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Abdul Waheedkhan Pathan Soudhagar Vs. Reny Charles Pevy and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberEx. S.A. No. 114 of 1962
Judge
Reported in(1965)ILLJ361Kant
ActsProvident Funds Act, 1925 - Sections 3, 3(1), 3(2) and 4; Code of Civil Procedure (CPC), 1908 - Sections 60 and 60(1); Provident Funds Act, 1897;
AppellantAbdul Waheedkhan Pathan Soudhagar
RespondentReny Charles Pevy and anr.
Excerpt:
.....court fee payable on appeal is the same as the court fee paid on the plaint in the court of first instance i.e., in terms of section 49 of the k.c.f. &s.v. act, 1958. office objection is unsustainable. - , after the death of the subscriber, for realization of the debt payable by his wife and incurred before the death of her husband, is clearly hit by the provisions of sub-section (2) of s......the dependent, the wife of the subscriber, after his death, under sub-section (2) of s. 3 of the provident funds act, 1925, is liable for attachment for debt incurred by her before the death of the subscriber; and (2) whether the benefit conferred by the provident funds act, 1925, as to the immunity from attachment of the provident fund so long as it stands to the credit of the subscriber, can be waived by the person on whom the benefit has been conferred. 2. the facts leading to the two questions may shortly be stated as follows. respondent 1, mrs. reny charles pevy, and her deceased husband charles pevy executed a promissory note in favour of the appellant on 27 april 1957 for a sum of rs. 3,200. the latter instituted a suit against the executants for the recovery of the amount due.....
Judgment:

1. This appeal arises in execution proceedings; it raises two questions for consideration. They are :

(1) whether the railway provident fund which vests in the dependent, the wife of the subscriber, after his death, under Sub-section (2) of S. 3 of the Provident Funds Act, 1925, is liable for attachment for debt incurred by her before the death of the subscriber; and

(2) whether the benefit conferred by the Provident Funds Act, 1925, as to the immunity from attachment of the provident fund so long as it stands to the credit of the subscriber, can be waived by the person on whom the benefit has been conferred.

2. The facts leading to the two questions may shortly be stated as follows. Respondent 1, Mrs. Reny Charles Pevy, and her deceased husband Charles Pevy executed a promissory note in favour of the appellant on 27 April 1957 for a sum of Rs. 3,200. The latter Instituted a suit against the executants for the recovery of the amount due under the promissory note. But during the pendency of the suit, Charles Pevy died, and respondent 1, Mrs. Reny Charles Pevy, entered into a compromise with the plaintiff and a decree in terms thereof was passed on 24 December 1957. However, in the meantime, on 12 August 1957, an order of attachment was obtained from the Court and the attachment was actually effected on 25 October 1957.

One of the terms of the compromise was that

'Out of Rs. 4,000 attached, the Court should write a yadi to the Assistant Officer Works and Stores, Hubli at Mysore, to send Rs. 3,200 to the Court and this amount should be paid to the plaintiff, in full satisfaction of the suit claim.'

3. On 22 January 1959, the decree-holder started execution proceedings in the Court of the Civil Judge, Junior Division, Hubli, in Darkhast L.D. No. 6 of 1959, and he requested the Court to write yadi to the concerned officer, Works and Stores, Hubli at Mysore, to send Rs. 3,200 for payment to the degree-holder out of the provident to the degree-holder out of the provident fund belonging to the deceased Charles Pevy.

4. Then, on 31 January 1959, the Joint Civil Judge, Hubli, wrote a yeti to the Assistant Officer, Works and Stores, Hubli at Mysore requesting him to send Rs. 3,200 to his Court at an early date. The said Assistant Officer wrote to the Assistant Accounts Officer (Works and Stores), Southern Railway, Hubli, to send the said amount to the Court. The latter, however, informed the Court that in view of the provisions of the Provident Funds Act, the amount cannot be sent to the Court, and filed his objection in the execution proceedings as objector-garnishee, Southern Railway, Madras (Accounts Officer, Works and Stores), Southern Railway, Hubli, and, inter alia contended, firstly, that the order calling upon the Railway Administration to remit a sum of Rs. 3,200 from the provident fund assets of Charles Pevy to the Court was contrary to the provisions of the Provident Funds Act; secondly, that S. 3 of the Provident Funds Act protects the compulsory deposits of the provident fund of the deceased from any liability arising out of the indebtedness of the employee; and thirdly, that the provident fund, so long as it stands to the credit of the deceased in the Railway Administration, is immune from the attachment and, therefore, the attachment, being contrary to the provisions of law, is void.

5. The learned Civil Judge was, therefore, called upon to decide the question whether the order of attachment effected on the provident fund standing to the credit of the deceased Charles Pevy was valid. He answered that question by holding that the attachment was void under the provisions of the Provident Funds Act read with S. 60(k) of the Code of Civil Procedure, and directed that the order of attachment be withdrawn.

6. The decree-holder then preferred an appeal in the Court of the District Judge, Dharwar, and the learned District Judge agreed with the view taken by the learned Civil Judge and dismissed the appeal. And it is the correctness of this decision that is challenged before us in this second appeal.

7. The first question that has got to be decided in this appeal is whether the order of attachment of the provident fund standing to the credit of the deceased is valid; in other words, whether the provident fund vests in the wife, the dependent, free from such an attachment. The question will have to be answered with reference to the relevant provisions of the Provident Funds Act, 1925, and S. 60(k) of the Code of Civil Procedure as also the relevant authorities on the point.

8. There is no dispute in this case about the nature of the fund. The fund still stands in the Railway Administration in the name of deceased Charles Pevy.

9. All compulsory deposits and other sums in or derived from any fund to which the Provident Funds Act, 1925, applies, are exempt from attachment, under S. 60(k) of the Code of Civil Procedure.

'Compulsory deposit' is defined in S. 2(a) of the Provident Funds Act, 1925, as follows :

''Compulsory deposit' means a subscription to, or deposit in, a provident fund which, under the rules of the fund, is not, until the happening of some specified contingency, repayable on demand otherwise than for the purpose of the payment of premia in respect of a policy of life insurance or the payment of subscriptions or premia in respect of a family pension fund, and includes any contribution and any interest or increment which has accrued under the rules of the fund on any such subscription, deposit or contribution, and also any such subscription, deposit

10. Such deposit is not liable to any attachment under Sub-section (1) of S. 3 of the Provident Funds Act under any orders of the civil Court in respect of any debt incurred by the subscriber.

But we are concerned in this case with Sub-section (2) of S. 3 of the Act which provides that :

'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, shall, subject to any deduction authorized by this Act and save where the dependant is the widow or child of the subscriber or depositor subject also to the rights of an assignee under an assignment made before the commencement of this Act, 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.'

11. Thus we find that any sum standing to the credit of the subscriber in any provident fund at the time of his death, subject to the rights mentioned therein, vests in the dependant free from any debt or other liability incurred either by the deceased subscriber or by the dependant prior to the death of the subscriber or depositor.

12. It is clear from the facts of this case that a debt was due jointly by the husband and wife to the appellant, who obtained a decree against the wife. The attachment was effected prior to the date of the decree for the debt due not only by the subscriber but also by his dependant wife.

13. As I stated, under Sub-section (1) of S. 3 of the Provident Funds Act, 1925, the provident fund standing to the credit of the subscriber is not liable to attachment for the debt incurred by him. Thus, if he were to be alive, it is obvious that under Sub-section (1) of S. 3 such an attachment would be invalid. The question is whether the attachment effected on the provident fund for the debt due not only by the subscriber but also by the dependant and incurred prior to the death of the subscriber can be said to be valid. The attachment in this case, which is effected on 12 August 1957, i.e., after the death of the subscriber, for realization of the debt payable by his wife and incurred before the death of her husband, is clearly hit by the provisions of Sub-section (2) of S. 3 of the Provident Funds Act, 1925.

14. But it is contended that the provident fund has ceased to be a provident fund after the death of the subscriber. But this contention cannot be supported either by any of the provisions of the Provident Funds Act, 1925, or by any authority. On the contrary, the authorities are quite clear to the effect that a compulsory deposit in a railway provident fund is, under S. 3 of the Provident Funds Act, 1925, immune from attachment even after it has become payable and the immunity extends up to the time it remains to the credit of the subscribers, vide Veerchand v. Bombay-Baroda and Central India Railway [I.L.R. 1929 Bom. 259], Handily v. Jai Narain [I.L.R. 1946 Cal. 962] and Secretary of State v. Raj Kumar [I.L.R. 1950 Cal. 347]. I.L.R.It is true that all these cases have been decided under the Provident Funds Act of 1897.

15. The definition of the term 'compulsory deposit' given in the Act of 1897 is slightly modified by the addition of the words 'until the happening of some specified contingency' to the definition of 'compulsory deposit' under S. 2(a) of the Act of 1925. But, in my opinion, the addition of these words to the definition of the term 'compulsory deposit' does not affect the protection extended to the provident fund after it becomes payable on the happening of the specified contingency, while it still stands to the credit of the subscriber.

16. In Secretary of State for India v. Har Charan Das [I.L.R. 1951 All. 845] the question whether the addition of the words 'until the happening of some specified contingency' to the definition of 'compulsory deposit' has made any change, came for consideration, and the learned Judge, during the course of his decision observed with reference to the three earlier decisions which I have stated above thus :

'But it may be said here that these three decisions are by no means without value in the present case, for they show that the sanctity attached by the Act to compulsory deposits as defined in the Act does not cease with the retirement of the contributor, or even at his death. The decisions relate to the period previous to 1925, which is the year of the current Act. But this is not a matter of any importance, as there has been no change in the Act of 1925 which affects any of the considerations in the present case.'

17. The other decisions which have taken the same view under the Act of 1925 are, Raj Krithyanand Sigh v. Saileshwar [I.L.R. 1915 Pat. 779], Venkatalakshmi v. Chakrapani [A.I.R. 1947 Mad. 317], Madras and Southern Mahratta Railway v. Chengilli : AIR1950Mad402 and Central Bank of India v. Rao [A.I.R. 1949 Cal. 144].

18. Here, I may point out that out of the cases stated above, the facts of the case in Venkatalakshmi v. Chakrapani [A.I.R. 1947 Mad. 317] (vide supra) are more or less on a par with the facts of the present case except for the fact that the dependent there, the wife, was also a person who was nominated under S. 4 of the Act by the subscriber to receive the amount. Rajamannar, J. (as he then was), who decided the case, after considering the provisions of Sub-section (2) of S. 3 of the Act held that :

'a compulsory deposit in a railway provident fund standing to the credit of a depositor and payable to his wife under a nomination duly made by the depositor, is free from liability to be attached by a creditor in execution of a decree obtained by him against the wife for a debt incurred by her before the death of the depositor.'

19. In the decision Union of India v. Smt. Hira Devi : [1952]1SCR765 their lordships while considering the question whether a receiver could be appointed for collecting the moneys standing to the credit of the judgment-debtor in a provident fund with the postal authorities, observed that :

'The definition in S. 2(a), Provident Funds Act, makes it clear that the provident fund amount not paid to the subscriber after the date of his retirement is also a compulsory deposit. Such a deposit can not be assigned or charged and is not liable to attachment under S. 3(1) of the Provident Funds Act. It is exempt from attachment and sale also under S. 60(k), code of Civil Procedure.'

20. Though it is true that that was a case where the subscriber was alive and therefore the decision comes directly within the purview of Sub-section (1) of S. 3 of the Act, however, their lordships have made it clear that so long as a provident fund stands to the credit of the subscriber, and not paid to him after his retirement, it retains the characteristic of a compulsory deposit; and if so, it is immune from the liability of attachment.

21. Thus I hold on a consideration of the provisions of the Provident Funds Act, 1925, and the relevant decisions, that the provident funds, so long as lit stands to the credit of the subscriber, ill immune from the liability of attachment for the debt incurred by the wife, the dependent of the subscriber, prior to his death.

22. The next question which was not argued in either of the Courts below but is pressed before me by Sri K. S. Narayana, learned counsel for the appellant, is whether the benefit conferred by the Provident Funds Act, viz., the immunity from attachment of the provident fund, so long as it stands to the credit of the subscriber, can be waived by the person on whom such benefit is conferred.

23. It is contended that it is open for a person on whom benefit has been conferred to agree to waive the benefit, and if he does so, then the provisions of the Provident Funds Act to that extent cannot be enforced. In support of his proposition, he relied upon the decision In Mahadeo Agrahri v. Dhankal Mal : AIR1946All432 . In that case, the Court was considering the provisions of S. 60(1)(c) of the Code of Civil Procedure, which state :

'houses and other buildings . . . belonging to an agriculturist and occupied by him shall not be liable for attachment or sale.'

24. But, on the facts of that case : it is clear that what has been held is that whether a person is an agriculturist or not is a question of fact, and if the person makes a representation that he is not an agriculturist and that the property is salable, then it is not open for him to resile from that position and to urge that the property in question is not salable. It was, therefore, held that by reason of the consent order, the judgment-debtor was estopped from raising an objection to the salability of the house. Thus I do not find anything in the judgment to warrant a proposition that a benefit conferred by the statute may be waived by the person on whom it is conferred.

25. The other decision on which reliance was placed is Ganpatrao Nagoba Gandhi v. A. V. Zinzarda A.I.R. 1948 Nag. 292. That was also a case where the provisions of S. 60(1)(c) of the code of Civil Procedure, arose for consideration and the Court held that the question whether the house falls within the provisions of S. 60(1)(c) is really one of fact and that the property in question did not fall under it. Having thus found, his lordship proceeded further to state that even if it fell within the provisions of S. 60(1)(c), Code of Civil Procedure, the protection conferred by the section was for the benefit of the agriculturist and could be waived by him.

26. The other decision on which reliance was placed by the learned counsel for the appellant is Sita Ram v. Phusal Singh A. I.R. 1937 Lah. 939. In that case, it was conceded that S. 60 of the Code of Civil Procedure did not prohibit a voluntary transfer of the house for the satisfaction of the decree and, on such a concession, it was held that

'S. 60, Code of Civil Procedure, does not prohibit a voluntary transfer by an agriculturist judgment-debtor of his house for satisfaction of the decree.'

27. There is no doubt that the foregoing two decisions support the contention that it is open to an agriculturist to waive the benefit conferred by S. 60(1)(c) of the Code of Civil Procedure. But it is to be seen that in none of them the question as to whether the rule of waiver can also apply to case where the benefit conferred its based on public policy, arose for consideration. It may be stated as a general rule that if the statute is solely for the benefit of a person, he may waive his right or the benefit, if he thinks fit, or give up the rights of a personal or private nature created under an agreement, but he cannot waive a benefit conferred by a statute which has public policy for its object, there is a difference between a statute solely meant for the benefit of an individual, and a statute which has public policy for its benefit, that is, an advantage or benefit intended for an individual and one in which the public have an interest. And therefore an individual who has the benefit given to him by a statute may waive it if he thinks fit, but he cannot waive it where the public have an interest. Therefore the rule of waiver cannot apply to matters based on public policy.

In Graham v. Ingleby [(1848) 1 Ex 651], it was stated :

'. . . that an individual cannot waive a matter in which the public have an interest.'

28. This principle has been subsequently reiterated in Gaekwar Baroda Railway G. Hafiz Habib , Jogeshwar v. Jhapal : AIR1924Cal638 , Shankarlal v. Ragunath Das A.I.R. 1935 Bom. 433, Postmaster-General v. Chenmal [A.I.R. 1941 Bom. 389] and Madras and Southern Mahratta Railway v. Chengilli : AIR1950Mad402 (vide supra).

29. That the prohibition against the assignment or attachment of compulsory deposits as provided under Sub-section (1) or (2) of S. 3 of the Provident Funds Act of 1925, is based on the ground of public policy, is clear from the decision of their lordships of the Supreme Court in Union of India v. Smt. Hira Devi : [1952]1SCR765 (vide supra). Their lordships have further stated that where the interdiction is absolute, to allow a judgment-creditor to get at the fund indirectly by means of the appointment of a receiver would be to circumvent the statute and that the frustration of the very object of the legislature should not be permitted. Thus once it is clear that the prohibition against the attachment of the compulsory deposit so long as it stands to the credit of the subscriber is absolute and such a prohibition so based on the public policy, then it is not permissible for any person to contract or agree that such a prohibition shall not operate on the provident fund standing to the credit of the depositor; and if one so agrees, then such an agreement being against the public policy must be held to be void in law.

30. Therefore the two decisions on which reliance has been placed by the learned counsel for the appellant to contend that it is open for a person to waive a benefit conferred on him by the statute, are decisions in which the Courts were not called upon to consider whether when the benefit conferred is based on public policy, it is open for the person on whom such a benefit is conferred, to waive it. It seems clear that where a prohibition or interdiction is absolute in respect of a provident fund standing to the credit of a subscriber, it is not open for a person to circumvent the provisions of law by entering into an agreement. Therefore the contention of the appellant that it was open for the dependant Mrs. Reny Pevy to waive her right and agree to have the amount brought into the Court for payment to the decree-holder in satisfaction of his decree cannot be sustained.

31. Thus, for the reasons stated above, the decree passed by the Court below is confirmed and this appeal is dismissed with costs.


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