C.M. Lodha, J.
1. One Bhoora Ram an employee of Northern Railway died at village Baori, District Jodhpur on 16-5-1957, There was an amount of Rs. 2000/- lying on account of Provident Fund and Gratuity to his credit with tne Railway and the dispute in the present case relates as to the right of the rival claimants to withdraw that amount. It is beyond dispute that by Ex.2, dated 4-11-1951 Bhoora Ram made a nomination in favour of Smt. Jamna, his alleged second wife, in respect of this amount but subsequently he cancelled it and made a fresh nomanation in favour of his son Heera Ram by the first wife Smt. Sari by notice Ex 1, which reached the District Controller of Stores on 21-5-1957 i.e. 5 days after the death of Bhoora Ram. The Railway entertained doubt regarding validity of the subsequent nomination in favour of Heera Ram However, to add to the difficulty of Smt. Jamna, Heera Ram also obtained a succession certificate in his favour in respect of the property left by Bhoora Ram. Smt. Jamna served a notice under Section 80, C.P.C on the Railway for payment of the amount to her but the Railway replied that in view of the dispute having been raised by Heera Ram, they would pay the amount to such person as may be held by the Court to be entitled to it. This led to the filation of the present suit by Smt. Jamna in the Court of Civil Judge, Jodhpur for a declaration in her favour that she was legally entitled to receive the amount of Provident Fund and Gratuity lying to the credit of the deceased Bhoora Ram. The suit was resisted by Heera Ram, who pleaded that he was lawfully entitled to withdraw the amount by virtue of the subsequent nomination Ex. 1 The Railway, however, took a neutral attitude and pleaded that they would pay the amount to whichever person the court directs.
2. After recording the evidence produced by the parties the learned Civil Judge, Jodhpur held that the subsequent nomination Ex.1 was proved to have been executed by Bhoora Ram, but that since it had been received by the office on 21-5-1957 after the death of Bhoora Ram the same was ineffective. In this view of the matter he decreed the plaintiff's suit. Defendant Heera Ram filed appeal in the Court of District Judge, Jodhpur, but was unsuccessful. Hence this second appeal by him.
3 The only point arising for decision in the appeal is whether the subsequent nomination Ex 1, dated 14-5-1957 by Bhoora Ram is not valid? At this stage I may mention that the trial court after sifting the evidence produced by the parties came to the conclusion that the execution of Ex.1 by Bhoora Ram was duly proved. That finding has not been displaced by the learned District Judge, nor has it been called in question before me. It has, however, been contented that Ex.1 was not sent by Bhcora Ram himself in his life time, but the same was received in the office of District Controller of Stores Office 5 days after his death. In this connection the learned District Judge has relied upon Rule 1338(4) and (8) of the State Railway Provident Fund Rules, and on interpretation of the same has come to the conclusion that since Ex.1 was not notified to the immediate superior of the deceased Bhoora Ram, the same is void. In order to test the correctness of this finding it would be proper to reproduce R.1338(2), (4) and (8):
1338. Nomination.-(1) ...
(2) A subscriber shall, at the time of joining the Fund, make a nomination and send it, if a gazetted railway servant to the Accounts Officer, otherwise to his immediate superior.
(4) A nomination made under Sub-rule (2) or a declaration made before these rules came into force, may be cancelled by a subscriber by seeding a notice in writing if a gazetted railway servant to the Accounts Officer, otherwise, to his immediate superior.
(8) A nomination or its cancellation shall take effect to the extent that it is valid, on the date on which it is received by the Accounts Officer or in the case of a non-gazetted railway servant on the date on which it is received by his immediate superior.
4. Now the first question is whether in order that a nomination or cancellation may be valid it is obligatory that it must be received by the officer concerned before the death of the subscriber. In this connection it may be noted that all that Sub-rule (8) lays down is that a nomination or cancellation accepted by the officer concerned after the death of the subscriber cannot undo what may have already been done before the receipt of it. In other words a nomination or its cancellation shall take effect on the date when it is received To illustrate my point I may say that if the Railway has made payment to any person previously authorised by the subscriber before the receipt of the notice of cancellation, the cancellation shall not operate so as to nullify that payment, but if before the payment is made a notice of its cancellation along with fresh nomination has been received then it would certainly take effect on the date it has been received There is nothing in this rule to warrant an inference that the notice of cancellation or a fresh nomination must be received by the officer concerned before the death of the subscriber. If such an interpretation were given to this rule I am afraid it would lead to undue hardship and injustice. For instance suppose a subscriber while he is hale and hearty has changed his mind and cancelled a nomination previously made by him, and made another nomination by sending a notice by registered post or by any other reliable means but while the notice is in transit he suddenly dies and by the time the notice is received by the officer concerned he is dead, it would be most inequitable and unjust to hold that even though the subscriber in full disposing mind had put the notice of cancellation in communication but it on account of elements of nature beyond his control he expires before the notice reaches the officer concerned, then the cancellation must not be taken notice of. Apart from the unjustness of this sort of interpretation I am of opinion that there is no warrant for such an interpretation from the plain language of the sub-rule. I, therefore, find it difficult to accept the interpretation put on Sub-rule (8) by the learned District Judge. Reliance has been placed by him in support of the view he took on Nirmal Chandra v. Jyotiprasad 42 CWN 1143. I have gone through the separate judgments written by the learned Judges in that case and find that Nasim Ali J observed in clear terms that there was absolutely no evidence in the case to show that the original subscriber took any steps to cancel the original nomination as contemplated by the section: (Section 5(1) of the Provident Fund Act). Not only that, in the plaint, there was no definite statement that the nomination made by the subscriber in his declaration was varied by another nomination as contemplated by this section. It may also be noted that that was a case where the nomination was sought to be got rid of by a subsequent will pronounded by the plaintiff, and it was held that the propounder of the will could only succeed by alleging that the deceased had cancelled the nomination by a notice given in such a manner and to such authority as is prescribed by the rules, Thus the facts of that case are completely distinguishable. The present case is not of subsequent will but one of cancellation of the previous nomination and a fresh nomination.
5. Mr. L.R. Bhansali, learned Counsel for the Railway, has, however, taken a new point before me which does not seem to have been agitated before the courts below. His contention is that at any rate it was obligatory on the part of Heera Ram to show that the notice of cancellation had been sent by the subscriber Bhoora Ram himself to his immediate superior as required by Sub-rule (4). It is urged that D.W.3. Gulraj, who states that Bhoora Ram had sent Ex.1 with him for submission in the office and that he had presented the same in the office on 15th May, 1957 has been disbelieved by the learned District Judgs and consequently the requirement of Sub-rule (4) has not been complied with. Unfortunately, the 'B' Part of the original record containing the statements of the witnesses has been weeded out and the learned Counsel for both the parties have expressed their inability to produce even an unofficial copy of the statement of Gulraj. However, in the narrative of facts, by the trial court a short summary of the evidence of Gulraj has been given in the following words:
D W.3 Gulraj deposes that Ex 1 contains his signatures at place marked C to D and that Bhoora signed Ex 1 at place A to B in his presence. In fact, he deposed that he took the form to the village and obtained the signatures on 14th May, 1957 and on 15th May. 1957, he delivered this paper in the office. Bhoora expired some 2-3 days thereafter on 16h May, 1957. During cross, this D.W.3 Gulraj admits that C to D signatures on Ex.2, the nomination in favour of the plintiff, are those of Bhoora.
6. The learned Judge observes:
D.W. 3 Gulraj is the only person who gives a definite statement. If it is accepted, that might help defendant No. 2. He states at page 1 bottom and page 2 top, that Bhoora signed Ex.1 on 14th May, 1957 when he took the paper to Bhoora and the witness returned that very evening to Jodhpur and on the day following, submitted that nomination in the office. That means that according to this witness, the nomination was received by the office of the D.C.O.'s P.W 5 on 15th May, 1957.'...and at any rate I should take it that the nomination papers must be entered in the inward register.... Nonproduction of this important piece of document, raises an inference against the defendants. In fact, defendant No.2 (Heera Lal) made no attempt towards this, Consequently, the oral testimony of D W 3 cannot be believed
7. The learned District Judge has also concurred in this finding that Gulraj D W 3 cannot be relied upon, and has further observed that he had no business to go to the village Baori and bring the nomination paper of Bhoora. However, the learned District Judge seems to have made these observations not to condemn the evidence of D.W. 3 Gulraj outright, but it seems that he did not accept his testimony regarding the date of presentation of the nomination Ex 1 in the office. I say so because he has not disbelieved the attestation of Gulraj on Ex. 1 and his evidence regarding execution of Ex 1 by Bhoora Ram or that his attestation hereon is forged, In these circumstances that part of the statement of Gulraj where be says that Bhoora Ram had handed over Ex. 1 to him tor representation in the office carrot be rejected. I am, therefore, inclined to hold that Bhoora Ram not only executed Ex. 1 but also handed it over to Gulraj for presenting the same in his office, In the circumstances of the case, it will therefore be reasonable to infer that Bhoora Ram had sent a notice in writing to his office regarding cancellation of the previous nomination and of a fresh nomination. It was also urged that the nomination was not sent to the immediate officer of Bhoora Ram. In the first place no such objection was raised either by the Railway or the plaintiff in the courts below. However, I called upon Mr. Bhansali, learned Counsel for the Railway to tell me who was the immediate superior of Bhoora Ram but he expressed hit inability to throw light on this point. At any rate admittedly the District Controller of Stores, Joahpur had received in on 21-5-1957, and it is not denied that he was above the immediate superior of Bhoora Ram. The present is not a case where a third person after expiry of the subscriber has put the cancellation and fresh nomination Ex. 1 into transmission.
8. From what I have stated above it would be clear that the notice of cancellation and fresh nomination had been sent by the subscriber Bhoora Ram himself and there was thus due compliance of the provisions contained in Sub rule (4).
9. It may not be out of place to mention, here, that before his death during illness Bhoora Ram was admittedly residing with his first wife Smt. Sari and their son Heera at village Baori and the plaintiff Smt, Jamoa was admittedly not living with him. There is also no denying the fact that after the death of Bhoora Ram, Heera Lal in fact obtained a succession certificate in respect of the properties of Bhoora Ram. Smt. Jamna, who was a party to the succession certificate proceedings did not raise any objection. These circumstances are also compatible with the version of Heera Ram that Bhoora Ram changed his mind subsequently and cancelled the nomination in favour of his second wife (Natayat) Smt. Jamna and made a fresh nomination in favour of his son Heera Ram.
10. The result of the fore-going discussion is that I allow this appeal, set aside the judgments and decrees of the courts below and dismiss the plaintff's suit. But in the circumstances of the case I leave the parties to bear their own costs throughout.
11. Learned Counsel for the respondent Smt. Jamna prays for grant of leave under Section 18 of the Rajasthan High Cout Ordinance, 1949. Leave is declined.