P. A. BIJU Vs. DIRECTOR, PRINTING AND STATIONARY

JUDGEMENT

(1.) PETITIONER is an unfortunate minor. His mother died. His father who was an Assistant Type Store Keeper Government Press, Ernakulam died on 4-7-82 while in service. The petitioner is the sole surviving heir of his father. For the arrears of due under the Family Benefit Scheme and Gratuity due to the heirs of the deceased employee, the petitioner filed an application O. P. No. (Succession) 50 of 1983 in the Sub Court, Parur through his legal guardian and next friend seeking the issue of succession certificate under S.372 and 374 of the Indian Succession Act. The schedule of that application contained the following details. The Principal Sub Judge allowed the application and directed the issue of succession certificate by Ext. P1 order. The fourth respondent was the first counter petitioner. Apparently she did not object to the issue of succession certificate in favour of the minor. It may be seen from the schedule attached to the application that all retirement benefits due in respect of the father of the petitioner were covered by the certificate. Application must have been notified as is required by the Indian Succession Act. All parties who were interested should have been notified or impleaded as party respondents to that application Such parties were entitled to contest the claim of the pet toner as sole heir entitled to succeed and to collect the amounts due to him. Any aggrieved party could have filed an appeal against Ext. P1. Counsel for the petitioner submits that Ext. P1 has. become final. He further submits that an amount of Rs. 10000/- due under the Family Benefit Fund was paid to the petitioner through his guardian under Ext. P2 order. Thereafter Exts. P3 and P4 orders were passed. They were to the effect that the petitioner would be entitled to receive only 50% of the Gratuity and Family pension amounts which were covered by Ext. P1 succession certificate. The other 50% was sanctioned in favour of the fourth respondent. That was on the assumption that the fourth respondent was one of the two heirs entitled to collect the pensionary benefits due to the deceased employee. The petitioner submits that the respondents could not have granted any of the amounts covered by the certificate during the pendency of the Original Petition. The third respondent issued Ext. P5 memo, to the effect that an amount of Rs. 1,380/- would be paid to the. petitioner through his guardian, on production of indemnity bond.

(2.) THIS apportionment of the pensionary benefits between the petitioner and the fourth respondent was made apparently on the assumption that the fourth respondent was the wife and therefore was one of the hens of deceased Achalan. The petitioner submits that no such apportionment could have been ordered in defiance of Ext. P2 order granting succession certificate in favour of the petitioner with the fourth respondent herself on the party array. The petitioner therefore seeks the issue of a writ of certiorari to quash Exts. P3 and P4 issued in favour of the fourth respondent as per P.A. 5/D/1274 and P.A. 5/D/14497 for payment of Family Pension, gratuity and General Provident Fund equally between the petitioner and the fourth respondent.

(3.) THE Government Pleader appearing for respondents 1 to 3 invited my attention to R.118 of Part III of the Kerala Service Rules, which enables the head of the department of the employee, who retired and died thereafter, to conduct an enquiry as to who are eligible to receive retirement benefits and family pension. Sub-r.(2) provides for an enquiry by the Head of Office/Department and report in the prescribed form showing the surviving eligible members. The report is to be forwarded to the Pension Sanctioning Authority. The Government Pleader submits that it was in pursuance of the provisions contained in R.118(2) that the Tahsildar conducted an enquiry and reported that the fourth respondent was the widow of the deceased Sri. Achalan Therefore, the petitioner and the fourth respondent were treated as the surviving legal heirs entitled to receive the pensionary benefits due in respect of the deceased employee.