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1949 DIGILAW 208 (CAL)

KASHI PROSAD AGARWALLA v. H. W. JONES

1949-05-02

BANERJEE

body1949
BANERJEE, J. ( 1 ) THIS is an application for setting aside an ex parte order made on 22-3-1949, appointing Receiver of a certain Provident Fund money. The matter was mentioned to me on 24-3-1949, and I directed that the order should not be drawn up for a week. In the meantime this application was made. ( 2 ) THE petitioner is the widow of one Jones who in his life time was a senior engine driver in the East Indian Railway. On 29-8-1947, the plff. obtained a decree against the petitioner's husband. The D. H. made an application for execution of the decree on which the order was made as aforesaid on 22-3-1949. The question is whether a Receiver can be appointed of a Provident Fund amount which stood to the credit of the deceased J. D. at the time of his death. ( 3 ) THE solution depends upon the construction to be given to Section 3 (2), Provident Funds Act, 1925, and the determination of the effect thereof. ( 4 ) IT is Unnecessary to discuss the matter in detail inasmuch as, Rankin J. , in an illuminating judgment 'hindley v. Joynarain', 24 C. W. N. 288 has discussed the scope and effect of an analogous section. That case, was a decision under the Provident Funds Act (IX (9) of 1897) as amended by Section 2, Provident Funds (Amendment) Act, 1903. In that case his Lordship held construing Section 4 (2) of the Act that a Railway Provident Fund was not liable to attachment at the intsance of a creditor of the subscriber though the subscriber dies without leaving any issue or widow as on the death of the subscriber the fund ceases to be his assets. ( 5 ) THE Act of 1925 was passed to amend and consolidate the law relating to Govt. and other Provident Funds. Section 3 (2) of the Act of 1925 corresponds to Section 4 (2) of the Act of 1897, as amended by the Act of 1903. but is more comprehensive. This section was construed by the Nagpur High Court in 'precy Wood v. Mrs. Samuel', A. I. R. 1943, Nagpur 333 in which it was held"under Section 3 (2), the sum standing to the credit of a subscriber on his death vests in the dependants and so forms no part of the assets of the deceased subscriber. This section was construed by the Nagpur High Court in 'precy Wood v. Mrs. Samuel', A. I. R. 1943, Nagpur 333 in which it was held"under Section 3 (2), the sum standing to the credit of a subscriber on his death vests in the dependants and so forms no part of the assets of the deceased subscriber. The Court has no jurisdiction to appoint a Receiver to receive the funds or any part of them from the dependants. "the judgment of Rankin, J. , was relied on. ( 6 ) IN 'baramdeo Pandey v. Mrs. F. Smith', 44 C. W. N. 635, Sen J. , held:"in order that Section 3 (2),provident Funds Act, may apply there must be some provision under the rules of a provident fund providing for payment to the dependant of the subscriber. There is no bar to the appointment of a Receiver in respect of provident fund money. "in that case the money was lying to the credit of the deceased with the Calcutta Tramways CO. , Ltd. , in the provident fund. Under the rules of the Calcutta Tramways Co. , Ltd. , "b", provident fund, there was no provision for payment to any dependant of the subscriber. So His Lordship held Section 3 (2) did not apply. ( 7 ) IN the present case there are rules, namely, Rules 1336 and 1338 which authorise payment to the dependant referred to in Section 3 (2) of the Act of 1925. ( 8 ) THERE is also another case at p. 637, where Mcnair J. , observed:"once the provident fund money is paid by the Company it loses the character of a compulsory deposit and may be attached in the hands of the party to whom it has been paid. " ( 9 ) IN the present case the provident fund money is still in the hands of the Company. Therefore, that case has no application. ( 10 ) IN 'adbul Razaak v. Jamala Bint', A. I. R. (22) 1935 Bom. 234, constructing Section 3 (2) of the Act of 1925, it was observed:"s. 3 says that the fund vests in the dependant and exampts it from any debt which the deceased himself may have contracted or which the dependant may have contracted before the death of the subscriber. 234, constructing Section 3 (2) of the Act of 1925, it was observed:"s. 3 says that the fund vests in the dependant and exampts 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. " ( 11 ) IT was contended on behalf of the decree holder that the amount of the special contribution referred to in Rule 1336 (i), Provident Fund Rules, does not form a part of the Provident Fund and as such does not vest in the dependant and is liable to satisfy the decree and may be attached or a Receiver may be appointed, in execution, of the sum which represents the amount of the special contribution. This contention is based upon a misconception of the meaning of the expression 'special contribution' to a provident fund, which is a contribution made to the provident fund account, when the Controlling Officer is satisfied, 'inter alia', that the service of the subscriber has been good, efficient and faithful (R. 1334 ). But none the less it is a part and parcel of the Provident Fund. Therefore, there is no substance in this contention. ( 12 ) IN the circumstances, I hold that the amount in the Fund, which is still in the hands of the Railway Company has vested in the applicant and has ceased to be a part of the assets of the deceased J. D. and as such is not liable to be attached in execution nor a Receiver in execution can be appointed of that fund. Therefore, the order made on 22-3-1949 is recalled and the application for execution is dismissed. But there will be no order as to the costs.