P (PLP)

TYABJI, C. J.‑--This is a first appeal against the judgment and decree passed on the 30th April 1942, by the First Class Sub‑Judge of Sukkur in a partition suit. One Maula Bux, son of Mato, an employee of the North Western Railways died in 1940, leaving property which included a sum of Rs. 5,000 standing to his credit in the Railway Provident Fund. He left him surviving two widows (Plaintiff and Defendant 1), two daughters (defendants 2 and 3), a mother (defendant 4), and two sisters (defendants 5 and 6) as his heirs. The appellant, who was de fendant 7 in tile suit, is a sister's son of Maula Bux. He was the only near male relation of Maula Bux and Maula Bux had nominated him as his nominee to receive the Provident Fund. After the death of Maula Bux, the appellant claimed the sum as his property. While the heirs of Maula Bux claimed that they were entitled to it under the Muhammadan Law. In conse quence, this suit was filed by Mst. Sardar Khatun, one of the widows, for partition of the properties left by Maula Bux, in cluding the Rs. 5,000 in the Provident Fund. The appellant was also interested, as defendants 8 to 13, in some immovable property left by Maula Bux sought to be partitioned. One of the reliefs sought was an injunction against the appellant, restrain ing him from recovering the Rs. 5,000 from the Railway, and issue No. 2 framed in the suit was: "Doas the amount of Rs. 5,000 mentioned in Schedule C filed with the plaint form part of the property of the de ceased?" The appellant based his claim to the Provident Fund on the nomination, and the question depended entirely upon the right conferred upon the appellant as a nominee, by section 5 of the Provident Funds Act of 1925. The learned First Class Sub‑Judge found that there was a conflict between the decisions cited before him, namely: Ahmed Abdul Razzak and others v. Jamala bint Mehdi (1935) I. L. R. 59 Bom. 475; bl. Mon Singh v. Mothi Bai, (1935) I. L. R 59 Mad. 855, and in the Goods of Stanley Austin Cardigan Martin, (1939) A. I. R. Cal. 642, on the one hand, and Hayatuddin v. 141st. Rahiman and another, (1935) A. I. R. Sind 73, on the other, and considering himself bound by the Sind decision decided against the appellant. As a result he passed a decree granting a perpetual injunction against the appellant restraining him from recovering the amount from the Railway, and also ordered the Official Commissioner, appointed to effect the partition, to recover the amount, and divide it among the heirs. It is only these orders that the appellant now seeks to attack in this appeal, claiming that under the Provi dent Funds Act the sum in the Provident Fund had not only to be paid to him, but became his property on the death of Maula Bux by reason of the nomination, and that the heirs of Maula Bux were, therefore, not entitled to it. The question raised before us is covered by earlier Sind decisions, and the decision in Aimai Shewakshaw v. Awabai Dhanjishah and others, (1923) 18 S. L. R. 311, which is against the appellant, though made in 1923 under the old Provident Funds Act of 1897, was held to be still applicable and binding in Hayatiddin v. Mst. Rahiman and another (1935) A. I. R. Sind 73, and Latifanbai, widow of Abidali Pirali v. Sakinabai, widow of Ghulam Hussain and others; (1939) I. L. R. Kar.

432. In the last mentioned case, which was a decision of a Bench of this Court before it became a Chief Court, it was stated by Davis, J. C.; " Now the question as to whether the movies to the credit of the employee in a provident fund are the property of the employee or part of his estate appears to have been decided by a Bench of this Court in Aimai Shewakahah v. Awabai Dhanjishah and others, (1923) 18 S. L. R. 311, which decision is not only binding on us but with which decision we respectfully agree." As we are of the view that that case was correctly decided and is still applicable, it would have been unnecessary to con sider this matter at any great length and to examine the posi tion afresh but for the fact that Mr. Raymond, who appears on behalf of the appellant, has very strenuously contended that that decision could no longer be regarded as good law. We were pressed to re‑examine the whole position and take a different view in view of the fact that there are numerous decisions of other High Courts in which a different and a contrary view has been taken. We are here concerned with the rights conferred by the Provident Funds Act, 1925, upon nominees. A nomination under the Rules of the Railway Provident Fund is made in the form of a mandatory order to pay as follows :‑

" I hereby direct that the amount at my credit in my account No .of the State Railway Provident Fund at the time of my death, not including the special contribution admissible under rule 1314 of the State Railway Provident Fund Rule, 1940, shall be paid to the following person/persons (in the manner shown against their names :‑

1 2 3 4 Name and address) of the nominee or nominees. Nominee's relationship if any, with the subscriber. Age of Nominee. Amount or share of accumulation in the Fund to be paid to the nominee. Where a nomination has been " 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 the sum on the death of the subscriber or depositor clause (1) of section 5 enacts that the nomination " shall be deemed to confer such right absolutely ` and ' notwithstanding anything contained in any law for the time being in force, or any disposition, whether testamentary or otherwise " by the subscriber. With regard to the protection from the rights of creditors and assignees, afforded by the Act when the sum becomes payable on the death of the subscriber, a distinction is made between three clauses among the nominees ; (1) in every case clause (1) of section 3 enacts that the sum remains uneffected by any assignment or charge made after the commencement of the Act and free from the liability to attachment 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, is entitled to any claim to it. (2) When the nominees happens to be a dependant (as defined in c. 1. (c) of Section (2) it is further enacted by clause (2) of section 3 that the sum vests in the depen dant on the death of the subscriber, and is free, not only from any debt or liability incurred by the deceased but even from any debt or liability incurred by the dependant before the death of the subscriber or depositor, (3) when the nominee is a widow or child, the sum received is further free even from the rights of assignees on assignments made before the commencement of the Act. In every case the right conferred by the Act upon the nominee, whether the nominees be a dependent or not, is the "right to receive " the amount, nothing more and nothing less, although it is enacted that the nomination shall be deemed to confer such right absolutely, notwithstanding anything contained in any law or any disposition made by the subscriber. The distinction made between the different classes of nominees is a distinction with regard to the degree and extent of protection afforded against the rights of creditors and assignees. Even where the nominee is a dependant and the sum payable to the nominee vests in the nominee, thereby conferring on the nominee an immediate right to possession of and dominion over the sum and divesting the Trustees of the Fund of the right to bold the sum as trustees, it is clear that the vesting is made the means for enabling the dependant nominee to obtain immediate possession of the sum, and for better securing the sum received from the debts and liabilities incurred, by the deceased or by the dependant nominee, before the death of the subscriber. The enacted words are all plain words with well defined meanings, entirely free from any ambiguity of any kind, or any difficulty created by any conflict or inconsistency in the words enacted. In such a case, the necessity of keeping very strictly to the actual words of the statute, to the strict grammatical meaning of the words, has been emphasised by the Privy Council over and over again, and the tendency to import into the words what is not there or to otherwise depart from the words has been consis tently and strongly depreciated. A long list of such citations is given by Rowland J. In his judgment in Emperor v. Benori Lal Sharma, (1943) I. L. R. Kar. (F. C.) 48 at pp. 77‑

78. In Australian Alliance Assurance Co. v. Attorney‑General or Queensland, (1918) A, I. R. P. C. 352 at p. 354, it was said " Their Lordships are not concerned with the policy of the Act nor can they find in the novelty of the Provision or in the language of other parts of the Act sufficient ground for disregard ing the plain words of the enactment." In Nagendra Nath Dey v. Suresh Chandra Dey, (1932) 59 I. A., 283, it was said ; " In construing such provision equitable considerations are out of place and the strict grammatical meaning‑ of the words is the only safe guide. In Pakalanarayana Swami v. Emperor, (1939). I. L. R. 18 Pat. 234 at p. 248, it was said ; " But in truth when the meaning of words is plain, it is not the duty of Courts to busy themselves with supposed in tentions." In Emperor v. Benori Lal Sarma, (1945). 32 A.

1. R. P. C. 48, Viscount Simon, L. C. said: "Again and again, this Board has insisted that in constructing enacted words we are not concerned with the policy involved or with the results, injurious, or otherwise, which may follow from giving effect to the language used." It seems to us, that if one holds fast to the method enjoined and is only concerned with giving effect to the language used, to the plain grammatical meaning of the enacted words, the question before us presents no difficulty at all. Mr. Raymond contended that as it is enacted that "any nomi nation...duly made... shall be deemed to confer such right (to receive) absolutely", the use of the word "absolutely" had the effect of conferring on the nominee not only the right to receive the sum, but also a title to the exclusive ownership thereof. We are wholly unable to see how a particular specified right when confer red absolutely, can be regarded a$ being anything mdse or less than the particular specified right, and such a construction appears to us to involve a clear departure from the enacted words and to be pro hibited by the plain grammatical meaning of the words enacted. It appears to us to be equally impossible to regard the words : "not withstanding anything contained in any law for the time being in force or any disposition whether testamentary or otherwise, as in any manner supporting Mr. Raymond's contention. These constitute a protective provision, having the effect of protecting the specified right conferred, viz., the right to receive the sum, and of making it indefeasible by enacting that no one else shall be in a position to challenge the right of the nominee to receive the sum, even though he may be able to show that he had a better or superior title to the sum, under the law or by reason of a disposition made by the subscriber. These words, according to their plain ...gramma tical meaning, do not affect the rights or titles of either the nomi nee or of others, except in so far as they prevent any one, other than the nominee, from claiming a prior or superior right to receive the payment. Such competition is rendered unsustainable. But the right to receive is subject to the rights of others under the law or arising out of any disposition made by the subscriber. Where a nomination has once been duly made, the Act is not concerned with the question, who is ultimately entitled to the sum, but only designated the person to whom the payment has to be made. Words conferring anything more on the nominee, which could so easily have been used, have been studiously avoided, and in our view, the enacted words make it as plain as any words could have made that the Act confers on the nominee nothing more than the right to receive the sum. It is therefore as irrelevant to look to the Act for an answer to the question, who is entitled to the sum which the nominee receives, as it would be to look to the law relating to banking for an answer to the question, who was entitled to the sum which was received from a bank on a cheque. Such a question must be answered by taking into consideration not only the nomination but also all other relevant facts, and by applying not only the Provident Funds Act, but all other relevant law applicable to the case. Mr. Raymond argued that the words of clause (2) of section 3, which enact that the sum payable to the nominee, when a dependant shall vest in the dependant on the death of the subscriber, supported his contention. The argument was that when the nominee was not a dependant, the nominee only became entitled to the sum, but when the nominee was a dependant, the sum vested in the nominee as a full owner of the sum on the death of the subscriber. The argument implies that there could be no vesting unless the person in whom the sum vested was entitled to the full rights of an owner in the sum. The construction suggested again appears to us to depart from and to go beyond the plain meaning of the enacted words. The word "vest" has a very well defined meaning. Vesting in relation to property means the acquisition of, the legal right of immediate possession and dominion over property. It means nothing more. One speaks of a property vesting in an executor, a trustee, an official assignee or an owner of a property, from the moment when the individual in question acquires the legal right of possession and dominion. The words "the sum shall vest in the nominee", do not connote anything more than that in law the legal right to immediate possession of and dominion over the property shall pass from the trustees of the fund to the nominee, and do not mean that the full rights of ownership includ ing the right to the beneficial enjoyment of the property, shall pass to the nominee. The nominee becomes entitled to possession of the sum without having to obtain letters of administration or a succession certificate. A property may vest in one person, and the beneficial right of enjoying the property as an owner may at the same time vest in another person. The division of the full rights of ownership into the right to possession and dominion, and the right to the beneficial enjoyment of the property is one which is well recognized. Where an executor is appointed by a will, the estate vests in the executor while the beneficial interests vest in the legatees, on the death of the Testator. One very important result of an interest vesting in a person is that the vested interest becomes heritable, divisible and transferable, Soorjumonhy v. Dinobandhu (9 M. I. A. 323). The effect of the provident fund vesting in the nominee, when the nominee is a dependant, is there fore quite clear. It confers on the nominee the immediate right to possession and dominion over the amount without in any manner affecting the beneficial rights of the actual owners, whoever they be, either as heirs or legatees. The language of the Act does not permit one to say that the Act confers on the dependant nominee anything more than the right to possession and dominion, such as an executor has, in whom the property of a deceased testator vests. On course, if the dependant nominee happens to be the only heir or legatee, and is therefore also entitled to the beneficial rights in the sum, the entire rights of ownership would vest in him. When this is the case, the dependant's rights are conferred on him, not only by the Provident Funds Act but by the entire law applicable to the case. Mr. Raymond next argued that it was the scheme of the Act to make the sum standing to the credit of the subscriber not a part of the estate of the deceased and therefore not liable to any of the incidents attaching to property left by a deceased person. This argument was largely based on the contentions that the words "right to receive" were equivalent to "right to receive beneficially", and that the words "shall vest" were to be construed as "shall vest as the property of the dependant", and if these contentions are not accepted the argument must fail. It can never be the scheme of an Act to enact what in fact has not been enacted in some manner. We would further point out that there is an even more fundamental fallacy involved in the argument. It is beyond question that the sum standing to the credit of the subscriber is the property of the subscriber, though it is vested in the trustees of the fund, during the subscriber's lifetime; and that the sum stand ing to the credit of the subscriber at his death is, therefore; ex-hypothesis part of the estate of the' deceased. It is clearly, as a matter of logic, impossible to enact anything occurring on or after the death of the deceased which could affect the answer to the question, what was the estate left by the deceased. Even an enact ment by which all the property on the death of a person was to become the property of the State and vest in the State and that no part of it was to go to the creditors of the deceased or to his heir or legatees, could not affect the fact that every bit of property which the deceased died possessed of was part of the estate of the deceased. There is no magic in the words "estate of the deceased'", and the answer to the question, what was the estate of the deceased, cannot be different from the answer to the question, what did the deceased die possessed of. The vesting of the property on the death of the deceased cannot have any relevance on the question. Ail property belonging to any individual must vest in somebody on the death of the individual: It is, therefore, in our opinion, clearly impossible to maintain that because a particular part of the property of an individual on his death vested in a particular, manner, it ceased to be part of the property left by the deceased or of the estate of the deceased. What is to happen to the property left by the deceased after his death, is of course an entirely different matter. The Pro vident Funds Act, undoubted makes the Provident Fund free from liability to creditors and assignees to the extent provided in the Act, and in certain cases makes it vest in the dependant on the death of the subscriber, but it does nothing further. It may be said that in respect of the liability to satisfy creditors or the necessity of obtaining probate, letters of administration or a succession certificate the Provident Fund enjoys certain statutory exemptions and in that sense and in those cases is not treated as a part of the estate of the deceased, but it does not therefore cease to be a part of the estate of the deceased. The Provident Fund passes on the death of the subscriber by a succession as the rest of the subscriber's property. We shall now refer to some of the decisions which were discussed before us. C. D. M. Hindley v. Joynardin Marwari, (1919) I. L. R. 46 Cal. 962, is a decision of Rankin, J., under the old Provident Funds Act of 1897, in a case where the subscriber had died interstate and without making any nomination. The decision contains the following very well known and often quoted remarks regarding the scope and purpose of Acts like the Provident Funds Act. "These Acts make provision in the interests of certain large classes of employees for a scheme of compulsory and to a limited extent voluntary thrift. Part of the employee's wages is impounded whether he likes it or not within narrow limits he has an option to contribute more: the employer has on his side to add a contribution: and these gums together with interest, profits or other increments make a total fund of which a defined proportion is held on the individual account of each employee. The Legislature is dealing with people who are poor, with people who are being compelled, and with such people in very large numbers. Its intention is that such people shall in case of necessity be able to afford a passage home to Europe, in case of retirement have something to live on, in case of death have something to leave, it is not ignorant that if a Railway has a hundred thousand employees, the temptation to run into debt or to charge or anticipate his share will occur at some moment of his lifetime to ninety thousand of them at least. Neither the Railway Company nor the Institution is to have its money wasted in large quantities upon the management expenses. There is to be no standing army of attorneys and attorneys' clerks attending to notices and. orders from all the Courts in India; settling priorities among competing claims. Paying the money into Court as soon as it comes in and acting towards creditors and mortgagees as a providence with costs out of the fund. By rules made for this institution under the Act when an employee dies, his share if small is to be summarily and directly disturbed according to special rules which brush aside the ordinary law as to wills intestate succession. If his share is larger it is payable to his executor or administrator and to him only on production, of his grant ; the burden of a due administration is` thus put upon the proper shoulders. Whether the employee is in the service or out of the service, whether he be alive or dead, his share is unattach able in the hands of the institution. This is the very basis of the scheme, section 4 (1) of the Amended Act has been judicially construed in Veerchand‑ v. B: B. and C. I. Railway Co. (1904) I. L. R. 29 Born. 259 and Seth Manna Lal v. Gainsford, 1908 I. L. R. 35‑Cal.

641. It means what it says and is no hardship upon anybody ..........It (subsection (.2) of section 4) ensures that money payable to a widow or child as such directly shall not even in their hands, be treated as assets of the deceased's estate. Nay more ; the Legislature knowing that this might be rendered ineffective by getting the widow or child to incur or to join in incurring the debt, provides (for the more complete discouragement of creditors) that such money, although in the hands of the widow or the child, shall not be made to answer for their own debts if incurred in the lifetime of the deceased." It is hardly necessary to emphasise the words "The Act means what it says and is no hardship upon anybody" and the importance words "the burden of a due administration is thus put upon the proper shoulders". It was emphasised that the trustees of the Fund were not to be unduly burdened with settling priorities and having to decide questions ‑of law, and that the burden of deciding such questions when raised was left to other and proper' shoulders, that is, the law Courts; after the payments‑were made. We will next deal with the decisions against the appellant, with which we find ourselves in agreement. The reasoning in Almai Shewakshaw v. Auwbal Dhanjishah and others, (1923) 18 S. R. R. 311 Kennedy, J. C. and Raymopd, A. J. C. which is directly in point here, it appears to us, has not been refuted in any of the cases in which a different view has subsequently been taken. Kennedy, J. C. pointed out that there were two main objects which the Provident Funds Act had in view ; first, that the administrators of the Fund should be spared litigation by securing that there should always be some person who was authorised to receive the Fund 'and give a valid quittance, and secondly, that the near relations of the subsciber should not in case of the subsciber's sudden death be compelled to take dilatory and expensive legal steps. He pointed out that the object of a nomination was to designate some person to whom the Provident Fund had to be paid and who could give a valid quittance. He empbasised that the question; what the recipient of the sum had to do after receiving the payment; was left untouched by the Act. He pointed out that the word "vest" did not connote anything more than dominion over the property, and that the vesting could not defeat the legal , claims of others. With regard to the argument that a nominee received the sum as an owner, overriding the legal claims of others, entitled to the sum under the ordinary "I should hesitate, unless the words of the statute and of the rules framed thereunder were explicit, to suppose that the perpetration of such unnatural injustice was rendered obligatory on a subscriber to a provident fund. Nor can I conceive why the provident fund should wish to introduce so strange a law of With regard to the contention that .the sum received by the nominee had ceased to belong to the estate of the deceased, he asked: "Did he in any way divest himself of it during his lifetime or by an instrument to come into effect after his death ? and secondly, is there any provision of the law which prescribes a; special method of devolution or distribution in the case of Provident Fund amounts ?" and emphasised: "It is axiomatic that no person or body can at their will introduce any peculiar rule of inheritance or distribution;" and came to the conclusion that neither the fact of nomination nor anything contained in the Act could be said to bring about such a result, and stated: "Therefore on the whole I think that if this fund or the right to recover it was ever part of the state of the deceased it still is." It appears to us that in spite of the differences between the old Act of 1897, and the present Act 1925, the reasoning in this case still remains entirely applicable. In Hardial Deviditta v. Janki Dass, (1928) A. I. R. Lah. 773, a decision made after the Act of 1925, Aimai Shewakshah v. Awabai Dhanjishah and others, (1923) 18 S. L. R. 311 was followed. In Hayat‑ud‑din v. Mst Rahiman and another, (1935) A. I. R. Sind 73, Rupchand, A. J. C. had to consider a case where the subscriber left two sons and a widow and had nominated the widow to receive the amount of the Provident Fund, and it was contended that the widow took the amount for her own benefit to the exclusion of the other heirs. The learned judge stated that he could not find anything in the Provident Funds Act to support the widow's contention, and said: "It is however argued that although the vesting of the fund might not have conferred upon the nominee the right of appro priating the fund to himself to the exclusion of others he has acquired such right by virtue of the provisions of section 5 (1) which are new. I am afraid I can again find nothing in that section either to support this view. All that section 5 declares is that where the rules of a fund purport to confer upon a person the right to receive the whole or any part of the fund on the death of a subscriber or depositor, the nominee of such subscriber or depositor shall be deemed to have an absolute right to receive the money unless such nomination has been duly cancelled by the subscriber or depositor. But the clause goes on further than that. It does not purport to declare how the nominee should deal with the money after he, has received it. There are no words in this section or in any other part of the Act which enable the nominee, whether he be one of the heirs of the deceased or not, to retain the money with himself as his own. A right to receive the fund absolutely does not and cannot, in my opinion, mean a right to receive it for the exclusive use of the person who receives it." In Mst. Amna Khatoon v. Abdul Karim, (1937) A. I.. R. All. 562 (Suleman, C. J. and Bennet, J.) a Railway employee, who left a widow, a mother, a brother and several children, had nominated the mother. In the course of the judgment, Sulaiman, C. J. stated: "It accordingly follows that section 5 refers merely to the persons who are nominated to receive the Provident Fund from the authority in question and the right to receive such fund on the death of the subscriber is absolute and cannot be questioned by such authority. But this nomination is itself subject to any disposition, testamentary or otherwise, which might have been made by the subscriber. It follows accordingly that the mere fact that a certain person has been declared to be the nominee under section 5 for the purpose of receiving the provident fund is not necessarily the sole person entitled to appropriate the amount as the owner, legatee or heir. The question of the distribution of the amount after it has been drawn by the nominee as among these who may be entitled to it either under the personal law or by testamentary disposition is not covered by this section. He also stated:‑

"The mother was therefore a person who was authorized under the rule to receive payment, being a dependant of the deceased. It follows that under section 3(2) the amount vested in her absolutely free from any debt or other liability incurred by the deceased or incurred by the dependant before the death of the subscriber or depositor, because the sum was payable under the rules of the fund to this dependant of the depositor." We will now turn to the case in which a contrary view has been expressed. In 141st. Hurmat Bibi and another, v, Mst. Kas Banu and others, (1932) A. I. R. Sind 115 Aston, A. J. C. had to consider a case where the nominee was a widow and the deceased had left other heirs, and the question raised leas whether the widow had .the right to appropriate the amount to the exclusion of the other heirs. In his reasoning the learned Judge throughout speaks the absolute right of the widow to receive the sum. There can be no question about the widow not having such a right. The learned judge, however, concluded that the absolute right to receive was a right to appropriate the amount, although there is nothing in the judgment to show how the absolute right to receive the amount became a right to keep the amount as its exclusive owner. The learned judge sitting as a single judge referred to the decision in Aimai Shewakshaw v. Awabai Dhanjishah and others, (1923) 18 S. L. R. 311, which was a Bench decision, and held that that decision had no application, because it had been given before 1925, under the old Act. We are unable to find any reason in this decision for regarding Kennedy, J. C's decision as inapplicable. In N. K. Thaj Mahomed Saib v. T. Balaji Singh, (1933), (I. L. R. 57 Mad. 440, Sundarum Chetti and Walsh, J. J.), the nominee was the deceased's son and the only question was whether the sum in the hands of the nominee was liable for the debts of the deceased subscriber. The learned judge decided that the sum was not liable for the debts incurred by the decease. Now, there can be no question whatever about the conclusion of the learned judge being a correct one, because section 3 (2) enacte in terms that the sum shall "be free from any debt or other liability incurred by the deceased." The learned judge, however, did not base their decision on these very clear words in the Act relating to the very question which they had to decide. They based their conclu sion on the fact that under the Act the sum vested in the nominee, and stated :‑ "This statute has vested that fund in the son, and consequently it has become the property of the son. This fund cannot there fore be deemed to have devolved on the son by right of inherit ance. That being so, how can it be regarded as the assets of the deceased depositor in the hands of his son. We are wholly unable to accept this reasoning. It is true that the sum vested in the nominee, but surely it was incorrect to hold that the sum therefore became the property of the nominee. The vesting only conferred the right of possession and dominion. We are also unable to agree that because the property vested in the son on the death of the father, it did not on the son, and could not be regarded as part of the assets of the, deceased. No one can question that in every case where a man dies his property and all vested rights therein vest in the executors and/or his heirs and legatees at the moment of his death and it is impossible to contend that because of such vesting the property was not part of the estate of the deceased. With all respect to the learned judges the reasoning in this case appears to us to be fallacious. In Ahmed Abdul Razak and others v. Jamala Bint Mahdi, (1935) I. L. R. 59 Born. 475, a Bench of the Bombay High Court (Rangnekar and Divatia, J. J.) bad to consider a case in which a Muhammadan subscriber to the Provident Fund widow whom he nominated to receive the Provident Fund. The learned judges decided that the widow was entitled to the sum to the exclusion of the other heirs. The reason of the decision is contained in the following‑passage,:‑ "Section 3 says that the Fund vests in the dependant and exempts it from any debt which the deceased himself may have contracted or which the dependant may have contracted before the death of the subscriber. That being so it is clear that it does not form part of the estate of the deceased and the plaintiff's suit was bad." As we have stated when considering the Madras case, next before referred to, this reasoning appears to us to be a case of non sequitur. We next came to the decision in Mohammed Naim and another v. Munim‑un‑Nissa, (1935) I. L. R. 11 Luck,

611. This was a case in which a Railway employee left two widows, five sons and a daughter, and had nominated two of his sons to receive the amount of the Provident Fund due to him. The question was whether the two nominees took the entire amount to the exclusion of the other heirs. There was a difference of opinion between Ziaul Hassan J. who held that the nominees had only the right to receive and that the rights of the other heirs unaffected thereby, and Srivastava J, who came to the conclusion that the nomination in favour of the two sons had the effect of a valid testamentary disposition in their favour, uneflected by the Muhammadon Law. Srivastava, J. held that section 5 of the Provident Funds Act had the effect of wiping out the ordinary law, and conferring on the nominee the right to receive the sum as a person beneficially entitled thereto. He stated: "It is, however, argued that the section should be construed as referring only to a nomination for the purpose of realizing the Provident Fund as distinguished from appropriating it. If such had been the intention, it would have been more appropriate for the legislature to use the word ` realise ' , instead of the word' receive.' Further it seems to me that if the section was intended to refer merely to a right to realise, there was no point in prefacing it with the clause `notwithstanding any thing contained in any law for the time being in force.' I cannot think of any provision in any system of personal law or for the matter of that in any other law which might prevent a subscriber or depositor, to whatever religion or nationality he might belong, from nominating any person whom be might choose for the purpose merely of realising his deposit. In my opinion', therefore the plain object of the clause 'notwithstanding anything contained in any law for the time being in force' is to wipe, out the ordinary law and to give the subscriber or Depositor unlettered discretion in the matter of nominating the person or persons who are to get the amount of the Provident Fund. The words "shall be deemed to confer such rights absolutely" also appear to me to fit in better with the idea that the nominees become absolutely entitled to the sum which they are entitled to receive rather than with the ideas that have an absolute right of merely realizing the money. On' this difference, the case was referred to a third judge, King C. J. who agreed with the conclusion of Srivastawa J. He stated in the course of his judgment:, "It must be conceded therefore that exhibits A‑1 and A‑2 would not be valid wills under the Mohammadan Law. The ques tion is whether their validity can be supported by the Provisions of section

5. In my opinion the words' notwithstanding anything contained in an law for the time being in force' have the effect of validating the wills notwithstanding anything contained in the personal law of the depositor. The words' any law' are very wide and certainly include the personal law of the depositor ...... The word 'absolutely' seem to mean that the recipient is to be deemed to be entitled to receive the money free from any charge or attachment or liability enforcible by other heirs or by creditors. It, implies that the recipient is to take a beneficial interest in the sum which he receives. If the nominee is only entitled to realise the money on behalf of the whole body of heirs, the provision that such right shall be deemed to have been conferred upon him' absolutely seems meaningless." The words "right to receive" the sum were thus construed as meaning "a right to take a beneficial interest in the skim", an en tirely different right on grounds which were mainly concerned with the supposed intentions of the Legislature, a method of construction which, as we have appointed out above, is not permissible. It also appears to us, with all respect, that the reasoning of Srivastava J. and King C. J. does not show a sufficient appreciation of the fact that it was necessary to make the right to receive an absolute and indefeasible right. In order to prevent persons, other than the nominee, claiming to have a better title to the sum, and therefore a superior right to receive the sum from the Trustees of the Fund. It is one of the main purposes of the Act to prevent the administrators of the fund from having to face such difficulties. It is unnecessary to refer further to the decisions in the goods of Stanley Austin Cardigan Martin, (1937) A. I. R Cal 642, Keshab Lal v. Ivarani Rudra, (1947) A. I. R. Cal 176, and the Bombay decisions which have followed the decisions which have been consi dered above. After a most careful consideration of the reasoning in all the decisions which have been mentioned above, we are of the view that the decision in Aimai Shewakshaw v. Awabai Dhanji shah and others, (1923) 18 S. L. R. 311 was correct and is still applicable. We are of the view that the Provident Funds Act confers on the nominee, even when the nominee is a dependant, nothing more than the right to receive the amount. It does not confer on the nominee the full rights of an owner, and does not touch the rights of those entitled to the sum as heirs or legatees, under the law applicable to the case. This appeal is correctly dismissed with costs. K.M.A Appeal dismissed.