(Delivered by Burn, J.)
This is an appeal from an order of the learned District Judge of Chittoor on a petition by a Brahmin lady named Lakshmamma under S. 372 of the Indian Succession Act. The lady alleged that she was the widow of one P. Sambiah Sarma who had died while in employment as a station master on the Madras and Southern Mahratta Railway. She claimed a succession certificate to enable her to draw the amount standing to the credit of P. Sambiah Sarma in the Railway Provident Fund. It was not disputed that Sambiah Sarma the depositor had made a declaration under the Provident Fund Rules, in favour of Lakshmamma, nominating her as the person to whom he desired the amount to his credit to be paid in the event of his death. One P.S Subramaniam the son of P. Sambiah Sarma by his first wife opposed the application and alleged that Lakshmamma had never been legally married to his father. The learned District Judge found that Lakshmamma had lived with P. Sambiah Sarma as his wife for many years, but by reason of certain documents proved before him the learned Judge held that the lady had been married before to one Madyala Subramaniah. He held therefore that she could not have been the legally wedded wife of P. Sambiah Sarma. The learned Judge found accordingly that the provident fund money must go to the son of P. Sambiah Sarma because the son comes within the definition of “dependant” in S. 2 of the Provident Funds Act of 1925 and because the nomination which had admittedly been made by Sambiah Sarma in favour of the appellant must be treated as an unlawful nomination. The learned Judge states in paragraph 3 of his judgment that “under the Provident Funds Act only a dependant may be lawfully nominated and a dependant is defined as a wife, husband, parent, child, minor brother, unmarried sister, deceased son's widow and child or paternal grandparent.” We are unable to find any provision in the Provident Funds Act, which says that only a dependant may be lawfully nominated. On the contrary we think that S. 4 of the Provident Funds Act clearly implies that a nomination may be made in favour of a person other than a dependant. The learned District Judge has apparently been misled by applying to this case the rules of the Government General Provident Fund. The learned Judge quotes R. 7(2) of the General Provident Fund Rules which is to the effect that a subscriber shall nominate one or more members of his family and R. 7(3) says that in the absence of a family any person may be nominated but such nomination shall not be valid so long as the subscriber has a family. R. 7(4) provides that on acquiring a family a nomination of an outsider previously made must be formally cancelled. These rules are not applicable to the Provident Fund of the Madras and Southern Mahratta Railway. We have examined the rules of the Madras and Southern Mahratta Railway Company's Provident Fund and they do not contain anything corresponding to R. 7(2), (3) and (4) of the General Provident Fund. R. 21 of the Madras and Southern Mahratta Railway Provident Fund Rules says that when a deposit account is first opened, the member concerned shall be required to give a declaration in Form G. 45, particularising the person or persons by whom he is desirous that the whole or any portion of his deposit shall be received in the event of his death. It is provided that this declaration shall remain in force unless it is revised or cancelled by means of a notice in writing given to the Chief Auditor and Accountant in Form G. 45-A. The rule permits a depositor to make a fresh declaration at any time and it also provides that if the depositor is not a Hindu, Mohammadan, Buddhist or other person exempted from the operation of the Indian Succession Act any declaration already submitted by him shall forthwith become null and void on the occasion of his marriage or re-marriage and a fresh declaration shall be required. Form G. 45 bears upon its face an indication that the nominee need not be a dependant. After the declaration, a column is provided for the name and address of the nominee or nominees and then in Column 2 the depositor is required to state whether the nominee is a dependant as defined in S. 2(c) of the Provident Funds Act 1925 or if not a dependant, the nature of relationship. This clearly implies that the nominee need not be a dependant.
Learned Counsel for the respondent relies upon the decision of Mr. Justice Beasley (as he then was) in the case of Cuffley v. Madras and Southern Mahratta Railway Co. Ltd.(1). In that judgment the learned Judge laid it down that where there are a widow and children left by the deceased subscriber to a provident fund, they are entitled to the benefit of the fund whatever be the amount subscribed for, regardless of the nominations or assignments made by the subscriber. Relying upon this, learned Counsel for the respondent contends that since the petitioner was found by the learned District Judge not to be the legally wedded wife of the subscriber, she does not come within the definition of “dependant” in S. 2 of the Provident Funds Act. The son for whom learned Counsel appears is a “dependant” since he is a child of the subscriber. It is therefore contended that the son has a right to this provident fund amount in preference to the lady nominated by the subscriber. This result would follow undoubtedly from the decision of Mr. Justice Beasley in the case referred to. We find however in the first place, that the learned Judge really decided the case on a different point altogether. He found that the subscriber Mr. W.J Cuffley had made a declaration in favour of his stepmother at a time when he had no legally wedded wife in existence. Subsequently he had married and had children. The learned Judge found that the declaration made before marriage became null and void on the occasion of the subscriber's marriage. This was sufficient to decide the case and the learned Judge did decide it on this ground. But he went on to say that even if he were wrong in holding that the declaration was invalid, this would not necessarily mean that the nominee was entitled to the money in preference to the plaintiff and he proceeded to lay down the proposition already mentioned. We find however that the rules referred to by the learned Judge, viz., 21 and 22 have been very materially altered since the date of the judgment and we therefore do not feel ourselves bound to follow the learned Judge or to discuss in detail our reasons for dissenting from his conclusion. In a later case to which Sir Owen Beasley was a party [Mon Singh v. Mothi Bai] the Provident Fund Rules of the Madras and Southern Mahratta Railway were again under consideration and the judgment was pronounced by one of us. It was there held:
“It appears therefore that the money is not payable to a dependant as such unless the dependant is also nominated in the declaration. And R. 21 indicates precisely the nature and effect of the declaration.” (Vide page 859).
The judgment then goes on to quote R. 21 which has already been referred to. This is sufficient, we think, to show that Sir Owen Beasley would have recognised the difference created by the alteration in the rules between the date of his judgment in Cuffley v. Madras and Southern Mahratta Railway Co. Ltd.(2) and the present date. There is nothing in the rules of the Provident Fund requiring declarations to be made in favour of dependants only. There is no restriction with regard to the persons in whose favour declarations may be made by depositors. R. 22 as it now stands carries out the provisions of Ss. 3 and 4 of the Provident Funds Act. Under S. 3(2) of the Provident Funds Act it is provided 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 dependant of the subscriber or depositor…………shall, subject to any deduction authorized by this Act, and, save where the dependant is the widow or child of the subscriber or depositor, subject also to the right of an assignee………vest in the dependant and shall, subject as aforesaid, be free from any debt or other liability incurred by the deceased or incurred by the dependant before the death of the subscriber or depositor. The reference to the rules of the fund shows that these provisions can only apply to sums which under the rules are payable to a dependant. It is quite clear that this section also recognises the possibility of sums being payable to persons other than dependants. Under R. 22 of the Madras and Southern Mahratta Railway Provident Fund Rules it is provided that if a declaration made by the depositor in accordance with the provisions of R. 21 subsists, the amount standing to his credit in the Fund, or the part thereof to which the declaration relates, shall, subject to the other provisions of these rules, be payable in accordance with such declaration. In the present case there is no dispute about the fact that the declaration was made in favour of the appellant and the declaration is in accordance with the provisions of R. 21. It was a subsisting declaration at the time of the depositor's decease and therefore the amount is payable to the appellant under the rules.
For these reasons we are of opinion that this appeal succeeds and we allow it with costs both here and in the Court below.
N.R.RAppeal allowed.