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

2. The facts are undisputed. Appellant no.1 is the first wife of the deceased Ram Chandra Nirola. The two children born from the wedlock, appellant nos.2 and 3 are adults today. The deceased, during the subsistence of his first marriage, solemnized a second marriage with respondent no.1 on 09.05.1987. Three children were born from this second marriage. The deceased during his life time, on 30.06.2008 executed a Banda Patra (settlement deed), christened as a partition deed, by which he divided his movable and immovable properties between the two wives before his retirement on 30.06.2009. He expired subsequently on 13.04.2015. The appellants applied for a succession certificate, which was denied in view of the settlement deed dated 30.06.2008. The appeal also having been dismissed, the appellants are before this Court staking their claim for family pension under the Sikkim Services (Pension) Rules, 1990 (hereinafter called the Pension Rules).

Reasoning: 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.