For the controversy involved in the present petition, with the consent of learned counsel for the parties, the matter has been heard for final disposal at the admission stage itself without calling for the counter affidavit.
Heard Shri Anil Bhushan, learned Senior Advocate assisted by Shri Neelabh Srivastava learned counsel for the petitioner and Shri Ram Milan Mishra holding brief of Ajeet Kumar Singh, learned Advocate appearing for respondent no.1 i.e. the contesting party in Original Suit No.416 of 2011 (Arvind Upadhyay v. Nimala Pandey), out of which the present proceeding arises.
The aforesaid suit namely Original Suit No.416 of 2011 has been filed by the petitioner, husband of Smt. Kamla Upadhyay with the relief of cancellation of Will deed dated 15.2.2011, allegedly executed by Smt. Kamla Upadhyay in favour of the defendant/respondent no.1 namely Nirmala Pandey. A further relief of permanent injunction had been sought against the defendants, not to create any third party right or alienate the suit property during pendency of the suit on the basis of the aforesaid Will. The suit property as described at the foot of the plaint is Araji No.61 measuring 1/6th area 0.0350 Hectares.
It appears that the written statement along with a counter claim was filed by defendant no.1 on 24.8.2011 for the relief that a decree of declaration be granted in her favour that she was entitled for family pension and all other service benefits by virtue of the Will dated 15.2.2011. A further relief was sought for grant of permanent injunction restraining the plaintiff from getting all service benefits of the deceased wife Kamla Upadhyay.
There is no dispute about the fact that the plaintiff namely Arvind Upadhyay is husband of the deceased Smt. Kamla Upadhyay. Only submission of learned counsel for the defendant no.1 who is sister-in-law Smt. Kamla Upadhayay is that she had executed Will dated 15.2.2011 bequeathing all her moveable and immoveable property in her favour. With execution of the Will, only the defendant no.1 is entitled to all the service benefits including family pension.
The temporary injunction application (Paper No.6-C-2) filed in the original suit and the application 23-Ga-2 (temporary injunction) sought by the defendant 1 in the counter claim were decided together vide order dated 25.5.2017. While rejecting the temporary injunction application in the suit, the interim application filed in the counter claim by the defendant no.1 Paper No.23-Ga-2 has been allowed stating therein that during the pendency of the suit, the plaintiff would not get service benefits and pension of the deceased namely Smt. Kamla Upadhyay his wife. This order was challenged in Misc. Civil Appeal No.84 of 2017 which has further been dismissed vide order dated 14.9.2018 The first appellate court has gone a step ahead in holding that the question as to whether the defendant no.1 or the plaintiff would be entitled to receive service benefits and family pension of the deceased employee namely Kamla Upadhyay would be decided only after evidence are led by the parties. However, as to the merits of the claim of the rival parties, no consideration whatsoever has been given.
These orders are under challenge in the present petition with the assertion by the learned counsel for the petitioner that the benefit of family pension is given under the provisions of the scheme which has been framed under the relevant Service Rules, framed under Article 309 of the Constitution of India. The definition of word 'family' has been given therein which does not include sister-in-law of the deceased employee. When the claim of the petitioner/plaintiff is pitted against the claim of the defendant no.1, she cannot be allowed to say that the benefits of family pension could be bequethed to her by the deceased employee.
Submission is that the provisions of Hindu Succession or Indian Succession i.e. Law of Succession would not apply in the matter of determination of right of a person to receive family pension. The family pension can only be accorded to the member of family who was dependent on the deceased as per the definition of 'family' given in the scheme for family pension. The defendant-wife/husband i.e. the spouse, minor sons, daughter and widow or legally divorced daughters are only entitled for family pension. In any case, brother's wife cannot be said to fall in any of the categories as provided in the definition of 'family'. It is further submitted that family pension cannot be said to be 'estate' or 'property' of the deceased employee.
Reliance is placed upon the judgments of the Apex Court in Violet Issaac & Ors. v. Union of India& Ors. reported in 1991 (62) FLR 414 and Nitu v. Sheela Rani & Ors. reported in (2016) 16 SCC 229.
Learned counsel for the respondent no.1, on the other hand, submits that once the Will has come into life, all 'moveable and immoveable assets' of the deceased has to be transferred to the beneficiary of the Will. The family pension payable to the family members of the deceased would be the 'asset' of the deceased employee which can be transferred by way of Will.
Submission is that it does not matter that the beneficiary of the Will does not come within the meaning of 'family' defined under the Service Rules. The Service Rules are framed under Article 309 of the Constitution of India and would not prevail over the Transfer of Property Act i.e. law framed by the Parliament. In case of any inconsistency between the Act of Parliament and the Rules framed by the Governor, the Central Act will prevail.
Having heard learned counsel for the parties and perused the record, suffice it to say that the dispute raised by the respondent no.1 claiming her right to the family pension on the Will allegedly executed in her favour would not detain this Court for much longer. There cannot be a dispute that the family pension is available under the scheme or Rules framed for the purpose. The family pension cannot be said to be 'estate' of the deceased employee which would be transferable by means of a Will. The Law of Succession does not apply in the matter of grant of family pension. The dispute in this regard has been settled in paragraph '17' and '18' of the Nitu v. Sheela Rani & Ors. (Supra) and paragraphs '4' and '5' Violet Issaac & Ors. (supra).
For the aforesaid, the findings returned by the trial court in allowing application 23-Ga-2, vide order impugned , cannot be sustained. While setting aside the order dated 25.5.2017, the application 23-Ga-2 filed by the defendant no.1/1 and the application 6-Ga-2 filed by the plaintiff in Original Suit No.416 of 2011 are disposed of with the direction that the defendant no.1 would not be entitled to raise any objection in the right of the plaintiff no.1 to receive family pension. The objection, if any, raised by her before the Controlling Authority would not be maintainable.
At this stage, it has been informed by learned counsel for the petitioner/plaintiff that he was receiving family pension from the year 2011 up till April 2017 and the same has been withheld on account of the injunction order passed by the trial court. A direction is, therefore, issued to the trial court to direct the Controlling Authority to release family pension in favour of the plaintiff namely Arvind Upadhyay immediately, after completion of the necessary formalities for the purpose, if there is no other legal impediment.
It goes without saying that the relief granted herein i.e. in the present petition pertains to the right of the plaintiff only to receive family pension. The observations made hereinabove or the directions issued to the Controlling Authority would not be taken as observation of the Court on any other dispute pending between the parties, arising out of the Will.
Subject to the above observations and directions, the present petition is disposed of.
Order Date :- 25.1.2019 Jyotsana