Wednesday, 3 August 2016

Whether personal heirs of nominee has locus standi for obtaining succession certificate?

I would also refer to a recent decision in Noor Mahomed v. Sardar Khatun A.I.R. 1949 sind 38: (pak. Cas 1949 Sind 125), in which it has been held that the nominee of a subscriber has nothing more than a right to receive the amount and that he does not get an absolute title to it, I would further point out that under Section 3, Provident Funds Act the amount standing to the credit of a subscriber at the time of his death can vest only in his dependant and not in the nominee. In would therefore follow that upon the death of the nominee, whether before or after the death of the subscriber, the right of the nominee to receive the amount cannot pass to his personal heirs. In this case, the nominee died before the subscriber died and therefore the nomination in his favour actually became null and void. In the circumstances, the personal heirs of the nominee have no locus standi at all and the lower appellate Court was right in granting succession certificate to the Respondent.
Equivalent Citation : AIR 1950 Nag 244
IN THE HIGH COURT OF NAGPUR
Civil Revn. No. 635 of 1949
Decided On: 24.11.1949
Appellants: Mt. Shakuran Bi and Ors.
Vs.
Respondent: Mt. Aishabi
Hon'ble Judges/Coram:
Mudholkar, J.



1. This second appeal arises out of proceedings token out by the Respondent for obtaining a succession certificate to the estate of her deceased husband.
2. A preliminary objection in taken on behalf of the Respondent to the maintainability of the appeal. It is pointed out that the application for succession certificate was made by the Respondent to the Civil Judge, Class I, Narsinghpur, and that under the proviso to Sub-section (2) of Section 388, Succession Act an appeal has from the decision of a Civil Judge to a District Judge whose decision is not open to second appeal but only to revision. The contention is well founded and I uphold it.
3. The learned Counsel for the Appellants wants the matter to be treated as an application for revision, but, then as revision it is barred by time by eleven days. There is no application for extension o? time and therefore, the counsel for the Respondent argues, it cannot be regarded as within time. He also points out that the Court-fees paid on the proceeding in this Court were in excess of those payable on an appeal but ate exactly those payable upon an application for revision. Therefore, he said that the Appellants must have been aware on the date on which, they purported to file an appeal that the proper remedy was to make an application for revision but that finding that a revision application was barred by time they purported to file an appeal hoping Unit it would pass off as an appeal. There seems to be some force in this argument and I am inclined to think that bona fides are lacking on the part of the Appellants.
4. Even if the proceeding were treated as a revision, the Appellants must fail because their only ground of complaint is that the view of the law taken by the lower appellate Court is incorrect. For, even assuming that the view is incorrect, that is no ground for interference in revision. Actually, however, it seems to me that the view taken by the lower appellate Court is correct. No doubt, it is based upon two decisions of other High Courts, one of which has been expressly dissented from in Governor-General in Council v. Jagannath MANU/NA/0014/1947 : I.L.R. (1948) Nag. 357: (A.I.R. 1949. Nag. 85), but it seems to me that the decision of this Court is distinguishable from the present-case.
5. The point which arose for decision before the Courts below was whether a dependant of a deceased subscriber to a State Railway Provident Fund is entitled to obtain a succession certificate for the purpose of claiming the amount from the Railway administration in preference to the heirs of the deceased nominee of the subscriber. This point arose in one of the two cases relied on by the learned Judge of the lower appellate Court. That case is Ismail v. Mt. Amino A.I.R. 1929 Bind 158: (24 S.L.R.I). Percival J.C. held that where the nominee dies before the subscriber to the Provident Fund, it will be the first dependant of the subscriber and not the heir of the nominee who will have a prior right to obtain payment of the amount lying to the credit of the subscriber in the provident fund. The second decision on which the lower appellate Court has relied is that reported in Nidhusudan Mukherji v. Bibha Batee Debi I.L.R. MANU/WB/0044/1940 : (1940) 1 Cal. 476: (A.I.R. 1940 Cal. 395), which held that the amount standing to a subscriber's credit should be paid to his dependants in the first instance, or to his nominee and only permits his nominee to receive any sum or balance which is not payable under Clause (a) of Section 4, Provident Funds Act to a Dependant. This view was dissented from in Governor-General in Council v. Jagnnath MANU/NA/0014/1947 : I.L.R. (1948) Nag. 357: (A.I.R. 1949 Nag. 85), where is was held that payment should be made only to the dependant in whom the sum or the balance duo vests and that whether it does vest depends on the rules of the particular fund. The question whether the right of a nominee to receive the sum lying to the credit of a subscriber passes on the nominee's death to his heirs was not before this Court. Indeed, nothing has been said in the decision of this Court just quoted which has a bearing on this particular point. Therefore, even if the lower appellate Court had this decision (Governor-General in Council v. Jagannath MANU/NA/0014/1947 : I.L.R. (1948) Nag. 357; (A.I.R. 1949 Nag. 85) before it, it could well have come to the same conclusion as it did on the basis of the decision in Ismail v. Mt. Amina A.I.R. 1929 sind 158: (24 S.L.R. 1).
6. I would also refer to a recent decision in Noor Mahomed v. Sardar Khatun A.I.R. 1949 sind 38: (pak. Cas 1949 Sind 125), in which it has been held that the nominee of a subscriber has nothing more than a right to receive the amount and that he does not get an absolute title to it, I would further point out that under Section 3, Provident Funds Act the amount standing to the credit of a subscriber at the time of his death can vest only in his dependant and not in the nominee. In would therefore follow that upon the death of the nominee, whether before or after the death of the subscriber, the right of the nominee to receive the amount cannot pass to his personal heirs. In this case, the nominee died before the subscriber died and therefore the nomination in his favour actually became null and void. In the circumstances, the personal heirs of the nominee have no locus standi at all and the lower appellate Court was right in granting succession certificate to the Respondent.
7. For these reasons uphold the order of the lower appellate Court and treating the proceeding as a revision. I dismiss it with costs.
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