-^. IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR {aGJ ^^^^^, c-^ F. A. (M) N0.^4 OF 2010 (D.B.) ^s'-l JMslonB^p^ APPELLANT: APPLICANT ^.Nl^r <^%^ ^^ ^ ^*'" RESPONDENTS : 1. NON-APPLICANTS t- ~-^ 2. t^ •^ 3. Smt. Pyari Bai Widow of Late Jagdhari, Prasad, aged about 60 years, R/o Khursipar Zorie-1, Street No. 7 Near Jhopda, Bhilai, Police Station Chhavni Tahsil 8s District Durg (C.G.). VERSUS Smt. Basmati Bai Widow of Late Sukhdev, aged about 28 years, R/o Street No. 10, Qtr. No. 3/F, Sector-11, Zone-1, Police Station Khursipar, Bhilai, Tahsil 85 District Durg (C.G.). Managing Director, Bhilai Steel Plant, Bhilai Nagar, Tahsil 8& DistricfDurg (C.G.). The State of Chhattisgarh, through : Collector Durg (C.G.). -^ MEMO OF APPEAL UNDER SECTION 19 (1) OF THEJFAMILY COURTS ACT, 1984 .."^A':^^..\;\ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ, Appellant Applicant First Appeal (Ml No. 34 of2010 Smt. Pyari Bai Vs Respondents Non-applicants Smt. Basmati Bai and others Judament For Consideration Sd/- G. Minhajuddin Judge -2C| .8.2011 HON'BLE SHRI I.M. QUDDUSI. J ^ ^- Sd/- I.M.Quddusi Judge -^l .8.2011 Post For Judament On 3> ° Auaust, 201 1 Sd/- G. Minhajuddin Judge Z<3| .8.2011 ^.A^:''. f/"'^ "^ \. ^^ ^^&^" HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. Appellant Applicant First Appeal (M) No. 34 of 2010 Smt. Pyari Bai Respondents Non-applicants Vs Smt. Basmati Bai and others Present: Mr. MK Bhaduri, counsel for the appellant. Mr. Jitendra Gupta, counsel for respondent No.1. Mr. P.R. Patankar, counsel for respondent No.2. Mr. Rajendra Tripathi, Panel Lawyerfor respondent No.S/State. JUDGIVIENT (Deliveredon3,o-S'-,2011) PerG. Minhaiuddin. J 1. This appeal has been filed under Section 19(1) ofthe Family Courts Act, 1984 against the order dated 16.2.2010 passed by II Additional Principal Judge, Family Court, Durg (CG), in Civil Suit No.60A/08, whereby and whereunder the application of the applicant under Section 22 of the Hindu Adoptipns and Maintenance Act, 1956 (in short "the Act, 1956") for grant of maintenance has been rejected. 2. Facts not in dispute are that appellant Smt. Pyari Bai is the mother of late Sukhdev and respondent No.1 is his widow. Late Sukhdev was an employee of Bhilai Steet Plant, Bhilai, who died in harness on 15.11.2002. Late Shukhdev had appointed his wife respondent No.1 as nominee in his service record, on the basis of which respondent No.1 has received all the post retiral benefits of late Sukhdev as his widow. 3. As per the appellant, her husband late Jagdhari Prasad was a permanent employee of Bhilai Steel Plant, Bhilai (in short "BSP"). In the year, 1984, on account of ill health, Jagdhari Prasad took '.:ri?^. -^ '^ • ^ .•>.,/ premature retirement and consequently, as per scheme of the employer/respondent No.2, his son Sukhdev was appointed as Khalasi in the BSP. According to the appellant, on his husband taking premature retirement, as per scheme employment was offered to the appellant but with her consent, her son Sukhdev was given employment and appointed as Khalasi. At the time of appointment, the appellant's son Sukhdev had given an undertaking that he will maintain his mother till her death and will discharge all his obligations towards her. 4. After the death of Sukhdev, on the basis of nomination form filled in by Sukhdev in his service record, the entire post retiral benefits were received by respondent No.1. The appellant is aged about 60 years and is unable to maintain herself and respondent No.1 has refused to maintain her and has driven her out of the house, on account of which she is presently residing with her younger son and daughter-in-law. The appellant has no means of livelihood, and as such, she had moved anapplication under Section 22 of the Act, 1956 for grant of maintenance @ Rs.3,500/- per month from respondentNo.1. 5. Respondent No.1 has filed reply to the appellant's application and submitted that as her husband late Sukhdev had appointed her as his.nominee, therefore, she alone and her children are entitled for all the post retiral benefits of late Sukhdev and the appellant is not legally entitled for any amount. The appellant is running a small hotel and earning sufficient amount for her livelihood. In addition to this, the appellant is being maintained by her younger son. Respondent No.lis maintaining her three minor children from the amount which she is receiving per month from the management of the BSP against the lump sup amount which she has deposited with the management. hlence, respondent No.1 is not liable to maintain her mother-in-law/appellant. 6. In its reply, respondent No.2/ManagingDirector, BSP has submitted that the entire post retiral benefits of late Sukhdev have been given to his widow respondent No.1 on the basis of nomination made by the deceased. After receipt of the CPF and gratuity amount of ll^t ^^ Rs.2,58,135/-, the same has been deposited by respondent No.1 in the BSP Employees Family Benefit Scheme under which respondent No.1 is getting Rs.8,951/- per month and respondent No.1 is the only person entitled to receive the said amount on the basis of nomination. 7. Heard learned counsel for the parties, perused the record of the Family Court as also the impugned order. 8. Learned Family Court has framed Issues No. 3 & 4 in respect of charge for maintenance of appellant on the post retiral benefits of her deceased son Sukhdev and whether the appellant is entitled to maintenance amount of Rs.3,500/- p.m. from her daughter-in-law respondent No.1? Both the issues have been answered in the negative and against the appellant. 9. The core question to be decided in this appeal is - whether the appellant, who is mother of late employee Sukhdev, is entitled to claim maintenance from her daughter-in-law/respondent No.1, who is widow and nominee of late employee Sukhdev, under Section 22 oftheAct, 1956? 10. It is not in dispute that appellant is the mother of late Sukhdev, who was an employee (Khalasi) of BSP and died in harness on 15.11.2002. The application for maintenance under Section 22 of the Act, 1956 was filed before the II Additional Principal Judge, Family Court, Durg on 9.8.2004. The present appellant, who was applicant before the Family Court, has been shown as 60 years of age in the cause title and the same has not been denied. On the basis of nomination form filled in by the deceased Sukhdev in his service record, the nominee does not become the absolute owner of the property, which he or she receives under the nomination, but is only competent to receive the amount and to give a valid discharge in respect of the same to the concerned institution. In this connection, judgment of the Hon'ble Supreme Court in Smt. Sarabati Devi and another Vs. Smt. Usha Devi, reported in AIR 1984 SC 346, makes an illuminating reading. 11. Thus, in view of the law laid down by the Hon'ble Supreme Court in Smt. Sarabati Devi (supra), respondent No.1, who is widow of late \(\ '''^^ '^. i i %»lA.1 1 ^-7j '%... •*^^^ .^ .^..<^ ''^'v^w^^'"'7 y ^^^ employee Sukhdev on the basis of nomination in her favour, was entitled to only receive the post retiral benefits of late employee Sukhdev from the BSP and to give a valid discharge to the said institution, and by nomination only, she does not become the absolute owner of the post retiral benefits, which will devolve upon the heirs of late employee Sukhdev as per law of succession governing them. 12. It is not in dispute that the appellant and respondent No.lare Hindus and are governed by Hindu Succession Act, 1956. As such, on the death of late employee Sukhdev, succession will be governed by Section 8 read with Schedule-1 of the Hindu Succession Act, 1956, according to which the appellant being mother of late employee Sukhdev is a Class 1 heir along with widow respondent No.1 Smt. Basmati Bai and her children. In view ofthis, the appellant is entitled to share in the post retiral benefits of her late son Sukhdev and will simultaneously be entitled to take share equal to that of respondent No.1 and her minor children. 13. From the statements of appellant Smt. Pyari Bai, respondent No.1 Smt. Basmati Bai and the reply filed on behalf of Managing Director, BSP/respondent No.2, it is clear that on the basis of nomination respondent No.1 after receiving the CPF and gratuity amount of Rs.2,58,135/-, has deposited the same with the BSP in its Employees Family Benefit Scheme and is consequently getting a sum of Rs.8,951/- per month. No amount has been paid either by the BSP or by respondent No.1 to the appellant, who must be by now nearly about 67 years of age. At the time of recording of statement of the appellant before the trial Court, she has admitted that she is running a small hotel. However, it is not clear whether after a period of seven years, on attaining the age of 67, she is even now running the said hotel or not. A woman of 67 years cannot be said to be physically able to maintain herself by doing some job, and therefore, the appellant is definitely entitled to receive a reasonable amount by way of maintenance from her daughter-in- law/respondent No.1, who has received all the post retiral benefits of late employee Sukhdev and is getting about Rs.8,951/- per month from the management ofthe B^P. ^^^!^:^^. ^....J-,,^ f' 14. The appellant herself has admitted in her cross-ex<.mination that her daughter-in-law is maintaining her three children. The appellant's younger daughter-in-law has admitted in her cross- examination that they are providing maintenance to the appellant. Despite this, looking to the totality of the circumstances, including the age ofthe appellant and the amount, which respondentNo.1 is receiving per month from the management of the BSP, in our opinion, it would be appropriate to grant a sum of F^s.1,500/- per month as maintenance to the appellant, for the payment of which respondent No.1 shall be liable. The appellant shall be entitled to have a maintenance of Rs.1,500/- per month from respondent No.1 from the date of impugned order i.e 16.2.2010. In view of this, the findings recorded by the Family Court against Issues No. 3 & 4 in the impugned order are held to be erroneous and liable to be set aside. 15. In the result, the appeal is partly allowed. The impugned order dated 16.2.2010 is set aside. The appellant is held entitled to a maintenance of Rs.1,500/- per month from respondent No.t. The amount of maintenance shall be payable to the appellant by respondent No.1 from the date of impugned order i.e. 16.2.2010. The payment of monthly maintenance shall be made to the appellant on or before 15th ofthe succeeding month. 16. No order as to costs. Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge 30.8.2011 ^