Bombay High Court

Seema Panditrao Chincholkar vs Superintendent Of Police, Office ... on 6 April, 2021

Bench: R. G. Avachat

                                                         C.R.A. No.79/2019
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           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


             CIVIL REVISION APPLICATION NO.79 OF 2019



 Smt. Seema w/o Panditrao Chincholkar
 Age 37 years, Occu. Household
 R/o Naik Nagar, Nanded,
 At present C/o House of Dattarao
 Ganpatrao Shete, Kinwat Road, Bhokar,
 Tq. Bhokar, District Nanded.          ...PETITIONER
                                                (Original Applicant)
                  VERSUS

 1.       Superintendent of Police,
          Office of District Superintendent
          of Police, Nanded.

 2.       Jyoti w/o Panditrao Chincholkar,
          Age major, Occu. Household

 3.       Sudarshan s/o Panditrao Chincholkar,
          Age 30 years, Occu. Service.

 4.       Sneha d/o Panditrao Chincholkar,
          Age 26 years, Occu. Education

 5.       Shweta d/o Panditrao Chincholkar,
          age 24 years, Occu. Nil

 6.       Annapurnabai w/o Laxmanrao Chincholkar,
          Age 70 years, Occu. Household

          Nos.2 to 6 all R/o Sharadnagar,
          Nanded                                ...RESPONDENTS
                                                (Original Respondents)

                                 .......
 Shri   A.D. Ostwal, Advocate holding for
 Shri   K.D. Jadhav, Advocate for applicant
 Shri   Y.G. Gujarathi, A.G.P. for respondent No.1.
 Shri   S.N. Janakwade, Advocate for respondents No.2 to 5
                                  .......




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                                                              C.R.A. No.79/2019
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                                CORAM :        R. G. AVACHAT, J.

                  Date of reserving judgment : 2nd March, 2021
                  Date of pronouncing judgment : 6th April, 2021


 JUDGMENT :

The challenge in this revision application is to the

common judgment and order dated 9/10/2015, passed by the

Court of Civil Judge, Senior Division in Misc. Application

Requiring Judicial Inquiry (MARJI) No.72/2014 (Old MARJI

No.243/2008, MARJI No.13/2010 and MARJI No.199/2009)

and confirmed by the judgment and order dated 15/3/2019,

passed by Additional District Judge-2, Nanded in Regular Civil

Appeal No.147/2015.

By the impugned judgments and orders, the claim

of the applicant for grant of succession certificate to receive

pensionery benefits came to be negatived. The applicant is,

therefore, before this Court.

FACTS :-

2. Panditrao (deceased) was in the service of Police

Department. He died on 29/9/2008. Deceased Panditrao had

married Jyoti (respondent No.2) in the year 1989.

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Respondents No.3 to 5 are the children born of the said

wedlock. Respondent No.6 is the mother of the deceased

Panditrao. During the subsistence of his first marriage with

Jyoti, Panditrao married the applicant on 17/12/2003. A

daughter, Padmashree was born of the said marriage. On the

demise of Panditrao, the applicant and her daughter

Padmashree on one hand and the respondents No.2 to 6 on

the other filed aforesaid two applications for grant of

succession certificate to receive retiral benefits, inclusive of

pension. Both the applications were heard together and

decided by common judgment and order dated 9/10/2015.

The learned Civil Judge, Senior Division granted succession

certificate in favour of respondents No.2 to 6 and Padmashree

(applicant No.2 in MARJI No.72/2014) to receive amount of

gratuity, provident fund and other service benefits. The

respondent No.2 Jyoti has been held to be entitled to receive

pensionery benefits to the exclusion of all other claimants. In

view of learned Judge, the applicant - Seema married the

deceased during subsistence of his marriage with respondent

No.2 Jyoti. The applicant did not have a status of a wife of

Panditrao and that of his widow on his demise and, therefore,

not entitled to succeed any of the estate/ property including

retiral benefits of the deceased. The appellate Court has

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confirmed the said finding.

3. Shri A.D. Ostwal, learned counsel appearing for

the applicant would submit that, with the consent of

respondent No.2 Jyoti the applicant had married Panditrao.

Since the day of her marriage till Panditrao breathed his last,

the applicant had all along been residing with him. A

daughter - Padmashree was born of the said marriage. In

view of Rule 116(6) of the Maharashtra Civil Services

(Pension) Rules, 1982 (for short the Pension Rules), in case of

there being more than one widow of the deceased employee,

all such widows would be entitled to share pension equally. In

support of his contentions, the learned counsel has relied on

the following authorities :-

(1) Kantabai w/o Dhulaji Shriram & ors. Vs. Hausabai Dhulaji Shriram & ors. [ 2014 (7) ALL MR 299 ]

(2) Smt. Laxmibai wd/o Shripat Kumare Vs. Chief Executive Officer, Nagpur & ors. [ 2004 (4) ALL MR 621 ]

(3) Tulsa Devi Nirola & ors. Vs. Radha Nirola & ors.

[ 2020 SCC Online SC 283 - Civil Appeal no.1835 of 2020 ]

(4) Vidhyadhari & ors. Vs. Sukhranabai & ors.

[ (2008) 2 SCC 238 ]

(5) Nikita Sutar Minor Vs. State of Assam & ors.

[ 2020 SCC Online Gau. 4074 - W.P. (C) No.6536/2017 ]

C.R.A. No.79/2019 :: 5 ::

(6) Rameshwari Devi Vs. State of Bihar & ors.

[ (2000) 2 SCC 431 ]

(7) Kamalbai w/o Venkatrao Nipanikar Vs. State of Maharashtra & ors. [ 2019 (3) Mh.L.J. 921 ]

4. The learned counsel would further submit that,

clause 2 and clause 4 of the impugned order dated 9/10/2015

are inconsistent with each other so far as regards entitlement

to receive amount of pension is concerned. He would further

submit that, in case of there being no widow surviving, the

children of the deceased would be entitled to receive family

pension. The learned counsel meant to say that, in case of

certain contingencies, Padmashree, the daughter of the

applicant may become entitled to receive the family pension.

The learned counsel, therefore, urged for grant of the

application.

5. Shri Janakwade, learned counsel appearing for

respondents No.2 to 5 would, on the other hand, submit that,

the Full Bench of this Court had an occasion to interpret Rule

116 of the Pension Rules in case of Kamalbai Nipanikar

(supra). It has been held therein that :

"26. In cases to which Maharashtra Civil Services (Pension) Rules, 1982 apply, the

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family pension can be claimed by a widow, who was legally wedded wife of the deceased employee. Second wife, if not a legally wedded wife would not be entitled for family pension and if the second wife is legally wedded wife, then should be entitled for the family pension."

The learned counsel would, therefore, urge for

rejection of the revision application.

6. Rule 116(6) of the Maharashtra Civil Services

(Pension) Rules, 1982 reads as under :-

"116. (6) (a) (i) Where the Family Pension is payable to more widows than one, the Family Pension shall be paid to the widows in equal shares;

(ii) on the death of a widow, her share of the Family Pension shall become payable to her eligible child :

Provided that if the widow is not survived by any child, her share of the family pension shall not lapse but shall be payable to the other widows in equal shares, or if there is only one such other widow, in full to her.

(b) Where the deceased Government servant or pensioner is survived by a widow but has left behind eligible child or children from another wife who is not alive, the eligible child or children shall be entitled to the share of Family Pension, which the mother would have received if she had been alive at the time of the death of the Government servant or pensioner.

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Provided that on the share or shares or of family pension payable to such a child or children or to a widow or widows ceasing to be payable, such share or shares shall not lapse but shall be payable to the other widow or widows and/or to other child or children otherwise eligible, in equal shares, or if there is only one widow or child, in full, to such widow or child.

(c) Where the deceased Government servant or pensioner is survived by a widow but has left behind eligible child or children from a divorced wife or wives, the eligible child or children shall be entitled to the share of Family Pension which the mother would have received at the time of the death of the Government servant or pensioner had she not been so divorced.

Provided that on the share or shares of family pension payable to such a child or children or to a widow or widows ceasing to be payable, such share or shares shall not lapse but shall be payable to the other widow or widows and/or to other child or children otherwise eligible, in equal shares, or if there is only one widow or child in full, to such widow or child.

                (d)      ........

                         Provided that . . . . . ."

7. Rule 116(6)(a)(i) was a subject of interpretation

by a Full Bench in case of Kamalbai (supra), wherein it has

been held :-

C.R.A. No.79/2019 :: 8 ::

"26. In cases to which Maharashtra Civil Services (Pension) Rules, 1982 apply, the family pension can be claimed by a widow, who was legally wedded wife of the deceased employee. Second wife, if not a legally wedded wife would not be entitled for family pension and if the second wife is legally wedded wife, then should be entitled for the family pension."

8. The learned counsel for the applicant would not,

therefore, be benefited by the authorities referred in

paragraph No.3 hereinabove :-

9. In the judgment of Kantabai (supra), it has been

held that, even a second wife (widow whose marriage was

void in view of Section 5 of the Hindu Marriage Act) would be

entitled for equal share of family pension along with the first

wife (widow) in view of Rule 116(1)(a)(i) of the Pension Rules,

1982.

In view in Kamalbai's case (supra), the judgment

in case of Kantabai would no longer hold the field.

10. The Division Bench of this Court in Shakuntala's

case (supra), held the second wife of the deceased to be

entitled to family pension solely relying on the judgment in

case of Kantabai. The applicant would also, therefore, not be

C.R.A. No.79/2019 :: 9 ::

benefited by the judgment in Shakuntala's case in view of

there being the Full Bench judgment.

11. So far as regards facts of Laxmibai's case (supra)

are concerned, it is to be stated that, the Zilla Parishad,

Nagpur had been paying the family pension to both the

widows of the deceased employee. The question before the

Court was whether the first wife (widow) would be entitled to

receive the family pension in its entirety on the demise of the

co-widow.

The facts of Tulsa Devi Nirola's case (supra) were

altogether different. Rule 40(6) of Sikkim Services (Pension)

Rules was subject of interpretation in the said case. The Apex

Court observed that, the Pension Rules recognize the

nomination of the wife or wives for the purpose of family

pension. In paragraph No.7 of the judgment, it was observed

that, no material has been placed by the appellant that the

second marriage was solemnized under 1963 Rules and,

therefore, the Court had no hesitation in holding that it does

not invalidate the second marriage of the deceased with the

respondent No.1 therein. The deceased had executed a

settlement deed on 30/6/2008 to ensure that, in future the

dispute do not arise between his two wives and their progeny.

C.R.A. No.79/2019 :: 10 ::

It is reiterated that, in the facts and circumstances of the said

case, and on the interpretation of the relevant Rules of Sikkim

Civil Services (Pension) Rules, the second wife therein was

held to be entitled to have share in the family pension.

The facts of Vidhyadhari's case (supra) would

indicate that, Vidhyadhari being second wife of the deceased,

was only held to be entitled to receive family pension in view

of being nominated to receive the same. The Apex Court has

held therein that, Vidhyadhari would receive the pension to

the extent of one fifth share in trust for the first wife of the

deceased who had no issue. Vidhyadhari had four children

born by the deceased. The facts would further indicate that,

Vidhyadhari was to receive four fifth share in the pension

amount for and on behalf of her minor children and not for

herself. The Apex Court has rendered the said judgment with

a view to balance the equity. It has been held :-

"To balance the equities we would, therefore, choose to grant succession certificate to Vidhyadhari but with a rider that she would protect the 1/5th share of Sukhrana Bai in Sheetaldeen's properties and would hand over the same to her. As the nominee she would hold the 1/5th share of Sukhrana Bai in trust and would be responsible to pay the same to Sukhrana Bai. . . . . . It should not be understood by the above that we are, in any way, deciding

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