Smt. Basanti Bai vs Ajit Kumar Bhatt
2022 Latest Caselaw 6526 Chatt

                                      1

                                                                         AFR
                 HIGH COURT OF CHHATTISGARH, BILASPUR

                            FAM No. 12 of 2018

1.    Smt. Basanti Bai Wd/o Late Ganesh Prakash Bhatt Aged About 38 Years
      R/o Near Mela Ground, Ratanpur, Police Station Ratanpur, Tahsil - Kota,
      Civil And Revenue District - Bilaspur (Chhattisgarh) Mo.No.- Not Known

2.    Praveen Kumar S/o Late Ganesh Prakash Bhatt Aged About 16 Years

3.    Ku. Santoshi D/o Late Ganesh Prakash Bhatt Aged About 14 Years

      No.2 & 3 though Next Friend Mother Smt. Basanti Bai, Aged About 38
      Years, Wd/o Late Ganesh Prakash Bhatt

      Both are R/o Near Mela Ground, Ratanpur, Police Station - Ratanpur,
      Tahsil -Kota, Civil And Revenue District Bilaspur (Chhattisgarh) ----
                                                                  Appellants

                                  Versus

      Ajit Kumar Bhatt S/o Late Ganesh Prakash Bhatt Aged About 30 Years
      Occupation - Government Employee, Resident of Block Colony
      Katghora, Police Station And Tahsil Katghora, Civil And Revenue District
      Korba (Chhattisgarh) Mo.No.- Not Known.              ---- Respondent

For Appellants : Mr. Ratnesh Kumar Agrawal, Advocate For Respondent : Mr. Vikash Pandey, Advocate

Hon'ble Shri Goutam Bhaduri, Judge

Hon'ble Shri Radhakishan Agrawal, Judge

Order on Board

Per Goutam Bhaduri, Judge

02.11.2022

1. This appeal is against the judgment and decree dated 22.11.2017

passed by the Additional Principal Judge, Family Court, Bilaspur, District

Bilaspur, Chhattisgarh in Civil Suit No.222-A of 2016 wherein the application

filed under Section 21 of the Hindu Adoptions and Maintenance Act, 1956 (in

short 'Act of 1956') by the appellants/plaintiffs was dismissed. The present

appeal is by the plaintiffs.

2. The facts of this case are that Basanti Bai, claimed to be the wife

of Late Ganesh Prakash Bhatt along with her two children Praveen Kumar

(son) and Ku. Santoshi (daughter) filed an application against Ajit Kumar Bhatt,

who is also one of the sons of Late Ganesh Prakash Bhatt from his marriage.

Primarily, it was pleaded that Ganesh Prakash Bhatt who was working in

Irrigation Department died in harness on 24.08.2013 and thereafter his son

who is from Ramkali Bai, first wife of Ganesh Prakash Bhatt, was appointed on

compassionate ground. According to the plaintiffs, while obtaining employment

on compassionate ground, a declaration was given by Ajit Kumar Bhatt that he

would maintain his another brother Praveen Kumar and sister Ku. Santoshi

and will take care of his mother Ramkali Bai. It is pleaded that thereafter, after

obtaining job he refused to maintain the said brother and sister. Under these

circumstances, a petition u/s 21 of the Act of 1956 was filed by second wife of

Ganesh Prakash Bhatt, namely, Basanti Bai along with two children Praveen

Kumar (son) and Ku. Santoshi (daughter).

3. Respondent- Ajit Kumar Bhatt opposed the application and stated

that maintenance under Section 21 & 22 of the Act of 1956 cannot be allowed

or entertained stating several reasons. Learned Family Court dismissed the

application, hence, this appeal.

4. Learned counsel for the appellants would submit that Family Court

ignored the fact that employment was obtained on the ground that he would

maintain his brother Praveen Kumar and sister Ku. Santoshi. After obtaining

such employment, if such promise is not followed, then in such case,

appellants would be rendered remedy-less. He further submits that as per letter

of succession to the right of the estate of the deceased, 1/4th was recognized

by the Court, i.e., in respect of Ramkali Bai, Ajit Kumar Bhatt, Praveen Kumar

and Ku. Santoshi. Therefore, their right having been recognized, they were

entitled to get the benefit when the employment was given on the basis of

compensate ground and the Family Court has failed to appreciate these facts.

5. Per contra, learned counsel for the respondent would submit that

application under Section 21 of the Act of 1956 would not lie inasmuch as the

appointment obtained on compassionate ground under the Scheme would not

be within the definition of estate. He further submits that even otherwise,

Appellants No.2 & 3 Praveen Kumar and Ku. Santoshi have attained the age of

majority and in respect of Basanti Bai, the status would be of concubine wife,

consequently, dismissal of the application by the Family Court is well merited,

which do not call for any interference.

6. We have heard learned counsel for the parties and have also

perused the records of the court below.

7. The admitted facts in this case are that Ganesh Prakash Bhatt,

who was working in Irrigation Department as Chowkidar, died in harness on

24.08.2013. Ganesh Prakash Bhatt was first married to Ramkali Bai and out of

their wedlock, Ajit Kumar Bhatt was born, who is respondent herein. Ganesh

Prakash Bhatt has performed second marriage with Basanti Bai and out of their

wedlock, Praveen Kumar and Ku. Basanti were born, who are appellants No.2

& 3 in this appeal.

8. In admitted relation inter-se between the parties, document Ex.P/2,

which is a succession certificate would show that after death of Ganesh

Prakash Bhatt, a succession certificate was issued in favour of Ramkali Bai,

Ajit Kumar Bhatt (respondents herein), Praveen Kumar (appellant No.2) and

Ku. Santoshi (appellant No.3) whereby all those persons were held to be legal

heirs of deceased Ganesh Prakash Bhatt and were given equal shares to the

retiral dues to the extent of 1/4th. The status of Basanti Bai was not

recognized, but legitimacy of children, namely Praveen Kumar and Ku.

Santoshi was held to be valid. The law is well settled that even the illegitimate

children are entitled to succession in the properties of the deceased parents.

This legal proposition is clear from various provisions of Hindu Marriage Act,

1955 (in short "Act of 1955") more particularly Section 16 which contains a

legal fiction. It is by rule of fictio juris that the legislature has provided that

children, though illegitimate, shall, nevertheless, be treated as legitimate

notwithstanding that the marriage was void or voidable. Therefore, status of

appellant No.1 to claim the right in the estate cannot be deliberated upon in

this appeal.

9. Now the controversy in the instant dispute arose when respondent

Ajit Kumar Bhatt was appointed by way of compassionate appointment on

account of death of deceased father Ganesh Prakash Bhatt. The affidavit

Ex.P/4 and contents of compassionate appointment letter purport that

compassionate appointment was subject to condition that he would maintain

dependents of deceased and the affidavit particularly contains that he would

maintain his mother Ramkali Bai, brother Praveen Kumar and sister Ku.

Santoshi.

10. The question that falls for consideration is as to whether provisions

of Section 22 of the Act of 1956 can be invoked to claim maintenance. For the

sake of brevity, Section 22 of the Act of 1956 is reproduced below :

"22. Maintenance of Dependants,-- (1). Subject to

the provisions of sub-section (2) the heirs of a deceased Hindu

are bound to maintain the dependents of the deceased out of

the estate inherited by them from the deceased.

2. Whether a dependent has not obtained, by testamentary or interstate-succession, any share in the estate of a Hindu dying after the commencement of this Act, the dependent shall be entitled, subject to the provisions of this Act, to maintenance from those who take the estate.

3. The liability of each of the persons who takes the estate shall be in proportion to the value of the share or part of the estate taken by him or her.

4. Notwithstanding anything contained in sub- section (2) or sub-section (3), no person who is himself or herself a dependent shall be liable to contribute to the maintenance of others, if he or she has obtained a share or part, the value of which is, or would, if the liability to contribute were enforced, become less than what would be awarded to him or her by way of maintenance under this Act."

11. Section 21 of the Act of 1955 defines dependent. Primary reading

of it would show that brother and sister were not included in that. In the instant

case, the application is not by her mother Ramkali Bai, the mother for

maintenance. Compassionate appointment is an attribute of public

employment. It is a welfare scheme of State and other instrumentalities of the

State in modern times that upon death of an employee, one of the dependents

of the deceased is granted compassionate appointment, the object being to

help the family and provide support to it. The source of compassionate

appointment is wholly unconnected with the obligation statutory or otherwise

arising under personal laws. Therefore, where one of the members in the

family gets compassionate appointment after death of the earning member,

that he gets because of a scheme of public employment. Therefore, whatever

earnings are made by way of salary or other benefits flowing from employment

cannot be treated as "estate" inherited from the deceased, as mentioned in

section 22 of the Act of 1956. This being a proposition of law has been

followed by this Court in case of Smt. Krishna Bai Versus Mrs. Priya Thakre

FAM No.229 of 2019 decided on 24.02.2020.

12. In view of above discussion, the findings arrived at by the learned

Family Court do not call for any interference. Accordingly, the appeal is liable to

be and is hereby dismissed.

13. Before we part with the case, it is observed that appellants may

not be remedy-less and may seek remedy in appropriate forum to ensure their

right, which is guaranteed while granting the compassionate appointment in

specific form.

                         Sd/-                                       Sd/-
                   (Goutam Bhaduri)                         (Radhakishan Agrawal)
                         Judge                                      Judge



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