JYOTIBEN NATVARLAL BHATT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The question arises for consideration is whether the Government Servant can dispose of the amount of family pension by way of Will ? The petitioners who are wife and minor daughter of deceased Bipinbhai Joshi, who died on 22-8-1991, have filed this petition for an appropriate writ, order or directions, directing the respondent No. 2-District Development Officer to pay the amount of family pension as family of late Bipinbhai Joshi to the petitioners and to pay the arrears of family pension to the petitioner No. 1. There is no dispute to the fact that the deceased Bipinbhai Joshi executed a Will dated 14-7-1991, whereby the amount of provident fund, gratuity, amount of group insurance and the amount of family pension bequeathed on the respondent Nos. 3 and 4, his parents.

(2.) Miss Megha Jani, learned Advocate for the petitioners after inviting my attention to the definition of "Family" Clause-3 of the Resolution No. FPS-1071- J, dated 1-1-1972 issued by the Financial Department, Government of Gujarat, has contended that the petitioners being the wife and the minor daughter are the members of the family and, therefore, they are entitled to the family pension and, in any case, respondent Nos. 3 and 4, who does not fall within the category of family cannot claim the family pension on the basis of the Will executed by the deceased in their favour. It was further submitted that the deceased cannot bequeathed by Will the family pension as it does not form part of his estate. In my view, the submissions advanced on behalf of the petitioners, are required to be accepted. Clause-3 of the Resolution referred above which is necessary for our purpose reads as under :

(3.) The Supreme Court, in the case of Smt. Violet Issaac v. Union of India & Ors., 1991 (1) SCC 725, has laid down that "the Family Pension Scheme under the Rules is designed to provide relief to the widow and children by way of compensation for the untimely death of the deceased employee. The Rules do not provide for any nomination with regard to family pension, instead the Rules designate the persons who are entitled to receive the family pension. Thus, no other person except those designated under the Rules are entitled to receive family pension. The employee has no title nor any control over the family pension as he is not required to make any contribution to it. The Family Pension Scheme is in the nature of a welfare scheme. Therefore, it does not form part of his estate enabling him to dispose of the same by testamentary disposition. Accordingly, in the present case, the widow of the deceased Railway employee is entitled to receive the family pension, notwithstanding the will alleged to have been executed by the deceased." In view of the rulling of the Supreme Court, which squarely applied to the facts of the present case. In my view, the husband of the petitioner No. 1 could not have bequeathed the family pension as the family pension does not form a part of his estate in favour of respondent Nos. 3 and 4 as the petitioners are the only persons who are legally entitled to receive the same.