Mother of a deceased army personnel claimed 50% of his family pension as a Class-I heir, challenging the reversal of her decree. The court held that family pension devolves strictly by the Army Pension Regulations, the nominated widow taking exclusively, and that Section 8 of the Hindu Succession Act cannot be invoked. Appeal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 12.04.2018
PRONOUNCED ON : 20.04.2018
CORAM
THE HONOURABLE MR.JUSTICE T.RAVINDRAN
S.A.No.409 of 2004
Chandira ... Appellant
Vs.
1. P.Bhanu
2. The Madras Engineering Group,
Abilek Karialaya, Record Officer,
Madras, having their office
at Sivam Chetty, Garden Post Office,
P.B.No.4201, Bangalore.
3. Coord Pers Directorate,
E.I.A./Engineering Chief
Branch Army Headquarters,
DHO PO New Delhi 110011.
4. The Controller of Defence Accounts (Pension)
C.4, Section, P.E.A.Tech,
Alahabad, UP State. ... Respondents
Prayer :- Second Appeal has been filed under Section 100 of CPC against the Judgement and Decree dated 06.09.2002 passed in A.S.No.10 of 2000 on the file of the Subordinate Court, Gudiyattam, reversing the Judgment and Decree dated 11.10.1999 passed in O.S.No.455 of 1990 on the file of the District Munsif Court, Gudiyattam.
For Appellant : Mr.A.Palaniappan For Respondent : No appearance No.1 set exparte (vide order dt. 12.04.2018) For Respondent : Mr.K.S.Jeyaganeshan Nos.2 to 4
JUDGMENT
This second appeal is directed against the Judgement and Decree dated 06.09.2002 passed in A.S.No.10 of 2000 on the file of the Subordinate Court, Gudiyattam, reversing the Judgment and Decree dated 11.10.1999 passed in O.S.No.455 of 1990 on the file of the District Munsif Court, Gudiyattam.
“ (i).Whether the first appellate Court had erred in law in having held that Naick S.Vijayan who was serving the Army and had died while in service, on duty on 20.12.1987 during the operation of Indian Piece Keeping Force in Sri Lanka, had left behind his mother the appellant herein and the 1st respondent herein being his wife as legal heirs and both the appellant as well as the 1st respondent are not equally entitle to the death cum terminal benefits which includes the family pension along with the Army Group Insurance funds, A.F.P.P.Fund standing in the credit of the deceased, and death cum gratuity benefits and that the 1st respondent alone is entitled to the family pension?
(ii) Whether the first appellate Court has misdirected itself in holding that the entire suit is unsustainable in the light of Section 4 of the Pension Act 1871 and the application of Section 12 and Section 12 (a) of the Act is sustainable in law?
(iii) Whether the first appellate Court has committed a grave error in holding that Section 4, 12 and 12 (a) of the Pension Act 1871 would be applicable to the present case is totally without considering the application of Pension Regulation for the Army 1961 covered by part I pertaining to liberalisation of Special Family Pension which is meant and payable for the whole of the family and not only to the nominated person?
(iv) Whether the first appellate Court has erred in law in having held that in respect of the family pension the nominees shall only hold the amount paid by the employee as the pension for the deceased as a trustee for all the other class I legal heir of the said deceased and the nominee shall not usurp the entire
amount received by way of pension on the sole ground that the person is appointed as the nominee?
“Eligible members of the family
viewed as eligible for the grant of a special family pension, provided that they are otherwise qualified: -
(a) widow/widower lawfully married. It includes a widow who was married after individuals’ release/
retirement/discharge/invalidment.
(c) Daughter, actual and legitimate/ (including validly adopted).
(d) Father.
Further, the note for the readers reads as follows:
“ Note for the Readers
If any member of family Is denied any share in the property of the individual under a will or deed such member shall be debarred for spl. Family Pension Order of priority in which payable. In the case of personnel below officer rank
(i) Nominated heir and on her/his disqualification or death to other member, one at a time as per priority vide Regulation 216.
(ii) In the absence of nomination, to the widow and on her disqualification or death to the eligible child. In case there is no widow/widower the eligible child, it shall be paid to the father and in his absence to the mother.”
reads as follows:
“ Conditions of eligibility for a family pension
General
(i) he or she is not in receipt of another pension from Government;
(ii) he or she is not employed under Government
Widow (iii) a widow has not remarried.
This condition shall not apply to a widow who remarried her deceased husband’s brother, and continues to live a communal life with and/or contributes to the support of the other living eligible heirs.
Son (iv) a son is below the age of 25 years. Daughter
(v) a daughter until she attains the age of 25 years or marriage whichever is earlier.
Parents
Second life Awards (special family Pension) shall be admissible to the parent (s) of the deceased and in the absence of the parents, eligible brother and sisters of the deceased of the rate of 50% of the special family pension determined vide Regulation 227(a), if the claimants was/were largely dependent on the deceased for support and is/are in pecuniary need.
Mother
(vi) a mother who is a widow at the time of her son's death or who becomes a widow
thereafter, has not remarried. If she had remarried before her son's death, she shall remain eligible for the special family pension, unless and until she again becomes a widow and remarries.
Brother/Sister
(vii) The brothers/sisters were largely dependent on the deceased for support and are in pecuniary need.
(viii) In the case of brother he has not completed the age of 25 years.
(ix) In the case of sister, sire has not completed the age of 25 years or has not married.”
Further, as to whom the original grant of family pension could be made, Regulation 220 prescribes the following: “To whom the original grant of family pension is made
(i) If on the date on which the pension sanctioning authority decides that the claim to family pension is admissible the nominated heir is alive and eligible, the pension shall be granted to him or her.
(ii) If on the date referred to above, the nominated heir is dead or disqualified, the pension shall be granted to the heir who stands highest in the fist of living heirs specified in Regulation 216 and is eligible under Regulation 219.
(iii) If an heir (other than the widow) who is nominated for the family pension waives his or her claim in favour of the widow, the pension shall be granted to her, provided she is eligible on the date referred to at sub-clause
(i) above.
(iv) Obsolete
(v) Obsolete
Note- The date on which the pensions sanctioning authority decides that the claim to family pension is admissible shall mean the date on which the draft pension payment order is approved by the (CDA (P)) and the action for actual grant and notification thereof is commenced.
Note for the Readers: -An OR can nominate a member of his family for pension.
A Gorkha OR can nominate alternate heir also. The nomination can be revised.
(b) Where there is no nomination: -
(i) The pension shall be granted to the living heir who stands highest in the list in Regulation 216 and who is eligible under Regulation 219, on the date on which the pension sanctioning authority decides that the claim to pension is admissible.
(ii) Obsolete”
child and in case, there is no widow/widower scheme, the eligible child, it shall be paid to the father and in his absence, to the mother. Thus, it is found that only in the absence of widow/widower, the eligible child, the father, only thereafter the mother would be entitled to receive the family pension and such being the Regulations provided for the disbursement of the family pension under the Pension Regulations For The Army – 1961 (Part-1), it is found that the plaintiff, the mother of the deceased, cannot have any precedence or claim of any equality in respect of the family pension, which is payable on the death of the deceased Vijayan.
12-A. Nomination by pensioner to receive
moneys outstanding on account of pension.— Notwithstanding anything contained in Section 12 or in any other law for the time being in force—
(a). any person to whom any pension mentioned in Section 11 is payable by the Government of India or out of the Consolidated Fund of India (such person being hereinafter referred to as the pensioner) may nominate any other persons (hereinafter referred to as the nominee), in such manner and in such form as may be prescribed by the Central Government by rules, to receive after the death of the pensioner, all moneys payable to the pensioner on account of such pension at, before or after the date of such nomination and which remain unpaid immediately before the death of the pensioner; and
(b). the nominee shall he entitled on the death of the pensioner, to receive, to the exclusion of all other persons, all such moneys which have so remained unpaid:
Provided that if the nominee predeceases the pensioner, the nomination shall so far as it relates to the right conferred upon the said nominee, become
void and of no effect:
Provided further that where provision has been duly made in the nomination, in accordance with the rules made by the Central Government, conferring upon some other person the right to receive all such moneys, which have so remained unpaid, in the event of the nominee predeceasing the pensioner, such right shall, upon the decease as aforesaid of the nominee, pass to such other persons.”
“ The Family Pension Scheme under the
Rules is designed to provide relief to the widow and children by way of compensation for the untimely death of the deceased employee. The Rules do not provide for any nomination with regard to family pension, instead the Rules designate the persons who are entitled to receive the family pension. Thus, no other person except those designated under the Rules are entitled to receive family pension. The employee has not title nor any control over the family pension as he is not required to make any contribution to it. The family pension scheme is in the nature of a welfare scheme. Therefore, it does not form part of his estate enabling him to dispose of the same by testamentary disposition. Accordingly, in the present case the widow of the deceased Railway employee is entitled to receive the family pension, notwithstanding the will alleged to have been executed by the deceased.”
and also followed the decision of the apex Court reported in (1980) 4 SCC 306 (Jodh Singh V. Union of India) as follows: “In Jodh Singh V. Union of India [1980] 4 SCC 306, this Court on an elaborate discussion held that family pension is admissible on account of the status of a widow and not on account of the fact that there was some estate of the deceased which devolved on his death to the widow. The Court observed: (SCC p.310, para 10)
"Where a certain benefit is admissible on account of status and a status that is acquired on the happening of certain event, namely, on becoming a widow on the death of the husband, such pension by no stretch of imagination could ever form part of the estate of the deceased. If it did not form part of the estate of the deceased it could never be the subject matter of testamentary disposition.”
The Court further held that what was not payable during the life time of the deceased over which he had no power of
disposition could not form part of his estate. Since the qualifying event occurs on the death of the deceased for the payment of family pension, monetary benefit of family pension cannot form part of the estate of the deceased entitling him to dispose of the same by testamentary disposition.”
“ 16. So far as the provisions of the Hindu Succession Act, 1956, are concerned, it is true that the properties of a Hindu, who dies intestate would first of all go to the persons enumerated in class I of the schedule as per the provisions of Section 8 of the said Act and therefore, so far as the properties of late Shri Yash Pal are concerned, they would be divided among the respondent mother and the appellant wife, provided there is no other family member of late Shri Yash Pal alive, who would fall within class 1 heirs, but position in this case, with regard to
pension, is different.
“ 14. Bare reading of the regulations shows that the order of priority in which pension is payable is set out in unambiguous terms . In the case of personnel below officer rank, pension is payable to :
(i) a nominated heir and on her/his disqualification or death to the other member, one at a time, as per priority vide Regulation 216.
(ii) In the absence of nomination, to the widow and on her disqualification or death to the eligible child. In case there is no widow/widower the eligible child, it shall be paid to the father and in his absence to the mother.
pension even between eligible legal heirs. Pension regulations postulate devolution of pension strictly in accordance with the priorities set out in the Regulations. The mother of a deceased army personnel has been listed at serial no. "e" i.e. at the fifth position of priority, whereas the widow has been placed at the top.
Family pension cannot legally be divided between even the eligible legal heirs. The widow, respondent no. 6, was therefore an eligible and duly nominated heir and was clearly exclusively entitled to the grant and disbursement of the family pension.
scheme applicable thereto as above discussed and further, when it is found that the family pension does not form part of the estate of the deceased and therefore, the plaintiff, as the mother, not entitled to lay any claim of share in the same by relying upon Section 8 of the Hindu Succession Act 1956, it is found that the abovesaid contention put forth for entitling the plaintiff to receive the family pension does not merit acceptance.
has been a consequent failure of justice.
[2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless suchobjection was taken in the Court of first instance at the earliest possible opportunity, and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
referred to, the judgment and decree of the first appellate Court uphold the first defendant's claim to receive the pension wholly and declining the plaintiff's claim of right to receive the pension do not warrant any interference. As regards the determination of the first appellate Court holding that the civil suit laid by the plaintiff is not maintainable, considering the above discussions, the said determination of the first appellate Court on that point is unwarranted and also not tenable in the eyes of law, particularly, the same having not been raised as a defence by the defendants in any manner. As it has been held that the plaintiff is not entitled to receive the family pension as above discussed, the further question of whether the civil Court has got the jurisdiction to entertain the suit in the light of Section 5 of the Pension Act, 1871,in any considered opinion, is not required to be answered and accordingly, the said question is left open. The substantial questions of law formulated in this second appeal are accordingly answered.
For the reasons aforestated, the second appeal fails and accordingly, is dismissed. No costs. Consequently, connected miscellaneous petition, if any, is closed.
Sd/-
Assistant Registrar(CS II)
//True copy//
Sub Assistant Registrar
sms
To
1. The Subordinate Court, Gudiyattam.
2. The District Munsif Court, Gudiyattam.
3.The Section Officer,
V.R.Section, High Court, Madras.
+1cc to Mr.A.Palaniappan, Advocate SR.No.29605
S.A.No.409 of 2004
SVI(CO) GN(11/05/2018)
3 issues framed by the court
Whether the mother of a deceased army personnel can claim a 50% share of the family pension as against the widow nominated by the deceased?
Whether Section 8 of the Hindu Succession Act, 1956 entitles the mother, as a Class-I heir, to a share in the family pension?
Whether the first appellate court was right in holding the civil suit not maintainable for want of jurisdiction, no objection under Section 21 CPC having been raised?
Colour shows how this judgement treated each authority
Smt.Violet Issaac and others Vs. Union of India and othersRelied on¶97
(1991) 1 Supreme Court Cases 725
Jodh Singh V. Union of IndiaRelied on¶102
(1980) 4 SCC 306 · Who else cites this
State of Gujarat through Chief Secretary and others Vs. Savitri DeviRelied on¶108
(1996) 1 Supreme Court Cases 558
Nitu Vs. Sheela Rani and othersRelied on¶109
(2016) 16 Supreme Court Cases 229
Smt. Bashiram Vs. Union of India (UOI) and Ors.Relied on¶118
2004 (77) DRJ 497
R.S.D.V.Finance Co.Pvt. Ltd., V. Shree Vallabh Glass Works Ltd.,Referred¶136
AIR 1993 SC 2094 · Who else cites this
7 provisions across 4 enactments
Chandira
P.Bhanu
The Madras Engineering Group, Abilek Karialaya, Record Officer, Madras
Coord Pers Directorate, E.I.A./Engineering Chief Branch Army Headquarters
The Controller of Defence Accounts (Pension)
T.Ravindran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
