MABEL HEAD Vs. KATHLEEN GUEST

JUDGEMENT

(1.) THIS is an appeal against a decision of the Assistant Judge of Jal-gaon confirming a decrees made by the Second Class Subordinate Judge of Bhusawal dismissing the appellant's suit. The appellant is the widow of one Walter Thomas Head who was an employee of the G. I. P. Railway Company and who died on December 9, 1938. He was a contributor to the G. I. P. Railway Provident Fund which is governed by the Provident Funds Act, XIX of 1925. Prior to his death, he had made a declaration to the effect that out of the amount standing to his credit in the Provident Fund, Rs. 50 should be given to his wife, the plaintiff, Rs. 5,000 to defendant No. 2 who was his son, and the balance to defendant No. 1 who was his housekeeper. The plaintiff brought the suit for a declaration that the nomination in favour of the two defendants was invalid and for an injunction to restrain them from draw-. ing the amounts. She contended that defendant No. 2 was not the son of her husband by defendant No. 1. Both the Courts have found that defendant No. 1 was the house-keeper and also the mistress of the deceased and that defendant No. 2 was the son of the deceased by defendant No. 1.

(2.) THE main contention of the appellant was that she was dependent of the deceased as denned in Section 2(c) of the Provident Funds Act, while defendants Nos. 1 and 2 were not dependents but only nominees, and that under the provisions of the Act so long as the deceased left a dependent, there could be no valid nomination in favour of persons who were not dependents. THE trial Court overruled this contention and dismissed the suit, and that decree was confirmed in appeal by the Assistant Judge.

(3.) A similar provision exists in Rule 5 of the Indian Civil Service Provident Fund Rules-Where, therefore, the authorities framing the rules intended to make such a provision,, they have done so expressly. The contention on behalf of the appellant is that the effect of Section 3(2) is that if a subscriber leaves behind him a " dependent", the amount to the credit of the subscriber in the Provident Fund immediately vests in the dependent. But this contention ignores the words "and payable under the rules of the Fund to any dependent of the subscriber" which occur in this Sub-section, and the effect of which seems to be that the amount to the credit of the subscriber in the Provident Fund would vest in the dependent only if the dependent was, under the rules, entitled to) receive it, i. e. if there was no other person such as a nominee, with a better right to receive it. Section 5 which enables a subscriber to make a nomination does not contain any provision that a nomination cannot be made in favour of a peon who is not a dependent if there is a dependent in existence. Clause (f) of Sub-section (1) of Section 4 does not, in our opinion, support the contention of the appellant that the claim of a nominee can be recognized only if there is no dependent to whom the sum would be payable under Section 4(2) (a). 'Nor is there anything in the provisions of Rule 23 which lends support to the appellant's contention. That rule merely provides for the payment of the sure standing to the credit of a subscriber in his Provident Fund to his " executors or administrators or other lawful representative " and that direction is expressly made subject to the provisions of the Rules and more particularly to the provisions of Rule 25 ; and Rule 25(b) (ii) provides that " if a declaration made by the member in accordance with the provisions of the rules subsists, the amount standing to his credit in the Fund shall, subject to the other provisions of the rules, be payable in accordance with such declaration. "