{"id":75922,"date":"2003-01-29T00:00:00","date_gmt":"2003-01-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-saroja-vs-secretary-to-government-on-29-january-2003"},"modified":"2017-06-15T19:51:17","modified_gmt":"2017-06-15T14:21:17","slug":"k-saroja-vs-secretary-to-government-on-29-january-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-saroja-vs-secretary-to-government-on-29-january-2003","title":{"rendered":"K.Saroja vs Secretary To Government on 29 January, 2003"},"content":{"rendered":"<div class=\"docsource_main\">Madras High Court<\/div>\n<div class=\"doc_title\">K.Saroja vs Secretary To Government on 29 January, 2003<\/div>\n<pre>       \n\n  \n\n  \n\n \n \n IN  THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 29\/01\/2003\n\nCORAM\n\nTHE HON'BLE MR.JUSTICE E.PADMANABHAN\n\nWRIT PETITION NO. 13507 of 1998\n\nK.Saroja                       ..Petitioner\n\n-Vs-\n\n1. Secretary to Government\n   of Tamil Nadu,\n   Public (Political Pension II)\n   Department, Secretariat,\n   Chennai-9\n\n2. The Collector of  Perambalur District\n   Perambalur                                           ..Respondents\n\n\nFor petitioner::  Mr.M.V.Krishnan\n\nFor respondents:  Mrs.D.Malarvizhi\n\n\n        Petition filed under Article 226 of The Constitution of India  praying\nfor the issue of a writ of certiorari, as stated therein.\n\n:O R D E R\n<\/pre>\n<p>        The petitioner prays for the issue of a writ of mandamus directing the<br \/>\nrespondent  to implement G.O.Ms.No.1243 Political Pension Department-II, dated<br \/>\n8.10.1997 and pay Rs.1500 per month as Freedom Fighter&#8217;s Pension as  dependent<br \/>\nof Krishnasamy Padayachi, Ex-Indian Army person, who was granted pension.\n<\/p>\n<p>        2.    Heard   Mr.M.V.Krishnan,   learned  counsel  appearing  for  the<br \/>\npetitioner and Mr.D.Malarvizhi, learned Government Advocate appearing for  the<br \/>\nrespondents.\n<\/p>\n<p>        3.   The petitioner, widow of late Krishnasamy Padayachi has approched<br \/>\nthis court seeking for a direction that the entire pension of Rs.1  500\/=  per<br \/>\nmonth  has to be paid to her as the dependant of deceased Indian National Army<br \/>\npensioner.  The petitioner&#8217;s husband late Krishnasamy Padayachi was a  soldier<br \/>\nin the  Indian  National Army.  The said Krishnasamy Padayachi during his life<br \/>\ntime receiving Freedom Fighters  Pension  as  per  the  orders  of  the  State<br \/>\nGovernment.   The  pension  sanction proceedings provides that pension will be<br \/>\npaid to the freedom fighter and after his life time to the widow till death or<br \/>\nremarriage or till the petitioner&#8217;s income exceeds a particular sum.\n<\/p>\n<p>        4.  The petitioner asserts that she  has  not  remarried  and  she  is<br \/>\nentitled to  payment  of  pension.   The pension has been revised from time to<br \/>\ntime and a monthly pension of Rs.1500\/= was being paid.  The pension has  also<br \/>\nbeen  subsequently  revised  at  the  time  of  death  of the said Krishnasamy<br \/>\nPadayachi.  He had left his two widows and therefore the respondent was paying<br \/>\nthem one one half each.   The  other  widow  passed  away  and  therefore  the<br \/>\npetitioner  represented  that she should be paid the full pension of Rs.1500\/=<br \/>\nper month.  Despite several representations the respondents have not chosen to<br \/>\ntake any action.  Hence the present writ petition to direct the respondents to<br \/>\npay the full pension as the sole surviving widow  of  the  deceased  pensioner<br \/>\nKrishnasamy Padayachi.\n<\/p>\n<p>        5.   On  behalf  of  the  respondents,  the  first  respondent filed a<br \/>\ncounter.   According  to  the  respondents,  late  Krishnasamy  Padayachi   of<br \/>\nAndimadam  Village  by virtue of membership with Indian Army was granted State<br \/>\nFreedom Fighters Pension with effect from 21.7.1967 as  per  Freedom  Fighters<br \/>\nPension Order  No.3214\/69,  dated  1.2.1969.    The said Krishnasamy Padayachi<br \/>\npassed away on 24.8.1973 leaving two wives at the time of his death.  The writ<br \/>\npetitioner is the second wife and  she  applied  for  family  pension  without<br \/>\ndisclosing the existence of the first wife Rajammal of the deceased pensioner.<br \/>\nBased  upon  the  said representation, after enquiry the Government sanctioned<br \/>\none half of payment of Freedom Fighters Pension to the writ petitioner and the<br \/>\nother half of the pension to the said Rajammal.  Such order was  passed  after<br \/>\nthorough investigation as per the report of the District Collector.\n<\/p>\n<p>        6.   The Family Pension has been fixed and the petitioner was paid 50%<br \/>\nof the Family Pension, namely Rs.750\/= and the other widow Rajammal  was  paid<br \/>\nthe  other  half  The  said  Rajammal,  the first wife of the deceased-freedom<br \/>\nfighter -pensioner expired on 9.11.1992.   The  petitioner  applied  for  full<br \/>\npension including  the  50%  share that was being paid to Rajammal.  The State<br \/>\nGovernment by letter dated 22.10.1996 turned down the request as there  is  no<br \/>\nprovision  in  the  Tamil  Nadu  Freedom  Fighters  Pension  Rules  annexed to<br \/>\nG.O.Ms.No.2064, Public dated 28.3.1966 as amended  by  subsequent  G.O.No.699,<br \/>\ndated  18.3.1980  for  sanction  of  full pension to the surviving wife on the<br \/>\ndemise of the freedom fighter&#8217;s first wife.  As per rule  7  of  the  Rules  a<br \/>\nshare  of  pension  payable  to  the  first  wife is payable till her death or<br \/>\nremarriage.  The petitioner is entitled to only one half and she cannot  claim<br \/>\nthe other  half  even  after  the  death  of  Rajammal.  The petitioner is not<br \/>\nentitled to the relief of mandamus prayed for as she has no  legal  right  and<br \/>\nthe respondents pray for the dismissal of the writ petition.\n<\/p>\n<p>        7.  The points that arise for consideration are:\n<\/p>\n<p>        (A)     Whether  on  the  death of one of the two widows the surviving<br \/>\nwidow will be entitled for payment of full family pension that  was  paid  for<br \/>\nboth the widows as dependent of the deceased pensioner?\n<\/p>\n<p>        (B)     Whether  the  petitioner is entitled to the relief of mandamus<br \/>\nprayed for?\n<\/p>\n<p>        8.  There is no dispute that the petitioner Krishnaswamy Padayachi who<br \/>\nwas receiving pension as an Ex-Indian National  Army  personnel,  passed  away<br \/>\nleaving his  two widows.  Therefore the State Government, the first respondent<br \/>\npassed orders directing payment of  pension  payable  to  the  family  of  the<br \/>\ndeceased in  two  equal  moieties  to  the  two  widows.  Both the widows were<br \/>\nreceiving one half of the pension which  was  being  paid  to  their  deceased<br \/>\nhusband till  his  life time and they continue to share the same equally.  One<br \/>\nof the two widows died and the petitioner, surviving widow  claimed  that  the<br \/>\nentire  family  pension should be paid to her and there is no justification to<br \/>\ndeny the other half which was being paid to deceased co widow.\n<\/p>\n<p>        9.  It is contended by the respondents that the petitioner  being  one<br \/>\nof  the  surviving widows is entitled to one half by way of family pension and<br \/>\ntherefore she is not entitled to the relief prayed for in this writ  petition.<br \/>\nConcedingly  there  is  no  rule  or  regulation  that has been framed in this<br \/>\nrespect by the State Government,  nor  there  is  any  scheme  regulating  the<br \/>\nsuccession among  the  co  widows.  In the absence of any Government Orders or<br \/>\nNotification or Rules or Scheme we have to examine what is the  right  of  the<br \/>\nwidows  on  the death of their husband who was a recipient of Freedom Fighters<br \/>\nPension during his life time or the right of surviving widow.  In the  counter<br \/>\nexcept  stating  that  the petitioner is not entitled to entire person and the<br \/>\npetitioner cannot claim the other half which was being paid  to  the  deceased<br \/>\nRajammal,  co  widow,  no rule or order or statutory provision is being relied<br \/>\nupon by the respondents in this respect.\n<\/p>\n<p>        10.  Pension in this case is admissible under the Scheme framed by the<br \/>\nState Government to the Freedom Fighter and Krishnasamy Padayachi and  on  his<br \/>\ndeath to  his  family members.  Family Members are being paid and continued to<br \/>\nbe paid with the family pension on the untimely death of the deceased  husband<br \/>\nwhich  results  in the dependent namely the widow being a destitute and she is<br \/>\ngranted special family pension.  Such family pension is admissible on  account<br \/>\nof the the status of the widow or plurality of the widows, if they are legally<br \/>\nmarried.\n<\/p>\n<p>        11.   On  the  death  of  the  husband  such  pension by no stretch of<br \/>\nimagination  could  ever  form  part  of  the  estate  of  the  deceased   and<br \/>\nconsequently it could never be the subject matter of testamentary disposition.<br \/>\nThis  legal  position  has  been laid down by the Apex Court in Jodh Singh Vs.<br \/>\nUnion of India, reported in 1980 (4) SCC 306.\n<\/p>\n<p>        12.  Taking the case of succession by co widows inheriting husband&#8217;  s<br \/>\nproperty, it is the settled legal position that they become joint tenants with<br \/>\nrights of survivorship.    In  Karpagathachi and others Vs.  Nagarathinathchi,<br \/>\nreported in AIR 1965 SC 1752, the Apex Court held thus:-\n<\/p>\n<p>&#8220;3.  We are of opinion that  the  first  contention  of  Mr.Viswanatha  Sastry<br \/>\nshould be  rejected.    Under  the  Hindu  law as it stood in 1924, two widows<br \/>\ninheriting their husband&#8217;s  properties  took  together  one  estate  as  joint<br \/>\ntenants with rights of survivorship and equal beneficial enjoyment.  They were<br \/>\nentitled  to  enforce  a  partition  of  those  properties  so that each could<br \/>\nseparately possess and enjoy the portion allotted to  her,  see  Bhugwan  Deen<br \/>\nDoobey Vs.   Myna Baee, 11 Moo Ind.App.487 (PC), Gauri Nath Kakaji V.  Mt.Gaya<br \/>\nKuar, 55 Ind App 399:  (AIR 1928 PC 251) Neither could without the consent  of<br \/>\nthe  other  enforce  an  absolute partition of the estate so as to destroy the<br \/>\nright of  survivorship,  see  <a href=\"\/doc\/474738\/\">Commissioner  of  Income-tax  V.     Smt.Indiara<br \/>\nBalakrishna<\/a> 1960-3  SCR  513 at p.515.  But by mutual consent they could enter<br \/>\ninto any arrangement regarding  their  respective  rights  in  the  properties<br \/>\nduring  the  continuance of the widows estate, and could absolutely divide the<br \/>\nproperties so as to preclude the right of survivorship of each to the  portion<br \/>\nallotted to the  other.    See Ramakkal Vs.  Ramasami naickan, ILR 22 Mad 522,<br \/>\n<a href=\"\/doc\/277202\/\">Sudalai Ammal V.  Gomathi Ammal<\/a> 28  Mad  LJ  355.    Likewise,  two  daughters<br \/>\nsucceeding to their fathers estate as joint tenants with right of survivorship<br \/>\ncould enter  into a similar arrangement.  See Kailash Chandra Chuckerbutty Vs.<br \/>\nKashi Chandra ILR 24 Cal 339, Subbammal Vs.  Krishna  Aiyar  26  Mad  LJ  479,<br \/>\n<a href=\"\/doc\/1545576\/\">Ammani Ammal V.    Periasami  Udayan<\/a> 45 Mad LJ 1.  Such an arrangement was not<br \/>\nrepugnant to S.6(a) of the Transfer of Property Act, 1882.   the  interest  of<br \/>\neach  widow in the properties inherited by her was property, and this property<br \/>\ntogether  with  the  incidental  right  of  survivorship  could  be   lawfully<br \/>\ntransferred.   Section  6(a)  of  the  Transfer  of Property Act prohibits the<br \/>\ntransfer of the bare chance of the surviving widow taking the entire estate of<br \/>\nthe next heir of her husband on the death of the co widow,  but  it  does  not<br \/>\nprohibit  the  transfer by the widow of her present interest in the properties<br \/>\ninherited by her together with the incidental  right  of  survivorship.    The<br \/>\nwidows  were competent to partition the properties and allot separate portions<br \/>\nto each and incidental to such an allotment, each could  agree  to  relinquish<br \/>\nher right  of  survivorship  in  the  portion allotted to the other.  The fist<br \/>\ncontention of Mr.  Viswanatha Sastry must be rejected.&#8221;\n<\/p>\n<p>        13.  The above pronouncement will govern the case  where  husband  has<br \/>\nleft an  estate, which is to be inherited by the co-widows.  But, in this case<br \/>\nfamily pension being paid is not part of  the  estate  left  by  the  deceased<br \/>\nhusband, but it is part of the claim under which the widow is entitled to such<br \/>\na payment on the death of her husband, so that she could lead a normal life.\n<\/p>\n<p>        14.  In Anar Kumari Vs.  Jamuna Prasad Singh, reported in 1976 (4) SCC<br \/>\n826,  the  Apex  Court  while following the pronouncement in Karpagathathi Vs.<br \/>\nNagarathinatchi, (AIR 1965 SC 1752) held that the widows take a  character  of<br \/>\njoint  tenants  and none of them has a right to enforce the absolute partition<br \/>\nof the estate against them so as to destroy the right of survivorship.\n<\/p>\n<p>        15.  The status of  co-widows  or  Co-heiresses  and  their  right  of<br \/>\nsuccession  as  joint  tenants  was  the  subject  matter  of consideration in<br \/>\nBrahmvart Sanathan Dharam Mahamandal, Kanpur and others Vs.   Prem  Kumar  and<br \/>\nothers, reported  in  1985  (3) SCC 350.  While approving the passage in Hindu<br \/>\nLaw by N.R.Raghavachari, the legal position has been summarised as hereunder:<br \/>\n&#8220;Where two widows succeed as co-heiresses to their husband&#8217;s  estate,  one  of<br \/>\nthem cannot alienate the property without the consent of the other even though<br \/>\nthe alienation for the necessity of the estate.  They are entitled to obtain a<br \/>\npartition  of  separate portions of the property and deal as each pleases with<br \/>\nher own life interest, but she cannot alienate any part of the corpus  of  the<br \/>\nestate  by  gift  or  will  so as to prejudice the rights of the survivor of a<br \/>\nfuture reversioner.  If they act together, they can burden the reversion  with<br \/>\nany  debts contracted owing to legal necessity, but one of them acting without<br \/>\nthe authority express or implied of the other cannot prejudice  the  right  of<br \/>\nsurvivorship by burdening or alienating any part of the estate.  The mere fact<br \/>\nof partition between the two, while it gives each a right to the fruits of the<br \/>\nseparate estate assigned to her, does not imply a right to prejudice the claim<br \/>\nof  the  survivor to enjoy the full fruits of the property during her lifetime<br \/>\nand a mortgage by a Hindu widow even for necessary purposes, when she has  not<br \/>\neven  asked  her  co  widow to consent to the granting of the mortgage, is not<br \/>\nbinding upon the joint estate so as to affect the interest  of  the  surviving<br \/>\nwidow,  and  the  mere fact that there has been enmity between the cowidows is<br \/>\nnot justification for the failure to take the consent of the cowidow.\n<\/p>\n<p>        16.  In Poonamal Vs.  Union of India, reported in 1985 (3) SCC 345, in<br \/>\nrespect of family pension payable under the Contributory Family Pension Scheme<br \/>\nof 1985, the Apex Court held that pension is not merely a statutory right, but<br \/>\nit is the fulfillment of constitutional promise as it partakes  the  character<br \/>\nof  public assistance in case of unemployment, old age, disablement or similar<br \/>\nother cases of undeserved want.  In that respect, the Apex Court held thus:-\n<\/p>\n<p>        &#8220;7.  It is not necessary to  examine  the  concept  of  pension.    As<br \/>\nalready  held  by  this  court in numerous judgments pension is a right, not a<br \/>\nbounty or gratuitous payment.  The payment of pension does not depend upon the<br \/>\ndiscretion o the Government but is governed by the relevant rul;es and  anyone<br \/>\nentitled  to  the  pension  under the rules can claim it as a matter of right.<br \/>\n(Deoki Nandan Prasad Vs.  State of Bihar (197 1 (2) SCC  330)  and  D.S.Nakara<br \/>\nVs.  Union of India (1983 (1) SCC 305).  Where the Government Servant rendered<br \/>\nservice  to compensate which a family pension scheme is devised, the widow and<br \/>\nthe dependent minors would equally be entitled to family pension as a matter o<br \/>\nright.  In fact we look upon pension not merely as a statutory right but as  a<br \/>\nfulfillment  of a constitutional promise inasmuch as it partakes the character<br \/>\nof public assistance in cases of unemployment, old-age, disablement or similar<br \/>\nother cases of undeserved want.  Relevant  rules  merely  make  effective  the<br \/>\nconstitutional mandate.    That  is  how  pension  has  been  looked  upon  in<br \/>\nD.S.Nakara judgment.  At the hearing of this group of matters wee pointed  out<br \/>\nthat  since  the  family  pension scheme has become non-contributory effective<br \/>\nfrom September, 22, 1977 any attempt at denying  its  benefit  to  widows  and<br \/>\ndependents  of  Government  servants  who  had not taken advantage of the 1964<br \/>\nliberalisation scheme by making or agreeing  to  make  necessary  contribution<br \/>\nwould  be denial of equality to persons similarly situated and hence violative<br \/>\nof Article 14.  If widows and dependents of deceased Government servants since<br \/>\nafter September 22, 1977 would be  entitled  to  benefits  of  family  pension<br \/>\nscheme  without  the  obligation of making contribution, those widows who were<br \/>\ndenied the benefits on the ground that  the  Government  servants  having  not<br \/>\nagreed  to  make the contribution, could not be differently tread because that<br \/>\nwould be introducing an invidious classification  among  those  who  would  be<br \/>\nentitled to similar treatment.  When this glaring dissimilar treatment emerged<br \/>\nin  the  course  of hearing in the court, Mr.B.Dutta learned counsel appearing<br \/>\nfor the union of India requested for  a  short  adjournment  to  take  further<br \/>\ninstructions.&#8221;\n<\/p>\n<p>        17.  In Violet Issaac Vs.  Union of India reported in 1991 (1) SCC 725<br \/>\n, the scope of claim with respect to family pension on the basis of a Will was<br \/>\nthe issue.    While  negativing  the claim of persons who claimed testamentary<br \/>\nsuccession, the Apex Court held thus:-\n<\/p>\n<p>&#8220;The Family Pension Scheme under the Rules is designed to  provide  relief  to<br \/>\nthe  widow  and  children by way of compensation for the untimely death of the<br \/>\ndeceased employee.  The Rules do not provide for any nomination with regard to<br \/>\nfamily pension, instead the Rules designate the persons who  are  entitled  to<br \/>\nreceive the  family  pension.    Thus, no other person except those designated<br \/>\nunder the Rules are entitled to receive family pension.  The employee  has  no<br \/>\ntitle  nor  any  control over the family pension as he is not required to make<br \/>\nany contribution to it.  The family pension scheme  is  in  the  nature  of  a<br \/>\nwelfare scheme.    Therefore, it does not form part of his estate enabling him<br \/>\nto dispose of the same by  testamentary  disposition.    Accordingly,  in  the<br \/>\npresent case the widow of the deceased Railway employee is entitled to receive<br \/>\nthe  family pension, notwithstanding the will alleged to have been executed by<br \/>\nthe deceased.&#8221;\n<\/p>\n<p>        18.  In the present case the deceased has not  left  any  other  heirs<br \/>\nexcept  his  two  widows and therefore the two widows were being paid equally.<br \/>\nEven according to the scheme if there is only one widow then the entire family<br \/>\npension should be paid to the said sole widow.  If there  are  more  than  one<br \/>\nwidow,  then the payment of the family pension is being made in equal moieties<br \/>\nto the two widows.\n<\/p>\n<p>        19.  Had there not been two widows, the petitioner will be entitled to<br \/>\nthe entirety of the pension.  As there were two widows on  the  death  of  the<br \/>\ndeceased-pensioner, it  was  paid  in  equal  moieties.   Therefore the family<br \/>\npension on the death of one of the co widows, the other co widow will  get  in<br \/>\nits entirety as if she is the sole widow.\n<\/p>\n<p>        20.  In the light of the above pronouncements of the Supreme Court and<br \/>\nthe  nature  of  right  that  has been conferred under the Pension Rules, this<br \/>\ncourt holds that the writ petitioner is entitled for payment of  the  entirety<br \/>\nof  the  family  pension,  which  was  being  paid to both the widows in equal<br \/>\nmoieties and the respondent is directed to pay all the arrears since the death<br \/>\nof the co widow Rajammal and continue to pay the full family  pension  to  the<br \/>\npetitioner directly  during  her  life  time.  Both the points are answered in<br \/>\nfavour of the petitioner and against the respondents.\n<\/p>\n<p>        21.  The respondents are granted time to pay  arrears  of  pension  by<br \/>\nthree  months  from  the  date  of  communication  of  a copy of this order or<br \/>\nproduction of a copy by the petitioner.  The writ petition is  allowed.    The<br \/>\nparties shall bear their respective costs.\n<\/p>\n<p>Index:Yes<br \/>\nInternet:Yes<br \/>\ngkv<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Madras High Court K.Saroja vs Secretary To Government on 29 January, 2003 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29\/01\/2003 CORAM THE HON&#8217;BLE MR.JUSTICE E.PADMANABHAN WRIT PETITION NO. 13507 of 1998 K.Saroja ..Petitioner -Vs- 1. Secretary to Government of Tamil Nadu, Public (Political Pension II) Department, Secretariat, Chennai-9 2. The Collector of Perambalur [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-75922","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>K.Saroja vs Secretary To Government on 29 January, 2003 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/k-saroja-vs-secretary-to-government-on-29-january-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"K.Saroja vs Secretary To Government on 29 January, 2003 - Free Judgements of Supreme Court &amp; 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