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PETITIONER: JODH SINGH

       Vs.

RESPONDENT: UNION OF INDIA & ANR.

DATE OF JUDGMENT09/10/1980

BENCH: DESAI, D.A. BENCH: DESAI, D.A. VENKATARAMIAH, E.S. (J)

CITATION:  1980 AIR 2081            1981 SCR  (1) 929  1980 SCC  (4) 306

ACT:      Special Family  Pension granted  under rule  74 of  the Pension Regulations  for Air  Force-Whether a special family pension admissible to a widow in her capacity as widow could ever form  part of the estate of the deceased which could be disposed of  by testamentary disposition-Pension Regulations for the Air Force Rules 74, and 79.

HEADNOTE:      Dismissing the special leave petition, the Court ^      HELD: (1)  Special family  pension  sanctioned  to  the widow of an officer of the Indian Air Force by the President of India  under rule  74 of  the Rules could not be subject- matter of  testamentary disposition.  Special family pension is payable  to the  widow on the death of the officer. It is not payable  in his  life time.  What is  not payable during life time  of the  deceased over  which he  has no  power of disposition cannot  form part of his estate. It is the event of his  death that  provides the  eligibility, qualification for claiming  special family  pension. Such qualifying event which can  only occur on the death of the deceased and which event confers  some monetary  benefit on  someone other than the deceased  albeit related  to the  deceased, cannot  form part of  the estate  of the deceased which he can dispose of by testamentary disposition. [934B, 933H-934A]      (2) Where a certain benefit is admissible on account of status and  a status  that is  acquired on  the happening of certain event,  namely, on  becoming a widow on the death of the husband, such pension by no stretch of imagination could ever form  part of the estate of the deceased. If it did not form part  of the estate of the deceased it can never be the subject-matter of the testamentary disposition. [933B-C]      Special family  pension under  rule  74  is  admissible amongst others  to widow  of an  officer. It is not that the deceased gets pension or earns special family pension. It is the untimely  death of  the deceased,  the process  of death having been  hastened  or  accelerated  by  the  hazards  of service that  the widow who is rendered destitute is granted special family  pension. Whether  the  widow  qualifies  for special  family   pension  is   to  be   determined  by  the sanctioning authority,  the  President  in  this  case.  The

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special family  pension is  admissible  on  account  of  the status of  a widow and not on account of the fact that there was some  estate of the deceased which devolved on his death to the widow. [932H; 933A-B]      (3) Whether  a widow has qualified for a special family pension, gratuity  or ordinary family pension is a matter to be  determined   by  the  President.  If  the  President  is satisfied that the widow is eligible for pension, she cannot be denied  the benefit  by some  dependents of  the deceased claiming that 930 instead of  the widow  he  or  she  should  have  been  held eligible  for  special  family  pension.  Therefore,  it  is irrelevant whether  the deceased  had shown  his wife as his dependent or  not if  the President is satisfied that she as the widow  of the  deceased officer was eligible for special family pension. [933F-G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION :  Special Leave Petition (Civil) No. 7254 of 1980.      From the  Judgment and  Order dated  22-5-1980  of  the Punjab and  Haryana High  Court in Regular Second Appeal No. 555/80.      Hardev Singh and R. S. Sodhi for the Petitioner.      The Judgment of the Court was delivered by      DESAI, J.-Whether  a special  family pension awarded by the President  to  the  widow  of  a  deceased  officer  who belonged to  Air Force  could be  the  subject-matter  of  a testamentary disposition  by the  deceased in his life time, presents the core problem in this petition.      Flt. Lt.  Panj Rattan  Singh, 5081 GD(P) was serving in Indian Air  Force. He  died in  an aircraft accident arising out of and in the course of his employment on June 17, 1966. His survivors  are the  widow, Hardev Kaur respondent 2, his parents, the petitioner in this petition being the father of the deceased,  two brothers  and two  sisters. Prior  to his death he  had made his last will and testament dated May 14, 1959, whereby  he bequeathed ’absolutely and forever all his property  both   moveable  and  immovable  to  his  father’, petitioner herein,  and also  appointed his  father  as  the executor under  his will.  Further, during his life time the deceased had  appointed  by  letter  dated  March  5,  1960, petitioner  and   Gurcharan  Kaur,  his  father  and  mother respectively, nominees  in respect of his provident fund. He had also  nominated his  parents, brothers  and  sisters  by letter dated  December 10, 1958, to claim pensionary benefit which may  accrue in the event of his death. By a subsequent communication dated  January 29,  1966, he  had declared his parents, two  brothers  and  one  unmarried  sister  as  his dependents. The  deceased had  never referred to his wife as either his  dependent or entitled to any pensionary benefit. It appears  that his  relations with  his wife were far from cordial and  actually he  had filed a petition for annulment of the marriage which he had subsequently withdrawn with the result that the marriage was subsisting till the date of his death. Respondent  2 Hardev  Kaur is  thus the  widow of the deceased.      By an  order dated  March 10,  1967, a  special  family pension was  awarded by the President to respondent 2 Hardev Kaur being 931 the widow  of the  deceased officer  at the  rate of Rs. 160

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p.m. By  the same order she was also awarded gratuity in the amount of  Rs. 2670.  The deceased was a member of a general provident fund  to which he was making his subscriptions. On his death the amount standing to his credit in the provident fund account  and certain  other amounts  were to be paid to whosoever was legally entitled to the same.      On a  petition filed  by the  petitioner, will  of  the deceased was admitted to probate. In the probate proceedings the petitioner,  inter alia,  contended that  over and above all other  sums payable  to the heirs and/or nominees of the deceased, the  special family pension at the rate of Rs. 160 p.m. and  the gratuity  of Rs.  2670 awarded to respondent 2 Hardev Kaur  by the  President formed  part of the estate of the deceased and under the will as well as the nomination he was entitled  to collect  the same.  Probate proceeding  was contested by  respondent  2,  widow  of  the  deceased.  The learned single  judge while  granting probate  excluded  the aforementioned two items from it. Both the parties preferred appeal under  the Letters  Patent of  the High  Court. While disposing of  both  the  appeals  by  a  common  judgment  a Division Bench  of the  Punjab & Haryana High Court modified the probate  granted to  the  petitioner  by  including  the gratuity amount  of Rs.  2670 in the probate as forming part of the estate of the deceased but confirmed the order of the probate court  in respect  of special family pension awarded to respondent 2.      Petitioner then filed a suit against the Union of India and respondent  2 for  a declaration that the order awarding special family pension to respondent 2 widow of the deceased was illegal,  unjust and  improper. The  trial Court decreed the suit  but on  appeal by  respondent 2  widow, the  first appellate court  set aside the decree of the trial court and the decision  of the appellate court was confirmed in second appeal by the High Court. Hence this petition.      The only  question argued  by Mr. Hardev Singh, learned counsel for the petitioner before us was that special family pension is  admissible to  the dependents  and as respondent widow was  nowhere shown  as dependent  of the deceased, the same could  not be granted to her and in any case even if it was granted  by the  President in  favour of respondent 2 it would still  form part  of the  estate of  the deceased and, therefore, the petitioner would be entitled to the same.      Special family  pension is granted under rule 74 of the Pension Regulations  for the  Air Force (’Rules’ for short). Relevant portion of rule 74 reads as under: 932           "Rule 74: A special family pension to the widow of      an officer  and special  children’s  allowance  to  his      legitimate  children   under  18   years  of   age,  or      dependents’ pension to his parents or brothers/sisters,      may be  granted if  his death was due to or hastened by      either  a   wound,  injury   or   disease   which   was      attributable to  air force  service, or the aggravation      by air force service of a wound injury or disease which      existed before  or arose  during the air force service,      provided that...."      Could the special family pension specifically awardable to the widow of an officer and in fact awarded to respondent 2 as  widow of  the officer, ever form part of the estate of the deceased  ? A special family pension stands apart, aloof and separate  from a general provident fund set up under the Provident Funds  Act, 1925. Deceased was a subscriber to the General Provident Fund set up under the 1925 Act. The amount standing to  his credit  in the  provident fund  account was treated by  the High  Court as forming part of the estate of

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the  deceased   and,  therefore,  its  devolution  would  be according to  the wishes of the deceased as disclosed in his last will  testament. The amount thus standing to the credit of the  subscriber would be payable in the event of death of the subscriber or on his retirement from service.      Pension is a retirement benefit. It is admissible under the relevant  rules on  superannuation.  It  is  payable  on superannuation to  the employee himself during his life time after retirement.  Special family  pension is not admissible to  the  employee  but  to  the  specified  members  of  the employee’s family  and that  too in  the event  of his death while in  service or after his retirement as provided in the Regulations. It  is in  the nature of a compensation because the death  was due  to or hastened by either a wound, injury or disease  which was  attributable to  Air Force service or the aggravation  by Air  Force service of a wound, injury or disease which  existed before  or  arose  during  Air  Force service, etc.  (see Rule  74). If  death is not referable to any of  the events  mentioned in  Rule  74,  special  family pension is  not  admissible.  To  compensate  for  death  on account of hazards of service rendering dependents destitute that benefit  of special  family  pension  is  conferred  on certain persons  having a  certain status arising out of and directly attributable to relation with the deceased. Special family pension  under rule 74 is admissible, amongst others, to widow  of an  officer. It  is not  that the deceased gets pension or  earns special family pension. It is the untimely death of  the deceased,  the process  of death  having  been hastened or  accelerated by the hazards of service, that the widow who  is rendered  destitute is  granted special family pension. 933 Whether the widow qualifies for special family pension is to be determined by the sanctioning authority, the President in this case.  The special  family  pension  is  admissible  on account of  the status  of a widow and not on account of the fact that  there was  some  estate  of  the  deceased  which devolved on his death to the widow.      Where a  certain benefit  is admissible  on account  of status and  a status  that is  acquired on  the happening of certain event,  namely, on  becoming a widow on the death of the husband, such pension by no stretch of imagination could ever form  part of the estate of the deceased. If it did not form part  of the  estate of  the deceased it could never be the subject-matter of testamentary disposition.      It was,  however, said that not all widows are entitled to special  family pension  but only  the dependent wife who becomes widow  on the  death of  an  officer  alone  becomes eligible for  pension and  in this case the deceased had not shown his  wife as one of his dependents but on the contrary the parents,  the sisters  and the  brothers were  shown  as dependents of  the officer.  Rule  74  envisages  a  special family pension to the widow, a special children allowance to his  legitimate  children  or  dependents’  pension  to  his parents, brothers  or sisters. To each one of them, if he or she qualifies  for special  family pension,  the benefit  is admissible. Rule  75 envisages  ordinary family  pension  to widow and  legitimate children of the deceased officer. Rule 79 confers  discretion on  the President  to grant a pension and/or gratuity  to a  widow who  may not  be eligible under rule 74 or rule 75 because she was separate from the husband at the  time  of  his  death.  Thus,  whether  a  widow  has qualified for a special family pension, gratuity or ordinary family  pension   is  a  matter  to  be  determined  by  the President. If  the President  is satisfied that the widow is

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eligible for  pension, she  cannot be  denied the benefit by some other  dependents of the deceased claiming that instead of the  widow he  or she  should have been held eligible for special family  pension. Therefore, it is irrelevant whether the deceased  had shown  his wife as his dependent or not if the President  is satisfied  that she  as the  widow of  the deceased officer was eligible for special family pension.      The  real  controversy  is  whether  a  special  family pension admissible to a widow in her capacity as widow could ever form  a part  of the estate of the deceased which could be disposed  of by  testamentary disposition? Special family pension is payable to the widow on the death of the officer. It is  not payable  in his  life time.  What is  not payable during life  time of the deceased over which he has no power of disposition cannot form part of his 934 estate. It  is the  event of  his death  that  provides  the eligibility  qualification   for  claiming   special  family pension. Such  qualifying event  which can only occur on the death of  the deceased and which event confers some monetary benefit on someone other than the deceased albeit related to the deceased, cannot form part of the estate of the deceased which  he   can  dispose  of  by  testamentary  disposition. Therefore, it  is unquestionably  established  that  special family pension  sanctioned to the widow of an officer of the Indian Air  Force by the President of India under Rule 74 of the  Rules  could  not  be  subject-matter  of  testamentary disposition.      Further, whether  a gratuity specifically sanctioned in favour of  the  widow  as  widow  of  the  deceased  by  the President under  the Rules  could be  the subject-matter  of testamentary disposition  has not  been considered  in  this matter because  the amount  has been included in the probate of the will of the deceased and the widow has not questioned that order before us. That question is kept open.      With these  observations we  dismiss this special leave petition. S.R.                                     Petition dismissed. 935