{1} fa179110.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.1791 OF 2010 1 Sangita w/o Dnyanoba Raut, age: 36 years, Occ: Household, R/o Warapagaon, Tq.Ambajogai, District Beed. 2 Abhijit s/o Dnyanoba Raut, age: 17 years, Occ: Education; 3 Aniket s/o Dnyanoba Raut, age: 11 years, Occ: Education; Appellants No.2 and 3 are minor u/g of Sangita w/o Dnyanoba Raut, age: 36 years, Occ: Household, R/o Warapagaon, Tq.Ambajogai, District Beed. Appellants Versus 1 M/s Kanakdurga Lorry Services, Proprietor, Seetahama Laxmi w/o J. Rambhau, age: major, Occ: Business, R/o Ist floor, Durga Complex, Gosh Mahal, Hyderabad. 2 M. Mahipal Reddy, s/o Nagi Reddy, age: major, Occ: Driver, R/o House No.21-5/ 31/4, Mogalpura, Hyderabad. 3 National Insurance Company Ltd., Division Office at Zaveri Mansion, Banks Street, Hyderabad. {2} fa179110.odt 4 Sow.Swati w/o Dnyanoba Raut, age: 42 years, Occ: Household, R/o Pohregaon, Tq.Renapur, District Latur. Respondents Mr.N.L.Jadhav, advocate for appellants. Mr.D.G.Chewale, advocate for respondent no.4. CORAM : R.M.BORDE, J. DATE : 20 th July, 2011 ORAL JUDGMENT: 1 Learned Counsel for appellants seeks leave to delete names of Respondents No.1, 2 and 3. Leave granted. Names of Respondents No.1 to 3 stands deleted. 2 Heard learned Counsel for appellant and learned Counsel for respondent no.4. Appeal is admitted and taken up forthwith for final hearing by consent of learned Counsel for respective parties. 3 The appeal is preferred by second wife of deceased Dnyanoba and two sons born to deceased Dnyanoba out of the wedlock with second wife. The only objection raised in the appeal is in respect of determination of share amongst legal heirs of deceased Dnyanoba who are entitled to have share in the {3} fa179110.odt compensation amount. 4 It is not disputed that appellant no.1 Sangita is the second wife of deceased, whereas, Respondent No.4 Swati is the legally wedded wife of deceased Dnyanoba. Learned Member, Motor Accident Claims Tribunal, Latur, directed payment of amount of compensation to the tune of Rs.8,72,785/- along with interest to the appellants as well as Respondent No.4 Swati. The Tribunal has directed disbursement of 50% of the amount to legally wedded wife i.e. Respondent No.4 Swati and has further issued a direction for disbursement of remaining 50% amount amongst appellants herein / original claimants. 5 Shri N.L.Jadhav, learned Counsel appearing for appellants has raised objection only in respect of direction contained in clause (03) of the operative order passed by the Tribunal on 17.05.2010. It is the contention of the appellants that disbursement of amount amongst members of the family, as directed by the Tribunal, is not in accordance with provisions of Hindu Succession Act, 1956. According to the appellants, the amount receivable by legal heirs shall have to be disbursed amongst sons of deceased born out of the wedlock with second wife and Respondent No.4 – first wife in equal shares. Shri Jadhav, at the outset, has conceded that appellant no.1 - Sangita, being the second wife, is not entitled to have any share for herself in the {4} fa179110.odt compensation amount receivable under the award. However, it is contended that appellants no.2 and 3, being the sons of deceased Dnyanoba born out of relations with appellant no.1, are entitled to receive equal share with that of first wife – Respondent No.4. 6 Section 8 of the Hindu Succession Act prescribes general rules of succession in the case of males. The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter, firstly, upon the heirs, being the relatives specified in Class I of the Schedule. It is not disputed that appellants no.2 and 3 and Respondent no.4 are the heirs specified in class I of the Schedule. Appellant no.1 - the second wife, her marriage being void, does not have stamp of validity and as such, she is not entitled to receive any share in the compensation amount. So far as distribution of shares amongst class I heirs is concerned, it would be governed by Section 10 of the Hindu Succession Act, 1956. It is provided that the property of an intestate shall be divided among the heirs specified in class I of the Schedule in accordance with the rules i.e. – the intestate’s widow, or if there are more widows than one, all the widows together, shall take one share. The surviving sons and daughters and the mother of the intestate shall each take one share. The appellant no.1 cannot be treated as widow of deceased. Her marriage with the deceased is void. Respondent No.4 – Swati, as such, would be entitled to take one share and appellants no.2 and {5} fa179110.odt 3, being the surviving sons, would be entitled to receive one share each. 7 Reliance can be placed on the judgment of the Apex Court in the matter of Rameshwari Devi Vs. State of Bihar & others, reported in 2000 (4) ALL MR 237. In para 14 of the judgment, it is observed thus: “14 It cannot be disputed that the marriage between Narain Lal and Yogmaya Devi was in contravention of clause (i) of Section 5 of the Hindu Marriage Act and was a void marriage. Under Section 16 of this Act, children of a void marriage are legitimate. Under the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolves firstly on heirs in clause (1) which include the widow and son. Among the widow and son, they all get shares (see Sections 8, 10 and the Schedule to the Hindu Succession Act, 1956). Yogmaya Devi cannot be described as a widow of Narain Lal, her marriage with Narain Lal being void. The sons of the marriage between Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal would be entitled to the property of Narain Lal in equal shares along with that of Rameshwari Devi and the son born from the marriage of Rameshwari Devi with Narain Lal. That is, however, the legal position when a Hindu male dies intestate. Here, however, we are concerned with the family pension and death-cum-retirement gratuity payments which is governed by the relevant rules. It is not disputed before us that if the legal position as {6} fa179110.odt aforesaid is correct, there is no error with the directions issued by the learned Single Judge in the judgment which is upheld by the Division Bench in LPA by the impugned judgment.” 8 Considering the ratio laid down by the Apex Court in the judgment cited supra and on consideration of the provisions of Sections 8 and 10 of the Hindu Succession Act, 1956, I am of the view that the directions issued by the Tribunal in respect of distribution of shares amongst members of the family is erroneous and liable to be corrected. The directions contained in clause (03) of the operative order passed by the Tribunal, in respect of disbursement of amount of compensation amongst members of the family, is quashed and set aside and it is directed that appellants no.2 and 3 i.e. original claimants no.2 and 3 along with Respondent No.4 – original opponent no.4 shall have one share each in the amount of compensation. Except the modification, as directed above, the award passed by the Tribunal on 17.05.2010 in M.A.C.P. No.91/2004 stands confirmed. 9 Appeal is partly allowed in above terms. In the facts and circumstances of this case, there shall be no order as to costs. Civil Application No.13406 of 2010 does not survive and stand disposed of. R.M.BORDE JUDGE adb/fa179110