THANJAVUR PERMANENT BANK Vs. DHARMASAMVARDHANI AMMAL

JUDGEMENT

(1.) THIS is a defendant's appeal against a decree for the respondent to recover a certain sum of money. The respondent's husband was an employee of the appellant, a private Bank. There is no dispute that at his death was due to him the sum amount claimed by the respondent on the Employees' Provident Fund account he had with the appellant. The respondent claimed that, on his death the amount due under the fund became vested in her free of all his liabilities. There was also no controversy as to the precise amount due from the fund. But the appellant resisted the suit on the ground that the respondent should produce a succession certificate in order to get a decree, and that the amount was liable to a set off claimed by the Bank on account of alleged misappropriations by the respondent's husband during the time the was Secretary of the appellant. The appellant claimed the set off on the basis that there were certain rules framed to govern the provident fund and that under one of them it was entitled to adjust amounts due from the employees against the provident fund payable to the employee. The trial Judge found that the rules alleged by the appellant were not proved. But he proceeded to decide the case on the assumption that the statutory principles relevant to the Employees Provident Fund were applicable to the case. On that basis, he considered that the respondent was an heir and a dependant, and that as such the amount due under the provident fund had on the death of her husband vested in her free from any liability of his, either on account of. alleged misappropriation or any other. On that view, he also thought that, as the respondent was not suing as merely an heir, the law did not require her to produce a succession certificate. The suit, therefore, ended in a decree.

(2.) BEFORE us, Mr. M. S. Venkatarama Iyer, Jhas argued (1) that the trial judge was not right in his view that the rules relating to the provident fund of the appellant were not proved and that, in any case, this Court must give the appellant an opportunity of proving those rules, and (2) that, even assuming that there were no rules, the trial Judge was not right in applying to the case statutory principles relating to General Provident Fund, (3) that either on the basis of one of the rules, or even outside the rules, the appellant was entitled to set off amounts misappropriated by the respondent's husband, against amounts due to him under the provident fund account, and (4) that in any event, as the respondent's suit claim was only as an heir to her husband, she was bound to produce a succession certificate, without which the trial Court could not validly pass a decree in her favour. We shall consider these points seriatim.

(3.) IT appears that the appellant did not file into the trial Court any document until after framing of issues. But in I. A. No. 280 of 1959, on the file of the trial Court, the appellant sought that Court to excuse the delay in producing certain documents listed, of which item 91 apparently related to a copy of the rules. The respondent filed a counter and objected to the documents being received so late. The delay was, however, excused and the documents would appear to have been received. On 15-3-1960, the parties went to trial, when the documents, including a copy of the rules, were marked. Apparently on the respondent raising an objection to the admissibility and genuineness of this copy, the Court marked it subject to proof and admissibility. The trial was over on the same day and the judgment was pronounced on 29-31960. No at tempt seems ever to have been made by the appellant, in spite of the objection taken by the respondent before and at the trial, to examine some one from the Bank for the purpose of proving the copy of the rules. In the circumstances, the trial Judge considered the question of genuineness of the copy of the rules, and, for the reasons mentioned by it, came to the conclusion that the rules were not proved. On a consideration of all the circumstance, we are also of the same opinion. The copy of the rules is a printed document. But that in itself is not a guarantee of its genuineness. When these rules were framed, there is no knowing. Whether the rules as printed were only in the draft form or were finalised, there is again no light thrown. From the list of documents appended to the affidavit in support of I. A. No. 280 of 1959, it was made to appear that these rules were framed sometime in July, 1923. Whether they were given effect to in the form in which they appear in the copy or whether they ceased to be in operation or modified subsequent to the enactment in 1925 of the Provident Funds Act, we do not know. No doubt, the copy of the rules has been certified to be a true copy by the Secretary of the Bank. That again is hardly sufficient as proof of the genuineness thereof or of the rules contained therein. He was not examined in Court. It was in these circumstances the lower court was not satisfied that the copy of the rules was proved, and we see no reason to differ from that conclusion.