Dr. Lata Maitri & Ors. v. State of Delhi & Anr.

1. The present petition for grant of Letters of Administration[1] has been instituted by the mother [petitioner no.1], father [petitioner no.2] and brother [petitioner no.3] of the late Dr. Shruti Maitri[2] who is stated to have expired in Delhi on 08 March 2019. The LoA have been claimed in respect of properties described more fully in Schedule B of the petition and the same is reproduced hereinbelow: - LoA the deceased ― Schedule B Description of the properties left behind by Dr. Shruti Maitri:- (1) Superannuation Fund with First State Super vide membership no. 3847784, Account No. EK9699. The value of this fund is approx. 260937 (Aus.) Dollar = Rs. 1.27 crores. (2) Investment in Flat/Unit No. 306, Meriton Towers, 330 Church Street, Parramatta, New South Wales, Post Code – 2150, Australia of Rs. 60 lacs. Petitioner's share in the said flat as per investment of Dr. Shruti Maitri. The value of this share at present is being valued at Rs. 60 lacs + interest @ 18 p.a. = Rs. 70 lacs. (3) Cash amount (pre-marriage savings) approx. Rs. 6 lacs in savings Bank Account with Andhra Bank.‖

2. The second respondent is admittedly the husband of the deceased while respondent nos. 3 and 4 are bodies established to administer superannuation funds in the State of New South Wales, Australia. As per the admitted case of the petitioners, the deceased married the second respondent at Delhi on 03 December 2017 as per Hindu customs. It is their case that the deceased suffered an injury on 02/03 February 2019 and travelled to India on 01 March 2019 for requisite medical procedures and treatment. The petitioners further disclose that the deceased was admitted in a hospital on 04 March 2019 and was operated upon on 05/06 March 2019. It is stated that on 07 March 2019, the deceased on account of post operative complications suffered pulmonary embolism and unfortunately passed away on 08 March 2019.

3. The petition was based on an assumption that first petitioner had been nominated as the beneficiary in the superannuation funds. In terms of an intimation dated 19 August 2019, the first petitioner was informed by respondent no. 3 of the proposed release of all monies standing to the credit of the superannuation fund of the deceased in favour of the second respondent.

4. The petitioners contended that the deceased was an Indian citizen who was working in Australia on a work permit and thus the administration of her estate would be governed by Indian law. In paragraph 35 of the present petition, the petitioners alleged that the deceased had identified a flat in Australia and since she had not been granted a Permanent Resident status in that country, the same was purchased in the name of the second respondent. As per their case, the deceased is stated to have contributed 80% of the total money required towards upfront payment for acquisition of the said property. It is also conceded that the flat was mortgaged and the installments in respect thereof were paid out of the joint account maintained by the deceased and the second respondent.

5. The petition for the grant of LoA was essentially based on the petitioners’ assertion that since the properties in Australia had been purchased by the deceased along with the second respondent with the former having made substantial investments therein, the petitioners by virtue of being the parents would be entitled to the grant of LoA. It was their stated case that the second respondent being the husband is excluded from pre-marriage and parental assets. The claim was based upon the petitioners’ understanding of Section 15 of the Hindu Succession Act, 1956[3] with it being asserted that in terms of subthe HSA section (2)(a) thereof the estate of the deceased would devolve upon the petitioners.

6. On 19 December 2019, the Court while issuing notice on the petition and framing directions for the publication of a citation, had granted an injunction restraining the second respondent from either alienating or creating third party interests in the immovable property at Australia or receiving superannuation funds standing to the credit of the investments made by the deceased. The Court also restrained the respondent no.3 from releasing any payments to either the second respondent or any third party.

7. The second respondent has filed objections on this petition and has referred to the records as maintained by the First State Super Trustee Corporation[4] a body corporate constituted under the Superannuation Administration Act, 1996[5] as well as to the records of the State Super Financial Services Australia Limited to contend that in the superannuation funds, it was the second respondent who stood recorded as the solitary beneficiary. It was further asserted that the aforenoted two body corporates are governed by the Superannuation Industry (Supervision) Act, 1993[6] read with the Superannuation Industry (Supervision) Regulations, 1994[7]. Reliance was also placed on the adjudicatory orders passed by the Australian Financial Complaints Authority[8] which too had recognized the right of the second respondent to be the sole beneficiary of all funds of the FSS The 1996 Act The 1993 Act The 1994 Regulations deceased held with respondent no.3. The respondent has also raised various jurisdictional challenges including in respect of the maintainability of the instant petition and the assumption of jurisdiction by this Court for the purposes of grant of LoA.

8. As would be evident from a perusal of Schedule B, the petitioners essentially staked a claim over the funds standing to the credit of the superannuation funds opened by the deceased with FSS and the immovable property detailed as Flat / Unit No. 306, Meriton Towers, 330 Church Street, Parramatta, New South Wales, Post Code - 2150, Australia. Additionally, they also sought the grant of LoA in respect of monies lying in a savings bank account opened by the deceased with the Andhra Bank.

9. For the purposes of examining the issue of maintainability of the petition and the right of the petitioners to seek the grant of LoA, the Court deems it apposite to notice and answer the following issues which arise. The first question which confronts the Court is whether the petitioners can be recognized to have a right to seek the issuance of LoA in light of the adjudicatory orders which have been passed by the competent authorities in Australia. On the record is an order dated 23 June 2021 passed upon the complaint made by the petitioner no.1 and dealing with the rights of the petitioners to claim the monies standing to the credit of the superannuation funds.

10. Dealing with the aforesaid issue, AFCA has passed the following order: - ―2.[4] Was the mother a dependant of the deceased? The mother was not a dependant of the deceased …. All information provided by the mother shows a close and supportive relationship, rather than an interdependency relationship, by reference to the factors in the regulations. As noted in the Explanatory Statement, it is not expected the concept of an interdependency relationship would extend to a parent/child relationship. In her application for payment of the benefit dated 17 June 2019, the mother stated she was not financially dependent on the deceased at the time of the deceased's death. On the other hand, she stated when she visited the deceased in Australia the deceased provided her with financial support by way of rent, accommodation, food, utilities, entertainment and outings. Case law indicates that even partial financial dependence requires regular financial contribution, rather than payment of ad hoc amounts. The relevant law is set out in Section 3.[3] of this determination. The mother's expectation of care and support from the deceased in her old age does not constitute financial dependency. I am satisfied the mother was not a dependant of the deceased. She was not in an interdependency relationship with the deceased immediately before she died or financially dependent on the deceased at the date of the deceased's death. 2.[5] What law applies to the distribution of the benefit? Australian superannuation law applies to the distribution of the benefit The mother states the deceased was a citizen of Country A and was not an Australian permanent resident. She says she was a foreign national who was working in Australia, therefore the distribution of her estate must be considered under Country A's laws. Whilst the deceased was not a permanent resident of Australia, she was a resident of Australia and was applying for permanent residence in Australia. She also paid tax under the taxation laws of Australia and thus under Section 10 of the Superannuation Industry(Supervision) Act she is an Australian resident. The mother says, as a Testamentary Petition is pending in Country A, the trustee and AFCA do not have jurisdiction to make a decision about the estate of a foreign national. I am satisfied the deceased became a member of the fund when she started working in Australia and her superannuation contributions were made under Australian Law. Contrary to the mother's submissions, Country A's succession laws are not relevant to the distribution of the benefit, regardless of her nationality or resident status. The fund is governed under Australian law, and under Australian law superannuation benefits do not form part of a deceased person's estate. In deciding the distribution of the benefit, a trustee applies Australian superannuation law and not Australian succession law. The mother also raises questions as to why the deceased was not noted on the title deeds of the apartment. This is not a matter AFCA considers is relevant to the distribution of a benefit under superannuation law, given the couple were clearly co-habiting there. 2.[6] Was the trustee's decision fair and reasonable? The trustee's decision was fair and reasonable The trustee says it is satisfied the spouse was the only dependant of the deceased and he was also financially dependent on the deceased. It considers the spouse takes priority over an LPR, in the distribution of the benefit. Thus, it would not change its decision if an LPR was appointed. The trustee says it is required to ensure benefit payments are made promptly to beneficiaries. It considers it would be unreasonable to await the outcome of the mother's application to be appointed LPR in Country A, as the outcome of that application would not change its decision. The purpose of superannuation is to provide for dependants, who would have continued to rely on that person for financial support had they not died. I am satisfied the trustee has complied with the fund's trust deed and the relevant law. The spouse was the only dependant of the deceased who was also financially dependent on her. I find the decision of the trustee to pay the entire death benefit to the spouse was fair and reasonable in its operation in relation to the mother and the spouse in all the circumstances. Therefore, under section 1055(3) of the Corporations Act 2001, AFCA must affirm the trustee's decision.‖

11. As would be evident from the aforesaid extract, AFCA had upheld the right of the spouse, the second respondent here, to receive the entire death benefit. AFCA has essentially upheld the decision taken by the Trustee, namely, FSS in this respect. It must be noted that the petitioners have been unable to dislodge the contention of the second respondent that the affairs of the FSS as well as all issues relating to the administration of the superannuation funds would be governed by Australian law. It is the statutory regimen as applicable to the Trust which appears to have been borne in mind by AFCA while passing orders in the complaint filed by petitioner no.1. While it was urged that AFCA is not a statutory body whose decision may be recognised or placed on the pedestal of a competent court, this Court finds itself unable to countenance that submission bearing in mind the undisputed fact that under the statutory provisions governing the administration of the fund, it is the decisions taken by that body which are ordained to prevail. In any case, the assumption on which the present petition was based, namely, of the first petitioner being the recorded beneficiary is clearly not borne out from the evidence placed before this Court.

12. More importantly and it must necessarily be noticed that pension has been consistently recognized to be a subject which would be insulated from the provisions of the HSA and be governed solely by the provisions of independent schemes framed in relation thereto. Courts have consistently held that pension does not form part of the estate of a deceased and the beneficiaries thereof upon the demise of an employee would have to be identified in accordance with the rules which are applicable. The Court deems it apposite to extract the following passages from the decision in Violet Issaac (Smt) vs. Union of India[9]: - ―4. The dispute between the parties relates to gratuity, provident fund, family pension and other allowances, but this Court while issuing notice to the respondents confined the dispute only to family pension. We would therefore deal with the question of family pension only. Family Pension Rules, 1964 provide for the sanction of family pension to the survivors of a Railway employee. Rule 801 provides that family pension shall be granted to the widow/widower and where there is no widow/widower to the minor children of a Railway servant who may have died while in service. Under the Rules son of the deceased is entitled to family pension until he attains the age of 25 years, an unmarried daughter is also entitled to family pension till she attains the age of 25 years or gets married, whichever is earlier. The Rules do not provide for payment of family pension to brother or any other family member or relation of the deceased Railway employee. The Family Pension Scheme under the Rules is designed to provide relief to the widow and children by way of compensation for the untimely death of the deceased employee. The Rules do not provide for any nomination with regard to family pension, instead the Rules designate the persons who are entitled to receive the family pension. Thus, no other person except those designated under the Rules are entitled to receive family pension. The Family Pension Scheme confers monetary benefit on the wife and children of the deceased Railway employee, but the employee has no title to it. The employee has no control over the family pension as he is not required to make any contribution to it. The family pension scheme is in the nature of a welfare scheme framed by the Railway administration to provide relief to the widow and minor children of the deceased employee. Since, the Rules do not provide for nomination of any person by the deceased employee during his lifetime for the payment of family pension, he has no title to the same. Therefore, it does not form part of his estate enabling him to dispose of the same by testamentary disposition.

5. In Jodh Singh v. Union of India [(1980) 4 SCC 306: 1980 SCC (L&S) 549], this Court on an elaborate discussion held that family pension is admissible on account of the status of a widow and not on account of the fact that there was some estate of the deceased which devolved on his death to the widow. The court observed: (SCC p. 310, para 10)

―Where a certain benefit is admissible on account of status and a status that is acquired on the happening of certain event, namely, on becoming a widow on the death of the husband, such pension by no stretch of imagination could ever form part of the estate of the deceased. If it did not form part of the estate of the deceased it could never be the subject matter of testamentary disposition.‖ The court further held that what was not payable during the lifetime of the deceased over which he had no power of disposition could not form part of his estate. Since the qualifying event occurs on the death of the deceased for the payment of family pension, monetary benefit of family pension cannot form part of the estate of the deceased entitling him to dispose of the same by testamentary disposition.‖

13. The Court also deems it apposite to bear in mind the following observations made by the Supreme Court in its decision in Nitu vs. Sheela Rani10: - ―16. So far as the provisions of the Hindu Succession Act, 1956, are concerned, it is true that the properties of a Hindu, who dies intestate would first of all go to the persons enumerated in Class I of the Schedule as per the provisions of Section 8 of the said Act and therefore, so far as the properties of late Shri Yash Pal are concerned, they would be divided among the respondent mother and the appellant wife, provided there is no other family member of late Shri Yash Pal alive, who would fall within Class I heirs, but position in this case, with regard to pension, is different.