(1.) This appeal raises a question of considerable importance with regard to the construction of the Provident Funds Act (XIX of 1925) and the rules thereunder framed by the G. I. P. Railway Company. The facts are not in dispute. The defendant s brother Kunjalsing who was in the service of the G. I. P. Railway was a subscriber to the Railway Provident Fund. The plaintiff Krishnabai is his widow. On July 9, 1924, he made a, declaration in the prescribed form stating that in the event of his death the defendant would be entitled to receive payment of his provident fund holding, including additional benefits, if any, and appointing the defendant himself to be the executor of his will as regards the provident fund only. Kunjalsing died on June 1, 1941, when the amount to his credit was nearly Rs. 10,000, The defendant applied for a succession certificate in respect of that amount in the Court of the Second Class Subordinate Judge alt Bhusawal and it was granted to him despite the opposition of the plaintiff. The plaintiffs appeal against) it was dismissed, and before the defendant withdrew the amount from the railway on the strength of the succession certificate, this suit was filed by the plaintiff for a declaration that she was entitled to that amount and for an injunction restraining the defendant from withdrawing it. She alleged that the declaration had not been properly attested and was, therefore, illegal, that the defendant s nomination in preference to her was void and inoperative and that the defendant had released his right in her favour. This last contention was given up at the hearing. The trial Court found that the declaration in favour of the defendant was duly attested, but holding that it was illegal, void and inoperative, it decreed the plaintiffs claim.
(2.) As regards the execution of the nomination paper, a printed form of declaration was duly filled in and signed by deceased Kunjalsing and was attested by two witnesses, Dattatraya and Sadashiv. lit is true that in the plaint the plaintiff alleged that the declaration. had not been properly executed and attested. But no specific issue was raised on this point. Issue No. 6 is warded in general terms. But it appears that on the date of hearing, before any evidence was led, the plaintiff put in a purshis (exhibit 28) admitting that the declaration form had been signed by her deceased husband Kunjalsing and that Dattatraya and Sadashiv had made their signature on it as attestors, The purshis was signed by the plaintiff herself. In view of this admission it was taken that the plaintiff had given up her contention regarding the execution and attestation of her declaration and no further evidence was led. But in the course of the arguments it was urged that the purshis did not amount to an admission that Kunjalsing had made his signature in the presence of the two attesting witnesses as required by the form of the declaration. On that form there are marginal notes which give definite instructions to the declarant that he must sign it in the presence of two witnesses and similar instructions to the attestors that they must sign it in the presence of each other and in the presence of the declarant. The presumption, in view of the purshis, is that the instructions were followed. Exhibit 34 shows that the instructions are printed in the margin just where the signatures of the declarant and the attestors are to be made, so that they may not escape their attention. A good deal of stress was laid on the fact that the ink in which the three signatures were made appeared to be different, and therefore, it was urged that they must have been made at different times. But the defendant says that he was present at the time when the declaration was made, and that Kunjalsing made his signature in the presence of the attestors and the attestors made their signatures in the presence of Kunjalsing. The learned Judge of the lower Court has believed this statement and we see no reason to take a different view. It is), however, urged that as the prescribed form requires the declaration to be attested by two witnesses, under Section 68 of the Indian Evidence Act, 1872, the defendant was bound to call at least one of the attesting witnesses for the purpose of proving its execution and that unless at least one witness was thus called and examined, the document; could not be used as evidence. But Section 68 would be applicable only if the execution has to be proved. All that it says is that the execution of a document cannot be regarded as proved unless one attesting witness at least has been called for that purpose. But where the execution is not to be proved, it is not necessary to call any attesting witness, unless it is expressly contended that the attesting witness has not witnessed the execution of the document. There is no such express allegation either in the plaint or in the purshis admitting the execution and attestation, which was evidently put in by the plaintiff, in order that the defendant might not be required to call the attesting witnesses to prove the declaration. It is on account of this purshis that the defendant refrained from calling either of the attesting witnesses. We do not, therefore, think that the declaration is liable to be excluded from evidence on the ground that neither of the attesting witnesses was called by the defendant, We hold that the declaration is duly proved and that deceased Kunjalsing nominated his brother, the defendant, to receive the amount of his Provident Fund after his death.
(3.) The lower Court dismissed the plaintiff s suit on the ground that when the deceased subscriber died leaving a dependant behind him, the nomination made by him in-favour of one who was not a dependant was altogether void and ineffective. After this case was decided by the lower Court, the validity of such a nomination came up for consideration before this Court in the recent ease; of Head v. Guest and it was held that under the Provident Funds Act, 1925, and the rules framed under it, there could be a valid nomination by a contributor of any person other than a dependant, although there was a dependant of the contributor in existence. It is, however, urged that although such nomination may be valid, the nominee cannot get its benefit, and even if he were to receive the amount, he must hand it over to the dependant. This contention has apparently found favour with the lower Court. As the question really turns on the construction of Sections 3, Sub-section (2), 4, Sub-section (1) and 5, Sub-section (1), of the Provident Funds Act, I will quote the pertinent portions of these sections.