(1) Feeling aggrieved by the order dated 29 - 3 - 2001 passed by the probate court (xith additional district judge, jabalpur) in mjc no. 73/99 granting the probate certificate to deceased respondent smt. Girja bai, present appellant has knocked the door of this court by filing this appeal under section 299 of the indian succession act, 1925 (in short 'the act').
(2) The facts shorn of unnecessary details lie in narrow compass. An application under section 276 of the act was filed by deceased respondent smt. Girja bai before the probate court stating therein that she got married to chhadami lal choudhary on 10 - 9 - 1972 and the marriage was solemnized in accordance with the customs, rite and usage as well as according to the traditions prevailing in the choudhary community to which she belongs. From the wedlock of girja bai and chhadami lal choudhary, three children were born they are ku. Janki bai, sohanlal and ku. Asha. Further it has been stated in the application that earlier her husband got married to smt. Sundariya bai who is appellant in this appeal in the year 1958 but she never discharged her matrimonial duties and was not faithful towards her husband as she lacked morality. Ultimately on 12 - 9 - 1970, she (first wife) left the company of her husband and eloped along with one teenage boy namely umesh pandey after stealing valuable items, ornaments etc. Despite several efforts were made by chhadami lal choudhary she could not be searched nor she returned back to resume the matrimonial life. Chhadami lal was serving in the ordnance factory and in the service record the name of appellant sundariya bai (first wife) has been mentioned as his nominee.
(3) It is the further case of girja bai that her husband on 19 - 8 - 1993 executed a registered will in her favour and ultimately chhadami died on 15 - 4 - 1999.
(4) After his death, an application was submitted by deceased respondent girja bai before respondents no. 1 and 2 requesting them to disburse the entire service benefits to her on the basis of the said will and further requested them to pay family pension to her. However, respondents no. 1 and 2 declined and strayed their hands and told deceased respondent smt. Girja bai to submit the succession certificate.
(5) In this manner deceased respondent smt. Girja bai filed probate application before the probate court arraying respondents no. 1 to 9 as well as appellant as parties. Respondents no. 6 to 9 are the sons born from the wedlock of smt. Sundariya and chhadami lal choudhary.
(6) Respondents no. 1 and 2 filed separate written statement and appellant along with respondents no. 7, 8 and 9 filed a joint written statement. Respondents no. 3, 4 and 5 filed their joint written statement.
(7) Needless to emphasize the opposition to grant probate certificate was raised by appellant who was arrayed as non - applicant no. 3 in the probate court as well as by their sons who were arrayed as non - applicants no. 6 to 9 in the probate court.
(8) The probate court after framing necessary issues directed parties to adduce the evidence. Deceased respondent smt. Girja bai who was applicant before the probate court examined herself as aw - 1 and also examined the attesting witnesses of the will, namely, kusum choudhary (aw - 2) and g. S. Thakur, advocate (aw - 4) apart from rajjulal and kishorilal who were examined as aw - 3 and aw - 5 respectively.
(9) Appellant smt. Sundariya bai who was arrayed as non - applicant no. 3 before the probate court examined herself as naw - 1 and also examined ku. Janki choudhary and babulal choudhary as naw - 2 and naw - 3 respectively.
(10) The probate court after recording the evidence of the parties came to hold that registered will (ex. P/1) executed by the testator chhadami lal in favour of deceased respondent smt. Girja bai (applicant before the probate court) is proved and eventually granted the probate certificate to her.
(11) In this manner the present appeal has been filed by the first wife smt. Sundariya bai before this court.
(12) It has been argued by shri ramraj ram, learned counsel for appellant that the learned probate court rightly arrived at a finding that the appellant is a legally wedded wife of deceased chhadami lal and if that would be the position since the parties are hindu, the status of deceased respondent smt. Girja bai as legally wedded wife of deceased chhadami lal has no sanctity in the eye of law and therefore the learned probate court erred in law by allowing and directing respondents 1 and 2 to pay all the service benefits to deceased respondent girja bai along with family pension. The contention of learned counsel for the appellant is that since the attestation of the will has not been proved, the will (ex. P/1) cannot be said to be proved and, therefore, the application of probate filed by deceased respondent no. 3 ought to have been dismissed.
(13) On the other hand shri o. P. Namdeo, learned counsel for respondents no. 1 and 2 submits that in view of rule 54 (7) (a) of central civil services (pension) rules second wife is not entitled to the family pension. Learned counsel has further placed reliance on office memorandum which is the decision of government of india clarifying the position that second wife is not entitled to the family pension in lieu of the provisions of hindu marriage act. We think it apposite to quote clause 13 of the office memorandum which reads thus :
" (13) second wife not entitled to the family pension as a legally wedded wife under the hindu marriage act. The department of pension and pensioners' welfare have since clarified that the second wife will not be entitled to family pension as a legally wedded wife. A copy of their clarification is enclosed for information."
On going through the aforesaid clarification memo of the government of india, it is as clear like a noon day that a hindu second wife is not entitled for the family pension when the first legally wedded wife is alive. The finding of probate court is that the appellant smt. Sundariya bai is the first legally wedded wife of the deceased chhadami lal. On going through the averments made in the application of probate, we find and indeed it is the case of deceased respondent smt. Girja bai that chhadami lal was got first married to appellant sundariya but later on when she left the company of her husband, she (girja bai) was married to chhadami lal. True, no cross - objection has been filed on behalf of respondents no. 1 and 2 but since the finding and order of probate court has been challenged by appellant sundariya bai who is the legally wedded wife of chhadami lal, certainly the office memo can be placed reliance by appellant.
(14) At this juncture, we may further add that family pension cannot be held to be an "estate" because the same is paid to the widow and dependent children only after the death of the employee.
(15) In case of secretary of state vs. Khemchand jeychand, (1880) ilr 4 bom 432 p. 436 it has been held that the ordinary and well - known meaning of a pension is 'a periodical allowance or stipend granted, not in respect of any right, privilege, perquisite, or office, but on account of past services or particularly merits or as compensation to dethroned princes, their families, and dependants'. Therefore, according to us, the family pension cannot be said to be an 'estate' and since it is non - transferable, the same cannot be bequeathed by will also.
(16) In corpus juris secundum volume 31 clause (1) at page 8 the term "estate" has been defined which reads thus : "a. Estate" in legal usage it is of more restricted meaning, ordinarily as indicating the position in which a person stands with respect to the ownership, possession, and control of his property, or as meaning the property itself. Further on page 8 it has been clarified that the word "estate" is also defined as meaning the interest which is a person has in lands or in any other subject of property; the degree, quality, nature, and extent of one's interest in, or ownership of, property, real or personal; the quantity of interest which a person has, from absolute ownership down to naked possession.
(17) It has been further mentioned on page 9 that the "estate" may include personal, as well as real, property of every kind. It may, however, be limited either to personality or reality.
(18) In the same volume 31 of corpus juris secundum at page 36 clause 14, it has been mentioned about 'estates in possession' which reads thus :
"14. - estates in possession an estate in possession is one whereby a present interest passes to, and resides in, the tenant, independent of any subsequent circumstances or contingency."
(19) Clause 15 of corpus juris secundum volume 31defines about the "estates in expectancy" which is again in two parts, the first part is in general and second part speaks about future estates and interests. The definition of "in general" of estates in expectancy reads as under :
"a. In general an estate in expectancy in one where the right to possession or enjoyment is postponed to a future period. It is subject to descent, devise, or alienation."
Thereafter, the words descent, devise, and alienation have been explained on page 37 that under some statutes, expectant estates, including expectant estates in personality, are descendible, devisable and alienable in the same manner as estates in possession. The term "future estates and interests" has also been defined on page 37 which reads thus :
"b. Future estates and interests a future estate is one limited to commence in possession or enjoyment in the future. It is vested if there is a person in being who would have an immediate right to possession on the ceasing of the intermediate or precedent estate. It is contingent while the person to whom or the event on which is it limited to take effect remains uncertain"
.
On page 38 it has been further explained that the future interest is one limited to commence in use, possession, or enjoyment at some future time.
(20) Thus on testing the term "family pension" on the anvil and touchstone of the abovesaid different definitions of "estate", we are of the view that "family pension" is not an "estate" and if the terms "estate in possession", "estate in expectancy", "estate in general" and "future estate and interest" are given liberal meaning even then 'family pension' would not be included in abovesaid terms.
(21) In law lexicon by p. Ramanatha aiyar 2nd reprint 1999 edition at page 654 the meaning of word 'estate' has been stated to be thus :
"the word 'estate' has undoubtedly in law a diversity of meaning and a variety of signification. It may mean the property of a living man or that of a deceased person which passes to his administrator. Generally speaking, this word may mean the property of every character but ordinarily it is applied to the property of a deceased person or a ward or a lunatic or a bankrupt etc. According to which meaning it conveys an idea of property which is administered by administrators or executors or in courts."
On page 655 the word 'estate' has been explained to be as under :
"estate the 'estate' of a deceased person is the bundle of rights, powers, immunities and liabilities which survive him. With reference to a living person, 'estate' means the interest he has in lands and other subjects of property; it designates property real or personal, in which he has a right or interest."
If we apply the explanation of term "estate" as mentioned hereinabove in the present case even then the term 'family pension' would not fit in the slot of 'estate' as explained in the aforesaid book. Thus, judging from all the angles, the family pension cannot be said to be an 'estate' and hence the same is not transferable and cannot be bequeathed by will.
(22) Since the family pension is not an estate of an employee, the same cannot be bequeathed by executing will because the will can be executed only in respect of an estate which the testator possess or/and may acquire in future during his lifetime. Needless to say an employee cannot enjoy his family pension during his lifetime and the same is enjoyable by his wife only after his death.
(23) Shri satish shrivastava, learned counsel for respondents no. 3 to 6 has submitted that the will has been duly proved and the requirement of section 63 (c) of the act has been proved by g. S. Thakur, advocate (aw - 4) who is the attesting witness to the will. By placing reliance on section 59 of the act, it has been contended by learned counsel that the family pension would come under the ambit and sweep of property and, therefore, there can be a will of the same.
(24) We are not at all impressed by the submission of learned counsel for respondents no. 3 to 6 that family pension would come under the ambit and sweep of property, it may be a property of the widow of the deceased employee but it cannot be equated with that of estate of that employee even after his death. Since it is not an estate, according to us, in view of section 6 (g) of the transfer of property act as well as according to para 13 of clarification given by government of india while explaining rule 54 of central civil services (pension) rules, 1972, the deceased respondent girja bai is not entitled for the family pension. No doubt, the other pensionary benefits like provident fund, gratuity etc. And other retiral dues excluding family pension and extra remuneration (e. R.) would be estate of the deceased and that can be bequeathed by him.
(25) The question now hinges whether the will ex. P/1 which is a registered document has been duly proved and its attestation has also been proved in terms of section 63 (c) of the act. Merely because the will is a registered will it cannot be said that the same stands proved or it is not required to be proved on account of its registration. There is no law as such. The will (either registered or unregistered) is required to be proved in accordance with the law. On going through the provision of section 63 (c) of the act, we find that a will is required to be attested at least by two witnesses or more each of whom has seen the testator signing the will and they have also signed the will in presence of the testator. On the touchstone of the criteria laid down under section 63 (c) of the act we are required to examine the statement of the attesting witness in order to ascertain whether the attestation of the will has been duly proved or not.
(26) Needless to emphasise the will can be proved only by an attesting witness and this mandate is given in section 68 of the indian evidence act, 1882, if the attesting witnesses are alive. In the present case, the deceased respondent girja bai who is the propounder of the will has taken pains to examine both the attesting witnesses, namely, kusum choudhary (aw - 2) and g. S. Thakur, advocate (aw - 3). On going through the statement of g. S. Thakur, advocate (aw - 4) it is gathered that the attestation of the will has been proved. Specifically in para 1 of his testimony this witness has stated that before the registrar (indeed sub registrar) testator chhadamilal put his signature on the document of will in his presence and after testator signed, kusum and this witness signed the will. According to us, this material statement of attesting witness g. S. Thakur, advocate indicates that the will was signed by the testator and attesting witnesses in presence of each other in one sitting before the sub registrar and if that would be the position according to us, the requirement of section 63 (c) of the act which is in respect to valid attestation has been duly proved. The supreme court in the case of naresh charan das gupta vs. Paresh charan das gupta and another, air 1955 sc 363 in para 12 faced the same situation and by resolving the same categorically held that if a will is signed by the testator and witnesses in one sitting, the attestation as required under section 63 (c) of the act is duly proved. We think it apposite to quote para 12 which reads thus :
12. It was also argued for the appellant that there was no proof that the will was duly attested as required by section 63, indian succession act, and that it should therefore be held to be void. P. Ws. 1 and 2 are the two attesters, and they stated in examination - in - chief that the testator signed the will in their presence, and that they attested his signature. They did not add that they signed the will in the presence of the testator. Now, the contention is that in the absence of such evidence it must be held that there was no due attestation. Both the courts below have held against the appellant on this contention. The learned judges of the high court were of the opinion that as the execution and attestation took place at one sitting at the residence of p. W. I, where the testator and the witnesses has assembled by appointment, they must all of them have been present until the matter was finished, and as the witnesses were not cross - examined on the question of attestation, it could properly be inferred that there was due attestation. It cannot be laid down as a matter of law that because the witnesses did not state in examination - in - chief that they signed the will in the presence of the testator, there was no due attestation. It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator. "
According to us, the will (ex. P/1) which is a registered will has not only been duly proved but its attestation has also been proved.
(27) Thus, according to us, deceased respondent smt. Girija bal was entitled to receive all other retiral dues of deceased chhadami lal except the family pension and extra remuneration (e. R.) because the same is not an estate and it cannot be bequeathed. Appellant smt. Sundariya bai being the legally wedded first wife of deceased chhadami lal is entitled for the family pension and also extra remuneration (e. R.) only since it is a part of family pension and is not an 'estate'. The probate order as well as certificate is accordingly modified that lrs of deceased respondent smt. Girija bai who are respondents no. 3 to 5 shall be entitled for all other benefits excluding family pension and extra remuneration (e. R.). The appellant shall be entitled for the family pension as well as extra remuneration (e. R.) permissible under the law from the date of the death of chhadami lal.
(28) Resultantly, this appeal is allowed in part to the extent as indicated hereinabove with no order as to costs. Appeal allowed.