Shobha Pravin Ningule vs Jaya Ganpatrao Ningule
2021 Latest Caselaw 2774 Bom

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             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD

                CIVIL REVISION APPLICATION NO. 88 OF 2019

 Jaya d/o Ganpatrao Ningule                           ... Applicant
       Versus
 Shobha wd/o Pravin Ningule                           ... Respondent
                                  ....
 Mr. S. S. Manale, Advocate for the applicant
 Mr. S. A. Ambad, Advocate for the respondent
                                  ....



                                  WITH
                CIVIL REVISION APPLICATION NO. 14 OF 2020

 Shobha wd/o Pravin Ningule                           ... Applicant
       Versus
 Jaya d/o Ganpatrao Ningule                           ... Respondent
                                  ....
 Mr. S. A. Ambad, Advocate for the applicant
 Mr. S. S. Manale, Advocate for the respondent
                                  ....

                                   CORAM : R. G. AVACHAT, J.

DATED : 11th FEBRUARY, 2021

PER COURT :-

. Heard.

2. Both these revision applications are decided by common

order, since judgment and orders challenged therein are one and the

same. For the sake of convenience, the facts and parties in Civil

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Revision Application No.14 of 2020, are referred to.

3. The applicant herein is the widow of late Pravin Ningule,

who died on 17.02.2014. Pravin was employed as a Clerk with

Maharashtra State Electricity Distribution Company Limited

(MSEDCL), at Kaij. On his demise, the applicant applied for heirship

certificate under the Bombay Regulation, 1827. It was Miscellaneous

Civil Application No.19 of 2014. The respondent is the sister of

deceased Pravin. She appeared in the said application and raised

objection. The application was therefore transferred to the Court of

Civil Judge, Senior Division (C.J.S.D.), Ambajogai. It was

renumbered as Miscellaneous Civil Application No.144 of 2014. The

learned C.J.S.D. Ambajogai, by his judgment and order dated

06.11.2015, rejected the application on the ground that there being

a complicated issue of fact and law involved in the said application.

Both, the applicant and the respondent challenged the

said order by preferring two separate appeals, being Regular Civil

Appeal Nos.86 of 2015 and Regular Civil Appeal No.2 of 2016. The

learned District Judge, Ambajogai, by his common judgment and

order dated 28.07.2017, dismissed both the appeals on the same

ground i.e. the application for grant of heirship certificate involved a

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complicated issue of fact and law. It would therefore be desirable to

direct the parties to opt for a remedy of civil suit. These two orders

are under challenge in these revision applications.

4. Shri Manale, learned Advocate would submit that

relations between deceased Pravin and his widow Shobha, were not

cordial. Late Pravin has executed will in favour of the respondent,

his real sister, bequeathing all his immovable property. Moreover,

Pravin nominated the respondent to receive all his service benefits,

such as, provident fund amount, gratuity etc. The respondent being

sister of the deceased is entitled to appointment on compassionate

ground, since in the term " family" an unmarried sister has been

included. According to the learned Advocate, heirship certificate,

therefore, needs to be issued in the name of the respondent, sister of

the deceased. He has relied on the following authorities:

(i) Aparna Narendra Zambre and another vs. Assistant Superintendent Engineer, Sangli and others - 2011(5) Mh.L.J.

(ii) State of Madhya Pradesh & ors. vs. Amit Shrivas -

(2020)10 SCC 496.

(iii) Indian Bank and others vs. Promila and Another -

2020 DGLS(SC)16.

        (iv)      Shipra Sengupta vs. Mridul Sengupta & ors - 2009

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                  DGLS(SC)1224.

5. Learned Advocate for the applicant would on the other

hand submit that, admittedly, the applicant is widow of the

deceased. She would, therefore, be preferred over a Class-II heir for

grant of heirship certificate. A mere nomination doesn't entitle the

nominee to receive the amount in his own right as a nominee. The

respondent's nomination would therefore be of no avail for her to

receive monetary service benefits and even appointment on

compassionate ground.

6. Perused the impugned orders. I am not in agreement

with the reasons given by both the Courts below for rejecting the

application and the appeal, as well. In my view, no complicated issue

of fact and/or law is involved.

7. Late Pravin was serving with MSEDCL as a Clerk. He had

married the applicant. Marital relationship between the two did

subsist while Pravin breathed his last on 17.02.2014. The applicant

is thus a widow of the deceased Pravin. Parties are governed by

Hindu Succession Act, 1956. She is Class-I heir of the deceased

Pravin. The deceased was the real brother of the respondent - Jaya.

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Respondent was unmarried when Pravin died. The respondent being

sister of the deceased, falls in the category of Class-II heir. The

property of a male dying intestate devolves firstly upon the heirs,

being the relatives specified in Clause-I of the schedule. If there is no

heir of Class-I, then upon the heirs being the relatives specified in

Clause-II of the schedule. The applicant being the widow of the

deceased, would therefore alone be entitled to receive whatever

estate, movable and immovable, is left behind by the deceased. Here,

late Pravin is said to have executed a will bequeathing his

immovable properties to the respondent, his sister - Jaya.

The applicant has simply preferred application for grant

of heirship certificate in recognition of her status as widow of

deceased Pravin. The learned C.J.S.D. ought to have granted

certificate in her favour.

8. The applicant being widow of the deceased, would alone

be entitled to receive family pension, if any, and other monetary

service benefits, subject to the relevant service rules.

9. True, the respondent - sister has been nominated by the

deceased, to receive provident fund amount, gratuity etc. According

to the learned Advocate for the respondent, in view of the judgment

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of the Apex Court in the case of Shipra Sengupta (supra), the

nominee is entitled to receive the amount, but the amount so

received is to be distributed according to the law of succession.

10. I have carefully perused the said judgment to find that

the nominee in the said case was none other than the mother of the

deceased. The facts of the present case are distinguishable. The

respondent - sister is a nominee. She is not entitled to receive the

amount as a heir of deceased. Relations between the applicant and

the respondent are not good. The MSEDCL would therefore, do well

to release monetary benefits and family pension in favour of the

applicant.

11. So far as the claim for appointment on compassionate

ground is concerned, it is to be stated that in the proceedings for

grant of heirship certificate, such entitlement cannot be decided.

Claim for compassionate appointment would be governed by rules

and regulations framed by the MSEDCL in that regard. Learned

Advocate for the respondent has brought to my notice definition of

the term "family" given in recruitment regulation 38 and the scheme

framed by the MSEDCL as regards grant of employment on

compassionate ground. As per Clause-5 of the said scheme the term

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"family" includes wife of the deceased employee, sons, unmarried

daughters and dependent unmarried brothers and sisters. According

to the learned Advocate, the respondent was unmarried when Pravin

breathed his last. She is, therefore, covered by the definition of the

term "family". He has also relied on the judgment in the case of

Aparna Narendra Zambre (supra) to contend that whether married

sister is to be excluded for grant of compassionate appointment

being disqualified as a married sister would be examined with

reference to the date of making of application and not with reference

to date of selection. Marrying subsequently is not a disqualification.

True, the respondent-sister was unmarried when Pravin

breathed his last. She could therefore be considered to be one of the

members of the family of the deceased, for grant of compassionate

appointment. This is a call that needs to be taken by MSEDCL. It is

for the authorities to decide who is to be preferred, widow or sister

of the deceased.

12. For the reasons stated herein above, both the orders

impugned herein are set aside. The Miscellaneous Civil Application

No. 19 of 2014 preferred by the applicant widow of the deceased is

allowed. The learned Civil Judge, Senior Division, Ambajogai, shall

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grant the applicant - Shobha, heirship certificate in recognition of

her status as a widow of late Pravin Ningule.

13. Both the Civil Revision Applications are disposed of.

[ R. G. AVACHAT, J. ]

SMS

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