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Komalsing Kuwarsing Vs. Krishnabai - Court Judgment

LegalCrystal Citation
SubjectService
CourtMumbai
Decided On
Case Number First Appeal No. 64 of 1944
Judge
Reported inAIR1946Bom304; (1946)48BOMLR83
AppellantKomalsing Kuwarsing
RespondentKrishnabai
DispositionAppeal dismissed
Excerpt:
provident funds act (xix of 1925), sections 2, 3, 4, 5 -- provident fund rules of the g.i.p. railway, rules 23, 24, 25-nomination by contributor of person not his dependant-contributor's dependant in existence-validity of nomination-whether nominee takes absolute interest in fund-indian evidence act (i of 1872), section 68-document, proof of- construction of statute-intention of legislature.;under the g. i. p. railway provident fund rules framed under the provident funds act, 1925, a contributor can make a valid nomination of any person other than his dependant who is then in existence and such a nominee takes an absolute interest in the fund after the contributor's death.;head v. guest (1944) 46 bom. l.r. 720, followed. case law considered.;section 68 of the indian evidence act, 1872,..........or the railway administration from all liability.10. rules 23, 24 and 25 of the provident fund rules framed by the g. i. p. railway provide for payment of the amount of the provident fund after the death of the subscriber. rule 23 says that on the death of any member of the fund, the chief accounts officer shall, subject to the provisions in the rules and more particularly the provisions in rules 24 and 25, pay to his executors or administrators or other lawful representative, upon their giving a receipt in full satisfaction of their claim on the fund, the sum standing to the deceased member's credit. rule 24 is applicable only when the amount of the fund standing to the credit of the deceased subscriber does not exceed rs. 5,000. in that case the chief accounts officer may pay.....
Judgment:

Lokur, J.

1. This appeal raises a question of considerable importance with regard to the construction of the Provident Funds Act (XIX of 1925) and the rules thereunder framed by the G. I. P. Railway Company. The facts are not in dispute. The defendant's brother Kunjalsing who was in the service of the G. I. P. Railway was a subscriber to the Railway Provident Fund. The plaintiff Krishnabai is his widow. On July 9, 1924, he made a, declaration in the prescribed form stating that in the event of his death the defendant would be entitled to receive payment of his provident fund holding, including additional benefits, if any, and appointing the defendant himself to be the executor of his will as regards the provident fund only. Kunjalsing died on June 1, 1941, when the amount to his credit was nearly Rs. 10,000, The defendant applied for a succession certificate in respect of that amount in the Court of the Second Class Subordinate Judge alt Bhusawal and it was granted to him despite the opposition of the plaintiff. The plaintiffs appeal against) it was dismissed, and before the defendant withdrew the amount from the railway on the strength of the succession certificate, this suit was filed by the plaintiff for a declaration that she was entitled to that amount and for an injunction restraining the defendant from withdrawing it. She alleged that the declaration had not been properly attested and was, therefore, illegal, that the defendant's nomination in preference to her was void and inoperative and that the defendant had released his right in her favour. This last contention was given up at the hearing. The trial Court found that the declaration in favour of the defendant was duly attested, but holding that it was illegal, void and inoperative, it decreed the plaintiffs claim.

2. As regards the execution of the nomination paper, a printed form of declaration was duly filled in and signed by deceased Kunjalsing and was attested by two witnesses, Dattatraya and Sadashiv. lit is true that in the plaint the plaintiff alleged that the declaration. had not been properly executed and attested. But no specific issue was raised on this point. Issue No. 6 is warded in general terms. But it appears that on the date of hearing, before any evidence was led, the plaintiff put in a purshis (exhibit 28) admitting that the declaration form had been signed by her deceased husband Kunjalsing and that Dattatraya and Sadashiv had made their signature on it as attestors, The purshis was signed by the plaintiff herself. In view of this admission it was taken that the plaintiff had given up her contention regarding the execution and attestation of her declaration and no further evidence was led. But in the course of the arguments it was urged that the purshis did not amount to an admission that Kunjalsing had made his signature in the presence of the two attesting witnesses as required by the form of the declaration. On that form there are marginal notes which give definite instructions to the declarant that he must sign it in the presence of two witnesses and similar instructions to the attestors that they must sign it in the presence of each other and in the presence of the declarant. The presumption, in view of the purshis, is that the instructions were followed. Exhibit 34 shows that the instructions are printed in the margin just where the signatures of the declarant and the attestors are to be made, so that they may not escape their attention. A good deal of stress was laid on the fact that the ink in which the three signatures were made appeared to be different, and therefore, it was urged that they must have been made at different times. But the defendant says that he was present at the time when the declaration was made, and that Kunjalsing made his signature in the presence of the attestors and the attestors made their signatures in the presence of Kunjalsing. The learned Judge of the lower Court has believed this statement and we see no reason to take a different view. It is), however, urged that as the prescribed form requires the declaration to be attested by two witnesses, under Section 68 of the Indian Evidence Act, 1872, the defendant was bound to call at least one of the attesting witnesses for the purpose of proving its execution and that unless at least one witness was thus called and examined, the document; could not be used as evidence. But Section 68 would be applicable only if the execution has to be proved. All that it says is that the execution of a document cannot be regarded as proved unless one attesting witness at least has been called for that purpose. But where the execution is not to be proved, it is not necessary to call any attesting witness, unless it is expressly contended that the attesting witness has not witnessed the execution of the document. There is no such express allegation either in the plaint or in the purshis admitting the execution and attestation, which was evidently put in by the plaintiff, in order that the defendant might not be required to call the attesting witnesses to prove the declaration. It is on account of this purshis that the defendant refrained from calling either of the attesting witnesses. We do not, therefore, think that the declaration is liable to be excluded from evidence on the ground that neither of the attesting witnesses was called by the defendant, We hold that the declaration is duly proved and that deceased Kunjalsing nominated his brother, the defendant, to receive the amount of his Provident Fund after his death.

3. The lower Court dismissed the plaintiff's suit on the ground that when the deceased subscriber died leaving a dependant behind him, the nomination made by him in-favour of one who was not a dependant was altogether void and ineffective. After this case was decided 'by the lower Court, the validity of such a nomination came up for consideration before this Court in the recent ease; of Head v. Guest : AIR1945Bom43 and it was held that under the Provident Funds Act, 1925, and the rules framed under it, there could be a valid nomination by a contributor of any person other than a dependant, although there was a dependant of the contributor in existence. It is, however, urged that although such nomination may be valid, the nominee cannot get its benefit, and even if he were to receive the amount, he must hand it over to the dependant. This contention has apparently found favour with the lower Court. As the question really turns on the construction of Sections 3, Sub-section (2), 4, Sub-section (1) and 5, Sub-section (1), of the Provident Funds Act, I will quote the pertinent portions of these sections.

4. Section 3, Sub-section (2), says:

Any sum standing to the credit of any subscriber to, or depositor in, any such Fund at the time of his decease and payable under the rules of the Fund to any dependant of the subscriber or depositor, or to such person as may be authorized by law to receive payment on his behalf, subject to any deduction authorized by this Act,.. .shall vest in the dependant, and shall, subject as aforesaid, be free from any debt or other liability incurred by the deceased or incurred by the dependant before the death of the subscriber or depositor.

Section 4, Sub-section (1), says:

When under the rules of any Government or Railway Provident Fund the sum standing to the credit of any subscriber or depositor, or the balance thereof after the making of any deduction authorized by this Act, has became payable, the officer whose duty is to make the payment shall pay the sum or balance, as the case may be, to the subscriber or depositor, or, if he is dead, shall-

(a) if the sum or balance, or any part thereof, vests in a dependant under the provisions of Section 3, pay the same to the dependant or to such person as may be authorized by law to receive payment on his behalf; or

(b) if the whole sum or balance, as the case may be, does not exceed five thousand rupees, pay the same, or any part thereof, which is not payable under Clause (a) to any person nominated to receipt it under the rules of the Fund, or, if no person is so nominated to any person appearing to him ten be otherwise entitled to receive it or

(c) in the case of any sum or balance, or any part thereof, which is not payable to any person under Clause (a) or Clause (b) pay the same-

(i) to any person nominated to receive it under the rules of the Fund, on production by such person of probate or letters of administration evidencing the grant to him of administration to the estate of the deceased or a certificate granted under the Succession 'Certificate Act, 1889, or under the Bombay Regulation VIII of 1827, entitling the holder thereof to receive payment of such sum, balance or part, or

(ii) where no person is so nominated, to any person who produces such probate, letters, or certificate.' Section 5, Sub-section (1), says:

'Subject to the provisions of this Act, but otherwise notwithstanding anything contained in any law for the time being in force or any disposition, whether testamentary or otherwise, by a subscriber to, or depositor in, a Government or Railway Provident Fund of the sum standing to his credit in the Fund, or of any part thereof, any nomination, duly made in accordance with the rules of the Fund, which purports to confer upon any person the right to receive the whole or any part of such sum on the death of the subscriber or depositor, shall be deemed to confer such right absolutely.

5. Section 2(c) defines a dependant, and according to that definition the plaintiff is a, dependant of her deceased husband, but the defendant is not.

6. A subscriber to a provident fund may leave one or more dependants behind him or may not leave any; he may make a nomination in favour of one or more of the dependants, or in favour of a, stranger or strangers, or partly in favour of a dependant and partly in favour of a stranger. These three sections provide for all these contingencies, and as Mr. Shah for the plaintiff has tried to deduce from those sections that a nominee who is not a dependant is not entitled to receive the amount of the fund if the subscriber has left a dependant behind him, it is necessary to analyse them carefully.

7. When analysed, the result is as follows:-

1. When the nominee The fund vests in the Is payable absolutely to the is a dependant. nominee: Section 3(2) nominee to the exclusionof others: Section 4(1) (a) and Section 5(1).2. When the nominee The fund does not vest in Is payable absolutely to theis not a dependant. the nominee: Section 3(2). nominee: Section 5(1).:(a) if the sum exceeds Rs. 5,000, on production of probate, etc.: 4(1) (c).(b) if the sum does not ex-ceed Rs. 5000, without such production: Section 4(1) (b)3. When there is no Vests in the payee if he be Is payable to such person ornomination. a dependant, but not persons as may be entitledotherwise. to it under the ordinarylaw, but if the sum exceeds Rs. 5,000 production of probate etc. is required.

8. It is important to bear this analysis in mind for appreciating the flaw; in the reasoning of the lower Court, which is based on the ruling in Nidhu Sudan Mukherji v. Mbha Bailee Debi [1940] 1 Cal. 476. In that case one Dr. Mukherji who had a large amount in the provident fund died leaving behind him six dependants, namely, three sons and three married daughters. He had nominated his wife to receive the amount of the fund after his death, but she predeceased him and he made no other nomination. His three sons, as the heirs of their mother, who was the nominee, claimed the amount for themselves in preference to his daughters. Panckridge J. (sitting alone) held that the daughters also were entitled to 'share it equally with the sons. He observed (p. 484).:. the Act itself provides that the rights of nominees, which include the rights of the nominee's representatives, are expressly postponed to the rights of dependants. This is clear from Section 4 of the Act which provides that the amount standing to a subscriber's credit should be paid to his dependant in the first instance, or to his nominee and only permits his nominee to receive any sum or balance which is not payable under d. (a), that is, to a dependant.

9. With all respect, we think that this reasoning does not take into account the most material Clause in Section 4(1) (a), viz. 'if the sum or balance, or any part thereof, vests in a dependant under the provisions of Section 3'. Section 3 does not say that the amount of the provident fund necessarily vests in a dependant or dependants in all cases. That section deals only with ' the protection of compulsory deposits in a Provident Fund ', and not with the title to them. Sub-section (2) provides that if under the rules of the fund the amount is payable to any dependant, then it vests in him and shall be free from any debt or other liability incurred by the deceased subscriber or depositor or incurred by the dependant before the death of the subscriber or depositor. Hence before applying this sub-section and holding that the amount has vested in the dependant, we must determine whether it is payable to the dependant. If it is not, then the section has no application. Section 4, Sub-section (1), contains instructions for repayments, so that if the amount is paid in accordance with those instructions, then Sub-section (2) protects the Government or the Railway Administration from all liability.

10. Rules 23, 24 and 25 of the Provident Fund Rules framed by the G. I. P. Railway provide for payment of the amount of the provident fund after the death of the subscriber. Rule 23 says that on the death of any member of the fund, the Chief Accounts Officer shall, subject to the provisions in the rules and more particularly the provisions in Rules 24 and 25, pay to his executors or administrators or other lawful representative, upon their giving a receipt in full satisfaction of their claim on the fund, the sum standing to the deceased member's credit. Rule 24 is applicable only when the amount of the fund standing to the credit of the deceased subscriber does not exceed Rs. 5,000. In that case the Chief Accounts Officer may pay the amount to .any person nominated by the diseased member, to his widow, to any person appearing to him to be entitled to receive it, or may invest the same in the purchase of -an annuity for his widow or for any child or children then surviving. Rule 25(a), which applies to the present case, provides that if the sum exceeds Rs, 5,000, the Chief Accounts Officer shall pay or distribute the amount according to the provisions of the Provident Funds Act, 1925. Thus, where the amount exceeds Rs. 5,000 'the rule does not specify the person to whom the amount is to be paid. While Rule 23 says that it may be paid to the deceased member's executors or administrators or other lawful representative, Rule 25 says that it should be paid according to the provisions of the Provident Funds Act, 1925. In other words, subject to the provisions of 'the Act, these rules leave untouched the personal law of succession by which the member may be governed.

11. The learned Judge of the lower Court seems to think that the expression ' lawful representative' is no other person than the dependant mentioned in Section 2(c) of the Act. But Section 2(c) merely defines who is a dependant and does not purport to confer ,any right upon the dependant or make him or her a lawful representative. That is to be determined according to the ordinary law governing the parties, in the absence of a nomination by the subscriber. The right of the nominee is laid down in Section 5, Sub-section (J), which expressly confers on the nominee an absolute right to the amount of the fund;.. The dependants will have no claim on the fund if such absolute right is conferred upon some one else by a nomination duly made in accordance with the rules of the fund. Thusi in Ma Kyway v. Ma Mi Lay I.L.R. [1928] Ran. 682, where the contest was between a sister of the subscriber, who was his nominee, and his own widow, it was held that the sister as the nominee defeated the title of the widow, even though she was a dependant, the learned Judges remarking that the provisions of Section 5 were perfectly clear and definite. This case was cited with approval in Ahmad Abdul v. Jamala I.L.R. (1935) Bom. 475: 37 Bom. L.R. 370 and was recently followed in Head v. Guest, On the view taken by the trial Court the word ' absolutely ' in Section 5 would be meaningless. If the nominee is only to recover the amount and hand it over to the dependant, then there is no propriety in nominating a non-dependant. That would only necessitate the taking of a probate or letters of administration or the like, without which the nominee would not be paid the amount, if it exceeds Rs. 5,000. There is nothing in Sections 3, 4 and 5 to suggest that he is to withdraw the amount only for the benefit of the dependant. The lower Court seems to think that the widow being the first of the dependants named in Section 2(c), the fund ipsa facto vests in her under Section 3(2) and no other nominee is entitled to it. Such an interpretation cannot be placed on Section 3(2). The reference in that section to the rules of the Fund shows that its provisions can apply to sums which under the rules are payable to a dependant. As pointed out in Lakshmamma v. Subrammyam A.I.R [1939] Mad. 489, it is quite clear that the section recognizes the possibility of sums being payable to persons other than dependants. Where, therefore, the rules do not prohibit nominations in favour of those who are not dependants, a nominee, though not a dependant, takes an absolute interest in the fund, though he may not be entitled to the benefit of Section 3(2), Rule 7 in the Bombay General Provident Fund Rules quoted in Head v. Guest (p. 722) does contain such a prohibition. But the rules of the G.I.P. Railway Provident Fund contain no such prohibition. On the other hand Rule 23 leaves untouched the personal law of intestate succession and the power of a subscriber to nominate any one he likes to receive the amount of his fund absolutely.

12. The learned Judge of the lower Court says:-

The claim of the dependant has been treated on a preferential, basis under Section 3, subsection (2) and Section 4(a) because the purpose of the subscriber in subscribing to the Provident Fund is to make a provision) for his dependants in the event of his death during the course of his service. While, drafting the Provident Funds Act the legislature has thought rightly to give prominence and sanctity to) that holy object of the subscriber in order that the subscriber should have peace of mind which is quite essential to the smooth performance of the duties. In short, the legislature has rightly drafted the sections for accomplishing the desired', object of the subscriber.

13. This aspect of the case was considered in the full bench case of Mohammad Nairn v. Musammat Mumm-witness I.L.R (1935) Luck. 611. In holding that a nomination conferred an absolute right on the nominees to appropriate to themselves the amount of the Provident Fund, King C. J. observed .that in Section 5(1) the Legislature expressly inserted the words ' notwithstanding anything contained in any personal law ' so- as to validate the nomination, which was equivalent to a testamentary disposition, notwithstanding anything contained in any personal law (p. 626):-

It is said that the Legislature could have no object in overriding the personal law of the Muslim community by validating a will which would be invalid according to Mahomedan Law. It is perhaps unnecessary for us to speculate upon the objects and reasons of the Legislature in enacting Section 5, Sub-section (1). It is quite possible however that the Legislature deliberately intended to give the depositor a free hand in the disposal of his Provident Fund money after his death.

14. In Vishwanatham v. Murugesa A.I.R [1935] Ran. 449 a nomination which purported to confer upon the nominee the right to receive the sums standing to the credit of a subscriber in the fund on the death of the subscriber was held not to be invalid as contravening the prohibition against assignment or charge under Section 3(1), although the nomination had been made in consideration of a loan and not on account of mere love and affection.

15. Thus whatever be the object of subscribing to the provident fund, the power of the subscriber to nominate any one he likes to receive it after his death is not curtailed by anything contained in the Act or the rules.

16. We are aware that there is a conflict of judicial opinion on this point, but the weight of authority appears to be in favour of the view which has been consistently taken by this Court and which we have preferred to take. I have already referred to the decision of Panckridge J. in Nidhu Sudan v. Bibha Bates. In Mt. Amnoc Khatoon v. Abdul Karim : AIR1937All562 , Sulaiman C. J. and, Bennet J. observed:[564(1.),]:-. the mere fact that a certain person has been declared to be the nominee under Section 5 for the purpose of receiving the provident fund is not necessarily the sole person entitled to-appropriate the amount as the owner, legatee or heir. The question of the distribution of the amount after it has been drawn by the nominee as among those who may be entitled to it either under the personal; law or by testamentary disposition is not covered by this section.

17. We may respectfully point out that the effect of the very important words 'notwithstanding anything contained in any law for the time being in force' in Section 5(1) were not considered or given effect to.

18. The same view was taken in Hayatuddin v. Mt. Rahiman A.I.R [1935] Sind 73, but the contrary view taken in Mt. Hwrmat Bibi v. Mt. Kaz Banu A.I.R [1932] sind 115 was not considered. In Hardial Devi v. Janki DasA.I.R [1928] Lah. 773 Addison J. (sitting alone), in a brief judgment, relied upon Aimai v. Awabai A.I.R [1924] Sind 57 and held that the object of the nomination system was merely to designate some person to whom the fund money might be paid after the subscriber's-death; but we think, with respect, the learned Judge, in following the Sind case, did not notice that it was decided in 1923 and overlooked the change in the law effected by ' Section 5 of the Act of 1925.

19. In interpreting the provisions of a statute, we need not speculate upon the reasons which influenced the Legislature, but must take the provisions as they are and construe them according to their plain meaning. The view which we have preferred to take follows from the plain words of as. 3, 4 and 5 of the Act and the rules framed by the G. I. P. Railway, and is in consonance with the decisions of this Court in Ahmad Abdul v. Jamala and Head v. Guest. In' the latter case a subscriber to the G.I.P. Railway Fund died leaving a wife who had deserted him, a mistress and a son born of the mistress. He had made a declaration that lout of the amount standing to his credit in the provident fund, Rs. 50 should be paid to his wife, Rs. 5,000 to his mistress's son, and the balance to his mistress. After his death his wife sued for a declaration that she alone was entitled to the entire amount. But her claim was rejected and her suit was dismissed. This was a clear case in which non-dependants who had been nominated by the contributor were held entitled to the amounts given to them in preference to his wife who was a dependant within the meaning of Section 2(c) of the Act. The decision is binding on us, and as we respectfully agree with it, we see no reason to refer the case to a full bench, as requested by Mr. Shah.

20. We, therefore, hold that in view of the nomination made in favour of the defendant,, the plaintiff, though a dependant, is not entitled to the amount of the fund. We allow the appeal, set aside the decree of the lower Court and dismiss the suit. In view of the conflict of judicial opinion on the points arising in this case which existed when this suit, was filed, we order that the costs of the suit should be borne by the parties. But as regards the costs in this Court We order that the respondent should pay the costs of the appellant and bear her own.


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