1. In the suit out of which this appeal arises the plaintiffs who are the minor sons of Jiban Krishna Rudra, a subscriber to the Contributory Provident Fund (Bengal), sued for a declaration to the effect that they were entitled to a three-fourths share of the Provident Fund money standing to the credit of their deceased father, while their step-mother, Ivarani Rudra was entitled only to a life interest in a one-fourth share of that money.
2. Jiban Krishna Rudra was employed as a copyist in the office of the District Judge at Dacca, and during his lifetime he made a nomination in accordance with Rule 5, Contributory Provident Fund Rules, whereby he appointed his wife, Ivarani as his sole nominee and thereby conferred upon her the right to receive the amount which might stand to his credit in the Fund in the event of his death. The nomination was in the following form:
Form of Nomination when Subscriber has a Family. I hereby direct that the amount at my credit in the Contributory Provident Fund (Bengal) at the time of my death shall be distributed among the members of my family mentioned below in the manner shown against their names.
________________________________________________________Name and ad |Relationship |Age of the |Amount ordress of the |with the |Nominee, |share of ac-nominee or |subscriber. | |cumulations.nominees. | | |1. | 2. | 3. | 4.________________________________________________________| | || | |________________________________________________________Station Two witnesses to signatureDate. Signature of Subscriber.Note.--Column 4 shall be filled in so as to cover the whole amount at credit.
Ivarani's name was mentioned therein as the sole nominee, to receive the whole amount of the Fund. After making this nomination Jibaa Krishna Rudra married a second wife, Renubala, but did not make a fresh nomination with regard to his Provident Fund money. The plaintiffs are two sons by his second marriage. Jiban Krishna Rudra died on 2nd April 1941, and this suit has been instituted by the guardian of the plaintiffs.
3. The case for the defendant, Ivarani Rudra, is to the effect that she is the absolute owner of the money in suit under the provisions of the Provident Funds Act, 1925. The first Court decreed the plaintiffs' suit on the ground that Section 5, Provident Funds Act, 1925, merely gave the defendant a right to receive the money from Government and that this section did not affect the right to the money of the heirs of the subscriber amongst themselves. This decision was reversed on appeal by the learned District Judge, who held that Ivarani had acquired an absolute title to the Provident Fund money.
4. The first point urged on behalf of the appellants in this case is that the appeal to the lower appellate Court was incompetent having regard to the fact that the requisite court-fees had been paid after the expiry of the prescribed period of limitation. It appears from the order-sheet in the case that Ivarani had applied to appeal as a pauper, but this application was rejected. Thereafter, she made various applications for time to file the requisite court-fees and these applications were duly granted by the learned District Judge. We are of the opinion that Section 149, Civil P.C., is applicable in this case, and that no question of limitation can arise. It follows, therefore, that Ivarani's appeal to the lower appellate Court was competent.
5. The main question for consideration in this appeal is whether by virtue of the nomination in her favour Ivarani after the death of her husband became absolutely entitled to the amount standing to his credit in the Provident Fund. A point precisely similar in its nature was left open by Nasim Ali and Henderson JJ. in the case of Secretary of State v. Nagendra Mohan De ('38) 42 C.W.N. 1143 as the Secretary of State, who was the defendant in that case, was not concerned with the ultimate destination of the money. In this connection, it was pointed out by Nasim Ali J. that the cause of action in that suit was merely the refusal by the Secretary of State to make payment of the Provident Fund money to the plaintiff.
6. In the present case, we are directly concerned with the question of the title of the contending parties to the money standing to the credit of Jiban Krishna Rudra in his Provident Fund. The learned advocate for the appellants argues that the provisions of the Provident Funds Act, 1925, do not affect the rights of the heirs of a deceased person amongst themselves, and he also relies on certain observations contained in Panckridge J.'s judgment in the case of Nidhusudan Mukherjee v. Sm. Bibhabati Debi 0044/1940 : AIR1940Cal395 . In that case Panckridge J. was dealing with a question which arose with reference to the General Provident Fund (Central Services) Rules. Although the present case relates to the Contributory Provident Fund Rules (Bengal) it may be noted that with regard to their essential characteristics the two sets of Rules are very similar. There can be no doubt that the general scheme of these Rules read in the light of the provisions of the Provident Funds Act, 1925, was primarily to enable subscribers to contribute to a fund which would be easily available after their death to their dependants or to certain persons nominated by them without it being necessary for their dependants or nominees to have recourse to expensive and inconvenient legal proceedings.
7. In this particular case, we are only concerned with the relative positions of a wife who is a nominee and children who are not nominees, and, in this connection, it must be remembered that wives and children are members of the subscriber's family within the meaning of Section 2(iii)(a) of the Bengal Rules and are also dependants under Section 2(c), Provident Funds Act, 1925. Under the Rules payment must be made to members of the subscriber's family, whether they have been nominated or not, in preference to the claims of nominees who are not members of the family. The subscriber who has a family must nominate one or more members of his family under Rule 5(2) and (3), and on his death, if he leaves a family, even if there is a nomination purporting to be in favour of a person who is not a member of the family, his Provident Fund money must nevertheless be paid to the members of his family (Rule 25).
8. Under the Rules of the Contributory Provident Fund (Bengal) when a subscriber leaves a family, he may, if he so desires, make a nomination in favour of a particular member of the family, that is, he may nominate his wife, his children, the widow or widows and children of a deceased son, or any of them, and the amounts standing to the credit of his Provident Fund at his death will become payable to the person whom he nominates 'in the proportion specified in the nomination.' (Rule 25(i)(a)). In the present case the subscriber's sole nominee was his wife, Ivarani, and this nomination was still subsisting at the time of his death. It therefore, follows that under the Rules, the Provident Fund money was payable to her.
9. From what has been stated above, it must follow in view of the language used in Section 3(2), Provident Funds Act, 1925, that the Provident Fund money vested in Ivarani because Ivarani, besides being the person authorised to receive the money under the Rules, was also a dependant of the subscriber. The question arises, however, as to whether this vesting in the dependant confers on such dependant an absolute title in respect of the money which so vests. In our view, the answer to this question must be in the affirmative as far as the present case is concerned. It is significant, in the first place, that in the case of a widow or a child the vesting is not even subject to the rights of an assignee made under an assignment before the commencement of the Act. It is also provided that the sum so vested in the dependant
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.
In fact, therefore, in respect of Provident Fund money payable under the Rules to a person who is a dependant under the Act, such dependant is in a more favourable position even than he would have been if he had received a gift or a legacy of the money in the ordinary way. This being the case, we must hold that, having regard to the clear language of the section, the Provident Fund money vested absolutely in Ivarani by reason of the fact that she was not only a dependant within the meaning of Section 2(c), Provident Funds Act, but was also the sole nominee of Jiban Krishna Rudra under the Contributory Provident Fund Rules (Bengal). It, therefore, follows that it was the duty of the officer concerned to make the requisite payment to her under Section 4(1)(a) of the Act, which provides that the officer whose duty it is to make the payment. shall, if the sum or balance, or any part thereof, vests in a dependant under the provisions of Section 3, pay the same to the dependant or to such person as may be authorised by law to receive payment on his behalf.
10. I have already referred to the precise terms of the nomination which was made by the subscriber in this case in favour of Ivarani. In view of the terms of Section 5(1) of the Act this nomination, which was duly made in accordance with the Rules of the Fund and purported to confer upon Ivarani the right to receive the whole of the Provident Fund money, must be 'deemed to confer such right absolutely.'
11. The opening words of Section 5 are significant. They are
subject to the provisions of this Act but otherwise notwithstanding anything contained in any other law for the time being in force or any disposition, whether testamentary or otherwise.
The position, therefore, appears to be that Ivarani had an indefeasible right to demand immediate payment of the balance of the money standing to her deceased husband's credit, e.g. without having to observe any of the formalities required by Section 4(e), which only apply in the case of persons who are not dependants. Further, she had not only the absolute right to receive the money but, in view of the provisions of Section 3 to which Section 5 is also subject, she acquired an absolute interest in the money itself in her capacity as the only dependant to whom the money had been made payable under the terms of the nomination.
12. It remains to be seen whether the passage on which the learned Advocate relies in Panckridge J.'s judgment in the case of Nidhusudan Mukherjee v. Sm. Bibhabati Debi 0044/1940 : AIR1940Cal395 is of any assistance to the appellants with regard to the facts of the present ease. The learned Judge was discussing the question whether the sons of the subscriber were entitled to the whole amount of the Provident Fund money as representing the estate of their deceased mother (in whose favour the subscriber had made a nomination) to the exclusion of the claims of a married daughter in her capacity as a dependant. The learned Judge said:
It is accordingly argued that the sons of Dr. Mukherjee are entitled to the whole sum as representing the estate of their deceased mother, in whom it had vested.
I think the answer to that is, that the Act itself pro: vides that the rights of nominees, which include the rights of the nominee's representatives, are expressly postponed to the rights of dependants. This is clear from Section 4 of the Act which provides that the amount standing to a subscriber's credit should be paid to his dependants in the first instance, or to his nominee, and only permits his nominee to receive any sum or balance which is not payable under Clause (a) that is, to a dependant.
13. Whether or not Panckridge J. was correct in assuming that, in a case where a wife in whose favour a nomination has been made predeceases her husband, her rights as a nominee pass to her heirs, it is not necessary for us to discuss. In the above quoted passage the learned Judge was stating a principle which might have applied, if the nominees or their representatives had not themselves been dependants. Actually he appears to have decided the ease on the footing that the sons in their capacity as their deceased mother's representatives were in the position of stranger nominees but were entitled to share equally with their sisters in their capacity as dependants. In so far as this decision may be taken to enunciate a principle to the effect that, where a dependant is also a nominee, he will either be in the same category with non-nominee dependants or that his rights will be postponed to those of a non-nominee dependant, we must respectfully disagree with the learned Judge.
14. In the case with which we are now dealing we are of the opinion that, as there was a subsisting nomination in favour of Ivarani at the time of her husband's death, and as she was herself a dependant, the nomination, far from postponing her rights to those of the other dependants or placing her on an equal footing with them, actually secured to her an absolute interest in the Provident Fund money which stood to her husband's credit under the Contributory Provident Fund Rules (Bengal) to the exclusion of any other dependant who had not been nominated. It, therefore, follows that the decision of the learned District Judge must be affirmed and this appeal is dismissed with costs. The injunction restraining the defendant from withdrawing the Provident Fund money will be dissolved.