Partly allowed

Shabirabi W/O Late Khajamoin v. Sharapanbi W/O Late Khajamodinsab

Karnataka HC16 Mar 2017RSA/2333/2005

Case brief

AI extract

What is this about?

This Court modified the trial and appellate judgments which held a second wife of a deceased government servant entitled to 50% of family pension. Ruling that Rule 28 requires permission for pension division, the Court refused the pension share but directed declaration of sharing GIS, DCRG, and PF as personal law estate.

What did the court decide?

Impugned judgments modified; plaintiffs entitled to half share in GIS, DCRG, and PF but not in family pension; appeals disposed.

Shabirabi W/O Late Khajamoin Vs Sharapanbi W/O… — Succession and Inheritance | Karnataka HC (2017)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 16^TH DAY OF MARCH, 2017

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BEFORE

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THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR

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R.S.A. NO. 2333/2005(DEC)

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BETWEEN:

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SHABIRABI W/O LATE KHAJAMODIN, AGED ABOUT 41 YEARS, R/O HOSPET,

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DISTRICT BELLARY –583201.

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PRAVIN D/O LATE KHAJAMODIN, AGED ABOUT 13 YEARS, SINCE MINOR REPRESENTED BY MOTHER APPELLANT NO.1 SHABIRABI W/O LATE KHAJAMODIN, R/O HOSPET, DISTRICT BELLARY

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SHABANABI W/O LATE KHAJAMODIN, AGED ABOUT 23 YEARS, R/O HOSPET, BELLARY DISTRICT –582301.

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... APPELLANTS

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(BY SRI. S V SHASTRI & RAVI S HEGDE, ADVOCATES)

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AND

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SHARAPANBI W/O LATE KHAJAMODINSAB, AGED ABOUT 26 YEARS, R/O 4^TH CROSS, SHIVAJINAGAR, HAVERI 581110

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YASIM BEGUM D/O LATE KHAJAMODINSAB,

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AGED ABOUT 14 YEARS, SINCE MINOR REPRESENTED BY MOTHER SHARAPANBI W/O LATE KHAJAMODINSAB, R/O 4^TH CROSS, SHIVAJINAGAR, HAVERI 581 110.

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RAJABAKSHI S/O KHAJAMODINSAB, AGED ABOUT 15 YEARS, SINCE MINOR REPRESENTED BY MOTHER SHARAPANBI W/O LATE KHAJAMODINSAB, R/O 4^TH CROSS, SHIVAJINAGAR, HAVERI 581 110.

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THE TAHSILDAR, HADAGALI TALUK, BELLARY DISTRICT 583101.

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THE DEPUTY COMMISSIONER BELLARY DISTRICT BELLARY-583101.

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... RESPONDENTS

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(BY SRI H M DHARENNAVAR, ADVOCATE FOR R1-R3) (BY SMT VEENA HEGDE, GOVT. ADV. FOR R-4 & R-5)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED: 02.08.2005, PASSED IN R.A.NO. 1/04, ON THE FILE OF THE ADDL. CIVIL JUDGE (SR.DN), HOSPET, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED: 17.11.2003, PASSED IN OS. 28/2000, ON THE FILE OF THE CIVIL JUDGE (JR.DN) & JMFC., HADAGALI.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 17.02.2017, AND COMING ON FOR PRONOUNCEMENT THIS DAY, THIS COURT DELIVERED THE FOLLOWING : -

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JUDGMENT

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The appellants are the defendants and the

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respondents are the plaintiffs in O.S. No.28/2000 instituted in the Court of Civil Judge (Jr.Dn.), Hadagali. The first plaintiff is the second wife of one Khazamodinsab Hasansab Ballari (referred as Khazamodinsab hereafter). Plaintiffs No.2 and 3 are the children of first plaintiff and Khazamodinsab. The first defendant is the first wife of the said Khazamodinsab and that defendants No.2 and 3 are their children. Defendant No.4 is the Tahsildar of Hadagali taluk and defendant No.5 is the Deputy Commissioner of Ballari District.

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This Khazamodinsab was working as a peon in the office of Tahsildar, Huvina Hadagali, and he died on 16.07.1999 while in service. After his death, plaintiff No.1 issued a legal notice to defendant No.5 claiming service benefits of her husband. She also requested the fourth defendant to enter her name in the Service Register of her husband, but the defendants who have no manner of right or interest according to the plaintiffs also made an application before the defendants No.4 and 5 claiming all the service

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benefits of the deceased Khazamodinsab. Since the defendants No.4 and 5 did not consider the request of the plaintiffs, they filed a suit seeking declaration that they are entitled to all the service benefits such as, Group Insurance Scheme, Death cum Retirement Gratuity, Provident Fund, Pension and other benefits. They also sought a consequential relief of permanent injunction to restrain the defendants No.4 and 5 from making payment of service benefits to defendants No.1 to 3. The trial Court, on assessing the entire evidence partly decreed the suit of plaintiffs by its judgment and decree dated 17.11.2003. The trial court declared that the plaintiffs were entitled to half share in the service benefits of Khazamodinsab except the job given to defendant No.2 on compassionate ground and then directed defendants No.1 to 3 to deposit in the Court within a month half of the share amount that they had already withdrawn.

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Aggrieved by this judgment and decree, the defendants appealed to the Court of Additional Senior Civil Judge, Hospet. On 02.08.2005, the Appellate Court passed a judgment dismissing the appeal and confirming the judgment of the trial Court. Therefore, the defendants 1 to 3

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have preferred this appeal challenging the said judgment of the First Appellate Court.

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On 19.01.2006, this appeal was admitted on the following substantial question of law :

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“Whether the findings of the Court below holding that in view of the personal law applicable to the parties, notwithstanding the fact that the permission was not obtained under Section 27 of the K.C.S. (Conduct Rules), plaintiff is entitled to 50% of the terminal benefits and pension is perverse and arbitrary and contrary to law?”

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The counsel for the defendants 1 to 3 / appellants argued that the deceased Khazamodinsab married the first plaintiff without obtaining necessary permission from the Government according to Rule 28 of K.C.S. (Conduct) Rules, 1984 (for short, ‘Rules’). Deceased was a Government servant, he was working as a peon in the Office of Tahsildar. Therefore, he was required to take permission and when he married the first plaintiff without taking permission, that marriage was illegal. Even though he was a Muslim and entitled to have more than one wife, but his second marriage without permission cannot be recognized. Inspite of this fact

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and law being brought to the notice of the trial Judge as well as the First Appellate Court, both the Courts ignored the law to hold that the plaintiffs were entitled to a share in the terminal benefits. He also referred to Rule 8(d) of Karnataka Government Servants (Family Pension) Rules 1964 to argue that if the permission was not taken as required under Rule 28 of the Rules, the second wife would not be entitled to family pension. Therefore, this being the position of law, the judgments of both the courts below are required to be set aside and suit dismissed.

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The plaintiffs’/respondents’ counsel argued that the deceased was a Muslim. His personal law permitted him to have more than one wife. Therefore, the marriage of the 1^st plaintiff with the deceased was valid. The appellants took a contention in the written statement that the deceased had divorced the 1^st plaintiff, but both the Courts below have given a finding that the divorce has not been proved. So, the 1^st plaintiff is the legally married wife of the deceased. The personal law of the deceased prevails over the service rules. Having noticed these aspects, both the courts upheld the right of the plaintiffs to claim half share in the terminal

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benefits after death of Khazamodinsab. Hence, it is his argument that this appeal deserves dismissal.

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There is no dispute that the 1^st plaintiff is the wife of the deceased Khazamodinsab who was working as a peon in the office of Thasildar. The plaintiffs 2 and 3 are their children. Though the appellants contended that Khazamodinsab had divorced the 1^st plaintiff, but they were not able to prove the issue raised in that regard. Now the question is, “could the plaintiffs have filed a suit claiming half share in the terminal benefits subsequent to death of Khazamodinsab?” Since the learned counsel for the defendants referred to Rule 28 of Karnataka Civil Service (Conduct) Rules, 1966, it is necessary to extract the said rule here.

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“28. Bigamous marriage. – (1) No Government Servant who has a wife living shall contract another marriage without first obtaining the permission of the Government notwithstanding that such subsequent marriage is permissible under the personal law for the time being applicable to him.”

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So, this rule makes it very clear that if a government servant has a wife living, he cannot take another wife without obtaining permission from the government. The non-obstante clause found in this rule states very clearly

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that permission is necessary even though personal law of a government servant permits for having more than one wife. There is a reason behind mandating the obtaining of permission in case a government servant wants to contract another marriage during the lifetime of a wife living. This becomes clear if Rule 8(d) of Karnataka Government Servants (Family Pension) Rules 1964 is read. It is as below:-

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“8.⁵ [(d) If a Government servant had married more than one wife 6[with the permission of the Government under Rule 28 of the Karnataka Civil Services (Conduct) Rules 1966] the family pension shall be divided among them equally, the share in respect of each wife shall be paid to her; if she is not alive, it shall be paid to her minor children in the manner indicated in the Explanation 2 below clause (c). When the last member eligible to receive such a share in respect of a wife ceases to be eligible to receive it, such share shall be divided equally among all the other members of the family eligible for family pension on that date. This process of transfer by division among the other beneficiaries shall continue till the last beneficiary of the family ceases to be eligible for family pension]”

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So going by this rule, the purpose for which permission has to be obtained can be gathered. It is for the purpose of dividing the family pension equally among the wives or the minor children. If permission is taken as

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required under Rule 28 of KCS (Conduct), Rules 1966, even though the government servant belongs to a community or religion which permits contracting another marriage while already a wife is living, such a marriage is not recognizable for the purpose of disbursement of the family pension as envisaged under Rule 8(d) of Family Pension Rules. So these rules are made only for the purpose of paying family pension, not for any other reason.

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The plaintiffs have not only claimed a share in the pension but they state that they are entitled to half share in Group Insurance Scheme, DCRG and Provident Fund. So far as money payable under these schemes are concerned, it has to be stated that they constitute estate of the deceased Khazamodinsab and the 1^st plaintiff being his legally wedded wife and respondents 2 and 3 being his legitimate children, have a definite share as permitted under the personal law. This benefit cannot be denied to them.

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The Trial Court partly decreed the suit by giving a declaration that the respondents were entitled to half share in the service benefits of the deceased Khazamodinsab except a job to be claimed under compassionate ground as

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2^nd defendant in the suit had already been appointed under compassionate ground. The First Appellate Court confirmed this judgment. So in the light of the law discussed as above, the substantial question has to be answered in such a way as the judgments and decrees of both Courts below cannot be sustained to the extent of the 1^st plaintiff claiming 50% in the family pension, but as regards other terminal benefits, non-obtaining of permission by Khazamodinsab doesn’t come in the way of the plaintiffs’ claiming share in the money to be disbursed under GIS, DCRG and PF. But as held by both the Courts below, the plaintiffs and the defendants cannot claim equal share because the share that each party takes has to be determined in accordance with their personal law. So with this discussion, the judgments and decrees of both the Courts below stand modified and this appeal is disposed of.

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Sd/JUDGE

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hnm/yan

Shabirabi W/O Late Khajamoin v. Sharapanbi W/O Late Khajamodinsab

Case brief

What is this about?

What did the court decide?

Shabirabi W/O Late Khajamoin v. Sharapanbi W/O Late Khajamodinsab

Case brief

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What did the court decide?

What the court decided

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Statutes considered

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