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Judgment
K. Chandru, J.—Heard both sides.
The petitioner has come forward to file the present writ petition seeking to challenge the order dated 31.10.2007 and for a further direction to the third respondent to include her name in the Legal Heir Certificate.
The petitioner claims that she is the wife of Late Errappan, who worked as a Sanitary Worker in the second respondent Thenkanikottai Town Panchayat. Her husband died on 29.07.2007 leaving three daughters viz., E. Umamaheswari, E. Vijaya and E. Kousalya. All of them are minors. The petitioner also admits that her husband Late Errappan had earlier married one Palaniammal and has two children namely, E. Sakthivel and E. Maheswari. After the death of her husband, she applied for Legal Heir Certificate for the purpose of getting service benefits of her husband. The third respondent while issuing Legal Heir Certificate did not include her name but issued it in the name of his first wife, her children as well as the petitioner''s children.
Therefore, she is contending that the action of the third respondent was illegal. She also claims that Rule 49 of the Tamil Nadu Family Pension Rules, 1978 provides for family pension for surviving wife and in case of more than wife, then pension will be divided among themselves. Hence, she has come forward to challenge the Legal Heir Certificate issued by the third respondent in which her name was allegedly omitted. A copy of the legal Heir certificate is shown as impugned order. But a perusal of the legal heir certificate shows that the wife of Late Palaniammal is still alive.
Rule 49(7) of the Tamil Nadu Pension Rules, 1976 reads as follows:
(7)(a)(i) Where family pension is payable to more widows than one, the family pension shall be paid to widows in equal shares.
ii) On the death of a widow, her share of the family pension shall become payable to her eligible child:
[Provided that if the widow is not survived by any child, her share of family pension shall be payable to the other widows in equal shares or if there is only one such widow, in full to her.]
b) Where the deceased Government servant or pensioner is survived by a widow but has left behind eligible child or children from another wife who is not alive, the eligible child or children shall be entitled to the share of family pension which the mother would have received if she had been alive at the time of the death of the Government servant or pensioner:
[Provided that on the share or shares of family pension payable to child or children or to a widow or widows ceasing to be payable, such share or shares shall be payable to the other widow or widows and or to the other child or children otherwise eligible, in equal shares, or if there is only one widow or child, in full, to such widow or child]
[(c) Where the deceased Government servant or pensioner is survived by a widow but has left behind eligible child or children from a divorced wife or wives the eligible child or children shall be entitled to the share of family pension which the mother would have received at the time of the death of the Government servants or pensioner had she not been so divorced:
Provided that on the share of family pension payable to such a child or children or to a widow or widows ceasing to be payable such share or shares shall be payable to the other widow or widows and or to other child or children otherwise eligible in equal shares, or if there is only one widow or child, in full, to such widow or child.]
On behalf of the fourth respondent, a circular clarification issued by the Government dated 02.06.1992 was also produced. The questions raised and the answer given by the Department as set out in the clarification may be usefully extracted below:
Point raised: The circumstances under which claims from legally wedded wives will arise and the definition of the words ''Legally Wedded Wives''.
Clarification issued : The second wife gets the status of legal wife in two cases viz. Second marriage solemnized before coming into force of the Hindu Marriage Act as per the customary law among the community and the second marriage solemnised as per legal requirements in the case of persons governed by Mohammedan Law where bigamy is permissible .Hence these are the two cases where second marriage is to be considered as valid and second wife is eligible for the benefit available tot he widow under the pension rules.
Point raised: Whether children born to illegitimate wife viz. Second wife when the first wife is alive or not are eligible for equal share of family pension, if the deceased is survived by one or more widows, on the date of death of employee/pensioner.
Clarification issued :There is no provision in the pension rules for the payment of family pension to the children born to illegitimate wife. Hence the question of payment of family pension to the illegitimate children does not arise.
A widow is a woman whose husband is dead. (See. K.J. Aiyar''s Judicial Dictionary (1988) 10th Edition. The Law Book Co. (P) Ltd, Allahabad. A widow does not cover the case of a female who survives. The term ''widow'' though not defined in Succession Act, occurring in Class-I of the Schedule clearly means and implies a female who was united in marriage by law and, who survives the husband without remarriage. Similarly, to be a dependent widow, a surviving female upon the death of her husband must be shown to have had lawful status of widowhood. The Act does not recognise a relation by marriage which is void ''de jure'' and such surviving female, upon death of her spouse, cannot be characterised as a widow.
(see : Smt. Rajesh Bai v. Smt. Shantabai 1981 Bom CR 699)
Therefore, the petitioner''s contention that she is the widow of Late Errappan and covered by Rule 49 cannot be accepted. The question of a person being a widow will arise only if she is officially married wife of the deceased Government servant. As correctly set out in the circular order of the Government, the petitioner cannot be considered to a widow. In any event, the petitioner cannot compel the Tahsildar to include her name in the absence of any legal right on her favour. The order of the Tahsildar is based upon the Revenue Board instructions. The order of the Tahsildar granting Legal Heir certificate has very limited legal sanctity and it is not a final proof about the legal heirship of a person. If the petitioner claims that she is entitled to be declared as legal heir of Late Errappan, she should move the appropriate civil court for getting a succession certificate and no direction can be issued to the Tahsildar to include certain names or exclude certain names. Even in cases of inclusion of any particular name, in any subsequent proceedings for succession, the said certificate can be either ignored or declared to be invalid.
Therefore, the petitioner''s prayer for a direction to include her name in the Legal Heir certificate in the absence of any enforceable legal right on her part or any statutory obligation on the part of the third respondent, cannot be countenanced by this Court.
The attention of this Court was drawn to the judgment of this Court in K.M. Abdul Jaffar v. The District Collector, Tirunelveli District reported in 2010 (1) CWC 267. In that case a direction was given to the Tahsildar to include certain names of persons as legal heirs in the certificate issued by him on the basis of the personal law applicable to mohammedans. Such an exercise cannot be done in a petition under Article 226 of the Constitution. The certificate of Legal heirship given by the Tahsildar has no probative value and it is given in an administrative capacity. The certificate given by Revenue Department cannot be binding on any person and the Tahsildar cannot be raised to the level of a Civil Court. Further, the Tahsildar is not expected to go into the nuances of various personal laws. If such a power is conferred under Hindu law, there are various classes of legal heirs and one entry in a particular class may exclude the other entry. In such circumstances, the parties must be directed to avail the remedy of seeking succession certificate before an appropriate Civil Court.
In the light of the above, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petitions are closed.