Judgment :- 1. The appellant is the widow of one Jayakkodi, who was a teacher in Gurukul School in Chinnroanur, Madurai District. He died on 10-12-80 leaving his mother, the respondent herein and the widow, the appellant herein as his heirs. The appellant, who got remarried to another person, claimed and received a sum of Rs. 10,000 from the Family Benefit Fund constituted under the Tamil Nadu Government Servants Family Benefit Fund Rules as the nominee of the deceased Jayakkodi. The respondent had to resort to civil court for recovery of a half share. It was contested by the appellant that she was the only person entitled to claim the entirety of the amount as she was the nominee and under the rules governing Tamil Nadu Government Servants Family Benefit Fund, the mother could not claim any share as against the widow of the deceased. Both the Courts below rejected the contention of the appellant and relying upon the decision of this Court in M. V. Krishnamoorthy and other v. Tmt. Anandalakshmi and two others 1 granted decree as prayed for by the respondent. 2. In this second appeal, it is vehemently contended by learned counsel for the appellant that the rules governing Tamil Nadu Government Servants Family Benefit Fund, which will hereafter be referred to as the Rules, exclude the mother of the Government servant from taking a share in the Fund. It is the contention of learned counsel for the appellant that the amount payable under the scheme is skin to a pension earned by the Government servant and is governed by the Pensions Act and rules framed thereunder, and the only person who will be entitled to the benefit of pension will be the wife and children and only in the absence of such persons, other heirs would come in. It is also urged by learned counsel that the provision in the rules to the effect that a nomination made in favour of any person would cease to be valid on the Government servant getting married and thereafter, the nomination could be only in favour of the wife, would show that the mother of the deceased could not claim any share therein. It is next urged that the mothers claim having been rejected by the District Educational Officer, she cannot maintain the suit before the Civil Court putting forward the same claim. It is next urged that the mothers claim having been rejected by the District Educational Officer, she cannot maintain the suit before the Civil Court putting forward the same claim. Learned counsel relied upon some decisions under the Pensions Act in support of his contention 3. Before referring to the authorities cited by learned counsel for the appellant, it is necessary to refer to the relevant rules. The Rules came into force on 1st of January, 1974, Under rule 4 a monthly contribution of Rs. 10 shall be paid by the Government servant commencing from his pay for January, 1974 and it shall continue till the end of the Calendar month preceding the date of his superannuation. It is also provided therein that no contribution shall be made during the period of extra-ordinary leave and if a Government servant is on extraordinary leave for 15 days or more in a month, no contribution need be recovered. With regard to future entrants to Government service, contribution will commence from the beginning of the calendar month following the date of entry in service and shall continue till the end of the month proceeding the date of his superannuation. The deduction shall be made from the monthly pay bills. Rule 8 of the Rules provides for refund of contribution in the event of superannuation etc. The rule reads thus :— “In the case of superannuation or if an employee demits office for any other reason, he shall be paid 80 per cent of the actual amount contributed by him till then at the rates indicated in Schedule I. The balance of 20 percent will be paid after verifying the period of extraordinary leave availed of by him. In the case of Government servants working purely under emergency provisions, the repayment will be based on the schedule as in other cases. In the case of Government servants working purely under emergency provisions, the repayment will be based on the schedule as in other cases. For the purpose of refunding the contribution, the total amount payable should be notionally worked out from the beginning of the calendar month in which the contribution was first commenced and the end of the calendar month prior to his date of superannua tion, after deducting the period spent on extra ordinary leave.” Rules 9 provides for persons who are entitled to receive family benefit and it reads as follows :— “If a Government servant dies while in service his/her nominee who, shall be his wife/husband, minor child or children, mother, or father (in that order) shall he paid Rs. 10,000 in a lumpsum in lieu of his contribution. If none of the nominees are alive this lumpsum amount shall be paid to the legal heirs of the deceased Government servant. The nomination shall be in Form A. This statement shall be countersigned by the Head of Office and pasted in the service Book of the Government servant after making entries in it. In the case of self-drawing officers the nomination should be sent to the Head of the Department. It is the duty of the Government servant, thereafter to keep this nomination up-to-date. No Government servant shall be paid bis/ber first full months pay after joining the service unless he/she files his/her nomination”. Form A, which is the Form of Nomination, contains a note reading thus:— “Nominee shall be wife/husband, minor child or children, mother or father (in that order) “ 4. The Government issued clarificatory, instructions in G.O.Ms. No. 690 dated 24th October, 1981 and they read as follows:— “Persons entitled to receive family benefit Under R. 9 of Tamil Nadu Government Servant Family Benefit Fund Rules means: 1. The Government issued clarificatory, instructions in G.O.Ms. No. 690 dated 24th October, 1981 and they read as follows:— “Persons entitled to receive family benefit Under R. 9 of Tamil Nadu Government Servant Family Benefit Fund Rules means: 1. In the event of male employee, the wife or wives and Children of the employee and the widow or widows and children of deceased sons of the employee provided that if an employee proves that his wife hats been judicially separated from him or has ceased under the customary law of the community to which she belongs to be entitled to maintenance, she shall henceforth be deemed to be no longer a member of the employees family in matters to which Family Benefit Fund Rules in matters relate, unless the employee subsequently indicates by express notice in writing that he shall continue to be so regarded; and 2. In the case of female employee, the husband and children of ah employee and the widows and children of deceased son of an employee. Provided that if an employee expresses her desire to exclude her husband from her family, the husband shall, henceforth be deemed to be no longer a member of the employees family in matters to which Family benefit Fund Rules relate unless the employee subsequently cancels formally in writing her notice excluding him: Note I: Note II: Note III: Note IV: An unmarried Government servant both male and female can nominate any person within the members of the family. Such members will include (i) father (ii) mother (iii) brothers below the age of 18 years including step-brothers (iv) unmarried sisters, widowed sisters including step-sisters. If nomination is given in favour of more than one person, the Government servant concerned should specify the amount of sum payable to each nominee The above nomination will stand as cancelled immediately after the marriage of Government servant and a fresh nomination should be made in favour of his wife/her husband. If the Government servant dies before filing such nomination the lump-sum is payable only to the wife/husband of the deceased and not with refefence to the previous nomination. 3. In the light of the working of the Family Benefit Fund/Group Insurance Scheme difficulties have come to notice in the matter of nominations made not confirming to the Rules laid down. If the Government servant dies before filing such nomination the lump-sum is payable only to the wife/husband of the deceased and not with refefence to the previous nomination. 3. In the light of the working of the Family Benefit Fund/Group Insurance Scheme difficulties have come to notice in the matter of nominations made not confirming to the Rules laid down. Some Government servants have made nominations of their choice without regard or reference to the above orders There had been reports of disputes among the rival claimants and the amounts could not be disbursed to the eligible persons in time. The Director of Treasuries and Accounts and some of the Heads of Departments have also brought to the notice of the Government indiscriminate nomination not confirming to Rules and asking for clarifications in respect of nominees like major brothers/sons married sisters/daughters, uncles etc. The Government have accordingly considered all these issues again in all the aspects. 4. After careful examination of the various clarifications sought for in this regard and as the very subject of the Family Benefit Fund Scheme/the Revised Group Insurance Scheme to help the bereaved family members of the deceased employee who were dependent on the deceased for support, it has been decided that the Rules relating to the making of nomination for the lumpsum grant may be modified making it more clear and specific. In partial modification Of the orders issued in G.O. cited and the instructions issued in the memorandum second cited, the Government pass the following further orders: (i) The nomination shall be made strictly in the order of members indicated in para 1 above; (ii) Major sons (who were not dependent on the deceased for support), major brothers, married daughters/sisters and other relative will not be eligible for the lumpsum grant under the scheme; (iii) Employees who have no family shall be exempted from joining the Family Benefit Fund Group Insurance Scheme, as is allowed in the case of Fathers/Nuns in the Educatonal Institutions; (iv) If none of the nominees/persons indicated in para 1 above are alive then the lumpsum grant wider the scheme shall lapse to the Government / Organisation; and (v) In case of nomination, the lumpsum grant shall be paid to the eligible members in equal shares.” 5. Relying upon these clarifications, learned counsel for the appellant submits that the provisions contained therein to the effect that the nomination made in favour of any relative would stand cancelled immediately after the marriage of the Government servant and a fresh nomination should be made in favour of the wife/husband and the provision that the nominations should be strictly in the order mentioned in the rule would indicate that the law relating to succession as found in the Hindu Succession Act is excluded. According to learned counsel, the benefit fund is entirely governed by the Rules framed by the Government and it forms a sort of self contained Code. 6. Learned counsel places also reliance on the decision of the Supreme Court in State of Gujarat v. R.S. Chandrachud 1 in which it was held that the word “pension” should not be given a narrow interpretation and that ‘pension’ would include any payment made by the Government in lumpsum to a retired Government servant in recognition of his past services. Learned counsel relies upon the following passage in the said judgment:— “Clause 2 guarantees the continuance of pensions and leave salaries sanctioned by the Maharaja to officers who had retried before the date of the merger. Considering that the object of Art. 8 is to guarantee payment of retirement benefits to retired public servants of the merged State, we are not incli, ned to give the word ‘pensions’ a narrow interpretation. In our opinion the word ‘pensions’ in Clause 2 of Art. 8 includes the lumpsum payable to the respondent as compensation under the Huzur order dated February 8, 1948 as modified by the Huzur order dt. July 22, 1948. In substancem the Huzer order directed that the respondent would get his full salary as his pension from the date of his premature retirement up to the completion of his superannuation age and allowed him to draw immediately the entire allowance for the period in one lumpsum. The allowance so payable to the respondent, a retiring Oovernmcnt servant, in recognition of his past services is ‘pension’ within the meaning of Clause 2 of Art. 8 of the merger agreement. 12. Art. 8 of the merger agreement thus furnishes strong evidence of recognition by the Government of India of the liability to pay retirement compensation under the Huzur order dated February 8, 1948. 12. Art. 8 of the merger agreement thus furnishes strong evidence of recognition by the Government of India of the liability to pay retirement compensation under the Huzur order dated February 8, 1948. We have also noticed that the successor Governments continued the old laws of the Board State until they were repealed or altered. The successor Governments resisted the respondents claim on the ground that the order of forfeiture passed by the Executive Council on April 22, 1949 was lawful. There was no question of their disclaiming liability under the Huzur order of February 8. 1948 in case it was found that the order of the Executive Council dated April 22, 1949 held that the successor Governments recognized and took over the liability under the Huzur order dated February 8, 1948. If so, it is not disputed that the liability has now devolved on the state of Gujarat. It follows that the Courts below rightly decreed the suit.” 7. It is therefore submitted by learned counsel that the payment under the Tamil Nadu Government Servants Family Benefit Fund Scheme can be equated to a ‘pension’ and whatever rules were applicable to a pension by virtue of the provisions of Pensions Act would automatically apply to the payment under Family Benefit Scheme. I am unable to agree with this contention. It is not possible to equate the payment under Family Benefit Scheme to a pension. The Rules which have been extracted by me earlier clearly show that the payment that is contemplated under the scheme is based upon the contribution made by the Government servant during his service. Every Government servant who is governed by the scheme is bound to make a contribution of Rs. 10 per mensem and if he retires on superannuation or demits office for any other reason, the amount contributed by him is refunded to have at the rates indicated in Schedule I of the rules. It is seen from the Schedule that if contribution had been made for a period of one year, which would come to Rs. 120 the Government would pay to the Government servant a sum of Rs. 124. If a Government servant contributes for 30 years and retires thereafter, the total contribution made by him would be Rs. 3,600 and the amount payable to him is a sum of Rs. 7,200. 8. 120 the Government would pay to the Government servant a sum of Rs. 124. If a Government servant contributes for 30 years and retires thereafter, the total contribution made by him would be Rs. 3,600 and the amount payable to him is a sum of Rs. 7,200. 8. In the event of the death of a Government servant while in service, a provision is made for payment of a lumpsum of Rs. 10,000. It is to benefit the members of the family of the deceased. It is on the footing that if the Government servant had continued in service for the full length till his superannuation, the members of his family would have had the benefit of his earnings. In order to compensate their loss the Government has brought about this scheme with an idea of making a lumpsum payment in the case of death of a Government servant while in service. This scheme is more or less equivalent to an insured person making payment of premiums and on maturity of the policy recovering the amounts contributed by him by way of premiums at the rates prescribed by the insurer. In the event of the death of the insured before the maturity of the policy, the insurer makes a lumpsum payment of the amount for which he had insured. It cannot therefore, be contends that the amount paid under Rule 9 as family benefit it fund is equivalent to a pension which is earned by a Government servant. The decision of the Supreme Court defines only what is ‘pension’. Even in that case, it turned upon the interpretation of Cl. 2 of Article VIII of Merger Agreement. That decision will not support the appellant the Family Benefit Fund Scheme will be equivalent to a pension. At any rate, the provisions of the Pensions Act and rules framed thereunder will not apply to the amount paidunder the Family Benefit Fund Scheme. 9. Learned counsel relied upon the decision of the Bombay High Court in Sadashiv v. Annabhat 1. That was a case under S. 4 of the Pensions Act and a Bench of the Bombay High Court took the view that a suit in a civil court could not be maintained without complying with the provisions of S. 4 of the Pensions Act and a certificate issued by the Collector under S. 4 would be necessary for maintaining the suit. To a similar effect is the decision of Patna High Court in Baldeo Jha v. Ganga Prasad 2. Both the decision are not applicable to the present case, as I have taken the view that the amount governed by the Family Benefit Fund Scheme is not pension. 10. Learned counsel referred by way of analogy to the provisions of Family Pension Scheme which was brought into force in 1964 by the Madras Government Servants Family Pension Rules, 1964. Learned counsel submits that the present Family Benefit Fund Scheme is only in substitution of the Family Pension Rules and even in the case of Family Pension, the Government servant had to make a contribution during his service and that in the case of death of a Government servant, the family pension was payable only to the nominee who could only be his wife. Learned counsel also refers to the death-cum-retirement gratuity rules which are governed by All India Services (Death-cum-Retirement Benefits) Rules, 1958. According to learned counsel, R. 19 of the said rules provides for payment of death-cum-retirement gratuity only to the persons mentioned in R. 21 in that order in which they are mentioned. In R. 21, wife or husband tops the list. Thereafter come the sons, then unmarried and widowed daughters and the mother takes only in the sixth place. It is therefore contended by learned counsel for the appellant that the Family Benefit Fund Scheme should also be treated as one similar to the death-cum-retirement gratuity rules and Family Pension Rules. I do not agree with this contention. Nor do I agree with the contention that S. 8 of the Hindu Succession Act which provides for succession to a Hindu has been excluded by these rules. The rules only provide for nomination and payment of the amount due under the rules to the nominee in order that the Government may not be put to the trouble of searching for the proper person who will be entitled to receive the amount on the death of a Government Servant. The nomination is filed only to facilitate the Government to make payment to a particular person named by the deceased Government servant, so that the Government would be in a position to discharge its liability. The person who receives the money from the Government holds it in trust for all the legal heirs of the deceased. The nomination is filed only to facilitate the Government to make payment to a particular person named by the deceased Government servant, so that the Government would be in a position to discharge its liability. The person who receives the money from the Government holds it in trust for all the legal heirs of the deceased. The nomination will not operate as a testamentary disposition in favour of the nominee. As 1 have held that the Family Benefit Fund Scheme is more or less equivalent to a scheme of insurance, necessarily the amount payable under the scheme will form part of the estate of the deceased. Once it is held that the amount paid under the Family Benefit Fund Scheme forms part of the estate of the deceased, it has to be taken by all the legal heirs of the deceased in accordance with the law of succession. 11. The effect of a nomination has been considered by this Court in Krishnamoorthy v. Tmt. Anandalakshmi 1, with reference to a nomination made under Provident Fund Rules. After referring to the earlier decisions, Sathiadev, J. made the following observations:— “The provision for nomination is made for the benefit of discharging the liability of the custodian of the fund, which aspect I have dealt with at length in the earlier part of this judgment, and unless a specific provision is made in the relevant Act or even in the nomination a direction of bequeathing the amount is given to the effect that except the nominee, none of the legal heirs would acquire rights and such direction is not varied later on, the right of a nominee cannot be anything more than being the sole person entitled to draw out the amount and he would be doing so in the capacity of a trustee of the funds answerable to the claims of the lawful heirs of the deceased member. The use of the word ‘nomination’ which means only appointment to receive the amount, cannot be construed as to confer any absolute right in the funds to the exclusion of the rights of the lawful heirs, because even a stranger may be nominated in whom the nominator may have trust. The use of the word ‘nomination’ which means only appointment to receive the amount, cannot be construed as to confer any absolute right in the funds to the exclusion of the rights of the lawful heirs, because even a stranger may be nominated in whom the nominator may have trust. If the intendment is to make the nominee as the absolute owner there can be no difficulty in incorporating the necessary recitals to the effect that he has got, on the date of nomination his legal heirs and in spite of it, he bequeaths the amount only to the nominee to take the funds to the exclusion of the other heirs. When such an unequivocal expression is not present in a nomination, it would result in absolute conferment of rights in the nominee to take the amount for himself.” 12. I am entirely in agreement with those observations of the learned Judge. In fact, the principle laid down by the learned Judge has been accepted by the Supreme Court in a case which arose under the Insurance Act in Sarbati Devi v. Usha Devi 2. While dealing with a nomination made under S. 39 of the Insurance Act, the Supreme Court held that the nomination does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. It is laid down that the amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them. Incidentally the Supreme Court approved of the distinction made by Ismail, J. in B.M. Mundkur v. Life Insurance Corporation 3, between a nomination under S. 39 and a nomination under S. 44 of the Insurance Act. In fact, the Supreme Court has quoted a passage from the decision of Ismail, J. with approval. In view of the decision of the Supreme Court holding that a nomination does not give any right to the nominee, to the beneficial interest in the amount paid to the nominee, it is not necessary to discuss (hat aspect of the matter any further. In view of the decision of the Supreme Court holding that a nomination does not give any right to the nominee, to the beneficial interest in the amount paid to the nominee, it is not necessary to discuss (hat aspect of the matter any further. The effect of nomination has been conclusively decided by the Judgment of the Supreme Court. 13. In Shaik Dawood v. Mahmooda Begum 4, a question arose under A.P. State Employees Benefit Fund Rules, which are similar to the Tamil Nadu Government Servants Family Benefit Fund Rules. In that case, however, there was no nomination at all. But, the position of law has been clearly set out in these terms by the Division Bench of the Andhra Pradesh High Court:— “The rules provide for the payment of the amount to the nominees and in the case of a nomination, the amount shall be paid to the legal heirs of the deceased employee. There is no evidence adduced regarding the existence of any nomination in favour of any member of the family Even if under the rules, the amount becomes payable to the 1st defendant, the amount does not belong exclusively to the 1st defendant. It forms part of the estate of late house in much the same manner as the insurance amounts or the provident fund amount dealt with supra.” The principle laid down by the Andhra Pradesh High Court applies to the present case. 14. Learned counsel for tne appellant relied upon a Division Bench judgment of this Court in Karuppa Gounder v. Palaniammal 1. That case arose out of a suit for partition filed by a widow and the daughter of a person who was a member of the joint family. One of the suit properties was the insurance policy taken by the deceased. The father and the brother of the deceased contended that the insurance policy belonged to the joint family as the premium amounts were paid from the joint family funds which were in the possession of the deceased. The trial Court held that the insurance amount was the separate property of the deceased and that the joint family had no right thereto. It was also held by the trial Court that the mother of the deceased who was the 5th defendant in the suit was entitled to a share in the policy amount. The trial Court held that the insurance amount was the separate property of the deceased and that the joint family had no right thereto. It was also held by the trial Court that the mother of the deceased who was the 5th defendant in the suit was entitled to a share in the policy amount. There was an appeal by the father and brother of the deceased while the plaintiffs filed a memorandum of cross-objections. The latter challenged the decree of the trial Court in so far as it granted a share to the mother of the deceased in the insurance policy amount. The Division Bench while allowing the memorandum of cross-objections observed that the insurance policy was the separate property of the deceased, but by virtue of the nomination, the mother of the deceased was not entitled to any portion thereof. No doubt, the decision is in favour of the appellant to some extent. But, the decision cannot be considered to be good law after the judgment of the Supreme Court in Sarbati Devi v. Usha Devi 2. In fact, the Supreme Court had referred to the aforesaid decision of the Division Bench; but had proceeded on the footing that the Division Bench did not consider the effect of the nomination and that the Division Bench had only occasion to decide the question whether the insurance policy was a joint family property or a separate property. The Supreme Court approved the decision of the Division Bench in holding that it was the separate property of the deceased and not the joint family property. Unfortunately, the other aspect of the case, viz., the existence of the nomination in favour of the wife on the basis of which the Division Bench held that the mother of the assured was not entitled to any portion of the amount was not brought to the notice of the Supreme Court. It has to be noted that in that case the Supreme Court overruled two decisions of the Delhi High Court in S. Fauza Singh v. Kuldip Singh 3, and Mrs. Uma Sehgal v. Dwarka Dass Sehgal 4 and the latter decision of the Delhi High Court had expressly referred to the decision of the Madras Division Bench in Karuppa Gounders case 5 and relied upon the same. Uma Sehgal v. Dwarka Dass Sehgal 4 and the latter decision of the Delhi High Court had expressly referred to the decision of the Madras Division Bench in Karuppa Gounders case 5 and relied upon the same. The Supreme Court proceeded on the footing that the Delhi High Court had not properly understood the decision of the Madras Bench and that the Madras case (Karuppa Gounders case 5) had no bearing on the meaning of S 39 of the Insurance Act. The Supreme Court would have expressly overruled the Madras Bench decision if it had been brought to its notice that the Division Bench held that the wife of the deceased was entitled to the entire amount by virtue of the nomination to the exclusion of the mother of the deceased. 15. Learned counsel for the appellant places reliance upon the decision of the Supreme Court in Poonammal v. Union of India 6. Learned counsel relies upon the following passage in the judgment:— “Family pension came to be conceptualised in the year 1950. When a Government servant dies in harness or soon after retirement, in the traditional Indian family on the death of the only earning member, the widow or the minor children were not only rendered orphans but faced more often destitution and starvation. Traditionally speaking the widow was hardly in a position to 6btain gainful employment. She suffered the most inasmuch as she was deprived of the companionship of the husband and also became economically orphaned. As a measure of socio-economic justice family pension scheme was devised to help the widows tide over the crisis and till the minor children attain majority to extend them some succor. This appeared to be the underlying motivation in devising the family pension scheme. It was liberalised from time to time. The liberalisation was however subject to the condition that the Government servant had in his lifetime agreed that he shall make a contribution of an amount equal to two months emoluments or Rs. 5,000 whichever is less out of the death-cum-retirement gratuity. It was liberalised from time to time. The liberalisation was however subject to the condition that the Government servant had in his lifetime agreed that he shall make a contribution of an amount equal to two months emoluments or Rs. 5,000 whichever is less out of the death-cum-retirement gratuity. Those Government servants who did not accept this condition were denied the benefit of family pension scheme “ This decision of the Supreme Court will not help the appellant in any manner as the Supreme Court had no occasion in that case to consider whether the wife of a deceased Government servant being the nominee will exclude the mother of the deceased Government servant with regard to the amount payable under the Family Pension Scheme. That was not a contest between two heirs of the same class to a share in the estate of the deceased. I am convinced that the conclusion of the Courts below is correct in law and on facts. 16. In the result, the second appeal fails and is dismissed with costs.