MST AHMADEEN BEGUM Vs. ABDUL QAYUM KHAN

JUDGEMENT

(1.) This is an application for review of the judgment of Hon'ble D.C. Srivastava, J. The plaintiff Abdul Qayum Khan filed suit for declaration against the defendant Ashiq Husain, that he is the only son and heir of the deceased Jan Mohammad. The dispute related to entitlement to the provident fund of the deceased Jan Mohammad. The plaintiff claimed the sums on the basis of being son of the deceased while the defendant claimed to be real brother and also relied on a nomination made in his favour by the deceased. The question which arose for determination in the second appeal was. whether the nomination will prevail or the plaintiff being son had a right of declaration in respect of the said sums. It was held by this Court that relying upon decision of the Supreme Court in AIR 1984 SC 346, that the nominee does not have a right to appropriate the moneys of the provident fund but the heirs have a right to the said fund.

(2.) In support of this review application, Sri Sankatha Rai counsel of the applicants contends that this Court did not consider the effect of the provisions of Section 5 of the Provident Fund Act, 1925 and as such, the judgment of this Court is liable to be reviewed. He has relied upon various decisions that in case a statutory provision is over-looked in a judgment, it construes a valid ground of review. There can he no quarrel with this proposition and as such, it is not necessary to consider the cases cited by Sri Rai on this point. It is true that the provisions of Section 5 (1) of the Provident Fund Act have not been considered in so many words by this Court in the judgment under review, as such the contention of Mr. Rai is being dealt with.

(3.) In support of his contention. Mr. Rai has relied on a Full Bench Decision of the Oudh Chief Court in Mohd. Naim and another v. Mt. Munimunnissa, AIR 1936 Oudh 32. By a majority of two Judges, it was held that Section 5 of the Provident Fund Act conferred right upon the nominee to deal with the moneys due under the provident fund in his own way. It was held that the declaration under the Provident Fund Act made by the deceased operated as a Will and as such the personal law of the depositor would give way to the declaration made in the provident fund and the nominee was entitled to receive the money absolutely. Section 5 (1) of the Provident Fund Act as it stood at the time when the matter was considered by the Full Bench may be quoted as below :