SAMIR NATH BHATTACHARYA Vs. SANDHYA BHATTACHARJEE

JUDGEMENT

(1.) Heard learned Advocate appearing forthe respondent No. 1/petitioner on issue as to whether after the death of the sole appellant right to sue survives, or not. Learned Advocate who appeared on behalf of the deceased appellant earlier, despite direction to submit on the legal question, today has not appeared. Factual matrix of the issue as involved is to this effect. Admittedly, the appellant, since deceased was a nominee of the husband of respondent No. 1 with reference to payment by his employer relating to retirement benefits, one of which includes gratuity amount under the Payment of Gratuity Act. In the instant case, qratuity amount has hot been released in favour of the widow by the employer Dunlop India Limited on the ground of filing an objection by the appellant, since deceased contending, inter alia, that in view of the nomination, the widow was not entitled to withdraw the money, but the deceased appellant was entitled thereto. The widow filed a civil action, being Title Suit No. 137 of 1993 before the learned Civil Judge, Senior Division, Hooghly on that issue. The learned trial Court considering the provision of law under the Payment of Gratuity Act, 1973, more particularly Section 6 thereof held that except the members of the family nobody would be entitled to be a nominee with reference to the gratuity amount and ultimately decreed the suit on contest in favour of the widow/plaintiff. An appeal was preferred by the defendant, being Title Appeal No. 248 of 2001 on the claim of nomination and holding his status as nominee to withdraw the entire amount. The first appellate Court below dismissed the appeal on contest confirming the judgment and decree passed by the learned trial Court. Against that, the appellant preferred this second appeal. During pendency of the appeal, the appellant breathod last. Learned Advocate for the deceased appellantt on 3.12.2005, produced a death certificate before this Court for recording that the appellant is dead so that the respondents may take appropriate steps for substitution. Then a question cropped up whether the right to sue survives or not. If the right to sue survives, naturally the question of addition of the legal heirs of the sole appellant by substitution on setting aside abatement would arise.

(2.) Hence, the moot question now to be decided is as to whether the right to sue survives after the death of the sole appellant. To identify the issue the relationship of the appellant with reference to the subject-matter of the suit is a very vital issue and a guiding principle. It is an admitted position that the appellant was a nominee of the deceased husband of the Respondent No. 1. A nomination is a personal action by a person authorising or allowing someone to do some act in the event of certain contingencies. The word "nomination" itself carries a personal relationship in between the two persons, and in the event of death of the nominee concerned, effect of such nomination ends. The word 'nomination' further has been defined which repeats a personal action.

(3.) Having regard to such position, since the nominee always carries a personal relationship there is no question of surviving of any right as would pass through the legal heirs after the demise of the nominee. Considering this aspect of the matter, this Court is of the view that the right to sue does not survive after the death of the sole appellant, and hence there is no question of filing any application to add the legal heirs upon substitution of the appellant in this appeal after setting aside abatement. Hence, for all purposes, the appeal stands abated and further it is held that no right to sue survives.