NIDHUSUDAN MUKHERJEE Vs. SMTBIBHABATI DEBI

JUDGEMENT

(1.) This case raises questions of considerable difficulty with regard to the construction of the Provident Funds Act (Act 19 of 1925) and of the General Provident Fund (Bengal Services) Rules. The facts are as follows : Dr. Madhusudan Mukherjee was a member of the Bengal Medical service and he died intestate on 5 March 1936. According to the written statement of the Accountant-General of Bengal who has been made a party defendant to this suit, at the date of the doctor's death he had standing to his credit in the Government Provident Fund a sum of Rupees 22,760-13-0 which had become at the date of the Accountant-General's written statement which was filed on 13 February 1939 Rs. 24,433-13-0. The plaintiffs are the three adult sons of the deceased doctor and they claim a declaration that they are solely entitled to receive the entire amount standing to the doctor's credit in the Government Provident Fund (Bengal Services).

(2.) Three of the defendants are the three daughters of Dr. Madhusudan Mukherjee, all of whom are married and have attained the age of majority. Defendants 1 and 3 have not contested the suit and a document has been proved by the plaintiffs executed by defendants 1 and 3 on 24 November 1938 whereby these defendants relinquished, determined and surrendered in favour of the plaintiffs all their right, title and interest, claim and demand, to and in the sum standing to the credit of Dr. Madhusudan Mukherjee in the Government Provident Fund. It was suggested that defendant 2 had also relinquished her claim at the time that the plaintiffs applied for a succession certificate to enable them to withdraw the money. The plaintiffs, however, do not now rely on any relinquishment or disclaimer made by defendant 2, and the question which I have to decide is whether on the true construction of the statute and of the rules the plaintiffs are solely entitled to the sum or whether defendant 2 is entitled to participate with them. The question is difficult because the Act and the rules appear to me to be discrepant in several important particulars, and the situation is complicated because it is admitted that Dr. Mukherjee, during the lifetime of his wife, Sm. Nirupama Devi, validly nominated her as the beneficiary of his provident fund. Sm. Nirupama Devi predeceased her husband, and although it is stated that he went through the form of nominating himself, it is agreed that a nomination of that nature is ineffective.

(3.) I will first deal with the situation as it would stand, if it were not complicated by the nomination as beneficiary of the mother of the plaintiffs and defendants other than the Accountant-General. Under the rules "family" is defined to mean in the case of a male subscriber the wife or wives and children of a subscriber and certain other persons. Under Rule 31 on the death of a subscriber, who leaves a family, before the amount standing to his credit has become payable, if no nomination in favour of a member or members of the family of the subscriber subsists, the whole amount standing to his credit in the fund becomes payable to the members of his family in equal shares. It is clear, therefore, that if the married daughters can be said to be members of the family they are entitled to share equally with their brothers. The plaintiffs contend that, where the terms "child" or "children" are used in the rules or in the Provident Funds Act, a minor child or minor children are intended, and that they cannot be applied to cover the sons and daughters of a subscriber, who have attained the age of majority.