MATILDAS BISHOP Vs. SUZAN ANTHONY MILLARD

JUDGEMENT

(1.) This is an appeal from the judgment of Mr. Justice Bhagwati, Eustace Edwin Millard, an employee of the G. I. P. Railway, was a subscriber to the provident fund of the railway company. On July 23, 1936, he made a nomination under the rules of the fund in the prescribed form, which is headed "The Form of declaration", in favour of his mother, He married the respondent on July 18, 1941, and died on October 1, 1943. He left him surviving his widow the respondent, and two sisters who are the appellants. His mother died on September 23, 1943, i.e. before his own death. After his death the appellants obtained letters of administration to the estate of their mother and claimed to receive payment of the provident fund due to the deceased from the railway company. The respondent claimed the same fund on the ground that on her marriage the nomination ceased to subsist under the rules. The G. I. P. Railway being owned at all material times by Government, the Governor General in Council filed an interpleader suit as the plaintiff. He was discharged from the suit on payment of his costs, after he desposited the amount in Court. The only issue which was ordered to be tried first was as follows: Whether the marriage of defendant No. 1 (respondent) to the deceased subsequent to the nomination by the deceased in favour of his mother revokes the nomination? I must say that the word "revokes" is not happily chosen. If the word "subsists," which is used in the rules, was retained with proper alterations in the issue, it might have been better. The parties, however, have clearly understood the rival contentions arising on the construction of the rules and the Provident Funds Act, 1925.

(2.) On behalf of the appellants it is contended that the Provident Funds Act should be first looked at and Section 5 of the Act determines the rights of the nominee. The relevant portion of that section is as follows: Subject to the provisions of this 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...the Railway Provident Fund of the sum standing to his credit in the Fund...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 such subscriber...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...by notice given in such manner and to such authority as is prescribed by those rules. It was pointed out that although under the Act there was no provision for making rules by Government or the railway administration, the existence of the rules is assumed. It was argued that while rules might be framed for the internal management of the fund, no rule can be framed so as to override Section 5 and prescribe a method by which a nomination duly made under the rules can be varied or cancelled, otherwise than as prescribed by the section. In this connection it was pointed out that in England under the Friendly Societies Act, 1875, there was no provision for revocation of the nomination on the marriage of the subscriber. The provision of revocation on the happening of that event was made by express legislation under the Friendly Societies Act, 1896. It was therefore contended that the same result cannot be achieved by making a rule to that effect.

(3.) The appellants relied on Secy, of State V/s. Nagendra Mohan (1938) 42 C.W.N. 1143 to support the contention that a will cannot revoke a nomination. No authority is required for that proposition, because Section 5 itself provides that a will by itself shall not be considered a sufficient revocation of the nomination. Bennett V/s. Slater [1899] 1 Q.B. 45 was relied upon to support the contention that a nomination made under the Friendly Societies Act, 1875, was not revocable in any manner other than that prescribed by the corresponding subsection and was not revocable by a subsequent will of the nominator. In that judgment the Court emphasised that a nomination cannot be revoked otherwise than in the manner prescribed by the section. I think the clear words used in Section 5 of the Provident Funds Act are equally emphatic on the point and no authority is needed to support it. It was next contended that Rule 25 of the Provident Fund Rules, which was in force in August, 1985, if read as making a nomination revocable on the marriage of the subscriber, was ultra vires. It was argued that the notes printed at the foot of the prescribed form of nomination cannot be considered as forming part of the rules. They were mere notes for the guidance of the department. It was next contended that whatever general notes for the guidance of the department may exist, in fact the deceased made the nomination without any reservation and on a form which did not contain any such notes. Therefore, in any event, the nomination made by the deceased was not controlled by any such condition and effect should be given to the nomination, irrespective of the note printed at the foot of the prescribed form. It was lastly contended that this note is an attempt to prescribe a condition subsequent to revoke the nomination; and is made with a view to make the rule a will of the subscriber who was not a Hindu, Mahomedan, Buddhist or a person exempt from the operation of the Indian Succession Act and was thus in conflict with the express words of Section 5 of the Provident Funds Act.