RSA No.133 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.133 of 2007 (O&M) Date of Decision: 15.12.2009 Jang Singh and another .... Appellants. Versus The State of Punjab and others ..... Respondents. CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.J.S.Rattan, Advocate for the appellants. Ms.Rajni Gupta, Addl.AG Punjab for the respondent/State. Mr.Jaideep Verma, Advocate for respondent No.5. RAKESH KUMAR JAIN J. Bant Singh, Lal Singh, Jang Singh and Jodh Singh sons of Gurdial Singh filed a suit for declaration to the effect that they are the only legal heirs of deceased brother Ajit Singh who was unmarried, issueless and had died intestate while working in Irrigation Department, Ludhiana. They claimed his outstanding pay, gratuity, provident fund and other service benefits and also sought mandatory injunction against defendants No.2 and 3 to pay the aforesaid dues to them. In the written statement filed by defendants No.1 to 3 it was pleaded that deceased Ajit Singh had never authorised the plaintiffs to draw the amount and they do not fall within the definition of “Family” as per the Service Rules. Defendant No.5 Pragat Singh was impleaded as a party, who filed a separate written statement in which it was pleaded that he along with his mother Sham Kaur had served Ajit Singh, who out of natural love and affection, nominated him for the RSA No.133 of 2007 -2- collection of his dues. Replication was filed, facts in the written statement were denied and those in the plaint were reiterated. On the basis of the pleadings of the parties, following issues were framed on 3.1.2003: 1. Whether the plaintiffs are only legal heirs of deceased Ajit Singh son of Gurdial Singh who was working as Peon in the Lining Sub Divn.5, Ludhiana? OPP. 2. Whether the plaintiffs are entitled to decree of declaration as prayed for? OPP. 3. Whether the plaintiffs are entitled to decree of mandatory injunction? OPP. 4. Whether the present suit is not maintainable? OPD. 5. Whether the plaintiffs have no locus standi or cause of action to file the present suit? OPD. 6. Whether the plaintiffs have filed the present suit on the basis of the wrong facts? OPD. 7. Whether the answering defendant No.5 is only nominee of deceased Ajit Singh? OPD. 8. Relief. To prove these issues, one of the plaintiffs Jang Singh appeared in the witness box as PW1 and Mukand Singh as PW2 and then they closed their evidence in affirmative. In rebuttal, defendants No.1 to 3 examined B.S.Mangat as DW1, Surjit Kaur as DW2, defendant No.5 Pargat Singh as DW3 and after tendering documents Ex.D1 to Ex.D5 and mark A, closed their evidence. No evidence was led in rebuttal by the plaintiffs. Learned trial Court decreed the suit of the plaintiffs on the ground that nominee is only entitled to collect the amount which does not belong to him and in that regard it relied upon the law laid down in Amar RSA No.133 of 2007 -3- Singh Vs. Shashi Bala, 2003(1) RCR (Civil) 659 and Smt.Sarbati Devi and another Vs. Smt.Usha Devi AIR 1984 SC 346. The judgment and decree of the trial Court was challenged in Civil Appeal No.123 of 10.9.2005 filed by defendant No.5 and in Civil Appeal No.150 of 10.9.2005 filed by defendants No.1 to 3 which were clubbed together and vide judgment and decree dated 5.9.2006 both the appeals were allowed and the suit filed by the plaintiffs was dismissed with costs. The learned lower Appellate Court has held that insofar as provident fund is concerned that has already been released to Pragat Singh much before the filing of suit amounting to Rs.83,048/-, therefore, for the purpose of claiming the said amount, only a suit for recovery is maintainable and insofar as the gratuity and other service benefits are concerned, as the plaintiffs do not fall within the definition of “Family”, they are not entitled to the same. The finding recorded by the lower Appellate Court in this regard is reproduced as under: “When contentions of counsel for Pargat Singh party and G.P. for the State are considered, suit for mandatory injunction itself was not maintainable when suit was filed on 12.3.2001 and amount of GPF already stood paid to Pargat Singh on 18.1.2001 as per Ex.D3, on the basis of nominations Ex.D4 and Ex.D5. Even if, Pargat Singh was to collect the amount on the basis of nominations for all, but, when amount already stood collected on the basis of nominations, other party, at the most, could have filed suit for recovery when the amount is specific, but, document on file i.e. Ex.D5 voter list showing residence of Ajit Singh with Pargat Singh, party, performing his last rites and immersing of his ashes by that party, transferring of property by Ajit Singh, deceased in favour of Pargat Singh in year 1992 as per judgment Ex.D7 and decree sheet Ex.D6. Whatever Ajit Singh was having property, he already intended to transfer the same in the name of Pargat Singh. RSA No.133 of 2007 -4- Now coming to the point of pension. Neither Pargat Singh nor Bant Singh party falls within definition of family and for the purpose of gratuity, son, daughters, and widow are entitled to the same, provided the son is less than 25 years of age and is unmarried or till the age of marriage, before 25 years, if he is married, he is not eligible either for pension or gratuity. When Pargat Singh party and Bant Singh party does not fall within definition of family, as per civil services rules, extract of which is placed on file as Ex.D2, neither Bant Singh party nor Pargat Singh party are legally entitled to receive family pension or death-cum-retirement gratuity. With regard to point of payment of GPF, suit on that point has already been held to be not maintainable. Therefore, findings of lower Court on issues No.1 to 3 are reversed and these issues are held against Bant Singh party and in favour of State and Pargat Singh, party and findings on issue No.4 are also reversed holding suit as not maintainable in the present form and in view of reversed of findings on issues No.1 to 4, it is held that plaintiffs have no locus standi and cause of action to file present suit. The findings on issue No.7 are also reversed holding that Pargat Singh is only nominee of Ajit Singh, so far as payment of GPF is concerned. So, issue No.7 is also held in favour of Pargat Singh party. In view of reversed of findings on foregoing issues, it is held that plaintiffs have filed present suit on the basis of wrong facts. So issue No.6 is also held against plaintiffs and in favour of defendants.” Though judgment and decree passed by the trial Court has been reversed by the lower Appellate Court in two appeals filed by two separate set of defendants yet only one appeal has been filed by the plaintiffs before this Court in which the question of law that has been raised is as to “Whether a nephew can be preferred in the presence of real brothers in making the payment of service benefits and whether the service benefits RSA No.133 of 2007 -5- given to the nephew can be recovered in the present suit by way of a direction.” Learned counsel for the appellants, in order to substantiate the aforesaid question of law, has vehemently argued with the aid of the decision of the Apex Court in the case of Sarbati Devi (supra) and another decision of the Supreme Court in the case of Vishin N.Khanchandani & Another Vs. Vidhya Lachhmandas Khanchandani and another 2000(3) Civil Court Cases 360 (SC) to contend that nominee does not have absolute right to the amount which is to be claimed by the heirs in accordance with the law of succession governing them. He further submits that for the purpose of recovering the amount of General Provident Fund which has already been paid to defendant No.5, suit for mandatory injunction is maintainable. I have heard leaned counsel for the parties and have perused the record. There is no quarrel with the law laid down in the case of Sarbati Devi (supra) and Vishin N.Khanchandani and another (supra) that nominee is to collect amount on behalf of the principle but in the present case the amount which is sought to be recovered has already been received by defendant No.5 much before the suit was filed, therefore, a suit should have been filed for recovery instead of mandatory injunction. Insofar as the contention is concerned qua the other service benefits, the Service Rules which are placed on record as Ex.D2 clearly shows that brothers of the deceased are not the members of the family and are therefore, not entitled to claim family pension and death-cum-gratuity. Thus, in view of the aforesaid discussion, I do not find any merit in the present appeal and the same is hereby dismissed in limine as no RSA No.133 of 2007 -6- question of law much less substantial arises for adjudication. No costs. (RAKESH KUMAR JAIN) 15.12.2009 JUDGE Meenu