S. Shafeek, S. Harish and S. Febina Fathima v. State of Kerala, Saleena Beevi and Ashik

“CR” ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 05TH DAY OF FEBRUARY 2020 / 16TH MAGHA, 1941** ## **OP(KAT).No.430 OF 2019** **AGAINST THE ORDER IN OA 1884/2017 DATED 26-09-2019 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/S:** **1 S.SHAFEEK, AGED 33 YEARS S/O.LATE P.A.SHAMSHUDHEEN, MANNATH V.P., 7/87A, EERA 176, EZHAKODE, POTTAYIL, MALAYINKEEZHU P.O., THIRUVANANTHAPURAM - 695 571. 2 S.HARISH, AGED 31 YEARS S/O.LATE P.A.SHAMSUDHEEN, MANNATH V.P., 7/87A, EERA 176, EZHAKODE, POTTAYIL, MALAYINKEEZHU P.O., THIRUVANANTHAPURAM - 695 571. 3 S.FEBINA FATHIMA, AGED 26 YEARS D/O.LATE P.A.SHAMSHUDHEEN, MANNATH V.P., 7/87A, EERA 176, EZHAKODE, POTTAYIL, MALAYINKEEZHU P.O., THIRUVANANTHAPURAM - 695 571. BY ADVS. SRI.V.S.VISWAMBHARAN SRI.ENOCH DAVID SIMON JOEL** **RESPONDENT/S:** O.P.(KAT) No.430 of 2019 -2- - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF GENERAL ADMINISTRATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 014.** - **2 J.SALEENA BEEVI, W/O.LATE P.A.SHAMSHUDHEEN, SAJU BHAVAN, ANRA15, AISHWARYA NAGAR, NALANCHIRA, THIRUVANANTHAPURAM - 695 015.** - **3 ASHIK,** - **S/O.LATE P.A.SHAMSHUDHEEN, SAJU BHAVAN, ANRA15, AISHWARYA NAGAR, NALANCHIRA, THIRUVANANTHAPURAM - 695 015.** **R2-3 BY ADV. SRI.ALEXANDER JOSEPH** ## **OTHER PRESENT:** **SR.GP SRI.P.N.SANTHOSH** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 05-02-2020, THE COURT ON 05-02-2020** **DELIVERED THE FOLLOWING:** O.P.(KAT) No.430 of 2019 -3- **==> picture [32 x 12] intentionally omitted <==** ## **JUDGMENT** Dated this the 5[th] day of February, 2020 ## **K.VINOD CHANDRAN, J.** The children of the divorced wife of a deceased Government servant is before us claiming their rightful share of the DCRG and arrears of pension; due to their father in his life time. The said amounts were not paid to the employee, against whom there was pending a vigilance proceeding, which got abated on his death. 2. Earlier the second wife had approached the Lok Ayukta, who issued some directions, which were challenged by the State itself before this Court. This Court, by Annexure A3 judgment, directed the Government to treat the directions of the Lok Ayukta as recommendations and decide the matter in accordance with law. Annexure A4 was the O.P.(KAT) No.430 of 2019 -4- order passed which was challenged by the petitioners before the Tribunal. 3. The dispute arose insofar as the DCRG and arrears of pension due to the Government servant during his life time. On facts, it has to be noticed that Shamshudheen married Shylaja Beevi; the mother of the petitioners on 27.02.1983, in which wedlock, the petitioners were born. Shylaja Beevi was divorced and Shamshudheen married Saleena Beevi on 04.07.1993. Saleena Beevi is the second respondent and the third respondent; her son in that marriage. Shamshudheen, who was a Government servant retired on 31.05.2006 and died on 22.11.2009. Admittedly, he was not paid any DCRG at the time of his retirement for reason of a pending enquiry. The arrears of pension were also due to him in his life time. The controversy arose after his death. O.P.(KAT) No.430 of 2019 -5- 4. The Government, by Annexure A4 challenged in the OA, found that family pension has to be paid to the petitioners and the respondents 2 and 3 equally till the children acquire 25 years of age. The petitioners do not challenge the said order. With respect to DCRG and arrears of pension, relying on the nomination, the Government directed the entire amounts to be paid to the second respondent which was challenged before the Tribunal. The Tribunal found that the nomination is an expression of the desire of the deceased which tantamount to a will. 5. The learned Counsel for the petitioners has relied on _**Sarbati Devi and another v. Usha Devi [AIR 1984 SC 346]**_ and _**Saraswathi Amma v. Padmavathi Amma [1992 (2) KLT 276]**_ . The learned Counsel for respondents 2 and 3, relied on a later judgment of the Honourable Supreme Court _**-**_ in _**Indrani Wahi v. Registrar of Co op. Societies and others**_ O.P.(KAT) No.430 of 2019 -6- _**[(2016) 6 SCC 440]**_ . The decision of a Single Judge of the Punjab and Haryana High Court was also relied on. The petitioners also relied on Single Bench decision which is on the Kerala Service Rules itself. 6. We cannot, but, observe that the established principle is that nomination, is only the right to receive and it absolves the person who is in possession of the amounts due to a deceased party, from any legal tangle insofar as any claim raised by any of the other legal heirs. The nominated person receives the amounts in trust for the legal heirs. Laws of succession cannot be overturned by the Kerala Service Rules. 7. We garner support from the decision of the Honourable Supreme Court in _**Sarbati Devi**_ which categorically held that the power to nominate under Section 39 of the Insurance Act, 1938 is not intended to act as a third O.P.(KAT) No.430 of 2019 -7- mode of succession and is not a 'statutory succession' as certain High Courts wrongly presumed. The provision for payment of amounts to the nominee or nominees, their Lordship held, 'does not mean that the amount shall belong to the nominee or nominees'. Their Lordships also referred to ' _the special care which law and judicial precedents take in the matter of execution and proof of wills which have the effect of diverting the estate from the ordinary course of intestate succession and that the rigour of the rules governing the testamentary succession is not relaxed even where wills are registered_ .' ( _sic paragraph 5_ ). We bow to the dictum of the Honourable Supreme Court, which is squarely applicable here, especially looking at the provisions of the Kerala Service Rules. However, before going to that we have to look at the later judgment of the Honourable Supreme Court relied on by the respondents. O.P.(KAT) No.430 of 2019 -8- 8. In _**Indrani Wahi**_ , issue was with respect to the nomination made by a father to his daughter under the provisions of West Bengal Co-operatives Act, 1983. The nomination made under the statute was with respect to the share and interest of a flat owned by the father by virtue of his membership in the Society. It was made in terms of Section 79, which provided for a nomination in favour of a person in whose favour the Society was obliged to dispose of the share or interest of such member on his death. Section 80 also spoke of the disposal of deceased member's share or interest on a nomination being made, which has the trappings of a will, which however the nomination under the KSR is totally lacking. 9. The Honourable Supreme Court in _**Indrani Wahi**_ also found that what is postulated under Section 79 of the 1983 Act is that the nomination made by a member would O.P.(KAT) No.430 of 2019 -9- oblige the Co-operatives Society to transfer the value of such share or interest standing in the name of the deceased member to the nominated member. In fact, in paragraph 20, it was held that though such nomination binds the Cooperative Society and they are obliged to transfer the share or interest, it would have no relevance to the issue of title between the inheritors or successors in the property of the deceased. The other members of the family were also permitted to pursue their case for succession or inheritance before the appropriate court. This is again in tandem with the declaration made in _**Sarbati Devi**_ that the property which belongs to a person during his lifetime, forms part of his estate on his demise, subject to laws of succession and a nominee only has the status of an agent who receives the property, on behalf of the legal heirs. 10. Keeping this principle in our mind, we have to O.P.(KAT) No.430 of 2019 -10- notice the specific provision which enables nomination under Part III of KSR , which is Rule 67. Rule 66 of Part III of KSR entitles an employee who has completed five years of qualifying service to gratuity not exceeding the amounts specified in Rule 68. Rule 67 enables the Government, to pay the amounts due as gratuity to a person or persons, on whom the right to receive it, is conferred, when an employee who has completed five years service is no more. This conferment of right to receive, as per Rule 67 refers to a nomination made by the employee in his life time. On his death, if the DCRG has not been received, it becomes the estate of the deceased and the claim arises to every legal heir, as per the laws of succession applicable to the deceased. 11. The specific words employed in Rule 67 being the right to receive the gratuity takes it out of the definition of a will, bequeathing the amounts or estate to a particular O.P.(KAT) No.430 of 2019 -11- person. The gratuity received by the nominated person is held by such person in trust for all the legal heirs. We also specifically notice Form No.4(b) which is the nomination for death-cum-retirement gratuity as available in Part III of KSR which also speaks of nomination of a person who is a member of the family and conferring on them the right to receive the gratuity sanctioned by the Government. 12. was _**Saroj Vs Murti Devi [1991 AIR (P&H) 183]**_ with respect to a nomination under the Army Group Insurance Scheme, the provisions of which explicitly provided the nominee with not only a right to receive but also to enjoy the said amounts. As per the rules, an army personnel, under the Scheme could only nominate his spouse or children and in addition, if the dependant parents or siblings are to be nominated their right together cannot exceed 20% of the total benefits. Also in the case of absence O.P.(KAT) No.430 of 2019 -12- of nomination the entire amounts are to be paid to the widow and only if she is predeceased the amounts are to be distributed equally among the surviving children. The dependant parents get a right only if the deceased has not left behind the widow or children. 13. The provision in KSR, is akin to Section 39 of the Insurance Act, as dealt with in _**Sarbati Devi.**_ We also notice and the declaration in respectfully approve _**Saraswathi Amma**_ that “nominee is only a trustee for legal heirs and the right of the legal heirs cannot be taken away by a mere nomination” _(sic)._ In such circumstances, we hold that the amount of DCRG as also the arrears of pension, for which no nomination is made, which however is the estate of the deceased, is entitled to the legal heirs as per the laws of succession applicable to Muslims. The 2[nd] respondent shall O.P.(KAT) No.430 of 2019 -13- first be entitled to 1/8[th] of the amounts now due as DCRG and arrears of pension. Out of the balance since the sons are entitled to double the share of the daughter, petitioners 1 &2 and respondent 3 shall be entitled to 2/7 share each and the 3[rd] petitioner 1/7 share. Original Application is allowed setting aside the order of the Tribunal and Annexure A4; directing the amounts to be disbursed as directed by this Court. No order as to costs. **Sd/K.VINOD CHANDRAN JUDGE** **Sd/-** **V.G.ARUN** **JUDGE** Scl/06. 02.2020 x O.P.(KAT) No.430 of 2019 -14- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF O.A.1884/2017 ON THE FILES OF THE KERALA ADMINISTRATIVE TRIBUNAL.** **EXHIBIT P1(A1)** - **TRUE COPY OF THE LEGAL HEIRSHIP CERTIFICATE DTD. 01/10/2010 ISSUED BY THE TAHSILDHAR, THIRUVANANTHAPURAM.** **EXHIBIT P1(A2) TRUE COPY OF THE ORDER DTD. 01/07/2011 IN COMPLAINT NO.1227/2010 PASSED BY THE HON'BLE LOK AYUKTA, THIRUVANANTHAPURAM.** - **EXHIBIT P1(A3)** - **TRUE COPY OF THE ORDER DT. 27/02/2017 IN W.P (C) 22263/2011 PASS4ED BY THE HON'BLE HIGH COURT OF KERALA.** - **EXHIBIT P1(A4)** **TRUE COPY OF THE ORDER NO.G.O.(MS) NO.298/2017/GAD DT. 19/09/2017 PASSED BY THE 1ST RESPONDENT.** **EXHIBIT P2** - **TRUE COPY OF THE INTERIM ORDER DT. 05/10/2017 PASSED IN O.A.1884 OF 2017 BY THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.** - **EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE FIRST RESPONDENT IN O.A. 1884 OF 2017 ON THE FILES OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.** - **EXHIBIT P4** **TRUE COPY OF THE REPLY STATEMENT FILED BY RESPONDENTS 2 AND 3 IN O.A. 1884 OF 2017 ON THE FILES OF THE KERALA** O.P.(KAT) No.430 of 2019 -15- ## **ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.** **EXHIBIT P4(R2(A)) COPY OF ORDER IN O.S.223/93 DATED 18/5/2003.** **EXHIBIT P4(R2(B)) COPY OF M.C.NO.19/2005 DATED 21/5/2007.** **EXHIBIT P4(R2(C)) COPY OF THE ORDER IN M.C.NO.19/2005 SIGNED BY HON'BLE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM IN LOK ADALATH.** **EXHIBIT P4(R2(D)) COPY OF MARRIAGE CERTIFICATE DATED 01/03/2010.** **EXHIBIT P5** **TRUE COPY OF THE FINAL ORDER DATED 26/09/2019 IN O.A.NO.1884/2017 ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.** O.P.(KAT) No.430 of 2019 -16-