MABEL HEAD Vs. MISS 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.) The only question before us is whether under the Provident Funds Act, XIX of 1925, and the rules framed under it, there can be no valid nomination by a contributor to the Provident Fund of any person other than a dependent so long as there is a dependent in existence. In support of this contention reliance is placed on Section 3 Sub-section (2), and Section 4 of the Act and Rule 23 of the Provident Rules of the G. I. P. Railway. Section 3(i) provides that a compulsory deposit in any Government or Railway Provident Fund shall not in any way be capable of being assigned or charged and shall not be liable to attachment under any decree or order of a Court. Sub-section (2) provides that any sum standing to the credit of any subscriber to, or depositor in, any such Fund at the time of his decease and payable under the rules of the Fund to any dependent of the subscriber or depositor shall vest in the dependent. Section 4(i)(a) provides that when the sum standing to the credit of a subscriber or depositor has become payable, the officer responsible for its payment shall, if the ?subscriber is dead, and if the sum or balance of it vests in a dependent under the provisions of Section 3, pay the same to the dependent or to any person authorised by law to receive payment on his behalf; or (&) if the whole sum or balance, as the case may be, does not exceed five thousand rupees, pay the same, or any part thereof, which is not payable under Clause (a), to any person nominated to receive it under, the rules of the Fund. Section 5(2) provides that- Subject to the provisions of the Act, but otherwise notwithstanding anything contained in any law for the time being in force or any disposition, whether testamentary or otherwise, by a subscriber to, or depositor in, a Government or Railway Provident Fund of the sum standing to his credit in the Fund, or of any part thereof, any nomination, duly made in accordance with the rules of the Fund, which purports to confer upon any person the right to receive the whole or any part of such sum on the death of the subscriber or depositor, shall be deemed to confer such right absolutely, until such nomination is varied by another nomination made in like) manner or is expressly cancelled by the subscriber or depositor.... Rule 23 of the Provident Fund Rules of the Company provides that- On the death of any member of the Fund whilst in the service of the Railway, the Chief Accounts Officer shall (subject to the provisions in these rales and more particularly the provisions in Rule 25) pay to his executors oil administrators or other lawful representative the sumstanding to the deceased member's credit.