to her before the issuance of the interim order dated 24.08.2018 passed by this Court. The writ petition stands allowed to the above extent. There would be no order as to cost.