* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 14 OF 2009 W I T H CIVIL APPLICATION NO. 35 OF 2009 Smt.Nandini Baban Varvadkar ........Appellant V/S. 1. Smt. Asha Baban Varvadkar 2. Kum. Sarika Baban Varvadkar 3. Kum. Sujata Baban Varvadkar 4. Harish Baban Varvadkar 5. The State of Maharashtra 6. The Controller of Rationing 7. Deputy Controller of Rationing ........Respondents --------- Mr.S.K.Shinde, Advocate for Appellant. Mr.M.M.Sathaye, Advocate for Respondents no.1 to 4. Mrs.S.V.Sonawane, AGP for Respondents no.5 to 7. CORAM : SMT.R.P.SONDURBALDOTA, J. DATED : 25TH SEPTEMBER, 2009. PC : 1. Rule made returnable forthwith. Heard learned counsel for the parties. 2. The questions that fall for consideration in this Second Appeal relate to entitlement of an unlawfully wedded wife and the children born from such * 2 * wedlock to the pensionary benefits of the deceased husband. 3. The appellant, undisputedly, is the legally wedded wife of one Baban having married to him on 19th May, 1968. During his lifetime, she was required to file proceedings against him for restitution of conjugal rights and maintenance. Though, she succeeded in both the proceedings, Baban complied with the orders in none. Instead, in April 1976 he performed second marriage with respondent no.1 and started residing with her. Respondents no.2, 3 and 4 are the children born from that wedlock. Baban died on 7th January 1983. Thereafter, respondents no.2 and 3, his employees, started paying provisional pension amounting to Rs.950/- to respondent no.1. They also paid a sum of Rs. 20,128/- to her by way of amount of GIS as per the nomination filed by Baban. However, they withheld the other pensionary benefits of provident fund, gratuity and other dues on receiving objections from the appellant. 4. The appellant filed a suit against the respondents herein being Regular Civil Suit No.176 of 1984 for a declaration that she is entitled to the family pension and also entitled to 1/4th share each in the amount of group insurance, gratuity, provident fund and other service benefits. The suit was decreed in favour of the appellant holding that she is entitled to the family pension in view of Rule-116 (v)(iv) of Maharashtra Civil Services Rules, 1982. As regards the other retirement benefits, it held that the appellant and respondents no.2 to 4, are entitled to 1/4th share each in the same, being class-one heirs of Baban. * 3 * Respondent no.1 was denied all the benefits, she not being legal heir for the purpose of succession. 5. Respondents no.1 to 4 challenged the decree vide Civil Appeal No.145 of 2004. The appeal court disapproved the suit as filed by the appellant noting absence of relief of declaration in respect of her status as a legally wedded wife of Baban and in respect of the nomination of respondent no.1 by Baban to receive family pension. It then simply set aside the order as regards family pension leaving the question of entitlement of family pension, undecided. It maintained the relief granted in respect of 1/4th share in the amount of group insurance, gratuity, provident fund and other dues. 6. Mr.Shinde, the learned counsel for the appellant submits that the order of the appellate court is perverse, as on the one hand, it holds that the nomination envisaged under Rule 115 of the Maharashtra Civil Services Rules, 1982 can be only in favour of members of family and, on the other hand, it sets aside the decree of the trial court in favour of the appellant, thereby sanctioning payment of family pension to a non-member i.e. respondent no.1. Mr.Sathaye, the learned counsel for respondents no.1 to 4 submits to support the impugned order. 7. The learned lower appellate court is patently in error in holding that the appellant ought to have sought declaration of her status as a wife and challenged nomination in favour of respondent no.1. There cannot be any dispute as regards the appellant being the legally wedded wife of Baban. This is * 4 * because, the appellant had filed proceedings for restitution of conjugal rights against Baban and the same were decreed in her favour. She had also successfully filed maintenance proceedings against him. As regards the challenge to nomination in favour of respondent no.1, it is now well settled by series of decisions of the Apex Court, that nomination does not confer any right in the property to the nominee. The status of a nominee is as that of a trustee. A nominee holds the property in trust for/and on behalf of the person who is entitled to the same having regard to the law of Succession. Therefore, there was no need for the appellant to seek declaration of her status as a wife or to challenge nomination in favour of respondent no.1. Consequently, the suit as filed by the appellant was perfectly maintainable. 8. Having regard to the above position of facts and law, the entitlement of respondents no.1 to 4 to the pensionary benefits of Baban is now required to be considered. The grant of pension, family pension and the entitlement to receive the same is governed by Maharashtra Civil Services Rules, 1982. The relevant provision reads as follows :- 116. Family Pension, 1964. “ (1)...... (2)...... (3)...... (4)...... (5) The period for which family pension is payable shall be as follows :- * 5 * (i) in the case of a widow or widower, up to the date of death or remarriage, whichever is earlier. (ii)in the case of a son, until he attains the age of twenty-one years: and (iii)in the case of an unmarried daughter, until she attains the age of twenty-four years or until she gets married, whichever is earlier. Provided that...... (i)....... [(ii)... [(iii)..... (iv)..... (v).... Explanation.-- [(a)......] (b) A daughter shall become ineligible for Family Pension under this sub-rule from the date she gets married. (c) The family Pension payable to such a son or daughter shall be stopped if he or she starts earning his/her livelihood. (d) In such cases it shall be the duty of the guardian [or such a son or daughter] to furnish a certificate to the Treasury to Bank, as the case may be, every month that (i) he or she has not started earning his/her livelihood; (ii) in case of daughter, that she has not yet married. 6 (a) (i) Where the Family Pension is payable to more widows than one, the Family Pension shall be paid to the widows in equal shares; (ii) on the death of a widow, her share of the Family Pension shall become payable to her eligible child: * 6 * [Provided that if the widow is not survived by any child, her share of the family pension shall not lapse but shall be payable to the other widows in equal shares, or if there is only one such other widow, in full, to her] shall be entitled to the share to Family Pension which the mother would have received if she had been alive at the time of the death of the Government servant or pensioner. [Provided that on the share or shares of family pension payable to such a child or children or to a widow or widows ceasing to be payable, such share or shares shall not lapse but shall be payable to the other widow or widows and or to other child or children otherwise eligible, in equal shares, or if there is only one widow or child, in full, to such widow or child.] [(c) Where the deceased Government Servant or pensioner is survived by a widow but has left behind eligible child or children from a divorced wife or wives, the eligible child or children shall be entitled to the share of Family Pension which the mother would have received at the time for death of the Government Servant or pensioner had she not been so divorced :] [Provided that on the share or shares of family pension payable to such a child or children or to a widow or widows ceasing to be payable, such share or shares shall not lapse but shall be payable to the other widow or widows and or to other child or children otherwise eligible, in equal shares, or if there is only one widow or child, in full, to such widow or child.] (d) Where the family pension is payable to twin children it shall be paid to such children in equal shares : * 7 * Provided that, when one such child ceases to be eligible his/her share shall revert to the other child and when both of them cease to be eligible, the family pension shall be payable to the next eligible single child or twin children, as the case may be]; (7)(i) Except as provided in sub-rule (6), the Family Pension shall not be payable to more than one number of the family at the same time; (ii) If a deceased Government servant or pensioner leaves behind a widow or widower, the Family Pension shall become payable to the widow or widower, failing which to the eligible child; [(iii) Family pension to the children shall be payable, in the order of their birth and the younger of them will not be eligible for family pension unless the elder immediately above him/her has become ineligible for the grant of family pension : Provided that, where the family pension is payable to twin children it shall be paid in the manner set out in clause (d) of sub-rule (6) of this rule] : (8) Where a deceased Government servant or pensioner leaves behind more children than one, the eldest eligible child shall be entitled to the family pension for the period mentioned in clause (ii) or clause (iii) of sub-rule (5), as the case may be and after the expiry of that period the next child shall become eligible for the grant of Family Pension. 9. On recapitulating the provisions relevant for the present purposes, it can be seen that only the widow who was the legally wedded wife is entitled to receive family pension. In case of more widows than one, the family pension * 8 * shall be paid to the widows in equal share and on the death of a widow her share of the family pension becomes payable to her eligible child. In the instant case, though respondent no.1 is not entitled to family pension, she not being a legally wedded wife, her children who are otherwise entitled to succeed to the estate of deceased Baban, will step in her place and will be entitled to the family pension until such time as they are eligible. The moment all of them become ineligible for receiving the family pension on attaining their respective ages i.e.21 years for the son and 24 years for the daughter, the portion of pension payable to them will revert to the appellant. Sub-Rule 8 provides that only one child at a time being the eldest eligible child shall be entitled to the family pension for the period provided under the Rules. On expiry of that period, next child becomes eligible for the grant of family pension. Therefore, the eldest eligible amongst respondents no.2, 3 and 4 will be entitled to receive share in the pension, the other being payable to ½ ½ the appellant. 10. Respondent No.1 has received family pension till July 1983. Considering the amount of family pension and the short duration for which the same was paid over to respondent no.1, Mr.S.K.Shinde, the learned counsel for the appellant has been gracious enough to forego that part of the family pension. The particulars as regards the date of birth and the dates of respondents no.2 to 4 attaining relevant year of age for ineligibility under the Pension Rules are * 9 * as under :- DAUGHTER/SON BIRTH-DATE RELEVANT YEARS OF AGE COMPLETED ON Resp No.2 : Sarika 02/09/1976 02/09/2000 (24 yrs) Resp No.3 : Sujata 31/12/1977 31/12/2001 (24 yrs) Resp No.4 : Harish 05/03/1979 05/03/2000 (21 yrs) . Sarika being the eldest amongst the siblings will be entitled to receive ½ share of the family pension amount until 2nd September, 2000 when she attains the age of 24 years. After her, Sujata the next eldest sibling becomes eligible to receive pension from 3 ½ rd September, 2000 to 31st December, 2001 when she completes her age of 24 years. Respondent no.4 Harish, however, having already attained his age of 21 years on 5th March, 2000 is not entitled to receive family pension at any point of time. Therefore, family pension payable to the appellant and respondents no.2 to 4 will be as follows : APPELLANT RESP NO.2 RESP NO.3 RESP NO.4 from August ½ 1983 to 31/12/ 2001 from August 1983 ½ to 02/09/2000 from 03/09/2000 to ½ 31/12/2001 NIL Full pension from 31/12/2001 . Respondents no.5 and 6 are liable to pay the pension as per the chart above. * 10 * The appellant is also entitled to receive 1/4th share in the other dues like GIS, Provident Fund, Gratuity and other service benefits. Since the amount of GIS of Rs. 20,128/- has been paid to respondent no.1, they shall make arrangements for payment of the appellant s 1/4 ’ th share to her from the amount lying with them towards the other dues of Baban. The Second Appeal is disposed off with the above directions. 11. With the disposal of the Second Appeal, Civil Application No.35 of 2009 does not survive. The same is accordingly disposed off. [SMT.R.P.SONDURBALDOTA, J]