V.K. Bindu v. Krishnamma and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** ## **MONDAY, THE 25TH DAY OF FEBRUARY 2013/6TH PHALGUNA 1934** ## **AS.No. 513 of 2001 ( )** **---------------------(AGAINST THE ORDER/JUDGMENT IN OS.NO.464/1992 of I ADDL.SUB COURT,TRIVANDRUM DATED 27-02-2001)** **------------------------------** ## **APPELLANT/PLAINTIFF:** **--------------------------------------** **V.K.BINDU,D/O.KRISHNAMMA,AGED 32, RESIDING AT THEEKEVILAKOTTU VEEDU, CHAVADINADA, VENGANOOR.P.O., THIRUVANANTHAPURAM** **BY ADVS.SRI.J.S.AJITHKUMAR SRI.S.ASWAKUMAR** ## **RESPONDENT/DEFENDANTS:** **--------------------------------------------** **1. KRISHNAMMA, W/O.LATE VELAYUDHAN NAIR, AGED 55,KIZHAKKETHAPPU VEEDU, CHAVADINADA, VENGANNOOR.P.O., THIRUVANANTHAPURAM.** **2. V.K.SALIM, S/O.LATE VELAYUDHAN NAIR, DO. DO.** **3. V.K.SUNIL, -DO- -DO-** **4. LEKSHMI PILLAI KAMALAKSHI AMMA (DIED), KOVILVATTOM, NATTALAM, THOPPIL VEEDU, TAMILNADU.** **R1 TO R3 BY ADV. SRI.G.S.REGHUNATH** **SRI.SREEKUMAR CHELUR** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 13/02/2013, THE COURT ON 25/02/2013 DELIVERED THE FOLLOWING:** **sts** **C.R.** ## **S.S.SATHEESACHANDRAN,J.** ================================ A.S.513 OF 2001 ================================ Dated this the 25th day of February,2013 ## JUDGMENT Plaintiff is the appellant. Suit was for declaration of her right to claim a share in the death-cum-gratuity benefits of her father viz. Velayudhan Nair, who died in service while working as Superintendent in the Directorate of Geological Survey of India, Trivandrum. First defendant is her mother and widow, and second and third defendants the other children of deceased. Fourth defendant was mother of late Velayudhan Nair, who passed away pending suit. Plaintiff sought her[1] /5th share in the death-cum-gratuity benefits of her father, which had already been collected by her mother as nominee under the Pension Rules, seeking recovery of the sum due towards her share. Her A.S.513/2001 2 claim was resisted by defendants 1 to 3 contending that the first defendant being the nominee she alone is entitled to collect the sum due as gratuity to the exclusion of other legal heirs. Challenge so raised by contesting defendants found approval with the learned Additional Sub Judge who held that plaintiff is not entitled to the declaration and recovery of any share in the gratuity of her father. Appeal is directed against the dismissal of the suit holding that nominee alone is entitled to the gratuity amount. 2. Plaintiff is not entitled to any share in the gratuity amount of her father since on her marriage to a boy of different caste a partition deed was executed and her claims had been settled, while the father was alive, was another contention of the contesting defendants resisting her claim. Share in the death-cum-gratuity as a legal heir is claimed by plaintiff on death of her father taking A.S.513/2001 3 place long after the above events relied by defendants. Parties are shown to be Hindus, and when that be so, even after her marriage, plaintiff continues to be one among the legal heirs under Class I of Schedule I of the Hindus Succession Act with right to inherit the estate of her father. 3. On the death of fourth defendant, plaintiff banking upon a Will allegedly executed by fourth defendant had amended the plaint to seek her share also in the gratuity amount asserting that a bequest had been made in her favour. Execution of that Will, and also its genuineness, was disputed by contesting defendants. On the evidence let in court below has found that the Will has not been proved and the claim canvassed on such Will was found unacceptable. After going through the judgment under appeal, I find the finding entered by the learned Sub Judge that the Will has not been proved does not suffer from any infirmity. So much A.S.513/2001 4 so, the only question to be considered in the present appeal revolves round a question of law whether a nominee, who had been nominated by a government servant to receive the gratuity, can claim the sum thereof as her own to the exclusion of other legal heirs of such Government servant. 4. Learned Sub Judge has held that the plaintiff was not entitled to any share in the gratuity amount of her father when he had made a nomination in favour of his wife - first defendant. Entitlement of plaintiff to claim a share in gratuity amount of her father which was challenged and disputed by the contesting defendants - her mother and two brothers - according to learned Sub Judge, required to be scrutinised and examined with reference to the intention of her father in making the nomination in favour of his wife. While her father was alive Ext.A1 partition deed was executed, under which a consolidated amount was A.S.513/2001 5 paid to her stipulating that she would not be entitled to any other property. That circumstance, according to learned Sub Judge, clearly demonstrated that father had made the nomination in favour of his wife first defendant with the intention that the nominee should get the entire amount. View so taken by the learned Sub Judge to consider whether the plaintiff is entitled to a share in the gratuity amount is erroneous and, in fact, totally wrong. Though the foundation for non-suiting the plaintiff was based on the above view taken by the court below, relying on some judicial pronouncements learned counsel for respondents strenuously contended that the finding entered that nominee alone is entitled to the gratuity benefits of the government servant has to be upheld since the Pension Rules applicable lay down that nominee to the exclusion of other legal heirs of the government servant has the right to A.S.513/2001 6 receive the gratuity. 5. Central Services Pension Rules, more particularly, Rules 52 is applicable to retirement/death gratuity of a Central Government servant. Rule 50 deals with quantification of the gratuity amount in relation to the qualifying service of the government servant and it also specifies who could be members of family of a Government servant for the purpose of Rule 51, 52 and 53. Rule 51 states to whom gratuity is payable. Rules 51 reads thus:- “51. Persons to whom gratuity is payable (1)(a) The gratuity payable under Rule 50 shall be paid to the person or persons on whom the right to receive the gratuity is conferred by means of a nomination under Rule 53; (b) If there is no such nomination or if the nomination made does not subsist, the A.S.513/2001 7 gratuity shall be paid in the manner indicated below-- (i) if there are one or more surviving members of the family as in Clauses(i),(ii),(iii) and (iv) of sub-rule(6) of Rule 50, to all such members in equal shares; (ii) if there are no such surviving members of the family as in sub clause (i) above, but there are one or more members as in Clauses (v), (vi), (vii), (ix) (x) and (xi) of sub rule (6) of Rule 50, to all such members in equal shares. (2) If a Government servant dies after retirement without receiving the gratuity admissible under subrule (1) of Rule 50, the gratuity shall be disbursed to the family in the manner indicated in sub-rule(1). - (3) The right of a female member of A.S.513/2001 8 the family, or that of a brother, of a Government servant who dies while in service or after retirement to receive the share of gratuity shall not be affected if the female member **==> picture [304 x 12] intentionally omitted <==** brother attains the age of eighteen years, after the death of the Government servant and before receiving her or his share of the gratuity. Since family as specified in Rule 50(6) has some significance in considering the question involved in the appeal that rule is reproduced as hereunder: 50. Retirement/Death Gratuity **==> picture [236 x 11] intentionally omitted <==** **==> picture [194 x 11] intentionally omitted <==** **==> picture [194 x 12] intentionally omitted <==** **==> picture [169 x 12] intentionally omitted <==** A.S.513/2001 9 **==> picture [177 x 11] intentionally omitted <==** (5)........ (6) For the purpose of this rule and Rules 51, 52 and 53, 'family', in relation to a Government servant, means-- - (i) wife or wives including judicially separated wife or wives in the case of a male Government servant, - (ii) husband, including judicially separated husband in the cases of a female Government servant, (iii) sons including stepsons and adopted sons, (iv) unmarried daughters including step daughters and adopted daughters, - (v) widowed daughters including A.S.513/2001 10 stepdaughters and adopted daughters, (vi) father,] including adoptive (vii) mother] parents in the case (viii) brothers below the age of eighteen years including step brothers. (ix) unmarried sisters and widowed sisters including stepsisters, (x) married daughters, and (xi) children of a pre-deceased son. The other relevant rule to be taken note of and which is applicable for nominations is Rule 53. That Rule reads thus: 53.Nominations **==> picture [236 x 11] intentionally omitted <==** shall, on his initial confirmation in a service or post, make a nomination in Form 1 or 2, as may be, as A.S.513/2001 11 appropriate in the circumstances of the case, conferring on one or more persons the right to receive the (retirement gratuity/death gratuity) payable under Rule 50: Provided that if at the time of making the nomination-- - (i) the Government servant has a family, the nomination shall not be in favour of any person or persons other than the members of his family; or - (ii) the Government servant has no family, the nomination may be made in favour of a person or A.S.513/2001 12 persons, or a body of individuals, whether incorporated or not. - (2) If a Government servant nominates more than one person under sub-rule(1), he shall specify in the nomination the amount of share payable to each of the nominees, in such manner as to cover the entire amount of gratuity. - (3) A Government servant may provide in the nomination- (i) that in respect of any specified nominee who predeceased the Government servant, or who dies after the death of the Government A.S.513/2001 13 servant but before receiving the payment of gratuity, the right conferred on that nominee shall pass to such other person as may be specified in the nomination: (the rest not required and omitted). 6. Whether the aforesaid Rules, which form part of the Pension Rules in making of nominations by the Government servant, which is to be confined to a member in the family as defined under Rule 50(6), in the event of death of the government servant while in service or after retirement would enable the nominee named to appropriate the gratuity benefits to the exclusion of other legal heirs of that government servant or such nomination is only an authority to receive gratuity amount on behalf of all the legal heirs of the government A.S.513/2001 14 servant is the short question to be considered. That question is no longer res integra since it has been settled by the Apex Court in **Shipra Sengupta** ## **v. Mridul Sengupta and others** ( **2009(10) SCC 680.)** True, in that case the Rules referred to above as applicable to the Central Government servant in relation to nomination made for receiving gratuity and entitlement of nominee to receive such amount was not directly involved. However, ratio decidendi laid down in that reported decision applies in all force even in a case where such Pension Rules are applicable. The facts involved in the case are thus: A bank employee of a nationalised bank before his marriage nominated his mother as his nominee. He later married Smt.Shipra Sengupta, appellant in the above case. After his death while in service his widow applied for succession certificate in which she claimed her share in life insurance, gratuity, public provident A.S.513/2001 15 fund etc. of the deceased. That was resisted by the mother of the deceased, who was his nominee. The trial court granted a succession certificate in favour of the widow and mother with respect to the amount due under the life insurance, gratuity, public provident fund due to the employee. Over such claims both of them are entitled to equally, and with respect to some other items mentioned in the application widow alone is entitled to succession certificate, was the order of the trial court. Appeal against the order granting succession certificate by mother was turned down by the District Judge, but, modifying the order of Trial Judge with respect to other items also, holding that mother being a Class I heir along with widow she too is entitled to half share in such items. In revision against the order of the District Judge, during which the mother passed away and her legatee one of her sons named in her will was A.S.513/2001 16 substituted the High Court held the amount due under the General Provident Fund of the Government servant shall be governed by the nomination made by him and as such the nominee his mother was entitled to such sum while upholding the rest of the order passed by the District Judge over other claims to be shared equally by the mother and widow. In the appeal preferred before the Apex Court the main question that arose for consideration was whether nomination only indicates authorisation to receive the amount from the authority concerned giving a valid discharge and on receipt of such sum whether the amount received is to be distributed among the persons entitled under the law of succession. Relying on the earlier decisions rendered in ## **Sarbati Devi v. Usha Devi(1984)1 SCC 424),Vishin N.** ## **Khanchandani v. Vidya Lachmandas Khanchandani** **(2000)6 SCC 724)** the Apex Court held that the nomination indicates only authority to receive the A.S.513/2001 17 amount and manage the property. On receipt of the amount by the nominee it can be claimed by the heirs of the deceased in accordance with law of succession, governing them. It has been so held by the Apex Court explicitly stating that “the nominee is entitled to receive the same, but the amount so received is to be distributed according to law of succession”. Apex Court has gone further elucidating the legal position stating thus:- - “In view of the clear legal position, it is made abundantly clear that the amount under any head can be received by the nominee, but the amount can be claimed by the heirs of the deceased in accordance with the law of succession governing them. In other words, nomination A.S.513/2001 18 does not confer any beneficial interest on the nominee.” The law on the question has been analysed and decided by the Apex Court as indicated above.There is nothing in Rules 50 to 53 of Pension Rules enabling the nominee to appropriate the amount received as his own to the exclusion of legal heirs of deceased. Where other legal heirs of the Government servant, who, under the law of succession, are entitled to claim share, nomination made under the Pension Rules in respect of death cum gratuity benefits of Government servant would confer on the nominee only a right to receive and manage the amount on behalf of all legal heirs of the deceased.The decree of dismissal passed by the court below cannot be sustained and it is liable to be reversed. A.S.513/2001 19 7. Plaintiff in the suit has applied for declaration of her entitlement to a share in the gratuity benefit of her father which had already been collected by the first defendant her mother. When she is found entitled to such declaration and also the amount claimed as her share, then, the death of the fourth defendant, mother of her father, during the pendency of the suit, the finding made over the will set up by the plaintiff to claim share of the fourth defendant amending the plaint, non-impleadment of the legal heirs of deceased fourth defendant etc do not in any way affect the right of the plaintiff to get a decree in the suit. However the relationship of parties and recovery is sought against the mother by plaintiff is also to be taken note of in moulding the relief. In reversal of the decree of dismissal of the suit a decree is granted declaring that the plaintiff has 1/5[th] right in the sum realised as A.S.513/2001 20 gratuity benefit of her father i.e Rs.1,39,982, and, she is allowed to recover her share from the first defendant and her assets who had received the said sum. If first defendant pays or remits the amount due towards the share of plaintiff with the costs fixed hereunder within a period of three months before the court below such amount will not carry any interest. In default of such payment, plaintiff will be entitled to get that amount due as her share in the gratuity with 6% interest per annum from the date of the judgment till realisation. Plaintiff is allowed proportionate costs to the extent of decree granted in her favour which is realisable from the first defendant. Appeal is partly allowed. S.S.SATHEESACHANDRAN JUDGE tpl/-