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Shaik Dawood and ors. Vs. Mahamood Begum and ors. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtAndhra Pradesh High Court
Decided On
Case NumberA.S. No. 210 of 1981
Judge
Reported inAIR1985AP321; [1987]61CompCas452(AP)
ActsInsurance Act, 1938 - Sections 39; Provident Funds Act, 1925 - Sections 5
AppellantShaik Dawood and ors.
RespondentMahamood Begum and ors.
Appellant AdvocateSyed Sadatullah Hassain, Adv.
Respondent AdvocateM. Rama Rao and ;Azizulla Khan, Advs.
Excerpt:
civil - distribution of amount - section 39 of insurance act, 1938 and section 5 of provident funds act, 1925 - suit for partition of properties arising due to death of lineman in an accident - petitioners were parents and children of first wife - defendants were second wife, children, insurance company and bank etc. - various questions pertaining to distribution of schedule properties of deceased were raised - whether personal law of plaintiff applies to schedule amount - whether defendant entitled to receive balance out of term deposit - court issued directions regarding distribution of schedule amount among plaintiffs and defendants in accordance with law. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action .....ramachandra raju, j.1. the appeal is directed against the decree and judgment dismissing o.s. no. 33 of 1979 on the file of the subordinate judge, sangareddy, a suit filed for partition of the properties belonging to the estate of one late s. m. ghouse, who died on january 9, 1979, due to a fatal accident, while working as a lineman in the state electricity board at siddipet. 2. the parties are referred to, according to their position, in the suit. plaintiffs nos. 1 and 2 are, respectively, the farther and mother of late s. m. ghouse. the said ghouse married one razia begum through whom, three daughters, plaintiffs nos. 3 to 5, all minors, were born to him. on the death of razia begum in the year 1972, s. m. ghouse married the first defendant as his second wife. the second defendant is.....
Judgment:

Ramachandra Raju, J.

1. The appeal is directed against the decree and judgment dismissing O.S. No. 33 of 1979 on the file of the Subordinate Judge, Sangareddy, a suit filed for partition of the properties belonging to the estate of one late S. M. Ghouse, who died on January 9, 1979, due to a fatal accident, while working as a lineman in the State Electricity Board at Siddipet.

2. The parties are referred to, according to their position, in the suit. Plaintiffs Nos. 1 and 2 are, respectively, the farther and mother of late S. M. Ghouse. The said Ghouse married one Razia Begum through whom, three daughters, plaintiffs Nos. 3 to 5, all minors, were born to him. On the death of Razia Begum in the year 1972, S. M. Ghouse married the first defendant as his second wife. The second defendant is his son through the first defendant. The third defendant is the posthumous daughter of S. M. Ghouse by the second marriage. Various amounts, detailed as items Nos. 1 to 16 of the plaint schedule, belong to the estate of late S. M. Ghouse either as amounts standing to his credit or which became payable consequent on his death. Item No. 7 of the plaint schedule involving an amount of Rs. 16.08 relates to the arrears of salary due to late S. M. Ghouse for the period January 1 to January 9, 1979. Items No. 9 involving an amount of Rs. 16.37 related to the arrears due on account of work done on paid holidays. Item No. 10 involving an amount of Rs. 25 related to the arrears due on account of medical aid. It is common ground that, subsequent to the death of S. M. Ghouse, the first defendant drew these amounts covered by items Nos. 7, 9 and 10 involving a total amount of Rs. 57.45.

3. Shortly thereafter, disputes arose between the parties because of the claim for a share made by plaintiffs Nos. 1 and 2 in the plaint schedule property. The first defendant, by notice dated June 21, 1979, denied the rights of the plaintiff and the suit, out of which this appeal had arisen, was filed on July 26, 1979, claiming partition. Defendants Nos. 4 to 8 impleaded in the suit are the officers who were, by the date of suit, in custody of the various items, listed out in the plaint schedule.

4. The suit was resisted by defendants Nos. 1 to 3 on various grounds. It is firstly submitted that there is a conflict of interest between the first plaintiff who is representing plaintiffs Nos. 3 to 5 as a next friend and plaintiffs Nos. 3 to 5 and there is, therefore, no proper representation for plaintiffs Nos. 3 to 5 in the suit. It is submitted, secondly, that plaintiffs Nos. 1 and 2 are not dependent parents and they are not, therefore, entitled to claim any share. It is then submitted that the nominees under the Life Insurance Corporation policies covered by items Nos. 1 and 2 of the schedule are alone entitled to be paid the amounts, to the exclusion of all other legal heirs and that, similarly, the family benefit fund covered by items No. 5 and the gratuity covered by item No. 6 are payable only to the first defendant and the children of S. M. Ghouse and that plaintiffs Nos. 1 and 2 are not entitled to claim any share in those amounts.

5. The fourth defendant, Life Insurance Corporation, has given particulars with reference to the individual policies covered by items No. 1 to 3, and pleaded that the Corporation is prepared to pay the claim amounts to any person as the court directs, but such payments would arise only when the Corporation decides to admit the claim, after compliance with the requirements of the Corporation to its satisfaction. The seventh defendant-bank is concerned with items No. 14 to 15. The bank made a counter-claim for the repayment by the legal heirs of the loan borrowed by S. M. Ghouse on the security of the item No. 15 of the plaint schedule. The eight defendant who is concerned with item No. 16 of the plaint schedule denied the claim made by plaintiffs Nos. 1 and 2 but otherwise did not dispute the right of plaintiffs Nos. 3 to 5 and defendants No. 1 to 3 to receive that amount. Defendants No. 5 to 6 remained ex parte. On the issue No. 1 :

'Whether the amounts mentioned in the plaint schedule are the matruka and liable for partition'

the learned Subordinate Judge held that the schedule properties accruing to the estate, after the death of S. M. Ghouse, are not matruka properties and, therefore, not liable for partition. Under issue No. 2 :

'Whether the personal law of plaintiffs Nos. 1 and 2 applies to the schedule amounts'

the learned Subordinate Judge found that the personal law is not applicable but the payment should be made in accordance with the nominations made by late S. M. Ghouse. On issue No. 3 :

'Whether plaintiffs Nos. 1 and 2 are dependents of the deceased, S. M. Ghouse, and, if so, to what extent they are entitled'

the learned Subordinate Judge found that plaintiffs Nos. 1 and 2 are not dependents and, therefore, they are not entitled to claim any share in the suit schedule properties. On issue No. 4 :

'What is the balance amount available out of special term deposit after deducting the loan taken by late S. M. Ghouse from defendant No. 7 and who is entitled to receive it'

the learned Subordinate Judge held that the said amount is available from the seventh defendant who shall, however, decide for itself according to law the amount payable in respect of the said special term deposit. He found defendants Nos. 4 to 8 to be necessary parties to the suit, but, none the less, observed that the suit is bad for non-joinder of parties in as much as all the legal heirs and residuaries are to included in the array of either plaintiffs or defendants. The plaintiffs have, therefore, preferred this appeal, questioning the correctness of the various findings.

6. During the pendency of this appeal, by an order dated February 25, 1981, made in C.M.P. No. 2264 of 1981, defendants Nos. 1 to 3 were permitted to withdraw 19/48ths of amount lying with defendants Nos. 4 to 8 and they were prohibited by an interim injunction restraining them from withdrawing the balance of 29/48ths share of such amounts. By a subsequent order made on April 16, 1981, in the said C.M.P. and C.M.P. Nos. 4790 of 1981, defendant Nos. 4 to 8 were directed to remit the entire amount lying with them in the tribunal court, to the credit, of O.S. Nos. 33 of 1979 on its file. The trial court, after such deposit was made, was directed to pay 19/48ths share of that amount to defendants Nos. 1 to 3. The balance amount directed to be kept in deposit until further orders. It would appear that, consequent on this direction, some amounts have been deposited. By an order dated March 30, 1983, made in C.M.P. Nos. 2783 of 1983, the trial court was directed to invest the balance amount lying to the credit of suit in a nationalised bank for an initial period of 37 months.

7. The various items of the plaint schedule can be conveniently clubbed and disposed of. Items Nos. 1 to 3 of the plaint schedule form one group, as they relate to amounts covered by individual Life Insurance Corporation policies. The written statement filed by the fourth defendant discloses that there is no nominee, in respect of item No. 1 and that the first defendant is the nominee in respect of item No. 2 and, under rules in force, item No. 3 is assigned in favour of the Regional Provident Fund Commissioner. In the written statement filed by the first defendant, she pleaded that, in respect of item No. 1 of the schedule, the original nominee was late Razia Begum, the wife of S. M. Ghouse. After the death of the said Razia Begum, S. M. Ghouse has not made any other nomination and, therefore, one has to proceed that, in respect of item No. 1 of the schedule, there is no nomination. The plea but forward by defendants of Nos. 1 to 3 that payments should be made to the first defendant, in terms of the nomination made in respect of item No. 2 of the plaint schedule, is no longer tenable, after the decision of the Supreme Court in Sarbati Devi v. Usha Devi [1984] 55 Comp Cas 214 which laid down (at p. 223) :

'A mere nomination made under section 39 of the Act does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicated the had which is authorities to receive the amount, on the payment of which the insurer gets valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them.'

8. In view of this decision, Mr. Azizullah Khan, learned counsel appearing for defendants Nos. 1 to 3, did not dispute the right of the plaintiffs to claim a share in those amounts, in accordance with the principles of law of succession, by which the parties are governed.

9. It is, however, submitted that the monies which became payable in terms of the policies after the death of S. M. Ghouse did not form part of his estate which could devolve on the legal heirs. Insurance is a contract between the insurer and the assured. Under the contract, the assured entitled to a certain benefit, that is, to the payment of a definite amount. The contract, together with the benefit arising under it, forms part of his assets. The benefit secured by the policy, therefore, forms part of the estate of the deceased policy holder. In Raja Ram v. Mata Prasad [1973] 43 Comp Cas 53(All) [FB], observations to a similar effect were made. The learned Subordinate Judge is in clear error in holding that the amount which became payable after the death of the late S. M. Ghouse did not form part of his estate. We, therefore, repel this submission.

10. Mr. Azizullah Khan is not right in placing any reliance on the observations made in B. M. Mundkur v. LIC of India [1977] 47 Comp Cas 19 (Mad), to submit that the nominee under the policy is entitled to receive the amount in her own right. That was a case which considered the effect of section 44 of the Insurance Act which provided for the right of the nominee to receive the commission payable to a deceased agent. The nomination in the terms of section of 44 could also be made in favour of a social or charitable institution. The learned judge, therefore, held that the proviso contemplates a nomination under which the money itself could be paid to such institution as owner thereof and it could not have been contemplated that such social or charitable institutions were constituted merely as agents to receive the money on behalf of the estate of the deceased with an obligation to pay it over to such estate. In Sarbati Devi's case [1984] 55 Comp Cas 214, the Supreme Court considered B. M. Mundkur's case [1977] 47 Com Cas 19 (Mad) as well and observed that no analogy could be drawn between section 39 and section 44(2) of the Insurance Act.

11. Plaintiffs Nos. 1 and 2 as parents, plaintiffs Nos. 3 to 5 and the third defendant as daughters and the first defendant as the widow of late S. M. Ghouse inherit the estate as shares. The second defendant, the only son, inherits as a residuary. There is no dispute that plaintiffs Nos. 1 to 2 are each entitled to a 1/6th share, the first defendant is entitled to 1/8th share and plaintiffs Nos. 3 to 5 and the third defendant are each entitled to a 13/144ths share and the second defendant is entitled to a 26/144ths share in the estate of the late S. M. Ghouse. The learned Subordinate Judge is in clear error in saying that the suit for partition is bad for non-joinder of all the legal heirs and residuaries. All the shares and the residuary, who were entitled to succeed to the estate of the late S. M. Ghouse, have been impleaded in the suit and there is no need to implead anybody else who, under the Mohammedan Law of Inheritance, had no right at all to succeed to the estate of the late S. M. Ghouse, in any manner.

12. Item No. 16, which related to the balance of provident fund to the credit to the late S. M. Ghouse from a separate a category. Late S. M. Ghouse was a member of the Employees' Provident Fund Scheme, 1952. He, however, did not give any declaration under para 61 of the Employees' Provident Fund Scheme, 1952, nominating any member of his family to receive the provident fund accumulations standing to his credit in the event of his death. In the absence of any nomination, and when there is no dispute that this amount forms part of estate of late S. M. Ghouse, the succession to this item has to be decide with reference to the material provisions of the Employees' Provident Fund Scheme, 1952. The following provisions in that scheme become material (only material portions extracted). Para 2(g) defines 'family' as meaning in the case of a male member, his wife, his children and his dependent parents. Para 61 of the scheme provides for nomination. In terms of that para, each member shall make in his declaration in Form No. 22, a nomination conferring the right to receive the amount that may stand to his credit in the fund in the event of his death before the amount standing to his credit has become payable or where the amount has become payable, before the payment has been made. A member may, in his nomination, distribute the amount that may stand to his credit in the fund amongst his nominees at his own discretion. If a member has a family at the time of making a nomination, the nomination shall be in favour of one or more persons belonging to his family. Any nomination made by such member, in favour of a person not belonging to his family, shall be invalid. As, in this case, no such nomination has been made, we need not notice the further provisions made in this para. Para 70 (ii) of the Scheme provides for the disbursement of the provident fund accumulations in cases where there is no nomination :

'If no nomination subsists, the amount shall become payable to the members of his family in equal shares. A member's posthumous child, if born alive, shall be treated in the same way as a surviving child born before the member's death.'

13. The learned Subordinate Judge found on an appreciation of the evidence that plaintiffs Nos. 1 and 2 have not established that they are dependent parents. We have been taken though the evidence. The first plaintiff who gave evidence as PW-1 did not say anything that he or the second plaintiff was a dependent parent. We, therefore, confirm the finding of the learned Subordinate Judge that plaintiffs. Nos. 1 to 2 do not answer the description of dependent parents.

14. The more important question is, whether succession to this asset stands to be governed by the Mohammedan Law of Inheritance, whether there was a nomination or no nomination. The answer depends upon the real intendment of special provisions made in the Employee's Provident Funds Act, 1952, or the Employee's Provident Funds Scheme, 1952; and the meaning to be given to the word 'payable', which occurs in para. 70 of the Scheme. Accumulated balances in the provident fund represent, in the majority of cases, the life savings of an employee. If there is a valid nomination, it is payable to the nominee. If there is no nomination, it becomes payable, in equal shares, amongst the various members who fall in the ambit of 'family', as defined in the scheme. Does the nominee in the case or there member of the family in other case acquire an exclusive right to appropriate the amount paid to him as an asset belonging to him In our view, the word 'payable' cannot be interpreted to mean that the payee gets an absolute right over such amounts to the exclusion of the other heirs to the estate of the deceased. To illustrate : A nominated his second wife and, when he died, he left a provident fund asset of Rs. 1 lakh and some children by his two wives. Surely, A's wife cannot claim to be entitled to the entire amount to the exclusion of A's children. The same principles ought to govern amounts paid to persons in a case of 'no nomination'. Such persons cannot be put on a higher footing than a 'nominee'. We are of the definite view that, in respect of provident fund amounts, the same principles as were laid down by the Supreme Court in Sarbati Devi's case [1984] 55 Comp Cas 214, should be applied.

15. Prior to the amendment of 1946, section of 5 of the Provident Funds Act, 1925, in its material terms, and dealing with a case of nomination provided : 'Any nomination 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 ... shall be deemed to confer such right absolutely ...' There was a conflict of judicial opinion whether the nominee who has the excluded right to receive payment takes the amount to enjoyed by him absolutely or only receives the amount, subject to the rights of the legal heirs of the deceased subscriber. By the amendment of 1946, the word 'absolutely' occurring hitherto in section 5 was omitted. After the amendment of 1946, section 5 of the Provident Funds Act, 1925, read in its material terms 'where any nomination purports to confer upon any person the right to receive the whole or any part of such sum on the death of the subscriber occurring before the sum has become payable or before the sum, having become payable, has been paid, the said person other shall on the death of the subscriber become entitled, to the exclusion of all other persons, to receive such sum ...........' The amendment, in our view, sought to put an end to the conflict of judicial opinion and to favour the view that the nominee has, after the amendment, only the right to receive the amount which had become payable, without any legislative expression, that such nominee has any right as such to enjoy the money merely on the basis of such nomination.

16. It is, however, regrettable that, even after the amendment, the conflict in judicial opinion continued to persist. We consider it unnecessary to consider in detail the decisions rendered prior to the 1946 amendment. M. Mon Singh v. Mothi Bhai, AIR 1936 Mad 477, which was followed in Sitaramswamy v. Venkatarama Rao [1944] 1 MLJ 198; AIR 1944 Mad 370 and Somayajulu v. Somi Devi, : AIR1950Mad210 , favoured the view that a nominee acquires an absolute right to enjoy the fund. The contrary view which was tersely expressed in Noor Mohomed v. Mt. Sardar Khatun, AIR 1949 Sind 38, is 'The use of the word 'absolutely' has not the effect of conferring on the nominee a title to the exclusive ownership of the deposit'.

17. We now proceed to consider a few decisions rendered after the amendment of 1946, which came into force on April 18, 1946. In Narayanan v. Aesha, AIR 1964 Ker 197, the learned judge held that the rights of a nominee of a provident fund are analogous to the rights of a nominee under section 39 of the Insurance Act.

18. A division Bench of the Orissa High Court in M. Malati v. M. Dharma Rao, : (1968)ILLJ59Ori , merely adopted the view expressed by the Madras High Court, in the decisions rendered on the basis of the wording use in section 5, prior to the amending Act of 1946. Section 5 of the Act, as amended, was no doubt extracted but we find no discussion as to the effect of the amendment on the divergent opinions expressed by different High Courts on the language so section 5, before and after the amendment. After raising the question' Whether the money received becomes the absolute property of the nominee or continues to remain the property of the deceased so as to be available for distribution amongst his heirs in accordance with the personal Law', the learned judges felt that the weight of opinion is in favour of the former and proceeded further to say that there is nothing in section 3, 4 or 5 to indicate the contrary that the nominee receives the amount for the benefit of the heirs or dependents.

19. Section 3 of the Act merely provides for protection of compulsory deposits both during the lifetime of subscriber or after the death, when the fund vests in the dependent. Section 4 of the Act provides for repayments and section 5 provides for the rights of nominees. These various provisions have to be read together and with the other provisions of Provident Funds Act. The Act makes provision in the interest of certain large clause of employees of a scheme of compulsory, and to a limited extent voluntary, thrift. Its intention is that such people in case of their retirements have something to live on, and in case of death, have some thing to leave. In the majority of cases, accumulated balance in the provident fund represents the life savings of the employees. Provision for a making nomination is made to facilitate quick repayment so that the nominee gives a nation is made to facilitate quick repayment so that the nominee gives a valid acquittance for the amount paid to him as such nominee. Section 5 of the Act, therefore, provided that the nominee shall become entitled, to the exclusion of all other persons, to receive such sum. The Act had only provided for the exclusive right of the nominee receive and did not provide that the same shall become the absolute property of the nominee. Prior to the 1946 amendment, the word 'absolutely' occurring in section 5 contributed to the divergence of opinions. After the 1946 amendment, the view expressed by the Madras High Court and shared by other High Courts has become obsolete. Malati's case, : (1968)ILLJ59Ori , in our view, does not lay down the correct legal position. We dissent from that view.

20. Hardev Kaur v. Jodh Singh, , accepted the latter view, and in our view rightly, on the question raised in Malati's case, : (1968)ILLJ59Ori . That, however, related to a case of an invalid nomination made by the deceased subscriber in favour of his father but, in whose favour, the deceased subscribed also left a valid will.

21. Ekbote J. (as he then was) in Talupulu v. Narasamma, AIR 1967 AP 10, subscribed himself to the view expressed in Malati's case, AIR 1968 Orissa, in a case decided ex parte, by following Stanley Martin's case, AIR 1339 Cal 642, without any discussion. This view was later followed in Lalitha v. Ranganayakamma [1975] 2 APLJ 168 by another single judge of this court. We have carefully analysed the facts in Stanley Martin's case, AIR 1339 Cal 642.

22. Stanley Martin, a railway employee, died on December 3, 1938. He left behind a child, Ian Martin, a sister, Miss Lumsden, a brother, Joseph Martine his mother and Rs. 19,600 in his provident fund account amongst some other assets which are not material. Concerning the provident fund, Stanley Martine nominated his child represented during her minority by guardian, Miss Lumsden. Under the will, Stanley Martine bequeathed all his property to his mother and brother and provided only a sum of Rs. 5,000 towards the education and wants of his child, Ian Martin. When Miss Lumsden was trying to withdraw the provident fund as the constituted guardian of the minor nominee, Joseph Martin applied in the testamentary jurisdiction for letters of administration and sought a temporary injection to restrain Miss Lumsden from withdrawing the provident fund. The learned judge held that no question regarding title to property can be decided in such an application and that order 39, rule 1, civil procedure Code, is applicable. Purporting then to exercise the inherent jurisdiction of a Chartered High Court, the learned judge, while granting the temporary injunction concerning other assets, refused temporary injunction concerning the of amount of Rs. 19,600 by saying that the said did not form part of the estate of the deceased in his will. It can at once be seen that the case arose before the amendment of section 5 and the view of Calcutta High Court largely rested on the word 'absolutely' appearing in the preamended section. It is not, therefore, correct to place any reliance on Stanley's Martin's case, AIR 1939 Cal 642, and apply that law to a case arising after the 1946 amendment. We accordingly hold that the law is not correctly stated in Talupulu's case, AIR 1967 AP 10.

23. In Lalitha's case [1975] 2 APLJ 168, one 'Pantulu' did on May 29, 1960. His second wife, Ranganayakamma, was the nominee in respect of the provident fund. In repelling the claim made by other heirs for their share, the learned judge merely followed Talupulu's case, AIR 1967 AP 10 and Stanley Martin's case, AIR 1939 Cal 642, and some decisions rendered prior to the amendments of 1946. WE hold that the law is not correctly stated in Lalitha's case, [1975] 2 APLJ 168, either.

24. Jayalaxmi v. Lakshmi Ammal [1978] 2 SLR 736, dealt with a situation where the adulterous wife of the deceased subscriber was not permitted to get at the provident fund, in respect of which the nominee happened to be the subscriber's sister. The facts are clearly distinguishable.

25. To sum up, out conclusions are :

(1) The nominee of a provident fund has only the exclusive right to receive the fund. His rights ar the same as that of a nominee under the section 39 of the Insurance Act.

(2) The provident fund remains the property of the deceased subscriber and is available for distribution amongst his heirs in accordance with their personal law. The Supreme Court decisions decision in Sarbati Devi's case [1984] 55 Com Cas 214, governs nominations made in respect of provident funds as well.

(3) Tulupulu's case, AIR 1967 AP 10 and Lalitha's case [1975] 2 APLJ 168, do not sate the law correctly.

25. Each of plaintiff's Nos. 1 to 2 is, therefore, entitled to a 1/6 the share; first defendant is entitled to 1/8th share; second defendant is entitled to 26/144ths share and each of plaintiff's Nos. 3 to 5 and the third defendant is entitled to a 13/144ths share in item No. 16 the plaint schedule.

26. There is no dispute that items Nos. 7 to 15 of the plaint schedule are assets belonging to the late S. M. Ghouse. Item No. 15 is a special term deposit of Rs. 2,500 made by the late S. M. Ghouse in the name of his only son, the second defendant. In the absence any plea that the money came from a source other than the late Ghouse or that Ghouse intended to exclusively benefit D2 with that amount, the parties will have their rights in that item in accordance with their shares defined while dealing with item No. 16.

27. Item No. 4 of the plaint schedule is an amount of Rs. 21,600 which became payable under the Workmen's Compensation Act. The distribution of such compensation amount under the 8 of that Act is the exclusive function of the Commissioner for Workmen's Compensation. Section 19(2) of the Act expressly excludes the jurisdiction of civil court to decide any question which under the Act is required to be decided by the Commissioner. We have, therefore, refrained from expressing in any manner on the rights of parties in this item. We direct the parties to approach the Commissioner for the necessary decision. Under the interim orders made by this court, it is possible that the Commissioner may have deposited this amount and the same would have been either paid to defendants Nos. 1 to 3 or invested. To facilitate the Commissioner to deal with the compensation amount, the trial court is directed to retransfer to Commissioner the balance amount invested, together with any interest which may have accrued on such deposit amount. The Commissioner will make or issue appropriate adjustments or directions regarding any amounts already paid to defendants Nos. 1 to 3 under the interim orders of this court.

28. Item Nos. 5 of the plaint schedule is the amount which became payable under the A.P. State Employee's Benefit Fund Rules. The rules provide for the payment of amount to the nominees and in case of no nomination, the amount shall be paid to legal heirs of the deceased employee. There is no evidence adduced regarding the existence of any nomination in favour of any member of the family. Even if under the rules, the amount becomes payable to the first defendant, the amount does not belong exclusively to the first defendant. It forms of the estate of the late Ghouse in much the same manner as the insurance amounts or the provident fund amount deal with supra. Plaintiff's Nos. 1 to 5 and defendants Nos. 1 to 3 will be entitled to share this amount also in accordance with their shares specified already as on inheritance.

29. Item No. 6 of the plaint schedule represents the amount which became payable as gratuity under the A.P. Liberalised Pension Rules. No evidence has been let into whose the existence of any nomination and if so in is whose favour. Even otherwise, the amount forms a parts of the estate and is an asset available for distribution amongst the several heirs of the late Ghouse. The learned Subordinate Judge is in clear error in dismissing the suit. He failed even to notice that, in the written statement filed by defendants Nos. 1 to 3, they were only disputing the right which plaintiffs Nos. 1 and 2 were claiming and they never disputed the shares claimed by plaintiffs Nos. 3 to 5 in any of the items Nos. 4 to 16.

30. This court issued interim directions on April 16, 1981, directing defendants Nos. 4 to 8 to deposit the schedule amount into court. We have no material before us whether defendants Nos. 4 to 8 have complied with such directions or not and if complied, to what extent. Item Nos. 4 of the plaint schedule stands son a separate footing and this court has no jurisdiction to grant any relief to the parties with reference to that item. We have indicated the shares in which plaintiffs Nos. 1 to 5 and defendants Nos. 1 to 3 are entitled to inherit the amounts, the subject-matter of items Nos. 1 to 3 and 5 to 16 of the plaint schedule. It is possible that some mistakes would have crept in inspecifying the exact amount due to the estate under each of the items. There is no need to obviate the necessary to seek amendment of the plaint schedule. The decree we proposed to pass is, therefore, directed to take effect of the actual amounts due under amount specified in the schedule. WE have also made the necessary provision for the discharge of the loan raised by the late Ghouse on the security of item No. 15. This is a proper case where the parties ought to be and are accordingly directed to bear their respective costs throughout.

31. The judgment and decree of the court below is accordingly set aside. The suit is decreed in terms give below.

(1) It be declared that each of plaintiffs Nos. 1 and 2 are entitled to a 1/6th share; the first defendant is entitled to a 1/8th share; the second defendant is entitled to 26/144th share and each of plaintiffs Nos. 3 to 5 and the fourth defendant is entitled to 13/144th share in the actual amounts due under each of items Nos. 1 to 3 and 5 to 16 of the plaintiff schedule without restricting the relief in any manner to the amounts specified in the schedule.

(2) The aforesaid shares be liable to discharge the loan, if any, outstanding in favour of the seventh defendant in the same proportions as defined in clause 1 of the decree.

(3) The parties to be directed to approach the Commissioner for Workmen's Compensation for this decision regarding item No. 4 of the plaint schedule.

(4) The parties or their guardians-ad-litem, as the case may be, sign such forms or receipts as defendants Nos. 4 to 8 may require from them.

(5) That the parties bear their respective costs throughout.


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