Case: TULSA DEVI NIROLA AND OTHERS Vs. RADHA NIROLA AND OTHERS

second marriage of respondent no.1 with the deceased, during the subsistence of the first therefore does not stand invalidated. The deceased had nominated the respondent alone under Rule 38 of the Pension Rules for receipt of the family pension. The deceased consciously did not nominate appellant no.1 for receipt of family pension or for equal share in the same in view of the partition deed where he equitably balanced the interest of both his wives. The column for family pension contained provision for more than one name, but the deceased consciously did not nominate appellant no.1. Rule 40(6) does not vest a statutory right in appellant no.1 to demand equal share in the family pension. It is conditional in nature, only if the employee nominates more than one wife for purposes of family pension. The deceased did not nominate the appellant, therefore she has no claim for family pension. The other appellants having become major have no claim for family pension. Reliance was placed on Vidhyadhari & Ors. vs. Sukhrana Bai & Ors., (2008) 2 SCC 238 , in support of the submission that the nomination in favour of the respondent to the exclusion of the appellant was valid. 5. The respective submissions on behalf of the parties and the relevant rules cited before us have been duly considered by us. 6. The deceased solemnized his second marriage with respondent no.1 on 09.05.1987. On that date the Hindu Marriage Act had not been brought into force in the State of Sikkim. Rule 27 of 1963 Rules reads as follows: 27. Nothing contained in this Rule shall effect the validity of any marriage not solemnized under its provisions; nor shall this Rule be, deemed directly or indirectly to affect the validity of any mode of contracting marriage. No material has been placed by the appellants that the second marriage was solemnized under 1963 Rules, and therefore, we have no hesitation in holding that it does not invalidate the second marriage of the deceased with respondent no.1. 7. The deceased was keen to ensure that in future disputes do not arise between his two wives and their progeny. He therefore, executed a settlement deed on 30.06.2008 between his two wives, both with regard to his movable and immovable properties. It is not the case of appellant no.1 that the settlement deed has not been acted upon or that she has not received her due share as provided therein. Having accepted and acted upon the deed it is not open to the appellant no.1 to now renegade from the same. 8. Family pension undoubtedly is not part of the estate of the deceased and will be regulated by the Pension Rules which confer a statuary right in the beneficiary eligible to the same. In Violet Issaac (supra), the family pension was sought to be paid to the brother of the deceased by virtue of nomination to the exclusion of the wife. The Rules did not provide for nomination but designated the person entitled to receive the family pension. It has therefore no application to the facts of the present case. 9. Rule 35 (5) provides that for the purpose of Rules 36, 37 and 38, family in relation to a government servant means wife or wives, including judicially separated wife. Rule 38 provides for nomination to be made by the government servant in Form 1 or 2 or 3 conferring on one or more persons, the right to receive death come retirement gratuity that may be due to him. In view of the partition deed the deceased while filling his nomination in the prescribed Form under Rule 38 mentioned the name of respondent no.1 only as the sole beneficiary of family pension. We are of the considered opinion that Rule 40(6) is conditional in nature and does not vest an automatic statutory right in appellant no.1 to equal share in the family pension. The family pension would be payable to more than one wife only if the government servant had made a nomination to that effect and which option was open to him under the Pension Rules. 40. Family Pension- (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…. 10. The Pension Rules therefore recognize the nomination of a wife or wives for the purpose of family pension. True, the family pension did not constitute a part of the estate of the deceased. If the settlement deed had not been executed and acted upon different considerations may have arisen. The right to family pension in more than one wife being conditional in nature and not absolute, in view of nomination in favour of respondent no.1 alone, appellant no 1 in the facts of the case can also be said to have waived her statutory right to pension in lieu of benefits received by her under the settlement deed. The deceased resided exclusively with respondent no.1 and occasionally visited appellant no.1. The deceased was exclusively taken care of by respondent no.1 during his illness including the expenditure incurred on his treatment. In view of the statutory rules, it is not possible to accept the argument that respondent no.1 was nominated only for purpose of receipt of the family pension and per force was required to share it equally with appellant no.1. 11. In Vidhyadhari (supra), this Court accepted the claim of the second wife to receive inter alia pension based on nomination since, like the present case, the deceased was residing with the second wife to the exclusion of the first. The grant of succession certificate to the second wife was held valid. However, to balance equities, this Court granted 1/5 th share to the first wife in the properties. We may have also considered the balancing the equities if the deceased had not executed a settlement deed with regard to his movable and immovable properties and which was accepted and acted upon by the appellant no.1.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]No material has been placed by the appellants that the second marriage was solemnized under 1963 Rules, and therefore, we have no hesitation in holding that it does not invalidate the second marriage of the deceased with respondent no.17. The deceased was keen to ensure that in future disputes do not arise between his two wives and their progeny. He therefore, executed a settlement deed on 30.06.2008 between his two wives, both with regard to his movable and immovable properties. It is not the case of appellant no.1 that the settlement deed has not been acted upon or that she has not received her due share as provided therein. Having accepted and acted upon the deed it is not open to the appellant no.1 to now renegade from the same8. Family pension undoubtedly is not part of the estate of the deceased and will be regulated by the Pension Rules which confer a statuary right in the beneficiary eligible to the same. In Violet Issaac (supra), the family pension was sought to be paid to the brother of the deceased by virtue of nomination to the exclusion of the wife. The Rules did not provide for nomination but designated the person entitled to receive the family pension. It has therefore no application to the facts of the present caseIn view of the partition deed the deceased while filling his nomination in the prescribed Form under Rule 38 mentioned the name of respondent no.1 only as the sole beneficiary of family pension. We are of the considered opinion that Rule 40(6) is conditional in nature and does not vest an automatic statutory right in appellant no.1 to equal share in the family pension. The family pension would be payable to more than one wife only if the government servant had made a nomination to that effect and which option was open to him under the Pension Rules10. The Pension Rules therefore recognize the nomination of a wife or wives for the purpose of family pension. True, the family pension did not constitute a part of the estate of the deceased. If the settlement deed had not been executed and acted upon different considerations may have arisen. The right to family pension in more than one wife being conditional in nature and not absolute, in view of nomination in favour of respondent no.1 alone, appellant no 1 in the facts of the case can also be said to have waived her statutory right to pension in lieu of benefits received by her under the settlement deed. The deceased resided exclusively with respondent no.1 and occasionally visited appellant no.1. The deceased was exclusively taken care of by respondent no.1 during his illness including the expenditure incurred on his treatment. In view of the statutory rules, it is not possible to accept the argument that respondent no.1 was nominated only for purpose of receipt of the family pension and per force was required to share it equally with appellant no.111. In Vidhyadhari (supra), this Court accepted the claim of the second wife to receive inter alia pension based on nomination since, like the present case, the deceased was residing with the second wife to the exclusion of the first. The grant of succession certificate to the second wife was held valid. However, to balance equities, this Court granted 1/5 th share to the first wife in the properties. We may have also considered the balancing the equities if the deceased had not executed a settlement deed with regard to his movable and immovable properties and which was accepted and acted upon by the appellant no.1.