BINDU V K Vs. KRISHNAMMA

JUDGEMENT

(1.) Plaintiff is the appellant. Suit was for declaration of her right to claim a share in the death-cum-gratuity benefits of her father viz. Velayudhan Nair, who died in service while working as Superintendent in the Directorate of Geological Survey of India, Trivandrum. First defendant is her mother and widow, and second and third defendants the other children of deceased. Fourth defendant was mother of late Velayudhan Nair, who passed away pending suit. Plaintiff sought her 5th share in the death-cum-gratuity benefits of her father, which had already been collected by her mother as nominee under the Pension Rules, seeking recovery of the sum due towards her share. Her claim was resisted by defendants 1 to 3 contending that the first defendant being the nominee she alone is entitled to collect the sum due as gratuity to the exclusion of other legal heirs. Challenge so raised by contesting defendants found approval with the learned Additional Sub Judge who held that plaintiff is not entitled to the declaration and recovery of any share in the gratuity of her father. Appeal is directed against the dismissal of the suit holding that nominee alone is entitled to the gratuity amount. Plaintiff is not entitled to any share in the gratuity amount of her father since on her marriage to a boy of different caste a partition deed was executed and her claims had been settled, while the father was alive, was another contention of the contesting defendants resisting her claim. Share in the death-cum-gratuity as a legal heir is claimed by plaintiff on death of her father taking place long after the above events relied by defendants. Parties are shown to be Hindus, and when that be so, even after her marriage, plaintiff continues to be one among the legal heirs under Class I of Schedule I of the Hindus Succession Act with right to inherit the estate of her father.

(2.) On the death of fourth defendant, plaintiff banking upon a Will allegedly executed by fourth defendant had amended the plaint to seek her share also in the gratuity amount asserting that a bequest had been made in her favour. Execution of that Will, and also its genuineness, was disputed by contesting defendants. On the evidence let in court below has found that the Will has not been proved and the claim canvassed on such Will was found unacceptable. After going through the judgment under appeal, I find the finding entered by the learned Sub Judge that the Will has not been proved does not suffer from any infirmity. So much so, the only question to be considered in the present appeal revolves round a question of law whether a nominee, who had been nominated by a Government servant to receive the gratuity, can claim the sum thereof as her own to the exclusion of other legal heirs of such Government servant.

(3.) Learned Sub Judge has held that the plaintiff was not entitled to any share in the gratuity amount of her father when he had made a nomination in favour of his wife--first defendant. Entitlement of plaintiff to claim a share in gratuity amount of her father which was challenged and disputed by the contesting defendants--her mother and two brothers--according to learned Sub Judge, required to be scrutinised and examined with reference to the intention of her father in making the nomination in favour of his wife. While her father was alive Ext. A-1 partition deed was executed, under which a consolidated amount was paid to her stipulating that she would not be entitled to any other property. That circumstance, according to learned Sub Judge, clearly demonstrated that father had made the nomination in favour of his wife first defendant with the intention that the nominee should get the entire amount. View so taken by the learned Sub Judge to consider whether the plaintiff is entitled to a share in the gratuity amount is erroneous and, in fact, totally wrong. Though the foundation for non-suiting the plaintiff was based on the above view taken by the court below, relying on some judicial pronouncements learned counsel for respondents strenuously contended that the finding entered that nominee alone is entitled to the gratuity benefits of the Government servant has to be upheld since the Pension Rules applicable lay down that nominee to the exclusion of other legal heirs of the Government servant has the right to receive the gratuity.