P L D 1957 (W (PLP)

SHABIR AHMAD, J.‑

This appeal is directed against the decree passed by Mr. Gul Muhammad Qureshi on the 31st of October 1956 when he was posted at Lahore as an Additional Civil judge of the 1st Class. The appeal is by the defendant, the suit of the plaintiffs having been decreed in its entirety. Briefly stated some of the material facts are these. Mr. E. V. Water-field, the husband of the defendant‑appellant, who was a Railway Guard on the North Western Railway, died childless while in service. He made a will on the 29th of October 1946 and died two days later. By this will he directed, inter alia, that the money lying in his Provident Fund will be distributed in the manner mentioned in the will and that his second wife, the defendant‑appellant, will get no part of it. Mr. C. E. Lee Anan, resident of "The Retreat", Empress Road, Lahore, and Mr. R. A. Jeremy, Advocate, Lahore, a cousin of Mr. Water field, were appointed as executors of the will. About a decade ago they obtained a probate of the will and approached the North Western Railway authorities for being given the money lying in the Provident Fund of the late husband of the appellant. The North Western Railway Administration refused to give the money to the executors unless they obtained a decree from a Civil Court of competent jurisdiction to the effect that they were entitled to get the money in spite of the presence of the widow of the testator and it was in these circumstances that the suit was brought. In the first instance, the only defendant was the Federation of Pakistan through the North Western Railway Administration, but on an objection raised on behalf of the Government, Mrs. M. Waterfield, the widow of Mr. E. V. Water field, was impleaded as the other defendant. Subsequently, and after issues had been framed, the name of the Federation of Pakistan was deleted from the list of the defendants because the plaintiffs did not want to proceed against it. The contest continued between the plaintiffs and Mrs. Waterfield, who, after the name of the Federation of Pakistan was removed from the list of the defendants, remained the only defendant in the suit. Mrs. Waterfield resisted the suit on a number of grounds and the following issues on merits were framed:‑-- (1) Is the suit barred by the provisions of the Provident Funds Act, 1925 ? (2) Can the will of the late Mr. Waterfield override the provisions of the Provident Funds Act, 1925 ? (3) Is defendant No. 2 entitled to claim the amount in suit under the Provident Fundes Act ? If so, what is its effect on the suit ? (4) Is defendant No. 2 widow of the late Mr. Waterfield ? (5) Is the will left by Mr. Waterfield invalid and can defendant No. 2 take up this objection in the suit ? (6) Relief. The decision of the learned trial judge on issues Nos. 1, 2, 3 and 5 went against the defendant and that of issue No. 4 in her favour, with the result that the suit was decreed. In issues Nos.,3 and 4 the appellant is described as defendant No. 2 for the reason that at the time when the issues were framed the Federation of Pakistan was one of the defendants in the suit though it ceased to be one at a subsequent date. The learned counsel for the respondents did not question the finding of the learned trial judge on issue No. 4 and admitted that the material on the record established beyond all reasonable doubt that the appellant was the wife of the late Mr. Waterfield whose Provident Fund is in dispute in the present litigation. In view of this admission, it is not necessary to detail the evidence relating to the marriage between the appellant and the testator though I might mention that if the respondents had questioned the finding of the learned trial Judge on issue No. 4. they would have had a greatly uphill task. In his turn the learned counsel for the appellant did not question the finding of the ‑learned trial judge that the husband of the appellant had made a will on the 29th of October 1946 and that at the time when he did so he was of a sound disposing mind. The findings of the learned trial judge on questions of fact that arose for determination having been admitted by the learned counsel for, the parties to be correct, the main question for determination in the appeal is whether or not the will of the husband of the appellant could deprive the appellant of the money in the Provident Fund of her husband. Before dealing with the question whether or not the will made by her husband could deprive the appellant of the money lying in his Provident Fund, I would deal with the contention of the learned counsel for the appellant to the effect that the suit could not proceed in the absence of the Federation of Pakistan and, therefore, as soon as the Government ceased to be a party the suit became incompetent and should have been dismissed on that short ground. It was urged that the Federation of Pakistan was a necessary party and as no suit can proceed without a necessary party being before the Court, the present suit merited dismissal. There is no dispute about the proposition that if a necessary party is not included, a suit cannot generally proceed, but the learned counsel for the appellant can succeed only if he can establish that the Federation of Pakistan was a necessary party. It is plain that the plaintiffs claimed no relief which would directly affect the Government and all that they wanted was a declaration that as executors of the will of the husband of the appellant they were entitled to get the money lying in his Provident Fund in preference to the appellant. In these circumstances, I do not see how the Federation of Pakistan could be deemed to be a necessary party, but even if it were a necessary party I am of the view that in the circumstances of the case the mere deletion of its name from the list of defendants would not prove fatal to the suit. In their written statement the Railwey Administration said, inter alia, that they were prepared to give the money lying in the Provident Fund of the late husband of the appellant to any person whom the Court declared to be entitled to it and it is hardly likely that the mere fact that at the time when the decree was passed it was not a party the Government would refuse to honour the commitment which, it has solemnly made in its written statement. It would have been much better if the Federation of Pakistan had continued to be a party because in that case no technical objection could at any time have been open to it to ignore the decree of the Court but as it said in clear terms in the written statement that it will honour the decree of the Court whatever it might be, I would not have considered the suit incompetent even if the Railway Administration were a necessary party. I am, however, prepared to hold that the Railway Administration was a proper party to the suit, but as the fact that a proper party has not been imp leaded cannot prove fatal to the suit, the fact that the name of the Federation of Pakistan was removed from the list of defendants cannot in any manner make the decree passed in the suit defective. I would, therefore, hold that the decree of the learned trial judge cannot be set aside on the ground that the Federation of Pakistan was not a party to the suit at the time when the decree was passed. I will now deal with the respective claims of the parties to the money lying in the Provident Fund of the husband of the appellant. I have mentioned already that the appellant is the second wife or Mr. Waterfield, the money in whose Provident Fund is the subject of dispute between the parties. The first wife of Mr. Waterfield was Mrs. E. T. Waterfield who died long before he married the appellant. Mr. Waterfield had nominated his first wife Mrs. E. T. Waterfied as the person entitled to get the money in the Fund in case he should die before the money became due or having become due had not been paid to him. On his second marriage, Mr. Waterfield did not alter his original nomination and the Railway authorities do not appear to have insisted oil the alteration, evidently because they were unaware of the death of the person in whose favour Mr. Waterfield had made a nomination as required by the rules governing the Railway Provident Fund. At the time of the death of Mr. Waterfield, the position, therefore, was that he left a widow, no child or grandchild, money in the Provident Fund but no nominee to receive that money. The law governing the disposal of money standing at the credit of a servant of the North Western Railway Adminis tration in his Provident Fund is contained not only in the Provident Funds Act, 1925, but also in the Railway Provident Fund Rules. Mr. Waterfield died in the end of 1946 before the partition of British India and the rule relating to his Provident Fund are contained in Chapter XIII of Volume I of the State Railway Establishment Code which contains rules made by the Governor‑General in Council under subsection (2) of section 241 of the Government of India Act, 1935. The State Railway Establishment Code has now been replaced by the Pakistan Railway Establishment Code but the rules in the new Code relating to Provident Funds are practically the same as in the old one. The question that falls for determination in the present case is dealt with in rule 36 of Chapter XIII of the State Railway Establishment Code which rule is shown as 1336 in the Code. This rule reads as under :‑ "Subject to the provisions of rule 1337 on the death of a subscriber before. the amount standing to his credit has become payable, or where the amount has become payable, before payment has been made‑ (i) the amount of the special contribution credited to the subscriber's account under rule 1314 shall become payable to the widow or widows or/and dependent children of the deceased subscriber in such shares as the Controlling Officer may determine. (ii) if a nomination made by the subscriber in accordance , with rule 1334 subsists, the amount standing to his credit in the Fund excluding any amount which becomes payable under clause (i) or that part thereof to which the nomination relates, shall become payable to his nominee or nominees in accordance with such nomination Provided that if the amount exceeds five thousand rupees and the nominee is not a dependant, it shall be payable only on production by the nominee of probate or letters of administration evidencing the grant to him of administration to the estate of the deceased or a succession certificate entitling him to receive payment of the amount ; (iii) if no nomination subsists, or if the nomination relates only to a part of the amount standing to his credit in the Fund, :the whole amount or the part thereof to which the nomination does not relate, as the case may be, shall subject to the provisions of clause (i), become payable to the members of his family in equal shares Provided further that no share shall be payable to‑ (1) sons who have attained legal majority ; (2) sons of a deceased son who have attained legal majority ; (3) married daughters whose husbands are alive ; (4) married daughters of a deceased son whose husbands are alive ; if there is any member of the family other than those specified in clauses (1), (2), (3) and (4)‑ Provided further that the widow or widows and the child or children of a deceased son shall receive between them in equal parts only the share which that son would have received if he had survived the subscriber and had not attained the age of legal majority at the time of the sub scriber's death". Rule 1337 mentioned in rule 1336 deals with deductions that can be made from the money lying in the Provident Fund of a railway servant while rule 1314 mentioned in clause (i) of the rule deals with special contributions to the account of a subscriber to the Provident Fund and as both those rules have no relevancy to the present case they need not be considered here. It will be noticed that rule 1336 makes the right of the nominee of the subscriber superior to that of a member of his family. The definition of ''Family" as given in sub‑rule (5) of rule 1302 of Chapter of XIII of State Railway Establishment Code is to the effect, inter alia, that in the case of a male subscriber the wife or wives and children of the subscriber and the widow or widows and children of a deceased son of the subscriber mean his family for the purposes of the Code. According to this definition the appellant is a member of the family of the subscriber to the Fund and as she is the only person who is covered by the definition of the word "family" in the rules, it is obvious that as there was no nomination she would be entitled to get the whole of the money that stood at the credit of her late husband in the Provident Fund if the matter were governed the Railway Provident Fund Rules. The position is slightly different under the Provident Funds Act, 1925 (Act XIX of 1925) which became law on the 27th of August 1925 and was enforced under subsection (3) of section 1 of the Act on the 1st of April 1926. The act is applicable to the Provident Funds mentioned in its body and those of the institutions detailed in the Schedule attached to the Act. In the body of the Act the Funds mentioned are the Government Provident Fund and . the Railway Provident Fund Act. Subsection (f) of section 2 of the Act defines "Railway administration", and subsection (g), which defines "Railway Provident Fund". reads as under :‑ " Railway Provident Fund' means a Provident , Fund constituted by the authority of a railway administration for any class or classes of its employees" and as sub‑clause (u) of clause (f) of section 2 of the Act makes it clear that persons serving in the state‑owned North Western Railway are governed by the Act, the provisions contained in the Act have application to the present case. The sections of the Provident Funds Act, 1925, relevant for the purposes of the present case are 3 and 4. which may be reproduced here in extenso for facility of reference:‑- "3.‑(1) 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 attach ment under any decree or order of any Civil, Revenue or Criminal Court in respect of any debt or liability incurred by the subscriber or depositor, and neither the Official Assignee nor any receiver appointed under the Provincial Insolvency Act, 1920, shall be entitled to, or have any claim on, any such compulsory deposit. (2) 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, or to such person as may be authorised by law to receive payment on his behalf shall, subject to any deduction authorised by this Act and, save where the dependant is the widow or child of the subscriber or depositor, subject also to the rights of an assignee under an assignment made before the com mencement of this Act, vest in the dependant, and hull, 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 4. (1) When under the rules of any Government or Railway Provident Fund the sum standing to the credit of any subscriber or depositor, or the balance thereof alter the making of any deduction authorised by this Act, has become payable, the officer whose duty it is to make the payment shall pay the sum or balance, as the case may be, to the subscriber or depositor, or, if he is dead shall‑ (a) if the sum or balance, or any part thereof, vests in a dependant tinder the provisions of section 3, pay the same to the dependant or to such person as may be 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, or, if no person is so nominated, to any person appearing to him to be otherwise entitled to receive it ; or (c) in the case of any sum or balance, or any part thereof, which is not payable to any person under clause (a) or clause (b) pay the same‑ (i) to any person nominated to receive it under the rules of the Fund, on production by such person of probate or letters of administration evidencing the grant to him of administration to the estate of the deceased or a certificate granted under the Succession Certificate Act, 1889 (now the Succession Act, 1925) or under the Bombay Regulation VIII of 1827. entitling the holder thereof to receive payment of such sum, balance or part, or (ii) where no person is so nominated, to any person who produces such probate, letters or certificate Provided that, where the whole or any part of any sum standing to the credit of the subscriber or depositor has been assigned to any other person before the commencement of this Act, and notice in writing of the assignment has been received by the officer from the assignee, the officer shall, after making any deduction authorised by this Act, and any payment due under clause (a) to or on behalf of the widow or children of the subscriber or depositor :‑ (i) if the subscriber or depositor or, if he is dead, the person to whom in the absence of any valid assignment the sum or balance would be payable under this subsection gives his consent in writing, pay the sum or part or the balance thereof, as the case may be, to the assignee, or (ii) if such consent is not forthcoming, withhold payment of the sum, part or balance, as the case may be, pending a decision of a competent Civil Court as to the person entitled to receive it. (2) The making of any payment authorised by sub section (1) shall be a full discharge to the Government or the railway administration, as the case may be, from all liability in respect of so much of the sum standing to the credit of the subscriber or depositor as is equivalent to the amount so paid." Now, clause (a) of subsection (1) of section 4 of the Act makes the right of a dependant to get the money lying in the Provident Fund of a deceased subscriber superior to that of a nominee provided the dependant is a person in whom the money has vested under subsection (2) of section 3 of the Act. The word "dependant" is defined in clause (c) of section 2 of the Act to mean a wife, a husband, parent, child, minor brother, unmarried sister and a deceased son s widow and child and where no parent of the subscriber is alive a paternal grand parent. The word "dependant" is not defined in the Rules contained in Chapter XIII of the State Railway Establishment Code and the word "family" is not defined in the Act. The appellant, however, fails within the definition of "dependant" contained in clause (c) of section 2 of the Provident Funds Act and as under Rule 1336 of the Rules the sum standing to the credit of the husband of the appellant became payable on his demise clause (a) of sub section (1) of section 4 of the Act gives her the right to get the money in dispute as she is entitled under the rules governing the Fund to get it. If the disposal of the money in dispute were governed by rules only and there were a nominee his right to the money would have been superior to that of the appellant and if such disposal were governed by the Provident Funds Act, 1925, her position would be superior to that of a nominee because under section 4 of the Act a nominee gets nothing if a dependant of the subscriber is alive. Where the nominee is a dependant he will get the money not as a nominee but as. a dependant but where a nominee does not happen to be a dependant and a dependant is in existence the dependant and not the nominee will be entitled to be paid the money under section 4 of the Provident Funds Act, 1925, though the nominee would be entitled to it under the rules contained in the Railway Provident Funds Act, 1925. In cases where no dependant or nominee of the subscriber 'is alive, the Railway Provident Fund Rules make no provision about the disposal of the money lying in a subscriber's fund, but clause (c) of subsection (1) of section 4 of the Provident Funds Act, 1925, provides that the money will be given to a person who produces a succession certificate or a probate to a will of the subscriber, but it is clearly provided that persons falling in clause (c) of section 4 will get the money only if no one falling under clause (a) or clause (b) is in existence. The position, therefore, is that both under the rules in the State Railway Establishment Code and the Provident Funds Act, 1925, the appellant is entitled to get the money that stood at the credit of her 'husband at the time of his death subject to deductions which the Railway Administration can make from that money under the relevant, rules and as the Act and the rules do not in the present case come in conflict with each other, I need not consider the effect of their inconsistency with each other. It was contended by Sheikh Muhammad Shafi, the learned counsel for the respondents, that the fact that subsection (2) of section 3 of the Provident Funds Act, 1925, says that a sum standing in the Provident Fund of a person vests in his dependant cannot mean that the dependant is the owner of that money and, therefore, notwithstanding the provisions of sections 3 and 4 of the Provident Funds Act, 1925, the appellant should not be given the money. In support of his contention that the mere vesting of .the money in the appellant does not make her ids owner, the learned counsel cited section 211 of the Succession .Act, 1925, wherein it is said, inter alia, that an executor or administrator is a legal representative of a deceased person and the property of the deceased vests in him as such. It is never free from danger to interpret, an expression used in an enactment by reference to the meaning of that expression when used in another enactments unless it is clear that the legislature intended the expression to have the same meaning for the purposes of both the enactment, but as subsection (1)1 of section 211 of the Succession Act, 1925, on which reliance was placed by the learned counsel, makes ;it clear that the property of the deceased vests in the executor or administrator as such executor or administrator, that provision of law can be of no avail to the respon dents because subsection (2) of section 3 of the Provident Funds Act 1925, does not limit the vesting of the property in the dependant of the deceased subscriber to'. or depositor in, the Provident Fund as section 211 of the Succession Act, 1925, does the vesting of the property in the executor or the administrator as the case may be. Now, the result of sub section (2) of section 3 of the Provident Funds Act, 1925, is that when a subscriber to, or depositor in, a Provident Fund dies and a sum is standing to his credit which, under the rules applicable to the Fund, is payable to a person who is for the purposes of the Act a dependant of the deceased subscriber or depositor, the sum vests in the dependant as soon as the death of the subscriber or depositor takes place and that sum is to be free from any debt or other liability incurred by the deceased and even from all liability incurred by the dependant before the death of the subscriber or depositor. In these circumstances, it is not possible to accept the contention of Sheikh Muhammad Shafi that the rights of the dependant are subject to those of any other person whom G the deceased had given a right to the money or part thereof. Sheikh Muhammad Shafi would have it held that a dependant of a deceased subscriber to a Provident Fund governed by the Provident Funds Act, 1925, will get the money but will have to dispose it in the manner directed by the, subscriber but the forcelessness of this contention is apparent from the provisions contained in subsection (2) of section 3 of the Provident Funds Act, 1925, and when that subsection is taken in conjunction with subsection (1) of section 4 of that Act, it becomes manifest that the dependant of a deceased subscriber, who gets the money under clause (a) of subsection (1) of section 4. gets it absolutely and not for the benefit of anyone else. The learned counsel for the parties cited a number of judicial decisions in support of their respective contentions, Sardir Muhammad Iqbal, the learned counsel for the appel lant, cited the following decided cases (1) AIR1951All.815; (2) AIR 1937 All 562 ; (3) A I R 1946 Oudh 73 ; (4) I L R 64 Cal. 962 ; (5) A I R 1945 Cal. 384 ; (6) A I R 1947 Mad. 96 ; (7) A I R 1934 Mad. 173 (8) A I R 1943 Nag. 333 ; (9) A I R 1951 Cal. 285 and (10) A I R 1942 Rang. 64. while Sheikh Muhammad Shafi, the learned counsel for the respondents, placed his reliance on the following :‑ (1) A I R 1924 Sind 57 ; (2) P L D 1951 Sind 1 ; (3) A I R 1928 Lah. 773 ; (4) A I R 1936 Oudh 32 and (5) A 1 R 1935 Sind

73. After going through the abovementioned authorities, most of which deal with the question whether or not a nomination made by a subscriber to a Provident Fund amounts to a will, gift or trust, I have arrived at the con clusion that none of them is of much assistance for the determination of the precise question that arises in the case, that is, the determination of the rights of a dependant in comparison with those of an executor of a will made by a subscriber with regard to the Provident Act. In view of what I have said above, I would hold that the decision of the learned trial judge was erroneous and accepting the appeal, would dismiss the plaintiffs' suit. As, however, the question that fell for determination was of some complexity, I would leave the parties to bear their own costs throughout. ORTCHESON, J.‑

I agree. A.H Appeal accepted.