Patna High Court
Nazara Khatoon @ Najra Khatun vs The State Of Bihar on 6 August, 2024
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1233 of 2024
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Nazara Khatoon @ Najra Khatun Wife of Haider Ali, Resident of ward no.
29, Near Railway Station, Village - Bagha Baghi, P.O. - Begusarai, P.S. -
Town Begusarai, District- Begusarai (Bihar).
... ... Petitioner/s
Versus
1. The State of Bihar through the District Magistrate, Begusarai.
2. The District Magistrate, Begusarai.
3. The Sub-Divisional Officer, Begusarai Sadar, Begusarai.
4. The Accountant General, Bihar, Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Mukesh Kumar Sinha, Advocate
For the Respondent/s : Mr. Anil Kumar, AC to SC-8
For the Accountant General : Mr. Ram Kinker Choubey, Advocate
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CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date : 06-08-2024
Heard the parties.
2. The petitioner is the adopted daughter of late
Kamrun Khatoon who died in harness on 05.12.2018, has
invoked the jurisdiction of this Court under Article 226 of the
Constitution of India seeking a direction upon the respondents
especially respondent no. 2, the District Magistrate, Begusarai
to sanction all the death-cum-retiral benefits, including pension,
gratuity, leave encashment, provident fund accumulation, group
insurance and other dues.
3. Learned Advocate for the petitioner contended that
the mother of the petitioner died in harness on 05.12.2018 while
Patna High Court CWJC No.1233 of 2024 dt.06-08-2024
2/9
working as Office Peon in the Office of Sub-Divisional Officer,
Begusarai and later on posted in the office of Begusarai Block.
The deceased mother of the petitioner was appointed on
compassionate ground after the death of her husband late Md.
Nizamuddin, who was working on the post of Peon in the office
of Sub-Divisional Officer, Begusarai. The petitioner being
adopted daughter of late Kamrun Khatoon (deceased mother)
who died in harness on 05.12.2018 filed an application before
the Sub-Divisional Officer, Begusarai on 25.06.2019, requesting
for payment of all the terminal benefits of her mother, who died
during her service period.
4. The SDO, Begusarai vide its letter no. 1107 dated
15.07.2019
directed the Circle Officer, Begusarai to issue a
family list/certificate in order to ensure payment of all the
retirement benefits and other dues. Despite the application filed
by the petitioner, when she has not been accorded the terminal-
cum-retiral benefits of her mother, she again filed another
representation along with all the necessary documents, including
the family lists certificate, the educational certificate issued by
the Madarsa Education Board as well as the documents in
relation to oral adoption. On receipt of the aforesaid letter, the
SDO, Begusarai vide its letter no. 1821 dated 21.10.2019
Patna High Court CWJC No.1233 of 2024 dt.06-08-2024
directed the Circle Officer, Begusarai to minutely verify all the
documents and submit a clear report so that the decision could
be taken to accord the admissible death-cum-retirement benefits.
5. Pursuant thereto, the Circle Officer, Begusarai
sought an enquiry report from the Revenue Clerk and
accordingly, the Revenue Clerk submitted its enquiry report
dated 20.11.2019. On verification, the local people/villagers
admitted the factum of adoption of petitioner by late Kamrun
Khatoon and her husband late Md. Nizamuddin. The Revenue
Clerk also placed on record the declaration-cum-will executed
before the Notary Public as well as Panchnama of Adoption
Deed.
6. Despite all the correspondences, when the
authorities did not accede to the prayer of the petitioner, she
filed a Succession Case No. 02 of 2021 before the learned Sub
Judge 1, Begusarai for grant of succession certificate. The
learned Court vide its order dated 18.04.2023 declared the
petitioner as successor of late Md. Nizamuddin in order for the
Estates of late Md. Nizamuddin. Accordingly, the succession
certificate has been issued in favour of the petitioner, the copy
of which has been placed on record vide Annexure-P/5.
7. The petitioner having obtained the succession
Patna High Court CWJC No.1233 of 2024 dt.06-08-2024
certificate produced the same before the concerned authorities,
but no terminal/retiral benefits and other dues have been paid,
compelling her to approach before this Court.
8. Adverting to the aforesaid facts, learned Advocate
for the petitioner further contended that undoubtedly, the
adopted child is as good as a natural child. The Bihar Pension
Rules, 1950 and the notification issued time to time by the
Government of Bihar through different departments made it
clear that an adopted son or daughter comes within the
definition of family under the liberalized pension rules. It is
vehemently contended that where no records are available to
satisfy the department as to whether the claimant is the
widow/widower or eligible child of the concerned government
servant, the succession certificate issued by a competent Court
is good enough for grant of terminal/retiral dues. While
concluding the submission, learned Advocate further urged that
the petitioner is ready to give undertaking that in case of any
eventuality or adverse order passed by any competent authority
or appellate Court, she shall be abide by the order.
9. A counter affidavit has been filed on behalf of the
respondent nos. 2 and 3. Mr. Anil Kumar, learned Advocate for
the State while countering the submissions of the petitioner
Patna High Court CWJC No.1233 of 2024 dt.06-08-2024
contended before this Court that the claim of the petitioner on
the basis of unregistered adoption deep is not admissible. There
is no provision in Muslim Personal Law for adoption. It is
further submitted that so far the family certificate issued in
favour of the petitioner vide Certificate No. 288 dated
04.06.2019 is concerned, the same has already been cancelled
because the petitioner has not mentioned in her application that
she is adopted daughter of late Kamrun Khatoon. The petitioner
though filed affidavit but she did not mentioned this fact of
adoption.
10. In view thereof, the SDO, Begusarai vide Letter
No. 3437 dated 19.12.2020 directed to submit cogent evidence
that she being the adopted daughter of late Kamrun Khatoon. It
is also contended that the erstwhile employee late Kamrun
Khatoon in her nomination form under the General Provident
Fund Rules nominated the name of her two cousins. In that view
of the matter, after considering the aforenoted facts, learned
Advocate thus submitted that the petitioner is not entitled to get
any terminal/retirement benefits/dues on account of death of late
Kamrun Khatoon.
11. This Court has carefully heard the rival contention
of the parties and also perused the materials available on record.
Patna High Court CWJC No.1233 of 2024 dt.06-08-2024
From the facts discussed hereinabove, the petitioner prima facie
claiming herself to be an adopted daughter of late Kamrun
Khatoon and late Md. Nizamuddin. In support of her contention,
she has produced a declaration-cum-will executed before the
Notary Public as well as Panchnama with respect to oral
partition. Even for the sake of argument, the contention of the
State respondents is accepted for the time being that under the
Mohemmadan Law, there is no provisions for adoption; but the
respondent authorities are obligated to consider the claim of the
petitioner in view of the Rules, Regulation and Guidelines
issued by the Government of Bihar through the different
departments from time to time, which govern the service
condition of the erstwhile employee.
12. In order to determine the real claimant of family
pension and terminal dues, the guidelines issued by the Finance
Department vide Resolution No. 1918 dated 04.06.1986
stipulates as follows:
"(iii) Determination of real claimant
of family pension.
It is the full responsibility of the
petitioner to satisfy the Head of Department/Office
that she/he is the widow/widower or eligible child
of the concerned Govt. Servant and prove his
identity by producing relevant records, i.e. P.P.O.
of the deceased Govt. servant or any other
available records. Where no records are available
the claimant should be asked to produce any one
of the following documents:
Patna High Court CWJC No.1233 of 2024 dt.06-08-2024
(i) Succession certificate of the court;
or
(ii) Declaration with affidavit filed
before a
(iii) Magistrate or/Affidavit on plain
paper by the claimant along with two documents
which would be acceptable to the pension
sanctioning Authority."
13. There is no dispute that the petitioner approached
before the Civil Court of competent jurisdiction for grant of
succession certificate under Section 372 of the Indian
Succession Act, 1925. The learned Court having considered the
documents produced and exhibited, declared the petitioner as
successor of late Md. Nizamuddin. The petitioner was also
directed to execute security bond of Rs. 15 lakh with two surety
and subsequent thereto, a succession certificate under Section
373 of Indian Succession Act, 1925, which is part of the record
has been granted in favour of the petitioner.
14. The succession certificate issued by the competent
Court is not in dispute nor there is any other claimant, who has
made any objection to the entitlement of the petitioner on the
basis of either adoption deed or succession certificate. So far the
plea of the State that the deceased employee had nominated the
name of her two cousins does not find any force.
15. True, it is that the very purpose of the nomination
is to enable the State to meet its obligation and get a valid
Patna High Court CWJC No.1233 of 2024 dt.06-08-2024
discharge in respect thereof. In case of Ati Razia Devi Vs. The
State of Bihar and Ors., 2016 SCC Online Pat 339, the
Division Bench of this Court had considered the stand of the
State that in terms of the nomination as made by the employee,
State was bound to pay the nominee, if no one disputes the right,
title and interest of the nominee for payment. If someone
dispute the right, title and interest of the nominee, it was for
him/her to move appropriate court for appropriate directions,
but, so long as the nominee stood as such, State was bound to
pay the nominee.
16. The learned Division Bench while dismissing the
Letters Patent Appeal preferred by the appellant, who was
unsuccessful writ petitioner claiming her to be the first wife of
an erstwhile employee has held that "the nominee, in matters
where the status and the right is disputed, is merely a trustee for
the rightful owner thereof, but, of course, subject to the right of
nominee to receive and give a valid discharge. Nomination by
itself, it is well settled, does not make the person the owner or
the rightful recipient of the property, but holds it in trust for
rightful and lawful recipient or person entitled therein." In such
circumstances, the learned Division Bench has directed that it is
open for the appellant to go before a court of competent
Patna High Court CWJC No.1233 of 2024 dt.06-08-2024
jurisdiction and establish her right, contrary to the nomination,
and get judgment and order, in accordance thereof.
17. Now the case in hand, the petitioner, undoubtedly
is in possession of succession certificate duly issued by a Civil
Court of competent jurisdiction and there is no dispute in this
regard. Thus, in view thereof, the respondent authorities are
under legal obligation to consider the claim of the petitioner for
terminal/retiral benefits and other dues of her deceased mother
and accord all the admissible benefits/dues to her, preferably
within a period of eight weeks from the date of
receipt/production of a copy of this order.
18. The writ petition stands allowed. There shall be no
order as to cost.
(Harish Kumar, J)
shivank/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 07.08.2024
Transmission Date NA
