Research › Search › Judgment

Kerala High Court · body

2020 DIGILAW 139 (KER)

S. Shafeek v. State of Kerala

2020-02-05

K.VINOD CHANDRAN, V.G.ARUN

body2020
JUDGMENT : K.VINOD CHANDRAN, J. The children of the divorced wife of a deceased Government servant is before us claiming their rightful share of the DCRG and arrears of pension; due to their father in his life time. The said amounts were not paid to the employee, against whom there was pending a vigilance proceeding, which got abated on his death. 2. Earlier the second wife had approached the Lok Ayukta, who issued some directions, which were challenged by the State itself before this Court. This Court, by Annexure-A3 judgment, directed the Government to treat the directions of the Lok Ayukta as recommendations and decide the matter in accordance with law. Annexure A4 was the order passed which was challenged by the petitioners before the Tribunal. 3. The dispute arose insofar as the DCRG and arrears of pension due to the Government servant during his life time. On facts, it has to be noticed that Shamshudheen married Shylaja Beevi; the mother of the petitioners on27.02.1983, in which wedlock, the petitioners were born. Shylaja Beevi was divorced and Shamshudheen married Saleena Beevi on 04.07.1993. Saleena Beevi is the second respondent and the third respondent; her son in that marriage. Shamshudheen, who was a Government servant retired on 31.05.2006 and died on 22.11.2009. Admittedly, he was not paid any DCRG at the time of his retirement for reason of a pending enquiry. The arrears of pension were also due to him in his life time. The controversy arose after his death. 4. The Government, by Annexure A4 challenged in the OA, found that family pension has to be paid to the petitioners and the respondents 2 and 3 equally till the children acquire 25 years of age. The petitioners do not challenge the said order. With respect to DCRG and arrears of pension, relying on the nomination, the Government directed the entire amounts to be paid to the second respondent which was challenged before the Tribunal. The Tribunal found that the nomination is an expression of the desire of the deceased which tantamount to a will. 5. The learned Counsel for the petitioners has relied on Sarbati Devi and another v. Usha Devi [ AIR 1984 SC 346 ] and Saraswathi Amma v. Padmavathi Amma [ 1992 (2) KLT 276 ]. The Tribunal found that the nomination is an expression of the desire of the deceased which tantamount to a will. 5. The learned Counsel for the petitioners has relied on Sarbati Devi and another v. Usha Devi [ AIR 1984 SC 346 ] and Saraswathi Amma v. Padmavathi Amma [ 1992 (2) KLT 276 ]. The learned Counsel for respondents 2 and 3,relied on a later judgment of the Honourable Supreme Courtin Indrani Wahi v. Registrar of Co-op. Societies and others [ (2016) 6 SCC 440 ]. The decision of a Single Judge of thePunjab and Haryana High Court was also relied on. The petitioners also relied on Single Bench decision which is on the Kerala Service Rules itself. 6. We cannot, but, observe that the established principle is that nomination, is only the right to receive and it absolves the person who is in possession of the amounts due to a deceased party, from any legal tangle insofar as any claim raised by any of the other legal heirs. The nominated person receives the amounts in trust for the legal heirs. Laws of succession cannot be overturned by the Kerala Service Rules. 7. We garner support from the decision of the Honourable Supreme Court in Sarbati Devi which categorically held that the power to nominate under Section39 of the Insurance Act, 1938 is not intended to act as a third mode of succession and is not a 'statutory succession' as certain High Courts wrongly presumed. The provision for payment of amounts to the nominee or nominees, their Lordship held, 'does not mean that the amount shall belong to the nominee or nominees'. Their Lordships also referred to 'the special care which law and judicial precedents take in the matter of execution and proof of wills which have the effect of diverting the estate from the ordinary course of intestate succession and that the rigour of the rules governing the testamentary succession is not relaxed even where wills are registered.' (sic paragraph 5). We bow to the dictum of the Honourable Supreme Court, which is squarely applicable here, especially looking at the provisions of the Kerala Service Rules. However, before going to that we have to look at the later judgment of the Honourable Supreme Court relied on by the respondents. 8. We bow to the dictum of the Honourable Supreme Court, which is squarely applicable here, especially looking at the provisions of the Kerala Service Rules. However, before going to that we have to look at the later judgment of the Honourable Supreme Court relied on by the respondents. 8. In Indrani Wahi, issue was with respect to the nomination made by a father to his daughter under the provisions of West Bengal Co-operatives Act, 1983. The nomination made under the statute was with respect to the share and interest of a flat owned by the father by virtue of his membership in the Society. It was made in terms of Section 79, which provided for a nomination in favour of a person in whose favour the Society was obliged to dispose of the share or interest of such member on his death. Section80 also spoke of the disposal of deceased member's share or interest on a nomination being made, which has the trappings of a will, which however the nomination under the KSR is totally lacking. 9. The Honourable Supreme Court in Indrani Wahi also found that what is postulated under Section 79 of the1983 Act is that the nomination made by a member would oblige the Co-operatives Society to transfer the value of such share or interest standing in the name of the deceased member to the nominated member. In fact, in paragraph 20, it was held that though such nomination binds the Cooperative Society and they are obliged to transfer the share or interest, it would have no relevance to the issue of title between the inheritors or successors in the property of the deceased. The other members of the family were also permitted to pursue their case for succession or inheritance before the appropriate court. This is again in tandem with the declaration made in Sarbati Devi that the property which belongs to a person during his lifetime, forms part of his estate on his demise, subject to laws of succession and a nominee only has the status of an agent who receives the property, on behalf of the legal heirs. 10. Keeping this principle in our mind, we have to notice the specific provision which enables nomination under Part III of KSR, which is Rule 67. 10. Keeping this principle in our mind, we have to notice the specific provision which enables nomination under Part III of KSR, which is Rule 67. Rule 66 of Part III ofKSR entitles an employee who has completed five years of qualifying service to gratuity not exceeding the amounts specified in Rule 68. Rule 67 enables the Government, to pay the amounts due as gratuity to a person or persons, on whom the right to receive it, is conferred, when an employee who has completed five years service is no more. This conferment of right to receive, as per Rule 67 refers to a nomination made by the employee in his life time. On his death, if the DCRG has not been received, it becomes the estate of the deceased and the claim arises to every legal heir, as per the laws of succession applicable to the deceased. 11. The specific words employed in Rule 67 being the right to receive the gratuity takes it out of the definition of a will, bequeathing the amounts or estate to a particular person. The gratuity received by the nominated person is held by such person in trust for all the legal heirs. We also specifically notice Form No.4(b) which is the nomination for death-cum-retirement gratuity as available in Part III of KSR which also speaks of nomination of a person who is a member of the family and conferring on them the right to receive the gratuity sanctioned by the Government. 12. Saroj Vs Murti Devi [1991 AIR (P&H) 183] was with respect to a nomination under the Army Group Insurance Scheme, the provisions of which explicitly provided the nominee with not only a right to receive but also to enjoy the said amounts. As per the rules, an army personnel, under the Scheme could only nominate his spouse or children and in addition, if the dependant parents or siblings are to be nominated their right together cannot exceed 20% of the total benefits. Also in the case of absence of nomination the entire amounts are to be paid to the widow and only if she is predeceased the amounts are to be distributed equally among the surviving children. The dependant parents get a right only if the deceased has not left behind the widow or children. 13. Also in the case of absence of nomination the entire amounts are to be paid to the widow and only if she is predeceased the amounts are to be distributed equally among the surviving children. The dependant parents get a right only if the deceased has not left behind the widow or children. 13. The provision in KSR, is akin to Section 39 of the Insurance Act, as dealt with in Sarbati Devi. We also respectfully notice and approve the declaration in Saraswathi Amma that “nominee is only a trustee for legal heirs and the right of the legal heirs cannot be taken away bya mere nomination” (sic). In such circumstances, we hold that the amount of DCRG as also the arrears of pension, for which no nomination is made, which however is the estate of the deceased, is entitled to the legal heirs as per the laws of succession applicable to Muslims. The 2nd respondent shall first be entitled to 1/8th of the amounts now due as DCRG and arrears of pension. Out of the balance since the sons are entitled to double the share of the daughter, petitioners 1 &2 and respondent 3 shall be entitled to 2/7 share each and the 3rd petitioner 1/7 share. Original Application is allowed setting aside the order of the Tribunal and Annexure A4; directing the amounts to be disbursed as directed by this Court. No order as to costs.