Alfred Henry Lionel Leach, C.J.
1. Sriramarao Naidu, the husband of the first respondent was the Huzur Sheristadar in the Coconada Collectorate. Being a Government servant, he was required to subscribe to the General Provident Fund. He had quarrelled with his wife and they had lived apart for several years. On the 6th January, 1940, he nominated as the persons entitled to receive the money standing to his credit in the Fund, should he die before retirement, the two plaintiffs and the third defendant. The plaintiffs are the sons and the third defendant is the daughter of Sriramarao's cousin, Purushottamarao Naidu. It appears from a document filed in the case that in nominating these persons he stated that he had no family. He died on the 30th April, 1942, without having become reconciled with his wife. His nomination remained unvaried and he left a will under which he purported to leave his provident fund money to the two plaintiffs and the third defendant. If his wife were still a member of the family within the meaning of Rule 2(1)(c) of the General Provident Fund (Madras) Rules, the nomination was invalid and he had no light to dispose of his provident fund moneys by will. We shall make further reference to this aspect of the case later. The widow (the first defendant) claimed to be entitled to the amount standing to her husband's credit in the Fund, namely, Rs. 13,805. The Provincial Government agreed that she was entitled to the money and directed the Accountant-General to pay it up to her by a named date unless a Court of law had passed an order to the contrary in the meantime. The result was that this suit was filed on the 13th January, 1943, the Provincial Government being made the second defendant.
2. The Subordinate Judge held that there was no necessity for evidence to be led. He was of opinion that the case could be decided on the pleadings and the provisions of the Provident Funds Act and the rules framed there under. He held that the nomination of the plaintiffs and the third defendant was invalid as the first defendant had not ceased to be a member of her husband's family and that she was entitled to the money. Consequently he dismissed the suit with costs. The first plaintiff alone has appealed.
3. Section 5 of the Provident Funds Act, states that subject to the provisions of the 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 of it, a nomination, duly made in accordance with the rules of the Fund, which purports to confer upon a person the right to receive the whole or part of the sum on the death of the subscriber or depositor, shall be deemed to confer the right absolutely, until the nomination is varied by another nomination made in like manner or is expressly cancelled by notice given in the prescribed manner and to the prescribed authority. Therefore, where there is a valid nomination, a subscriber cannot by will deprive the nominee of the money should he die before he retired from Government service. He can vary his nomination or he can cancel it on taking the proper steps.
4. Rule 2(1)(c)(i) says:
Family' means--(1) in the case of a male subscriber, the wife or wives and children of the subscriber, and the widow or widows, and children of a deceased son of the subscriber. Provided that if a subscriber proves that his wife has been judicially separated from him or has ceased under the customary law of the community to which she belongs to be entitled to maintenance, she shall henceforth be deemed, to be no longer a member of the subscriber's family in matters to which these rules relate,unless the subscriber subsequently indicates by express notice in writing to the Account Officer that she shall continue to be so regarded :
In the Madras Presidency, the Account Officer is the Accountant-General. It is common ground that the proof that a wife has been judicially separated from the subscriber or has ceased under the customary law of the community to which she belonged to be entitled to maintenance means proof to the Accountant-General.
5. Rule 7(1) provides that the Account Officer shall, as soon as may be after a subscriber joins the Fund, require him to make a nomination. Sub-rule (2) says that a subscriber who, at the time of joining the Fund, has a family shall send to the Account Officer a nomination in the form set forth in the first schedule in favour of one or more members of his family. Sub-rule (3) says that a subscriber who has no family shall similarly nominate a person or persons in the form set forth in the second schedule, provided that a nomination made under this sub-rule shall be deemed to be made in accordance with the rules only for so long as the subscriber has no family.
6. Rule 30(i)(b) provides that on the death of a subscriber before the amount standing to his credit has become payable or where the amount has become payable, before payment has been made, when a subscriber leaves a family, if no nomination in favour of a member or members subsists, or if the nomination relates only to a part of the amount standing to his credit in the Fund, the whole amount or the part thereof to which the nomination does not relate, as the case may be, shall, notwithstanding any nomination purporting to be in favour of any person or persons other than a member or members of his family, become payable to the members of his family in equal shares. Sub-rule (ii) of Rule 30 says that when a subscriber leaves no family, if a nomination made by him in accordance with the rules in favour of any person or persons subsists, the amount standing to his credit in the Fund or the part thereof to which the nomination relates, shall become payable to the nominee or nominees in the proportion specified in the nomination.
7. It is quite clear that the plaintiffs and the third defendant were not members of the subscriber's family and they can only have the benefit of the nomination he made if his wife had ceased to be a member of his family.
8. For the appellant it is said that she had ceased to be a member of the family, because she had ceased to be entitled to maintenance. Even on the allegations against the first defendant in their plaint, she had not ceased to be entitled to maintenance. If the facts alleged by them are true, she could not claim separate maintenance, but she had done nothing to forfeit her right to be maintained by her husband if she returned to him. This Court has drawn a distinction between a suspension of aright to maintenance and its forfeiure. See The Queen v. Marirnuttu I.L.R.(1881)Mad. 243, Surampalli Bangaramma v. Surampalli Brambaze : (1908)18MLJ254 , and Periambal Chettiar v. Sundarammal : AIR1945Mad198 . In the first of these cases, a Division Bench held that ex-communication from caste per se did not deprive a Hindu wife of a right of joint enjoyment of her husband's house so as to make her a trespasser if she entered it to claim maintenance.
9. If the first defendant, while separated from her husband, had lived an unchaste life, she would thereby have forfeited her right to maintenance; but there is no allegation made against her chastity. It would appear that she quarrelled with her husband because she would not agree to adopt a brother of the plaintiffs. The first defendant had always a right to go back to her husband's house and of demanding admission and maintenance therein.
10. In our judgment the proviso to Rule 2(1)(c)(i) does not imply that a wife ceases to be a member of the family when she is living separately from her husband and is not entitled to claim maintenance in a separate residence. She is still a member of his family when she has the right to return to her husband and demand to be maintained in his house. It was averred in the plaint, and the averment is persisted in, that the Accountant-General had, before accepting the nomination of Sriramarao Naidu, held an enquiry into the question whether first defendant had forfeited her right to maintenance and that he had accepted the nomination because this had been proved to his satisfaction. In view of what is stated in the proceedings of the Board of Revenue relating to the claims of the respective parties, (Ex. D-2) it does not appear to be likely that there was any such enquiry; but as the plaintiffs were not given an opportunity of leading evidence on this question we think that they should be allowed to do so.
11. In these circumstances we will call for a finding on the following question:
Whether the Accountant-General, before admitting the nomination made by Srirama Rao Naidu on the 6th January, 1940, in favour of the plaintiffs and the third defendant inquired whether the first defendant had forfeited her right to maintenance and what was his finding.
By forfeiture we mean that by her conduct she had in law forfeited her right to return to her husband and claim maintenance in his house.
12. The Subordinate Judge will hear what evidence the parties wish to adduce on this question and will submit his finding within six weeks of the receipt by him of the records in the case. Ten days' time will be given for the filing of objections.
[This case came on for hearing after the return of the finding before the Chief Justice and Kuppuswami Ayyar, J., on 15th July, 1946 and the Court delivered the following Judgment.]
13. The Judgment of the Court was delivered by
14. The Subordinate Judge has submitted the finding called for in this Court's order of the 8th November, 1945. It is to the effect that there was no inquiry made by the Accountant-General. This means that the appeal fails and must be dismissed with costs, one set to be divided between the respondents.