HEERA Vs. JAMNA

JUDGEMENT

(1.) ONE Bhoora Ram an employee of Northern Railway died at village Baori, District Jodhpur on 16-5-1957. There was an amount of Rs. 2000/- lying on account of Provident Fund and Gratuity to his credit with the Railway and the dispute in the present case relates as to the right of the rival claimants to withdraw that amount. It is beyond dispute that by Ex. 2, dated 4-11-1951, Bhoora Ram made a nomination in favour of Smt. Jamna, his alleged second wife, in respect of this amount but subsequently he cancelled it and made a fresh nomination in favour of his son Heera Ram by first wife Smt. Sari by notice Ex. 1, which reached the District Controller of Stores on 21-5-57 i. e. 5 days after the death of Bhoora Ram. The Railway entertained doubt regarding validity of the subsequent nomination in favour of Heera Ram. However, to add to the difficulty of Smt, Jamna, Heera Ram also obtained a succession certificate in his favour in respect of the property left by Bhoora Ram. Smt. Jamna served a notice under sec. 80 C. P. C. on the Railway for payment of the amount to her but the Railway replied that in view of the dispute having been raised by Heera Ram, they would pay the amount to such person as may be held by the Court to be entitled to it. This led to the filation of the present suit by Smt. Jamna in the Court of Civil Judge, Jodhpur for a declaration in her favour that she was legally entitled to receive the amount of Provident Fund and Gratuity lying to the credit of the deceased Bhoora Ram. The suit was resisted by Heera Ram, who pleaded that he was lawfully entitled to withdraw the amount by virtue of the subsequent nomination Ex. 1. The Railway, however, took a neutral attitude and pleaded that they would pay the amount to whichever person the court directs.

(2.) AFTER recording the evidence produced by the parties the learned Civil Judge, Jodhpur held that the subsequent nomination Ex. 1 was proved to have been executed by Bhooraram, but that since it had been received by the office on 21-5-1957 after the death of Bhooraram the same was ineffective. In this view of the matter he decreed the plaintiff's suit. Defendant Heeraram filed appeal in the Court of District Judge, Jodhpur, but was unsuccessful. Hence this second appeal by him.

(3.) THE learned District Judge has also concurred in this finding that Gulraj D. W. 3 cannot be relied upon, and has further observed that he had no business to go to the village Baori and bring the nomination paper of Bhoora. However, the learned District Judge seems to have made these observations not to condemn the evidence of D. W. 3 Gulraj outright, but it seems that he did not accept his testimony regarding the date of presentation of the nomination Ex. 1 in the office. I say so because he Ins not disbelieved the attestation of Gulraj on Ex. 1 and his evidence regarding execution of Ex. 1 by Bhoora Ram THE trial court has also nowhere said that Gulraj was not present at the time of execution of Ex. 1 by Bhoora Ram or that his attestation thereon is forged. In these circumstances that part of the statement of Gulraj where he says that Bhoora Ram had handed over Ex. 1 to him for presentation in the office cannot be rejected. I am, therefore, inclined to hold that Bhooraram not only executed Ex. 1 but also handed it over to Gulraj for presenting the same in his office. In the circumstances of the case, it will therefore be reasonable to infer that Bhooraram hid sent a notice in writing to his office regarding cancellation of the previous nomination and of a fresh nomination. It was also urged that the nomination was not sent to the immediate officer of Bhooraram. In the first place no such objection was raised either by the Railway or the plaintiff in the courts below. However, I called upon Mr. Bhansali, learned counsel for the Railway to tell me who was the immediate superior of Bhoora Ram but he expressed his inability to throw light on this point. At any rate admittedly the District Controller of Stores, Jodhpur had received it on 21-5-1957, and it is not denied that he was above the immediate superior of Bhooraram. THE present is not a case where a third person after expiry of the subscriber has put the cancellation and fresh nomination Ex. 1 into transmission.