1. This appeal by Chotey Khan is duected against the Order 30th January, 1967, of the learned District Judge, Ajmer rejecting appellant's application for grant of succession certificate in respect of the amount of provident fund and gratuity of Khudabux deceased who was an employee in the Railway Loco Workshop, Ajmer.
2. The appellant on the death of Khudabux on 9.5.1963, claiming to be his brother applied to the District Judge. Ajmer for grant of a succession certificate. It was stated by the appellant that Khudabux deceased had married Mst. Zeenat who is the respondent in this Court, but subsequently divorced her by a written document on 12th January, 1963, and as such is not eligible for the provident fund and gratuity. His application was opposed by the respondent and she denied that she was ever divorced by Khudabux. It was further stated that the respondent both as a widow and a nominee was entitled to receive the provident fund and gratuity from the railway and that the appellant had no right to the said amount. The learned District Judge framed the following issues:
1. Whether the petitioner is entitled to a succession certificate in respect of the debt shown in para 6 of the petition?
2. Whether Mst. Zeenat alias Chisi is the divorced wife of late Khudabux?
3. In support of issue No. 2 six witnesses were examined on behalf of the appellant and in rebuttal respondent gave her own statement.
4. The learned District Judge after a consideration of that evidence held that the divorce of Mst. Zeeat by Khudabux was not proved. Having come to this finding he rejected the appellant's application holding that he was not entitled to succession certificate in the presence of the wife of the deceased i.e., the respondent. The appellant has now come in appeal and the contentions of the learned Counsel are:
1.That the learned District Judge has not correctly appreciated the evidence and has therefore, arrived at a wrong conclusion that the respondent had not been divorced by Khudabux.
2. That even if the respondent is not proved to have been divorced, she is only entitled to receive the provident fund from the railway as nominee vide Section 5(1) of the Provident Fund Act, 1925, but is not entitled to appropriate it to the exclusion of the appellant who also, according to Mohammedan Law has a share in the assets of the deceased.
5. Learned Counsel for the respondent however, urges that once the court comes to the conclusion that a valid nomination is subsisting in favour of the respondent, no succession certificate can be granted to the appellant because the object of granting a succession certificate is to facilitate the collection of debts and to give a valid discharge and that questions of disputed title cannot be litigated in these summary proceedings.
6. As regards the first point the learned Distt. Judge has mentioned number of discrepancies in the statements of the appellant's witnesses on material points which go to show that his allegation about the divorce was not true. It is unnecessay for this Court to repeat the same grounds here Suffice it to say that in the petition it was not the case of the appellant that an oral divorce had preceded the written divorce. But at the trial it Was sought it to be proved that there was oral divorce as well as a written one. In para 4 of the application the date of divorce is stated to be 12th January,1963.But contrary to it in the evidence of Bansidhar who is alleged to the be scribe of the deed of divorce the date of written divorcee is stated to be 20th December, 1962.
7. It may also be pointed out here that the appellant's case in the court Delow was that the original deed of divorce after its execution was handed over by the deceased to the respondent. The appellant, therefore called upon the respondent to produce that deed in the court and as it was not done, the appellant was allowed to lead secondary evidence to prove the contents of the deed and that is how evidence of the witnesses came to be recorded on that point. Bansidhar stated that at the instance of Khndabux, he had written a deed by which the respondent was divorced and there is an entry dated 20th December, 1962, to that effect in his register. The witness is a petition writer and, therefore, keeps a record of the document written by him. He has stated that the document was attested by Allahadin and Nabibux in his presence. Whereas the other evidence of the appellant is that it was attested by four persons in the presence of Bansidhar vide statements of Allahadin (P.W. 3), Nabibux (P.W. 4,), Samshuddin (P.W. 5) and Ibrahim (P.W. 6). In his application dated 21st August, 1965, it was stated on behalf of the appellant that the divorce deed was sent to the respondent as per registered post letter. But at the trial the appellant tried to prove by the evidence of his witnesses that the deed was handed over to the respondent personally by the deceased at Nasirabad. Again the evidence of the appellant's witnesses is conflicting on the point whether the oral and the written divorce took place on the same day or on different dates. According to some witnesses oral as well as the written divorce took place on the same day while according to other witnesses the written deed was two or three days after the oral divorce. The learned District Judge has also rightly pointed out that if this were a fact that the respondent had been divorced by the deceased he would have most certainly taken steps for cancellation of the nomination in her favour. I, therefore, agree with the learned District Judge that the appellant has utterly failed to prove that the deceased had divorced the respondent.
8. The next question is whether a succession certificate can be issued in favour of the appellant who claims to be the brother of the deceased. Prior to the enactment of Part 10 of the Indian Succession Certificate Act, 1925 the printable to the Succession Certificate Act, No. VII of 1889 was as follows:
Whereas it is expedient to facilitate the collection of debts on succession and afford protection to parties paying debts to the representatives of deceased person.
The same is the object of Part 10 viz, to facilitate the collecion of debts and afford protection to the debtors of the deceased. See Prankisto Biswas v. Nobodip Chunder Biswas and Anr. ILR 1953 Cal. 863, and Gunindra Prasad v. Jagmala Bibi ILR 30 Cal. 581. In the latter case it was held:
The object of the Succession Certificate Act (VII of 1889) is to obtain the appointment of some one to give a legal discharge to debtors to the estate for the debts due, and not to have nice and intricate questions of law as to the rights of parties to the estate of the deceased decided on an application under it.
9. This being the object of a Succession Certificate the question is that when there is a nomination duly made in favour of the respondent can such a certificate be granted to the appellant. Section 5(1) of the Provident Funds Act, 1925 so far as it is relevant is as under:
5.(1) Notwithstanding any thing contained in any law for the time being in force or in 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, where any nomination, duly made in accordance with the rules of the Fund, 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 depositer occurring before the sum has become payable or before the sum having become payable, has been paid, the said person shall, on the death as aforesaid of the subscriber or depositor, become entitled, to the exclusion of all other persons, to receive such sum or part thereof, as the case may be, unless-
(a) Such nomination is at any time varied by another nomination expressly cancelled by notice given in the manner and to the authority prescribed by those rules, or
(b) Such nomination at any time becomes invalid by reason of the happening of some contingency specified therein,
and if the said person predeceases the subscriber or depositor the nomination shall, so far as it relates to the right conferred upon the said person, become void and of no effect:
Provided that where provision has been duly made in the nomination in accordance with the rules of the Fund, conferring upon some other person such right shall, upon the deceased as aforesaid of the said person pass to such other person.
This clearly shows that after the death of the subsriber the nominee alone becomes entitled to the exclusion of all other persons, to receive such sum or part thereof, as the case may be, unless the nomination is varied or cancelled, or it becomes invalid by reason of the happening of some contingency specified therein This provision overrides the provision contained in other enactments as also any disposition, whether it is testamentary or otherwise as would appear from the opening words of the section that 'Notwithstanding anything contained in any law for the time being in force in any disposition, whether testamentary or otherwise. The respondent in this case is the wife of the deceased and is a dependant within the meaning of Section 2(c) of the Act. Under Section 3(2) of the Provident Funds Act it is provided that:
Any sum standing to the credit of any subscriber to, or depositor in, any such Fund at the time of his death and payable under the rules of the Fund to any dependant of the subscriber or depositor, or to such person as may be authorised by law to receive payment on his behalf, shall, subject to any deduction authorised by this Act and, save where the dependent is the widow or child of the subscriber or depositer, subject also to the rights of an assignee under an assignment made before the commencement of this Act, vest in the dependent, and shall, subject as aforesaid, be free from any debt or other liability incurred by the deceased or incurred by the dependent before the death of the subscriber or depositor.
Section 4 enjoins on the officer whose duty it is to make the payment, of the sum to the persons mentioned in Clauses (a), (b), (c), (i) and (ii) and the payments so made shall be a full discharge to the Government or the railway administration, as the case may be from all liability in respect of so much of the sum standing to the credit of the subscriber or depositer as is equivalent to the amount so paid vide Sub-section (2) to Section 4. Therefore, the person entitled to receive the sum is either a dependant of the subscriber or his nominee and that the office is bound to pay the said sum to the aforesaid persons and the said payment shall be a full discharge to the railway administration. In the face of these provisions no useful purpose would be served by granting a succession certificate whose object as already stated, is only to facilitate the collection of the debts of the the deceased. According to Section 381 of the Indian Succession Act also, the effect of sucession certificate is the same as is provided in Sub-section (2) to Section 4 of the Provident Funds Act. I accordingly hold that in view of a valid nomination under the Provident Funds Act subsisting in favour of the respondent a succession certificate cannot be issued in favour of the appellant. As in the present case it has not been disputed in this count that Khudabux deceased had made a nomination in favour of the respondent in respect of the Provident Fund, nor could it have been so disputed in view of the letter of the Western Railway No. Ew 1061/1/3/4/63 dated 21-12-63, from the Deputy C.M. (Ws), Ajmer to the appellant, which he had himself...produced in the case. The learned District Judge was quite right in rejecting the appellant's application for a succession certificate.
10. As regards the question that Section 5 only entitles a nominee to receive the provident fund, but it does not vest in her, there is a course divergence of judicial opinion, but in view of what has been said above, it is not necessary to go into that question.
11. The appeal is therefore, dismissed with costs.