N.S. SINGH, J.

(1.) Heard Mr. A.S. Choudhury, learned senior counsel, assisted, by Mr. A. Maleque, appearing for the appellants/defendants. None appears for the respondent today.

(2.) The case was heard in part on 19.9.2002. This appeal has been pending since the year 1997 which arises out of a title suit being Title Suit No. 6/1991, and that being the position, this appeal deserves its expeditious disposal.

(3.) The judgment and decree dated 2.1.1997 passed by the learned District Judge, Barpeta in Title Appeal No. 6/1994 thus affirming the judgment and decree passed by the trial court in Title Suit No. 6/1991 are the subject-matter under challenge in this second appeal.

(4.) While admitting this appeal on 6.6.1997 the substantial questions of law as enumerated in the Memo of Appeal in grounds No. 2,7 and 8 have been taken by this court as formulated substantial questions of law for the purpose of this appeal.

(5.) The facts of the case in a nut-shell are as follows : One Majar Ali died intestate leaving behind three wives, namely, Mustt. Amina Khatun, Mustt. Madhan Nessa and Mustt. Jahura Khatun. Plaintiffs Jahura Khatun and her three children, main respondents herein, instituted a suit claiming their share out of Rs. 39,679.40, and this amount includes gratuity of Rs. 5,560/ -, and arrear family pension of Rs. 34, 119.40 payable on the death of late Mazar Ali. In the said suit, the second wife, Mustt. Madhan Nessa and her only daughter were also impleaded as pro forma defendants, but they did not contest the suit. However, the present appellants contested the suit as defendant No. 1, (appellant No. 1 herein),by filing written statement on behalf of herself and her children and also by adducing evidence, and the suit was decreed with the following order :

"............the plaintiff No. 1 being one of the three surviving wife, she is entitled to 1/24th share of the pension money drawn, and the plaintiffs No. 2 and 3 are entitled to get 7/18 th share each, and the plaintiff No. 4 is entitled to get 7/96 th of the share, thus in grand total 1/24 th + 7/48 + 7/96 = 13/32th of the scheduled pension money of Rs. 39,679.40 being their total share of Rs. 16,119.75. Hence, in view of the above discussions and findings, the plaintiffs are entitled to get the shares as claimed of the scheduled pension money after the death of Major All. Accordingly, this issue is answered in the affirmative manner. As regards the issue No. 3 is concerned, it is found in the pleading that the plaintiff-side has mentioned the reliefs claimed in their plaint in para 6(a) to (b). As far as the reliefs mentioned in para No. 6(a), (b) and (c) in the plaint are concerned, in the light of the discussions and findings made herein before in deciding ether issues, I am of the opinion that the plaintiffs side is entitled to get their share as claimed. As regards cost and future interest are concerned, having considered the nature of the suit, I deem it that the end of justice would be meted out if only cost is allowed. Accordingly, cost of the suit is allowed but the future interest is not allowed. As far as the relief mentioned in the para No. 6(d) is concerned, there is statutory provision that pension is admissible to be drawn by one person only at a time. There is no provision to disburse the pension separately for each member of the family. Hence, the plaintiffs side is not entitled to this relief........."

(6.) Being dissatisfied with the judgment and decree passed by the trial court in the main suit, the present appellants preferred an appeal before the first appellate court under Title Appeal No. 6/1994 which was also dismissed by the first appellate court under the impugned judgment and decree dated 2.1.1997. Being aggrieved by the impugned judgments and decrees of both the courts below, the present appellants/defendants filed this second appeal.

(7.) The main contention of Mr. A.S. Choudhury, learned senior counsel, is that both the courts below have misappreciated the provisions of the related pension Rules and the scheme thereof, particularly, rule 143 of the Assam Services (Pension) Rules, 1969,(for short, "the Rules of 1969), while passing the related judgments and decrees inasmuch the appellant No. 1 ,being the first wife of the deceased-employee, is the only person to get the family pension and other retiral benefits, and, accordingly, she has been getting/drawing family pension and other retiral benefits of her deceased husband, and that being the position, the plaintiffs and proforma-respondents have no right to get the pension and other retiral benefits of the deceased Major AH. It is also argued by the learned senior counsel that in terms of the related succession certificate, the appellant No. 1 has got/drawn all dues and other benefits of her late husband. Supporting his submission, Mr. Choudhury has drawn my attention to the related pension scheme and rule 143 of the Rules of 1969, and contended that family for the purpose of the Rules of 1969, particularly, rule 143 thereof, will include the appellant No. 1 and her children, and such pension would be admissible only to appellant No. 1 and her children, and the pension awarded under this rule would not be paid to more than one member of the deceased-employee at the same time. It will first be admissible to appellant No. 1 and thereafter to minor children, and that being the position, both the courts below have mis-interpreted the provisions of rule 143 of the Rules of 1969, and passed the impugned judgments and decrees which are not tenable in the eye of law, Mr. Choudhury argued.

(8.) Now this court is to see and examine as to whether the impugned judgments and decrees passed by both the courts below are tenable in the eye of law; and whether the appellants could make out a case to justify interference with the same or not

(9.) It is not disputed that the deceased Major Ali died leaving behind three wives and children, as discussed above, and the second wife did not contest the suit filed by the plaintiffs. It is true that the pension will not be payable to more than one member of the deceased employee, but under the Note and the proviso to rule 143 of the Rules, 1969, it has been laid down that in cases where there are two or more widows, pension will be payable to the next surviving widow, if any. The term "eldest" would mean seniority with reference to the date of marriage, and apart from that rule 9 of the Rules of 1969, lays down that except when the term "Pension" is used in contradistinction to Gratuity, "Pension" includes Gratuity and Death-cum- Retirement Gratuity. The Apex Court as well as this court have interpreted the term "Pension" over and above the provisions of law pertaining to "Pension" under the Assam Services (Pension) Rules, 1969. It is well-settled that pension is not a bounty payable at the sweet will and pleasure of the Government, and on the other hand, right to pension is a valuable right vesting in-a government servant. In other words, it is a personal property of the employee concerned. At this stage, certain references can be made, namely, the decisions rendered by the Apex Court in Deokinandan Prasad vs. - State of Bihar, reported in AIR 1971 SC 1409 [LQ/SC/1971/288] . The parties of this case again approached the Apex Court as there was inordinate delay in settling the dues, and the Apex Court dealt with the matter again which is reported in AIR 1984 SC 1560 [LQ/SC/1984/161] . Another decision of the Apex Court is also important and relevant in the instant case and the same is reported in AIR 1984 SC 1560 [LQ/SC/1984/161] (Deokinandan Prasad vs. State of Bihar).

(10.) Keeping in view the above decisions of the Apex Court, I am of the view that the pension and other retiral benefits are the personal properties of late Majar Ali, a Sunni Mohemmedan, and if such properties are left by him the same should be distributed amongst the legal heirs in terms of Sections 39 and 41 of the Mahomedan Law read with Section 63 of the said Law which also indicates the table of shares under Sunni Law. According to me, this legal aspect has been properly examined by both the courts below, and apart from that there is no dispute as regards the proportion of shares of the plaintiff under the Mahomedan Law. The learned trial court has given the above observation, i.e., proportion of shares of the parties on the basis of the related issue, as highlighted above.

(11.) I am also of the view that the Rules of 1969, cannot over-ride the principles and provisions laid down under the Mahomedan Law for which the rule-framers have inserted a Note and provision under the said rule 143 of the Rules of 1969, as observed above. In my considered view, both the courts below have dealt with the related issues and given reasoned findings on the same, and that being the position, no interference with the impugned judgments and decrees is called for.

(12.) In the result, the present second appeal is devoid of merit, and, accordingly, the same is dismissed thus affirming the impugned judgment and decree dated 2.1.1997 passed by the learned District Judge, Barpeta, in Title Appeal No. 6/1994 and also the judgment and decree of the trial court passed in Title Suit No. 6/1991. However, there shall be no order as to costs.

(13.) Registry is directed to communicate copy of this judgment and order to the courts below and also to respondents concerned as early as possible. Related lower courts records be transmitted to the courts below.