Government Servant Is Not Eligible To Make Will Of Family Pension: Chhattisgarh HC [Read Judgment]
However, Will of Provident Fund, Gratuity, Leave Encashment, Group Insurance Scheme and Family Benefit Fund can be made.
The Chhattisgarh High Court has held that a Government servant is not eligible to make a Will of family pension. Vijay Kumar Kaushik, a police constable, had made a Will, by which he bequeathed all the pensionary benefits and pension in favour of his second wife and son from her. After his death, his first wife and her son made an application for grant of succession certificate. This...
The Chhattisgarh High Court has held that a Government servant is not eligible to make a Will of family pension.
Vijay Kumar Kaushik, a police constable, had made a Will, by which he bequeathed all the pensionary benefits and pension in favour of his second wife and son from her. After his death, his first wife and her son made an application for grant of succession certificate. This application was rejected by the court, upholding the claim of the second wife based on the Will.
In the revision petition, issue considered by the High Court was whether the Government servant can make a testamentary disposition of all his retiral benefits or it has to be disbursed in accordance with the rules and regulations governing the service conditions of such Government servant?
Answering the issue, referring to some Supreme Court judgments, Justice Sanjay K. Agrawal observed as follows:
- An employee has no power of testamentary disposition with respect to something which was not payable to him during his lifetime.
- If the qualifying event/benefit occurs only on the death of the deceased while he is in service and due to this, some monetary benefits accrue, it would not form part of the estate of the deceased and the same cannot be disposed by testamentary disposition because there is an element of uncertainty of happening of event.
- If the scheme and/or service Rules designate certain persons who are entitled to receive benefits out of the scheme, then no other person except those designated persons can be entitled to the said benefits.
- If the employee makes no contribution to the benefit, he has no control over the same to dispose it by testamentary disposition.
- If the scheme/Rules do not provide for nomination of any person during the lifetime of the deceased employee, he has no title to the same and it cannot be disposed by testamentary disposition.
Applying these principles to facts of the case, the court held that the first wife, being legally wedded wife of the deceased Government servant would be entitled for the entire amount of pension, ex-gratia and police welfare payment, as they do not form part of the estate of the deceased employee over which he has right to testamentary disposition.
However, the court observed that the gratuity, leave encashment, Group insurance scheme, Family benefit fund, Department Provident Fund would form part of the estate of the deceased employee over which he has right to testamentary disposition. These would go to the second wife, as per the will, the court held.
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