Please seniors guide me what shoud i do next
Arvind Singh Chauhan
(Querist) 20 May 2014
This query is : Resolved
I am fighting since 1995 to allow family pension of deceased Sepoy to his mother. Sepoy's widow had arranged remarriage with another and doing job on compassionate ground in ITBP. Any how Sepoy's widow filed no objection to ITBP for allowing family pension to his mother in law, and pension was allotted to her since 2008.
Meanwhile, mother also died before the payment, due to late action in payment from ITBP. Then I applied for the arrears of family pension and requested to authority to pay the amount to her second and only son., as pension had already been allotted to mother and now it is arrears which is to be paid to his mother.
ITBP asked the succession certificate and sent the deatials of amount Rs 98000/-. Any how poor guy managed the stamp fee. and succession certificate was issued in his favour by court.
Certificate was sent to ITBP but now ITBP says family pension can not be allowed in favour of his mother. I have issued legal notice to ITBP but they are responding in too many ways.
Now question is if family pension could not be granted to his mother. Why they asked for succession certificate THROUGH A letter mentioning the amount to be paid as arrears. Who will responsible for the expences incurred in getting succession certificate and stamp fee, lawyer's fee etc.
What can I do for this person, in lower court like civil judge junior division, under which law ? Because he can not move to high court or any other authority.
Devajyoti Barman
(Expert) 20 May 2014
File a Writ petition in high court.
CIVIL SUIT WILL NOT YIELD DESIRED RESULT.
ajay sethi
(Expert) 20 May 2014
agree with Mr barman
Rajendra K Goyal
(Expert) 20 May 2014
writ petition in High court is better. Agree with the experts.
Arvind Singh Chauhan
(Querist) 22 May 2014
Thanks sir. Feeling very disappointed as that poor has to loose the battle, he can't afford the ticket and lodging of Nainital. I am also feeling guilty that as being my client he has lost 5000 on stamp value and miscellaneous expenses. I can't help him at this level.
Guest
(Expert) 22 May 2014
You Could Very Well put him/her on to the Free Legal Aid Forum and You could assist them.Forum could request the Registrar to Place the case to be heard on priority.You could seek the help of Women's Forum for temperaory accomadation and assistance.
Guest
(Expert) 22 May 2014
What about children of the deceased and their age? Does the letter received from ITBP makes it clear that you should obtain succession certificate in favour of mother?
In fact, before applying for pension for mother you could have ascertained her eligibility for family pension. There was no logic in directly filing a suit against the ITBP without any application to the concerned department and waiting fr the outcome. However, had you taken succession certificate in favour of any son or daughter of the deceased, the arrear would have been disbursed to the concerned legal heir on the basis of that particular succession certificate, but not to mother in any case.
Mother, father, brothers, sisters, remarried wife, and adult children after some specified age are not eligible for family pension.
Now nothing can be done for the loss of stamp fee, irrespective of whether on whose asking the succession certificate was taken.
Fighting legal case would not yield any result even in your whole life. That would prove to be sheer waste of money and time, as family pension rules won't be amended to accommodate your case.
Arvind Singh Chauhan
(Querist) 22 May 2014
Reaspected RAJ KUMAR Sir and DHINGRA SIR, thanks for the helping hand but I think either i am failed to explain my problem or you had not gone thoroughly the problem.
Please go through once more. ITBP has asked in writing the succession certificate. Arrears is to be paid to second son of mother, first son ( Sepoy ) had died already.
I will be very graetful to members if forum can help him in High Court.
Guest
(Expert) 22 May 2014
Mr. Arvind,
I think you have not read carefully my reply, where I clearly stated, Mother, father, brothers, sisters, remarried wife, and adult children after some specified age are not eligible for family pension.
Do you think first son or the second son of the mother of the deceased are not the brothers of the deceased?
Family Pension, if santioned for mother, was wrong ab initio.
prabhakar singh
(Expert) 22 May 2014
Dear Mr.Arvind!
The observation of DHINGRA JI that "Mother, father, brothers, sisters, remarried wife, and adult children after some specified age are not eligible for family pension." is 100%correct.
Now then question arises that ITBP allowed pension in mother's favor and asked her son to provide suceesion certificate,which son obtained incurring huge sum and time.
But now they are denying to pay,hence you are here for getting guidance about remedies available to son.
In fact you have to ascertain that what is the impact of the letter of ITBP addressed to your client asking cucession certifact for paying pension arrears of mother(while law does not allow such a pension)?
Is it not a MISTAKE of FACT,if not then that of LAW?
You may take resort of section 21&22 of Indian Contract Act for right approach in the matter.
A mistake can be simply defined as an erroneous belief. Mistakes have relevance in the law of contract in a number of different circumstances. They may prevent the mutuality of agreement that is necessary for the formation of a contract. In order for two parties to conclude a contract binding in law each must agree with the other the terms of the contract. Whether two parties have entered into a contract in this way must be judged objectively, having regard to all the material facts. It may be that each party mistakenly believes that he has entered into such a contract in circumstances where an objective appraisal of the facts reveals that no agreement has been reached as to the terms of the contract.
Even if you succeed in ascertaing it to be a promise by ITBP on strength of it's letter asking for succession certificate,was it not a promise against the law where parties acted under MISTAKE OF LAW?
Suppose if the amount was paid and lateron in any audit wrong and unauthorised payment is detected then it can be recovered back.
So in my opinion the HIGH COURT IS NOT GOING TO GRANT YOU ANY RELIEF BECAUSE IT CAN NOT MANDATE ITBP TO PAY WHAT IS LEGALLY NOT PAYABLE BY IT.
A SUIT BASED ON CONTRACT WOULD ALSO NOT LIE IN MY OPINION.
THE ONLY REMEDY THAT may LIE is comepensation of dameges for harm cauesd to your client due to negligent suggestions of the ITBP to your client for which limitation would be only 01 year since the date of refusal to pay and notice under section 80 CPC would also be required to be served.
Mind please that suit would not be for arears of pension but for only damages for harassment and expenses caused in obtaing the succession certificate.
