KAMLESH DEVI Vs. UNION OF INDIA

JUDGEMENT

(1.) HEARD lea mod Counsel for the parties. The relief claimed in this petition is for a mandate to the respondent to disburse the: monetary terminal benefits, including pension, between the petitioners and respondent No. 9 in the ratio of 50 percent each.

(2.) THE son of the petitioners late sepoy Shailandra Kumar Singh after being recruited in the Indian Army in the 14th Rajpoot Regiment was posted in a insurgency area of District Koopwara in the State of Jammu and Kashmir where he died in action on 29.1.2001. He left behind his parents and his issue less widow, respondent No. 9 together with a younger unmarried brother and sister aged about 19 and 21 years respectively The mother of the late sepoy received a telegram from the Regiment to send three passport size photographs along with the negative for the purposes of processing payment of death benefits. In pursuance thereof, they sent the require documents. However, on the basis of a Will executed by the late sepoy where the benefits were to be distributed among the two parties at 50 percent each, this affidavit etc. along with the necessary documents were sent to the unit which forwarded it to the Army Group Insurance Fund vide its covering letter dated 3.3.2001. The respondent No. 2 also executed an affidavit confirming the aforesaid and served it on the respondent authorities but it appears that at the behest of the father of respondent No. 9 she resiled from her affidavit where after certain amounts were paid in full to the respondent No. 9 thus, forcing the petitioner to prefer this writ petition.

(3.) FROM the record, it is evident that the late sepoy was married to respondent No. 9 on 8.3 1999 and it is admitted in the counter affidavit that in the 15 months of marriage she stayed at her -in -laws only for about four months. The respondent No. 9 also executed an affidavit before the Senior Accounts Officer of the Unit stating that looking to the age and financial status of the parents or her late husband, the terminal benefits may be divided between her and the parents at the ratio of 50 percent each. In pursuance of it and on the basis of the Will the Army Authorities started processing the payment of terminal benefits on the strength of the aforesaid to both the parties but before the payments could be made an objection was. raised on behalf of respondent No. 9 at the behest of her father by which the terminal benefits were directed to be released in favour of the widow. The execution of the compromise and the affidavit has not been denied by the respondent No. 9. However, her father has filed a counter affidavit stating that the compromise was not executed out of her free will and this statement has been sworn on the basis of personal knowledge. No reason has been given why the respondent No. 9, if the averments are correct, could not file her own affidavit. The question whether it was executed under duress cannot be personal knowledge of the father on the basis of which the averments have been sworn. The affidavit does not meet the requirements of Order XIX of Civil Procedure Code. Therefore, under law it cannot be relied upon.