N.J Wadia, J.:—

This is an appeal a against a decision of the Assistant Judge of Jalgaon confirming a decree 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 house-keeper. 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 drawing 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.

The main contention of the appellant was that she was a dependent of the deceased as defined in s. 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 his contention and dismissed the suit, and that decree was confirmed in appeal by the Assistant Judge.

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 s. 3, sub-s. (2), and s. 4 of the Act and r. 23 of the Provident Fund Rules of the G.I.P Railway. Section 3(1) 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-s. (2) provides that any sum standing to the credit of any subscriber to, or depositor in, any such Fund sit the time of his deceased and payable under the rules of the Fund to any dependent of the subscriber or depositor shall vest in the dependent. Section 4(1)(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 s. 3, pay the same to the dependent or to any person authorised by law to receive payment on his behalf; or (b) 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(1) 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 those rules and more particularly the provisions in r. 25) pay to his executors or administrators or other lawful representative the sum standing to the deceased member's credit.”

There are no express words in any of these provisions of the Act or the Rules to the effect that a subscriber to a Provident Fund cannot nominate a person who is not a dependent so long as there is a dependent in existence, and that any nomination in favour of a person who is not a dependent shall be invalid if there is a dependent. In other Provident Fund Rules, for instance, in the Bombay General Provident Fund Rules, there is a provision (r. 7) that—

“A subscriber shall, as soon as may be after joining the Fund, send to the Account Officer, a nomination conferring on one or more persons the right to receive the amount that may stand to his credit in the Fund, in the event of his death before that amount has become payable, or having become payable has not been paid, provided that if, at the time of making the nomination, thy subscriber has a family, the nomination shall not be in favour of any person or persons other than the members of his family.”

A similar provision exists in s. 5 of the Indian Civil Service Provident Fund Rules. Where, therefore, the authorities framing the rules intended to make such a provision, they have done so expressly. The contention on behalf of the appellant is that the effect of s. 3(2) is that if a subscriber leaves behind him a “dependent”, the amount to the credit of the subscriber in the Provident Fund immediately vests in the dependent. But this contention ignores the words “and payable under the rules of the Fund to any dependent of the subscriber” which occur in this sub-section, and the effect of which seems to be that the amount to the credit of the subscriber in the Provident Fund would vest in the dependent only if the dependent was, under the rules, entitled to receive it, i.e if there was no other person such as a nominee, with a better right to receive it. Section 5 which enables a subscriber to make a nomination does not contain any provision that a nomination cannot be made in favour of a person who is not a dependent if there is a dependent in existence. Clause (b) of sub-s. (1) of s. 4 does not, in our opinion, support the contention of the appellant that the claim of a nominee can be recognized only if there is no dependent to whom the sum would be payable under s. 4(1)(a) Nor is there anything in the provisions of r. 23 which lends support to the appellant's contention. That rule merely provides for the payment of the sum standing to the credit of a subscriber in his Provident Fund to his “executors or administrators or other lawful representative” and that direction is expressly made subject to the provisions of the Rules and more particularly to the provisions of r. 25; and r. 25(b)(ii) provide that “if a declaration made by the member in accordance with the provisions of the rules subsists, the amount standing to his credit in the Fund shall, subject to the other provisions of the rules, be payable in accordance with such declaration.”

In this connection it is relevant to refer to the provisions of r. 8 which in our opinion give some indication of the intention of the Legislature and the framers of the rules. Rule 8(a) provides for a contribution being made to the Provident Fund by the Railway Company equal to the subscriptions made by the member, and r. 8(b) provides that in the Provident Fund account of each member any gratuity payable to the member before his retirement or on his death while in service shall be credited.

The rule then goes on to say:

“In the event of his death while in service, the amount of such gratuity, if any, shall notwithstanding any nomination made by the subscriber be paid from the Fund to his widow, and failing the widow to his dependant children, and failing them to the adopted (dependant) children, if any.”

This provision seems to indicate that in the absence of it, the amount of the gratuity, like the rest of the Provident Fund, would have been payable to any person nominated by the subscriber, even though that nominee might not be the widow or child or other dependent of the subscriber. If, under the provisions of ss. 3 and 4 of the Act and r. 23, no nomination in favour of a non-dependent could be made so long as there was a widow or a child or other dependent of the subscriber in existence, this provision would have been unnecessary. It is argued that the object of r. 8(b) was to make an exception in favour of only two classes of dependents, viz., the widow and the children, and not in favour of other persons who would be dependents within the meaning of s. 2(c) of the Act, such as a husband, parent, minor brother, unmarried sister or a deceased son's widow. If that had been the intention of r. 8(b), one would have expected the rule to say that the amount should be payable to the widow or the dependent children, notwithstanding any nomination made by a subscriber in favour of any other dependents.

The appellant has relied in support of his contention on the decision of the Calcutta High Court in Nidhu Sudan Mukherji v. Bibha Balee Debi. That was a case falling under the General Provident Fund (Bengal Services) Rules. A subscriber had validly nominated his wife as the beneficiary of his provident fund. The wife predeceased the husband and there was no subsequent effective nomination. Upon the death of the subscriber, his three adult sons claimed to be solely entitled to the amount standing to the credit of the subscriber, to the exclusion of the adult married daughters on the ground that they were the only heirs of their mother, in whom the fund had vested absolutely, as the nominee. It was held by the Court that whatever might be the position if the rules stood by themselves, as the rights of nominees, which included rights of nominees' representatives, were expressly postponed, by s. 4 of the Act, to the rights of dependents, the married daughters were entitled to share equally with the sons of the subscriber. The decision was that of a single Judge, who interpreted s. 4 to mean that the amount standing to a subscriber's credit should be paid to his dependent in the first instance, or to his nominee, and that the rule only permitted the nominee to receive any sum or balance which was not payable under cl. (a), i.e, to a dependent. A different view was taken by a division bench of the Rangoon High Court in Ma Kyway v. Ma Mi Lay. In that case a Barman Buddhist, who was in employee of the Burma Railways and a subscriber to the Railway Provident Fund, nominated his sister to receive the Provident Fund amount on his death. It was held that the nomination was valid even though it was prohibited by the personal law of the parties.

The view which we are taking in this case that there is nothing in the provisions of s. 3, sub-s. (2), of the Act which necessarily implies that there can be no valid nomination of a non-dependent if there is a dependent in existence, is supported by the remarks of King, C.J in Mohammad Naim v. Musammat Munim-Un-Nissa that the provision in s. 3, sub-s. (2), appears to contemplate primarily a case where no nomination has been made by the depositor. In Lakshmamma v. Subramanyam there was a contest between a woman who claimed the Provident Fund amount of a depositor on his death as his widow, and the depositor's son. It was found that she had not been legally married to the depositor. She had been nominated by the depositor as the person entitled to receive the amount. It was held that she was entitled to receive the amount in preference to the son of the depositor. It was a clear case in which a non-dependent who had been nominated by the depositor was held entitled to the amount in preference to the son who was a dependent within the meaning of the Act. The trial Court had decreed the suit in favour of the son on the ground that he was a dependent within the meaning of s. 2 of the Act, and the nomination in favour of the mistress must be treated as an unlawful nomination. In overruling this contention. Burn J. observed (p 490):

“We are unable to find any provision in the Provident Funds Act, which says that only a dependent may be lawfully nominated. On the contrary we think that s. 4, Provident Funds Act, clearly implies that a nomination may be made in favour of a person other than a dependent.”

We agree with respect with this view and hold that the decision of the Courts below is correct. The appeal is dismissed with costs.

Appeal dismissed.

Y.V.D