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Friday, August 16, 2013

Both suits are remanded due to contradictory recordings for clubbing and disposal = We may have remanded the matter to the High Court for fresh disposal of the appeals filed by the appellant and respondent No. 2 but keeping in view the fact that the findings recorded in the two suits regarding Item No. 5 of Schedule `B' properties specified in the plaint of O.S. No. 4528 of 1980 are contradictory and substantial portion of the judgment of O.S. No. 4528 of 1980 is based on surmises and conjectures, we feel that ends of justice would be met by setting aside the impugned judgment and remitting the matter to the trial Court for fresh disposal of the suits filed by respondent Nos. 1 and 2. In the result, the appeals are allowed. The impugned judgment is set aside. The judgments of the trial Court in O.S. Nos. 4528 of 1980 and 2062 of 1981 are also set aside and the matter is remitted to the trial Court for fresh disposal of the suits. With a view to avoid the possibility of conflicting findings regarding Item No.5 of Schedule `B' properties specified in the plaint of O.S. No.4528 of 1980, we direct the trial Court to club the two suits and dispose of 3 the same by one judgment. The parties shall be free to file applications for additional evidence and bring on record the orders passed by the Land Tribunal and the High Court in relation to Item Nos. 1 to 4 of Schedule `B' appended to the plaint of O.S. No.4528 of 1980.

published in http://judis.nic.in/supremecourt/helddis.aspx
NON REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6714-6715 OF 2002

Y. Nagaraj ........Appellant

Versus

Smt. Jalajakshi and others .......Respondents

J U D G M E N T

G. S. Singhvi, J.

1. These appeals filed against judgment dated 22.2.1999 of the

learned Single Judge of the Karnataka High Court represent

culmination of the dispute among the heirs of Shri D. Yellappa,

who died intestate on 27.03.1978, in relation to his properties.

2. Appellant, Y. Nagaraj, is the son of the deceased and

respondent Nos.1 to 3 - Smt. Jalajakshi, Smt. Y. Susheela and

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Smt. Y. Nirmalakumari are his daughters.

They are governed by

Mitakshara School of Hindu Law as also the provisions of the

Hindu Succession Act, 1956 (for short, `the Act'),
for the sake of

convenience, they shall hereinafter be referred to with the same

description.

3. Respondent No. 1 filed O.S. No. 286 of 1979 (renumbered

as O.S. No. 4528 of 1980) impleading the appellant and

respondent Nos. 2 and 3 as defendants for partition of the

properties specified in Schedules `A' and `B' into four equal

shares by metes and bound and for allotment of one share to her

with absolute title and possession. She further prayed that the

appellant be directed to give account of the income of the suit

schedule properties with effect from 27.3.1978 and pay 1/4th

share to her. In the alternative, she prayed that an inquiry be

ordered under Order XXIX Rule 12 of the Code of Civil Procedure

(for short, `the CPC') for determination of mesne profits. The

schedules appended to the plaint are extracted below:

3

" :Schedule `A':

(1) Vacant land bearing Kaneshumari No. 130, of

Dommasaacha Village, Surjapura Hobli, Anekal Taluk

bounded on the

East by : Nagi Reddy House

West by : Konda Reddy House

North by : Road

South by : Erappa's land

Measuring East West about 42' North-South about

45'.

:Schedule `B':

(1) S. No. 96/1, measuring 2 acres and 5 guntas

(2) S. No. 108/2, measuring 1 acre 28 guntas

(3) S. No. 79/2, measuring 3 acres 35 guntas

all these properties situated at Thigala,

Chowdadenahalli, Sarjapur Hobli, Anekla Tq,

Bangalore Distt.,

(4) S.No. 205, measuring 1 acre 22 guntas situated at

Dommasandra village, Anekla, Taluk.

(5) A house bearing D.No. 100, and new Nos. 100/1

and 100/2, measuring about 82' x 21' situated at

Susheela Road Doddamavalli, Bangalore.4

(6) Any other property standing in the name of late D.

Yellappa, or any of his family members.

(7) Jewels worth about Rs. 10,000/-

(8) Household utensils worth about Rs. 10,000/-

(9) Bank deposits."

(As extracted from the judgment of XVII Additional

City Civil Judge, Bangalore.)

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4. The claim of respondent No. 1 was founded on the following

assertions:

(a) That late Shri D. Yellappa, who retired as Revenue

Inspector from the Corporation of the City Bangalore,

was an affluent person and possessed some ancestral

properties (described in Schedule `A') and self-acquired

movable and immovable properties (described in

Schedule `B').

(b) That Shri D. Yellappa died intestate on 27.3.1978 and

being his Class II heirs, the parties are entitled to share

in his estate.

(c) That respondent Nos. 2 and 3 are unmarried and by

taking advantage of his position as the son of the

deceased, the appellant is wasting the property and

trying to alienate the same.

5. In the written statement filed by him, the appellant denied

that Shri D. Yellappa had only a bit of ancestral property.

He pleaded that the suit properties are joint family

5

properties because the same had been acquired out of joint

family income and respondent No. 1 had erroneously

characterized the same as self-acquired properties of the

deceased.
The appellant further pleaded that his father had

sold some properties to one Papaiah;
that the agricultural

lands shown in the plaint schedule were subject matter of

the proceedings pending before Land Tribunal, Anekal for

grant of occupancy rights; that Item No. 3 of plaint

Schedule `B' had been purchased in his name vide sale deed

dated 29.4.1961 and he was absolute owner thereof and

that the jewellery, utensils, bank accounts, etc., mentioned

at Item Nos. 7 to 9 of Schedule `B' were not available for

partition because after the death of the mother, the

deceased had divided the same among three sisters. In

paragraph 6 of the written statement, the appellant averred

that Item No.5 of Schedule `B' properties is an ancestral

property and respondent No.1 has no right to claim any

share in it.

6

6. Since the High Court has, while disposing of the appeals

filed by the appellant and respondent No. 2 relied upon

some of the averments contained in the written statement

and made observations adverse to the interest of the

appellant, it will be appropriate to notice the contents of

paragraphs 2, 4 and 6 of the written statement which are

extracted below:

"2. Late Sri. D. Yellappa had ancestral properties.

It is incorrect to say that he has only a bit of ancestral

property. He was getting a meagre salary, while he

was in service, but he was having sufficient income

from the joint family properties and out of the

income-from joint family properties he purchased

properties in his name as he was the head of the

family. It is absolutely false that items mentioned in

`A' Schedule are the ancestral properties and the

items mentioned in `B ' schedule are the separate

properties of the father of this defendant. The

plaintiff is put to strict proofs of the same. The

plaintiff with a view to claim larger share in the

properties has characterised the ancestral properties

as self acquired properties. The plaintiff in her

anxiety to claim a larger share in the properties has

included the items which are already sold by the

father of the defendant. Thus it is clear that the

plaintiff is not at all in joint possession of the

properties. The item mentioned in `A' schedule was

sold to one Papaiah by the father of the defendant

during his life time and put him in possession.

Inspite of it, the plaintiff has claimed this property

which is in possession of Sri Papaiah. Hence, the

said Papaiah is a necessary and a proper party. The

7

suit is bad for non-joinder of proper parties and the

suit is liable to be dismissed.

4 . There is no self-acquired property of Sri

Yellappa, for the plaintiff to claim any share in the

property. The plaintiff is not entitled to any share in

the properties detailed in the schedule and further

the plaintiff has not brought the entire joint family

properties for the purpose of division, though she is

fully aware of the same. The pretentions ignorance

of the plaintiff is a make believe one and is

deliberately made to appear as such only to help the

plaintiff's uncle against whom the suit has been filed

for the recovery of this defendant's share in the

property. The plaintiff is actively supporting her

uncle in the said litigation in O.S.31/1979 on the file

of the M u n s i f f, A n e k a l . Thus the suit as brought is

not maintainable and liable to be dismissed in limine.

6. Item No.5 of the `B' Schedule properties is

an ancestral property. The plaintiff has no manner of

right, title or interest to claim any share therein."

7. Respondent Nos. 2 and 3 filed separate written statement.

They admitted the claim of respondent No. 1 qua the

properties specified in Schedules `A' and `B' except Item No.

5 of `B' Schedule, i.e., house No. 100 (new nos. 100/1 and

100/2). Respondent Nos. 2 and 3 pleaded that the house

was purchased by their father in the name of the mother by

registered sale deed dated 20.12.1943; that, subsequently,

the mother transferred the house to the father, who

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executed Will dated 28.3.1977 and bequeathed a portion of

the house to them but, later on, he cancelled the Will and

executed registered Settlement Deed dated 18.7.1977 in

their favour.

8. The trial Court took cognizance of the pleadings of the

parties and framed the following issues (the issues have

been extracted from the impugned judgment):

"1. Whether plaintiff proves that the `A'

schedule properties are the ancestral

properties and the `B' schedule property

were self acquired property of late D.

Yellappa?

2. Whether defendant nos.2 and 3 proves that they

are the absolute owners in possession and

enjoyment of a portion of item no.5 of schedule

`B' property by virtue of a registered settlement

deed dated 18.7.1977 executed by late D.

Yellappa?

3. Whether the defendants further prove that the

plaintiff is not entitled to claim a share in

items no.1 to 5 of the `B' schedule property as

contended in their written statement?

4. Whether defendants further prove that the jewels

in item no.7 of `B' schedule was divided in

between defendants 1 and 2 and after the

death of their mother as contended?

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5. Whether defendant no.1 proves that item no.8 in

`B' schedule was taken away by the plaintiff

and the utensils now in his possession belong

to him exclusively?

6. To what share is the plaintiff entitled to and in

what all properties?

7. Whether the plaintiff is entitled to the mesne

profits and if yes, at what rate?

8. What relief and what order?

9. Whether the defendants prove that the 3rd item of

`B' schedule is the self acquired property of

defendant no.1 as contended in para 6(b) of

the written statement?

10. Whether the defendants prove that item

nos.1,2 and 4 of `B' schedule property are the

subject matter of tenancy rights pending

before the Land Tribunal and that the plaintiff

cannot claim anything in them?"

9. In support of her claim, respondent No. 1 appeared as PW-1

and produced 13 documents, which were marked as Ex. P1

to P13. The appellant examined himself as DW-1 and

produced one document, which was marked as Ex. D1.

10. After considering the pleadings of the parties and evidence

produced by them, the trial Court partly decreed the suit.

The trial Court answered issue Nos. 1 and 7 in the negative

1

and issue Nos. 2, 4, 5, 9 and 10 in the affirmative. It held

that Item Nos. 6 to 9 of Schedule `B' were not available for

partition and respondent No.1 has miserably failed to prove

her case qua those items. The trial Court further held that

Item No.3 of Schedule `B' is also not available for partition

because the same had been purchased in the name of the

appellant vide sale deed Ex. P6 and mistake in the

boundaries specified therein was rectified vide Ex. P7.

Issue No.3 was answered by the trial Court by declaring

that respondent No.1 will be entitled to 1/8th share in the

compensation in lieu of agricultural land which was subject

matter of the proceedings pending under the Land Reforms

Act. The relevant portions of the judgment of the trial Court

except those relating to Item Nos. 6 to 9 of Schedule `B'

about which no controversy survives between the parties

are extracted below:

"Though the plaintiff claims her 1/4th share in the

agricultural lands being Item Nos. 1 to 4 of schedule

`B' of the plaint, admittedly by the parties during the

course of evidence, item Nos. 1 & 2 are the ancestral

properties of this D. Yellappa and this D. Yellappa

has purchased item No. 4 by a registered sale deed as

1

per Ex. P8 in the year 1966 and only because this D.

Yellappa purchased that land, it cannot be classified

as self-acquired property of Yellappa unless there is

material or evidence produced by the plaintiff to show

that he treated that property as self-acquired and

separate property and was never meant for enjoyment

of the joint family during his life time. Therefore,

when there is material to show that D. Yellappa had

some agricultural and being the ancestral property

measuring 4 5 acres in Anekal Taluk and in addition

to the same, he has retired in the year 1961 and got

some retirement benefits and similarly, he had

purchased some house properties in Bangalore and

sold them for the benefit of the family for a sum of Rs.

26,000/- or so as admitted by DW1 himself and

which is not disputed by the plaintiff, it can be safely

said that item No. 4 was purchased by D Yellappa,

out of the joint family funds and it was for the benefit

of the family and it cannot be self-acquired and

separate property of Yellappa. Similarly, he has

purchased item No. 5 being the house property

bearing Door No. 100 which is re-numbered as 100/1

and 100/2 in the name of his wife only in the year

1950 and the same was subsequently transferred in

the name of D. Yellappa and thereafter, he has

mortgaged the same by Ex. P13 and therefore, the

plaintiff cannot contend that the said property

belonged to her mother and therefore, she is entitled

to a share in the same. The recitals of the mortgage

deed in Ex. P13 go to show that D. Yellappa had

purchased that property in Bangalore in the name of

his wife and that fact is clinched by the fact that he

has subsequently treated the same as joint family

property and not as of his wife. With these

observations, I hold that it is a joint family property

and not self-acquired property of D. Yellappa and

about the settlement of the property in favour of

defendants 2 & 3, I will discuss later.

1

So far as the item No. 3 of `B' schedule property is

concerned, it can be seen that it was purchased in

the name of the first defendant by a sale deed Ex. P6

and there has been a rectification deed also regarding

some mistake in the boundaries etc., as per Ex. P7

and this land is also said to be the subject matter of

occupancy right before the Tribunal. But all the same,

there is no material to show that it is a joint family

property and the plaintiff has not produced any

material to show that as to whether her father

financed this first defendant to purchase this item no.

3 of schedule `B' nor is it the case of the plaintiff that

it was actually purchased by D. Yellappa in his own

name. As already pointed out, the land was

purchased by the first defendant somewhere in the

year 1961 and he got rectification deed in the year

1967 and therefore, in the absence of any evidence

produced by the plaintiff to show that it was

purchased out of the income of the ancestral

properties, it can be safely said that the first

defendant has treated that property as his self-

acquired property because, there was no joint family

as such after the death of his father. Because, the

first defendant is the only son and the other issues of

this D. Yellappa all are daughters and are married

and staying with their husbands. Therefore, this item

No. 3 will have to be treated as self-acquired property

of defendant No 1.

Admittedly item Nos. 1 and 2 of schedule `B' are

agricultural lands and were ancestral properties of D.

Yellappa and if at all the plaintiff or defendants Nos. 2

and 3 are entitled to any share in those 2 lands

(illegible) in the compensation to be awarded by the

land tribunal, under the Hindu Succession Act and

not under the General Hindu Law.

If these two lands are agricultural properties, the

plaintiff as well as the defendants 2 and 3 would get

1

their share either in the compensation or by metes

and bounds only in = share of the deceased-father of

Yellappa because he has died somewhere in the year

1978 after coming into force of the Hindu Succession

Act. In that undecided = share of properties they

cannot claim 1/4th share as of right by birth. In the

notional partition it is only the coparceners under the

General Hindu Law who get a share each and the

ladies cannot be co-parceners of the Joint Hindu

Family and therefore in the notional partition, it is

this D. Yellappa and Nagaraj alone get half and this

1/ share of Yellappa goes to the plaintiff and
2

defendants 2 and 3 under the Hindu Succession Act

as their mother had pre-deceased this Yellappa

having died in the year 1960. Thus, I hold that the

plaintiff cannot claim 1/4th share. But they can claim

only 1/8th share each in the entire item Nos. 1 and 2

either by metes and bounds or by way of

compensation if any by the land tribunal.

Though the plaintiff has claimed share in item No. 5

the residential house of Bangalore Town, on the

ground that it was her mother's property, her own

document Ex. P. 13 negatives her contention because,

as per the recitals, the finance has flowed from this

Yellappa himself though it was purchased in the

name of his wife. But it was subsequently transferred

in the name of joint family and he treated it as his

own property and mortgaged the same to some

person by Ex. P. 13 and subsequently gifted the

portions of those properties in favour of plaintiff

herself and also defendants 2 and 3 and defendants 2

and 3 so also the first defendant stayed in those

houses till they got married and therefore, at the most

it can be said that house No. 100/1 and 100/2 alone

are available for partition between the plaintiff and

defendants except the settled properties in favour of

the plaintiff and defendants 2 and 3. Thus, the

plaintiff cannot claim share in the portions that are

1

settled in favour of defendants 2 and 3 and there has

been a settlement deed by Yellappa himself between

defendants 2 and 3 by a registered deed dated

18.7.77 as this fact is admitted by PW1 as well as

DW1 though there is no evidence produced by the

plaintiff and therefore, I am persuaded to answer

issue No. 2 in the affirmative.

Now coming to `A' schedule property which according

to the plaintiff is ancestral property and is a grame

tana area and a residential house bearing

Khaneshumari No. 130 in Anekal Taluk. This PW1

during the course of cross-examination admits that

her father had gifted half of schedule property in

favour of his own brother-Veerappa and also admits

that her father might have sold remaining half

schedule property in favour of one Papaiah. But,

however, a suggestion is made that this first

defendant took possession of half of `A' schedule

property from Papaiah by filing suits. But the

plaintiff has not produced any judgment copy of such

suit nor is there any evidence produced to show that

this defendant-1 has taken possession of the half of

the `A' schedule property that was sold by D. Yellappa

himself during his life time.

So therefore, if that is the position, it cannot be said

that the plaintiff has proved the facts that `A'

schedule property is available for partition and also

that she is entitled for mesne profit also. There is no

material to show that `A' schedule is in the possession

of the first defendant and they cannot also contend

that the first defendant has got income from the

agricultural lands because, in view of the Land

Reforms Act, tenanted lands vest in Govt. with effect

from 1974 and when there is material to show that

the matter of occupancy rights in respect of

agricultural lands at item -1 to 4 of schedule `B' is

pending before the Land Tribunal, the plaintiff cannot

1

seek accounting from the first defendant. But

however, the contentions of the defendant-1 in the

written statement that the plaintiff has not produced

the record of rights and index of lands etc., in respect

of agricultural land and that if partition is allowed,

the same would hit provisions of Prevention of

Fragmentation Act etc., are devoid of any merit and

thus, in view of my discussions, I am persuaded to

answer issue No. 1 in the negative."

11. The operative portion of the judgment passed by the trial

Court (as contained in the paper book of the special leave

petitions) is extracted below:

"The suit of the plaintiff is hereby partly decreed. The

suit of the plaintiff for partition and actual possession

in `A' schedule property and also for partition and

possession of item Nos. 1 to 9 of schedule `B' by

metes and bounds is hereby dismissed. It is hereby

declared that the plaintiff is entitled to 1/8th share in

the compensation to be paid by the Govt, in respect of

item Nos. 1, 2 and 4 and she is also entitled to 1/8 th

share in the un-sold portion of item No. 5 in as much

as there are entitlement deeds of vacant sites in

favour of plaintiff herself and also in favour of

defendants 2 and 3. The plaintiff shall get her share

partitioned by appointing a Commissioner in the Final

Decree Proceedings in item No. 5. Similarly, the suit

of the plaintiff for mesne profits is hereby dismissed.

But costs of the suit shall come out of the assets of

the joint family properties. It is hereby declared that

defendants 2 and 3 are also entitled to 1/8th share

like the plaintiff in all the properties that are available

for partition as discussed above. Draw a preliminary

decree accordingly."

1

12. During the pendency of the suit filed by respondent No. 1,

respondent No. 2 filed O.S. No. 2062 of 1981 for declaration

of title in respect of house bearing No. 100/2, Susheela

Road, Doddamavalli, Bangalore and possession thereof and

also for mesne profits. Respondent No.2 relied upon

registered Settlement Deed dated 18.7.1977, which is said

to have been executed by Shri D. Yellappa giving separate

portions to her and respondent No.3, and pleaded that she

was residing in the portion allotted to her and was paying

taxes etc. but the appellant was trying to interfere with her

possession.

13. The appellant contested the suit filed by respondent No. 2.

He pleaded that the suit property was joint family property

and the deceased had no right to execute settlement deed in

respect of the joint family property. He further pleaded that

the settlement deed was a fabricated document and the

same cannot be relied upon for declaring respondent No.2

as owner of the suit property. He also raised an objection of

1

limitation and pleaded that the suit filed by the respondent

No.2 was barred by time.

14. In the second suit, the trial Court framed nine issues and

one additional issue. The same (as contained in para 10 of

the impugned judgment) are extracted below:

"1. Whether the plaintiff proves that during

the suit schedule property was the self

acquired property of D. Yellappa?

2. Whether the plaintiff proves that during

the lifetime of D. Yellappa, D. Yellappa has

executed a registered settlement deed dated

18.7.1977 and registered Will dated 28.3.1977

in her favour pertaining to the suit schedule

property as alleged in the plaint?

3. Whether the plaintiff proves that the

defendant trespassed into the suit schedule

property and proves further that she is entitled

for possession as alleged?

4. Whether the plaintiff proves that she is

entitled for Rs.1,440/- and also for mesne

profits with costs thereon?

5. Whether the defendant proves that the

alleged Will is a got up one when Yellappa was

not in a fit condition to execute in favour of the

plaintiff?

6. Whether the defendant proves that the

suit schedule property is not self acquired

property of D. Yellappa?

1

7. Whether the defendant proves that he is

in possession of the property in his own right

and not as a trespasser?

7(a) Whether the defendant proves that the

suit is not maintainable in law?

8. To what relief the parties are entitled?

9. Whether the plaintiff is entitled for the

declaration claimed?

Additional Issues :

1. Whether the defendant proves that the

suit is barred by time as he had taken a plea

in O.S. No.151 of 1978 itself denying the title

of the plaintiff as alleged?"

15. Respondent No.2 examined herself as PW-1 and produced 8

documents marked Ex. P1 to P8. The appellant examined

himself as DW-1 and produced 16 documents marked Ex.

D1 to D16.

16. The trial Court answered issue Nos. 1 to 4, 7(a), 9 and

additional issue No.1 in the negative and issue Nos. 6 and 7

in the affirmative. As regards issue No.5, the trial Court

observed that the same does not survive for consideration.

1

In conclusion, the trial Court dismissed the suit by

observing that respondent No.2 has failed to prove that the

suit property was purchased in the name of the mother vide

Sale Deed dated 1.2.1950 and she had transferred the same

to her father. The trial Court also held that respondent

No.2 has failed to prove that the suit property was the self-

acquired property of her father and he had the right to

settle the same in her favour. The relevant portions of the

judgment rendered by the trial Court in O.S. No. 2062 of

1981 are extracted below:

"It is elicited in the cross examination of PW-1 that

the suit property was transferred by her mother to

her father but she does not know by what mode it

was transferred. She does not know when her mother

had purchased the property. There must be document

of title regarding the purchase made by her mother

and the plaintiff has denied ignorance about the mode

under which the property was transferred by her

mother to her father. The contents of Ex.P.l show that

the property was purchased by sale deed dated

1.2.1950. The said sale deed dated 1.2.1950. The said

sale deed has not been produced by the plaintiff and

therefore the plaintiff has failed to prove that it is

belong to her mother and her mother has transferred

the property to her father.

On the other hand, the evidence of the defendant and

the documentary evidence produced by him show

2

that the property was the joint family property as it

was purchased out of the amount received by

mortgaging the family properties to Salem Bank

under Ex.D-7. DW-l has stated in his evidence that

the suit schedule property was purchased out of the

joint family funds. The property was purchased in

the name of his mother during December 1943.

In December 1943 joint family property was

mortgaged to Salem Bank for purchasing the property

and he has produced Ex.D-7 the mortgage deed

and he has further stated that the said amount

obtained by mortgaging was repaid out of the

income derived from the suit house. Nothing has

been elicited in the cross-examination of DW.1 to

disbelieve his evidence that the suit property was

purchased out of the amount received by mortgaging

the joint family properties. Ex. D-7 shows that on

17.12.1943 D. Yellappa and his brother Erappa

mortgaged the properties for borrowing Rs.600/- for

the purpose of purchasing a house at Siddegowda

Lane, Lalbagh, Doddamavalli Bangalore City in the

name of the wife of D. Yellappa and the schedule to

the said mortgage deed reads as follows:

I. All the piece and parcel of land with

the dwelling houses and outhouses, wells, trees

and drains thereon built and planted and

situated together with all rights and easements

appertaining thereto now and hereafter enjoyed

and acquired bearing Municipal Door No. Old 8

and New No. 13. Chintala Venkatappa Lane,

Lalbagh, Doddamavalli, Bangalore City, bounded

on the North by Sarambigamma's house and

Chinnayya's backyard, South by Municipal

Road, East b y Ratnakka and her b r o t h e r

Anjariappa's house and open space and West by

land with public water t a p , measuring East to

West 3 5 1 /2 feet and North to South 1 2 ' x 1 2 '

and admeasurements 4 4 3 square feet. Chintala

2

Venkatappa Lane is now called Siddegowda

Lane.

II. And house bearing Municipal Door No. 2

(Old) New No. 3 . Aliraju Munisumappa Road,

Thigalarpet, Bangalore City, bounded on North

b y Jaragana-halli Muniswamy's house and

Yellamma Temple, South by Lane and

Yengatappa Gowda's house and Rangamma's

house, East by Municipal Road and Muni

Siddappa's house and West by Waste land

belonging to choultry, measuring East to West

2 4 ' . 4 " , North to South 25 ' . 1 0 " b y

admeasurements 6 2 6 square feet and which are

at present in possession of the said mortgagors,

1. D. Yellappa and 2 . Erappa.

It is clear from the above said evidence of DW-1 and

Ex. D-7 which clearly corroborates his evidence

that the suit schedule property was purchased

out of the money obtained by mortgaging the joint

family properties. PW-1 has feigned ignorance as

to whether her father had any other source of

income except salary and as to whether the family

had any other joint family property at the time of

purchase of the suit schedule property. Therefore,

it is clear that plaintiff has failed to prove that the

suit schedule property was the self acquired property

of her father and that her father had right to settle

the property in favour of the plaintiff. On the

other hand, the above said evidence on record clearly

shows that the suit property was the joint family

property of D. Yellappa and the defendant.

I have already given a finding that plaintiff has

failed to prove that the suit schedule property

was the self acquired property of D. Yellappa and

defendant has proved that the suit schedule property

was the joint family property. Therefore, the

burden is upon the plaintiff to prove the execution

2

of the Settlement Deed. PW-1 has stated in her

cross-examination that she does not know who were

the witnesses that have signed Ex. P.l as they were

acquaintance of her father. She does not know

who was the scribe of the Settlement Deed. It is

further elicited that she found some corrections in

the Settlement Deed but she does not know who

wrote it. The witnesses have not signed in her

presence and she does not know if her father

had intimated the defendant about the Settlement

Deed. The plaintiff has not signed the Settlement

Deed and the and the witnesses who have attested

the Settlement Deed have not been examined by the

plaintiff. The scribe who wrote the Settlement

Deed has also not been examined by the

plaintiff. There are some corrections in the

Settlement Deed and PW-1 has stated that she does

not know who had carried out the said corrections

and she does not know who wrote the contents of

the Settlement Deed as she has feigned ignorance as

to who was the scribe of the Settlement Deed. Even

the contents of the Settlement Deed have not been

proved and the evidence on record clearly proba-

bilities the version of the defendant that the Set-

tlement Deed has been concocted by the plaintiff.

It is mentioned in the Settlement Deed Ex. P.l that the

property was the self acquired property of D.

Yellappa. I have already held that suit property was

not the self-acquired property of D. Yellappa."

17. The appellant filed RFA No. 189 of 1990 and prayed for

setting aside the decree passed in O.S. No. 4528/1980

insofar as the trial Court upheld the claim of partition made

by respondent No.1 qua Item No.5 of Schedule `B'

2

properties. Respondent No. 2 also filed RFA No. 476 of 1991

and challenged the dismissal of the suit for declaration filed

by her.

18. Learned counsel for the appellant argued that the impugned

judgment is liable to be set aside because the learned Single

Judge of the High Court committed grave error by granting

substantive relief to respondent No.1 despite the fact that

she had not filed appeal or cross-objections to question the

findings recorded by the trial Court on various issues. She

further argued that the learned Single Judge committed an

error by passing a decree in favour of respondent No.2 on

the basis of Settlement Deed dated 18.7.1977 ignoring that

she had failed to prove that the suit property was self-

acquired property of the father and that in O.S. No. 4528 of

1980 the trial Court had ruled that Item No.5 of `B'

Schedule properties was joint family property.

19. Learned counsel for the respondents supported the

impugned judgment and argued that the High Court did not

commit any error by granting relief to respondent Nos. 1

2

and 2. She submitted that even though respondent No.1

had neither filed an appeal against the judgment and decree

passed by the trial court in O.S. No. 4528 of 1980 nor she

filed cross-objections in RFA No. 189 of 1990, the learned

Single Judge had rightly invoked the principle underlying

Order 41 Rule 33 CPC for the purpose of doing full justice

to the parties. She also defended the decree passed in

favour of respondent No.2 and argued that the learned

Single Judge did not commit any error by relying upon the

recital in the settlement deed for the purpose of recording a

finding that Item No.5 of Schedule `B' properties was self-

acquired property of the deceased.

20. Before adverting to the arguments of the learned counsel for

the parties and the reasons recorded by the learned Single

Judge, we consider it proper to take cognizance of some of

the additional documents filed by the counsel for the

respondents which include copy of the plaint in O.S. No.

286 of 1979 (renumbered as O.S. No.4528 of 1980), written

statement filed in that suit, the issues framed by the trial

2

Court, depositions of respondent No.1 and the appellant,

copy of Settlement Deed dated 18.7.1977, orders passed by

the Karnataka High Court in Writ Petition Nos. 11401 of

1981, 20067 of 1991 and 20068 of 1991 and order passed

by the Land Tribunal. These documents show that

respondent Nos. 1 to 3 had filed Writ Petition No. 11401 of

1981 for quashing order dated 9.6.1981 passed by the Land

Tribunal whereby occupancy rights were granted to N.

Bhadraiah in respect of land comprised in survey Nos.

79/2, 108/2 and 205. By an order dated 28.5.1985, the

Division Bench of the High Court allowed the writ petition,

quashed the order of the Land Tribunal and remitted the

matter for fresh disposal of the application filed by N.

Bhadraiah after giving opportunity to the parties. After

remand, the Land Tribunal passed order dated 29.10.1988

and again accepted Bhadraiah's claim for occupancy rights.

The second order of the Land Tribunal was challenged by

respondent Nos. 1 to 3 in Writ Petition Nos. 20067 and

20068 of 1991, which were allowed by the Division Bench of

the High Court on 20.1.1994 and the matter was again

2

remitted to the Land Tribunal for fresh consideration. Of

course, learned counsel for the parties did not inform the

Court whether the application filed by N. Bhadraiah for

grant of occupancy rights has been finally disposed of.

21. The learned Single Judge first considered the issue raised in

RFA No.476 of 1991, i.e., whether Settlement Deed dated

18.7.1977 executed by Shri D. Yellappa was valid. He

referred to a portion of the settlement deed in which the

executant has mentioned that the house property is a self-

acquired property purchased by him on 01.02.1950 and

proceeded to observe:

"In the light of the above recital in Ex. P.1 the

settlement deed which is extracted above it is too

late for the son to come and contend that it is not

the self acquired property of their father. The

recital coupled with the evidence available on

record and the further fact that Susheela the

plaintiff has been enjoying the property

exclusively would go to show that the plea that

the property in question is ancestral property, set

up by the son, is not acceptable or believable.

This aspect of the case has not been considered

by the trial Court and as rightly found by the trial

court in the other suit and I have also no

hesitation to hold that, the suit property is self

acquired property of their father and

2

consequently, the settlement deed executed by

her father in valid and binding on the parties."

22. While recording the aforesaid finding, the learned Single

Judge did not even refer to the detailed reasons recorded by

the trial Court for holding that respondent No.2 has failed

to prove that the suit property was self-acquired property of

the executant because Sale Deed dated 01.02.1950 was not

produced by her. The learned Single Judge also omitted to

consider the statement of respondent No. 2 that the suit

property was purchased by her father in the name of the

mother and she had transferred the same in the name of

the father, which enabled him to execute Will dated

28.3.1977 and Settlement Deed dated 18.7.1977. Not only

this, the learned Single Judge failed to take note of the fact

that the recital contained in the settlement deed was

contrary to the evidence of the parties which, as mentioned

above, was to the effect that the property had been

purchased by the father in the name of the mother and the

latter had transferred it to the father after some time and

2

that in the judgment of O.S. No. 4528 of 1980 it was

categorically held that Item No. 5 of Schedule `B' properties

was joint family property and respondent No.1 was entitled

to a share in it. We are surprised that the learned Single

Judge ignored the patently contradictory findings recorded

by the trial Court in the two suits on the issue of nature of

Item No. 5 of Schedule `B' properties and decreed the suit

filed by respondent No. 2 by assuming that she had

succeeded in proving that her father Shri D. Yellappa was

competent to execute the settlement deed. In the process,

the learned Single Judge completely overlooked the detailed

reasons recorded by the trial Court in O.S. No. 4528 of

1980 after considering the mortgage deed Ex. P13 executed

by Shri D. Yellappa and Erappa in favour of the Salem Bank

Ltd. for the purpose of taking loan. Therefore, it is not

possible to sustain the finding and conclusion recorded by

the learned Single Judge in RFA No.476 of 1991.

23. We shall now deal with the appellant's challenge to the

decree passed in favour of respondent No.1. It is not in

2

dispute that respondent No.1 had not challenged the

findings recorded by the trial Court on various issues

framed by it. She also did not file cross-objections in the

appeal preferred by the appellant. Though, it is possible to

take the view that even in the absence of an appeal having

been preferred by respondent No.1, the learned Single

Judge could have exercised power under Order 41 Rule 33

CPC, as interpreted by this Court in Nirmala Bala Ghose v.

Balai Chand Ghose (1965) 3 SCR 550, Giani Ram and

others v. Ramjilal and others (1969) 3 SCR 944 and Banarsi

and others v. Ram Phal (2003) 9 SCC 606, after having

carefully examined the entire record, we are convinced that

the impugned judgment cannot be sustained by relying

upon Order 41 Rule 33. In the impugned judgment, the

learned Single Judge has included Item No. 3 of Schedule

`B' properties in the pool of joint family property despite the

fact that the same had been purchased by D. Yellappa by

registered sale deed in 1961 in the name of the appellant.

The learned Single Judge overturned the finding on this

issue by adverting to some portions of the averments

3

contained in para 2 of the written statement filed by the

appellant, while ignoring the remaining averments

contained in that paragraph as also paragraph Nos. 4 and

6. The learned Single Judge also failed to take note of the

fact that the claim made by N. Bhadraiah for grant of

occupancy rights in respect of agricultural land was

pending before the Land Tribunal. It is not possible for us to

approve the approach adopted by the learned Single Judge

in dealing with the claim of respondent No. 1 for partition of

the suit properties despite the fact that she had failed to

prove the case set up in the plaint. A substantial portion of

the judgment of the trial Court as well as the learned Single

Judge is based on pure conjectures. The learned Single

Judge appears to have been unduly influenced by the fact

that N. Bhadraiah was the father-in-law of the appellant

and both seem to have conspired to deprive the three

daughters of the deceased of their shares in the suit

properties.

3

24. We may have remanded the matter to the High Court for

fresh disposal of the appeals filed by the appellant and

respondent No. 2 but keeping in view the fact that the

findings recorded in the two suits regarding Item No. 5 of

Schedule `B' properties specified in the plaint of O.S. No.

4528 of 1980 are contradictory and substantial portion of

the judgment of O.S. No. 4528 of 1980 is based on surmises

and conjectures, we feel that ends of justice would be met

by setting aside the impugned judgment and remitting the

matter to the trial Court for fresh disposal of the suits filed

by respondent Nos. 1 and 2.

25. In the result, the appeals are allowed. The impugned

judgment is set aside. The judgments of the trial Court in

O.S. Nos. 4528 of 1980 and 2062 of 1981 are also set aside

and the matter is remitted to the trial Court for fresh

disposal of the suits. With a view to avoid the possibility of

conflicting findings regarding Item No.5 of Schedule `B'

properties specified in the plaint of O.S. No.4528 of 1980,

we direct the trial Court to club the two suits and dispose of

3

the same by one judgment. The parties shall be free to file

applications for additional evidence and bring on record the

orders passed by the Land Tribunal and the High Court in

relation to Item Nos. 1 to 4 of Schedule `B' appended to the

plaint of O.S. No.4528 of 1980.

.....................................J.

[G.S. Singhvi]

.....................................J.

[Asok Kumar Ganguly]

New Delhi,

January 05, 2012.

Thursday, August 15, 2013

Pension and Gratuity with holding pending inquiry = whether, in the absence of any provision in the Pension Rules, the State Government can withhold a part of pension and/or gratuity during the pendency of departmental/ criminal proceedings? = Fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in “property”. 14. Article 300 A of the Constitution of India reads as under: “300A Persons not to be deprived of property save by authority of law. - No person shall be deprived of his property save by authority of law.” Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300 A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced. 15. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as “law” within the meaning of aforesaid Article 300A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold - even a part of pension or gratuity. As we noticed above, so far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different. 16. We, accordingly, find that there is no merit in the instant appeals as the impugned order of the High Court is without blemish. Accordingly, these appeals are dismissed with costs quantified at Rs. 10,000/- each.

published in http://judis.nic.in/supremecourt/filename=40650
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6770 OF 2013
(Arising out of Special Leave Petition (Civil) No. 1427 of 2009)

State of Jharkhand & Ors. ….. Appellant(s)

Vs.

Jitendra Kumar Srivastava & Anr.
…..Respondent(s)

WITH
C.A. No. 6771/2013
(arising out of SLP(C) No. 1428 of 2009)

J U D G M E N T

A.K. Sikri, J

1. Leave granted.

2. Crisp and short question which arises for consideration in
these cases is as to
whether, in the absence of any provision in the
Pension Rules, the State Government can withhold a part of pension and/or gratuity during the pendency of departmental/ criminal proceedings?
The High Court has -

answered this question, vide the impugned judgment, in the negative
and hence directed the appellant to release the withheld dues to the
respondent.
Not happy with this outcome, the State of Jharkhand has
preferred this appeal.

3. For the sake of convenience we will gather the facts from
Civil Appeal arising out of SLP(Civil) No. 1427 of 2009. Only facts
which need to be noted, giving rise to the aforesaid questions of
law, are the following:

The respondent was working in the Department of Animal
Husbandry and Fisheries. He joined the said Department in the
Government of Bihar on 2.11.1966. On 16.4.1996, two cases were
registered against him under various Sections of the Indian Penal
Code as well as Prevention of Corruption Act, alleging serious
financial irregularities during the years 1990-1991, 1991-1992 when
he was posted as Artificial Insemination Officer, Ranchi. On
promulgation of the Bihar Reorganisation Act, 2000, State of
Jharkhand (Appellant herein) came into existence and the Respondent
became the employee of the appellant State. Prosecution, in respect
of the aforesaid two criminal cases against the respondent is
pending. On 30th January, 2002, the appellant also ordered
initiation of disciplinary action against him. While these
proceedings were still pending, on attaining -

the age of superannuation, the respondent retired from the post of
Artificial Insemination Officer, Ranchi on 31.08.2002. The appellant
sanctioned the release and payment of General Provident Fund on
25.5.2003. Thereafter, on 18.3.2004, the Appellant sanctioned 90
percent provisional pension to the respondent. Remaining 10 percent
pension and salary of his suspension period (30.1.2002 to 30.8.2002)
was withheld pending outcome of the criminal cases/ departmental
inquiry against him. He was also not paid leave encashment and
gratuity.

4. Feeling aggrieved with this action of the withholding of his
10 percent of the pension and non-release of the other aforesaid
dues, the respondent preferred the Writ Petition before the High
Court of Jharkhand. This Writ Petition was disposed of by the High
Court by remitting the case back to the Department to decide the
claim of the petitioner for payment of provisional pension, gratuity
etc. in terms of Resolution No. 3014 dated 31.7.1980. The
appellant, thereafter, considered the representation of the
respondent but rejected the same vide orders dated 16.3.2006. The
respondent challenged the rejection by filing another Writ Petition
before the High Court. The said petition was dismissed by the
learned Single Judge. The respondent filed Intra Court Appeal which
has been allowed by the Division Bench vide the -

impugned orders dated 31.10.2007. The Division Bench has held that
the question is squarely covered by the full Bench decision of that
Court in the case of Dr. Dudh Nath Pandey vs. State of Jharkhand and
Ors. 2007 (4) JCR 1. In the said full Bench Judgment dated
28.8.2007, after detailed discussions on the various nuances of
the subject matter, the High Court has held:

“ To sum up the answer for the two questions are as follows:

(i) Under Rule 43(a) and 43(b) of Bihar Pension Rules, there
is no power for the Government to withhold Gratuity and
Pension during the pendency of the departmental proceeding
or criminal proceeding. It does not give any power to
withhold Leave Encashment at any stage either prior to the
proceeding or after conclusion of the Proceeding.

(ii) The circular, issued by the Finance Department, referring
to the withholding of the leave encashment would not apply
to the present facts of the case as it has no sanctity of
law”.

5. Mr. Amarendra Sharan, the learned Senior Counsel appearing for
the petitioner accepted the fact that in so far as the Pension Rules
are concerned, there is no provision for withholding a part of
pension or gratuity. He, however, submitted that there are
administrative instructions which permit withholding of a part of
pension and gratuity. His submission was that when the rules are
silent on a particular aspect, gap can be filled by the -

administrative instructions which was well settled legal position,
laid down way back in the year 1968 by the Constitution Bench
Judgment of this Court in Sant Ram Sharma vs. Union of India 1968
(1) SCR 111. He, thus, argued that the High Court has committed an
error in holding that there was no power with the Government to
withhold the part of pension or gratuity, pending
disciplinary/criminal proceedings.

6. The aforesaid arguments of the learned Senior Counsel based on
the judgment in Sant Ram Sharma would not cut any ice in so far as
present case is concerned, because of the reason this case has no
applicability in the given case. Sant Ram judgment governs the
field of administrative law wherein the Constitution Bench laid down
the principle that the rules framed by the authority in exercise of
powers contained in an enactment, would also have statutory force.
Though the administration can issue administrative instructions for
the smooth administrative function, such administrative instructions
cannot supplant the rules. However, these administrative
instructions can supplement the statutory rules by taking care of
those situations where the statutory rules are silent. This ratio
of that judgment is narrated in the following manner:

“It is true that there is no specific provision in the Rules
laying down the principle of promotion of junior or senior grade
-

officers to selection grade posts. But that does not mean that
till statutory rules are framed in this behalf the Government
cannot issue administrative instructions regarding the principle
to be followed in promotions of the officers concerned to
selection grade posts. It is true that Government cannot amend
or supersede statutory rules by administrative instructions, but
if the rules are silent on any particular point Government can
fill up the gaps and supplement the rules and issue instructions
and inconsistent with the rules already framed”.

There cannot be any quarrel on this exposition of law
which is well grounded in a series of judgments pronounced post Sant
Ram Sharma case as well. However, the question which is posed in
the present case is altogether different.

7. It is an accepted position that gratuity and pension are not
the bounties. An employee earns these benefits by dint of his long,
continuous, faithful and un-blemished service. Conceptually it is
so lucidly described in D.S. Nakara and Ors. Vs. Union of India;
(1983) 1 SCC 305 by Justice D.A. Desai, who spoke for the Bench, in
his inimitable style, in the following words:

“The approach of the respondents raises a vital and none too
easy of answer, question as to why pension is paid. And why was
it required to be liberalised? Is the employer, which
expression will include even the State, bound to pay pension?
Is there any obligation on the employer to provide for the
erstwhile employee even after the contract of employment has
come to an end and the employee has ceased to render service?

-

What is a pension? What are the goals of pension? What public
interest or purpose, if any, it seeks to serve? If it does seek
to serve some public purpose, is it thwarted by such artificial
division of retirement pre and post a certain date? We need
seek answer to these and incidental questions so as to render
just justice between parties to this petition.

The antiquated notion of pension being a bounty a gratituous payment
depending upon the sweet will or grace of the employer not
claimable as a right and, therefore, no right to pension can be
enforced through Court has been swept under the carpet by the
decision of the Constitution Bench in Deoki Nandan Prasad v.
State of Bihar and Ors.[1971] Su. S.C.R. 634 wherein this Court
authoritatively ruled that pension is a right and the payment of
it does not depend upon the discretion of the Government but is
governed by the rules and a Government servant coming within
those rules is entitled to claim pension. It was further held
that the grant of pension does not depend upon any one’s
discretion. It is only for the purpose of quantifying the
amount having regard to service and other allied maters that it
may be necessary for the authority to pass an order to that
effect but the right to receive pension flows to the officer not
because of any such order but by virtue of the rules. This
view was reaffirmed in State of Punjab and Anr. V. Iqbal Singh
(1976) IILLJ 377SC”.

8. It is thus hard earned benefit which accrues to an employee
and is in the nature of “property”. This right to property cannot
be taken away without the due process of law as per the provisions
of Article 300 A of the Constitution of India.

9. Having explained the legal position, let us first discuss the
rules relating to release of Pension. The present case is
admittedly governed by -

Bihar Pension Rules, as applicable to the State of Jharkhand. Rule
43(b) of the said Pension Rules confers power on the State
Government to withhold or withdraw a pension or part thereof under
certain circumstances. This Rule 43(b) reads as under:

“43(b) The State Government further reserve to themselves the
right of withholding or withdrawing a pension or any part of it,
whether permanently or for specified period, and the right of
ordering the recovery from a pension of the whole or part of any
pecuniary loss caused to Government if the pensioner is found in
departmental or judicial proceeding to have been guilty to grave
misconduct, or to have caused pecuniary loss to Government
misconduct, or to have caused pecuniary loss to Government by
misconduct or negligence, during his service including service
rendered on re-employment after retirement”.

From the reading of the aforesaid Rule 43(b), following
position emerges:-

(i) The State Government has the power to withhold or withdraw
pension or any part of it when the pensioner is found to be
guilty of grave misconduct either in a departmental
proceeding or judicial proceeding.

(ii) This provision does not empower the State to invoke the
said power while the department proceeding or judicial
proceeding are pending.

(iii) The power of withholding leave encashment is not provided
under this rule to the State irrespective of the result of
the above proceedings.

(iv) This power can be invoked only when the proceedings are
concluded finding guilty and not before.

10. There is also a Proviso to Rule 43(b), which provides that:-

“A. Such departmental proceedings, if not instituted
while the Government Servant was on duty either before
retirement or during re-employment.

i. Shall not be instituted save with the sanction
of the State Government.

ii Shall be in respect of an event which took
place not more than four years before the
institution of such proceedings.

iii Shall be conducted by such authority and at
such place or places as the State Government
may direct and in accordance with the procedure
applicable to proceedings on which an order of
dismissal from service may be made:-

B. Judicial proceedings, if not instituted while the
Government Servant was on duty either before retirement or
during re-employment shall have been instated in accordance
with sub clause (ii) of clause (a) and

C. The Bihar Public Service Commission, shall be
consulted before final orders are passed.

It is apparent that the proviso speaks about the institution of
proceedings. For initiating proceedings, Rule 43(b) puts some
conditions, i.e, Department proceeding as indicated in Rule 43(b),
if not instituted while the Government Servant was on duty, then it
shall not be instituted except:-

(a) With the sanction of the Government,

-

(b) It shall be in respect of an event which took place
not more than four years before the institution of
the proceedings.

(c) Such proceedings shall be conducted by the enquiry
officer in accordance with the proceedings by which
dismissal of the services can be made.

Thus, in so far as the proviso is concerned that deals with
condition for initiation of proceedings and the period of limitation
within which such proceedings can be initiated.

11. Reading of Rule 43(b) makes it abundantly clear that even
after the conclusion of the departmental inquiry, it is permissible
for the Government to withhold pension etc. ONLY when a finding is
recorded either in departmental inquiry or judicial proceedings that
the employee had committed grave misconduct in the discharge of his
duty while in his office. There is no provision in the rules for
withholding of the pension/ gratuity when such departmental
proceedings or judicial proceedings are still pending.

12. Right to receive pension was recognized as right to property
by the Constitution Bench Judgment of this Court in Deokinandan
Prasad vs. State of Bihar; (1971) 2 SCC 330, as is apparent from the
following discussion:

“29. The last question to be considered, is, whether the right to
receive pension by a Government servant is property, so as to attract
Articles 19(1)(f) and 31(1) of the Constitution. This question falls
to be decided in order to consider whether the writ petition is
maintainable under Article 32. To this aspect, we have already
adverted to earlier and we now proceed to consider the same.

30. According to the petitioner the right to receive pension is
property and the respondents by an executive order dated June 12, 1968
have wrongfully withheld his pension. That order affects his
fundamental rights under Articles 19(1)(f) and 31(1) of the
Constitution. The respondents, as we have already indicated, do not
dispute the right of the petitioner to get pension, but for the order
passed on August 5, 1966. There is only a bald averment in the counter-
affidavit that no question of any fundamental right arises for
consideration. Mr. Jha, learned counsel for the respondents, was not
prepared to take up the position that the right to receive pension
cannot be considered to be property under any circumstances. According
to him, in this case, no order has been passed by the State granting
pension. We understood the learned counsel to urge that if the State
had passed an order granting pension and later on resiles from that
order, the latter order may be considered to affect the petitioner's
right regarding property so as to attract
Articles 19(1)(f) and 31(1) of the Constitution.

31. We are not inclined to accept the contention of the learned
counsel for the respondents. By a reference to the material provisions
in the Pension Rules, we have already indicated that the grant of
pension does not depend upon an order being passed by the authorities
to that effect. It may be that for the purposes of quantifying the
amount having regard to the period of service and other allied
matters, it may be necessary for the authorities to pass an order to
that effect, but the right to receive pension flows to an officer not
because of the said order but by virtue of the Rules. The Rules, we
have already pointed out, clearly recognise the right of persons like
the petitioner to receive pension under the circumstances mentioned
therein.

32. The question whether the pension granted to a public servant is
property attracting Article 31(1) came up for consideration before the
Punjab High Court in Bhagwant Singh v. Union of India A.I.R. 1962 Pun
503. It was held that such a right constitutes "property" and any
interference will be a breach of Article 31(1) of the Constitution. It
was further held that the State cannot by an executive order curtail
or abolish altogether the right of the public servant to receive
pension. This decision was given by a learned Single Judge. This
decision was taken up in Letters Patent Appeal by the Union of India.
The Letters Patent Bench in its decision in Union of India v. Bhagwant
Singh I.L.R. 1965 Pun 1 approved the decision of the learned Single
Judge. The Letters Patent Bench held that the pension granted to a
public servant on his retirement is "property" within the meaning of
Article 31(1) of the Constitution and he could be deprived of the same
only by an authority of law and that pension does not cease to be
property on the mere denial or cancellation of it. It was further held
that the character of pension as "property" cannot possibly undergo
such mutation at the whim of a particular person or authority.

33. The matter again came up before a Full Bench of the Punjab and
Haryana High Court in K.R. Erry v. The State of Punjab I.L.R. 1967 P &
H 278. The High Court had to consider the nature of the right of an
officer to get pension. The majority quoted with approval the
principles laid down in the two earlier decisions of the same High
Court, referred to above, and held that the pension is not to be
treated as a bounty payable on the sweet will and pleasure of the
Government and that the right to superannuation pension including its
amount is a valuable right vesting in a Government servant It was
further held by the majority that even though an opportunity had
already been afforded to the officer on an earlier occasion for
showing cause against the imposition of penalty for lapse or
misconduct on his part and he has been found guilty, nevertheless,
when a cut is sought to be imposed in the quantum of pension payable
to an officer on the basis of misconduct already proved against him, a
further opportunity to show cause in that regard must be given to the
officer. This view regarding the giving of further opportunity was
expressed by the learned Judges on the basis of the relevant Punjab
Civil Service Rules. But the learned Chief Justice in his dissenting
judgment was not prepared to agree with the majority that under such
circumstances a further opportunity should be given to an officer when
a reduction in the amount of pension payable is made by the State. It
is not necessary for us in the case on hand, to consider the question
whether before taking action by way of reducing or denying the pension
on the basis of disciplinary action already taken, a further notice to
show cause should be given to an officer. That question does not arise
for consideration before us. Nor are we concerned with the further
question regarding the procedure, if any, to be adopted by the
authorities before reducing or withholding the pension for the first
time after the retirement of an officer. Hence we express no opinion
regarding the views expressed by the majority and the minority Judges
in the above Punjab High Court decision, on this aspect. But we agree
with the view of the majority when it has approved its earlier
decision that pension is not a bounty payable on the sweet will and
pleasure of the Government and that, on the other hand, the right to
pension is a valuable right vesting in a government servant.

34. This Court in State of Madhya Pradesh v. Ranojirao Shinde and
Anr. MANU/SC/0030/1968 : [1968]3SCR489 had to consider the question
whether a "cash grant" is "property" within the meaning of that
expression in Articles 19(1)(f) and 31(1) of the Constitution. This
Court held that it was property, observing "it is obvious that a right
to sum of money is property".

35. Having due regard to the above decisions, we are of the opinion
that the right of the petitioner to receive pension is property under
Article 31(1) and by a mere executive order the State had no power to
withhold the same. Similarly, the said claim is also property under
Article 19(1)(f) and it is not saved by Sub-article (5) of Article 19.
Therefore, it follows that the order dated June 12, 1968 denying the
petitioner right to receive pension affects the fundamental right of
the petitioner under Articles 19(1)(f) and 31(1)of the Constitution,
and as such the writ petition under Article 32 is maintainable. It may
be that under the Pension Act (Act 23 of 1871) there is a bar against
a civil court entertaining any suit relating to the matters mentioned
therein. That does not stand in the way of a Writ of Mandamus being
issued to the State to properly consider the claim of the petitioner
for payment of pension according to law”.

13. In State of West Bengal Vs. Haresh C. Banerjee and Ors.
(2006) 7 SCC 651, this Court recognized that even when, after the
repeal of Article 19(1)(f) and Article 31 (1) of the Constitution
vide Constitution (Forty-Fourth Amendment) Act, 1978 w.e.f. 20th
June, 1979, the right to property was no longer remained a
fundamental right, it was still a Constitutional right, as provided
in Article 300A of the Constitution. Right to receive pension was
treated as right to property. Otherwise, challenge in that case was
to the vires of Rule 10(1) of the West Bengal Services (Death-cum--

Retirement Benefit) Rules, 1971 which conferred the right upon the
Governor to withhold or withdraw a pension or any part thereof under
certain circumstances and the said challenge was repelled by this
Court.

Fact remains that there is an imprimatur to the legal
principle that the right to receive pension is recognized as a right in “property”.

14. Article 300 A of the Constitution of India reads as under:

“300A Persons not to be deprived of property save by authority of law. - No person shall be deprived of his property save by authority of law.”

Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300 A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.

15. It hardly needs to be emphasized that the executive
instructions are not having statutory character and, therefore, cannot be termed as “law” within the meaning of aforesaid Article 300A.
On the basis of such a circular, which is not having force of law, the appellant cannot withhold - even a part of pension or gratuity.
As we noticed above, so far
as statutory rules are concerned, there is no provision for
withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different.

16. We, accordingly, find that there is no merit in the instant
appeals as the impugned order of the High Court is without blemish.
Accordingly, these appeals are dismissed with costs quantified at Rs. 10,000/- each.

……………………….J.

[K.S. Radhakrishnan]

………………………….J.

[A.K. Sikri]

New Delhi
August 14, 2013

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