Nagendra Kumar v. State Of Bihar — 1998 DIGILAW 456 (PAT)

Judgment S.N.Jha, J. 1. The petitioner seeks direction to the Bihar Advocates Welfare Fund Trustee Committee to give him opportunity of hearing and consider his objection before making payment of the amount payable to late Mukteshwar Kumar from the welfare fund to respondent No. 7 Hirday Narayan Kumar. 2. Late Mukteshwar Kumar, an advocate practising at Buxar Civil Courts, became member of the Advocates Welfare Fund created under the Bihar Advocates Welfare Fund Act, 1983, sometime in the year 1988. In course of time he died on 21.11.1997. Respondent No. 7, Hirday Narayan Kumar, one of his sons, filed application for payment of the amount due to his father claiming to be his nominee. According to the petitioner, interpolation was made in the application form in the column meant for the name and address of the nominee or nominees, and the name of respondent No. 7 was mentioned therein after cutting the name of the person who was earlier mentioned against that column. This is the thrust of the petitioners case which was highlighted in course of hearing by his Counsel. 3. I do not propose to go into the question as to whether the name of Hirday Narayan Kumar was mentioned in the application by late Mukteshwar Kumar himself or the same was result of some interpolation. No doubt, some words written against the particular column have been cut and below the same the name of Hirday Narayan Kumar has been written. It is, however, difficult to say as to whether this was the handiwork of Hirday Narayan Kumar himself. In my opinion, it is not necessary to go into that question. 4. In the case of Sarbati Devi and another v. (Smt.) Usha Devi, AIR 1984 SC 346 , the Supreme Court has held that mere nomination does not confer on the nominee an absolute right to receive the money to the exclusion of other heirs. The aforesaid decision has been rendered in the context of a life insurance policy. The Supreme Court held that the provisions of sub-section (6) of Section 39 of the of the Insurance Act, 1938 cannot be interpreted to mean that the amount shall belong to the nominee or nominees alone. The aforesaid decision has been rendered in the context of a life insurance policy. The Supreme Court held that the provisions of sub-section (6) of Section 39 of the of the Insurance Act, 1938 cannot be interpreted to mean that the amount shall belong to the nominee or nominees alone. The Court took into account the fact that the policy holder continues to hold interest in the policy during his lifetime and the nominee acquires no sort of interest in the policy during his lifetime. In that view, on the death of the policy holder, the amount payable under the policy becomes part of the estate governed by the law of succession applicable to him. 5. The position in the matter of payment of the amount due to the member of the Welfare Fund under the Bihar Advocates Welfare Fund Scheme would stand on the same footing. It would appear that the said Act was enacted (superseding the ordinance on the subject) with the avowed object of providing financial assistance to the advocates and the dependants on account of death, disability, retirement, illness, etc. From the provisions of Section 17(1) of the Act, it appears that advocate member on cessation of his profession becomes entitled to withdraw the amount from the welfare fund at the prescribed rates. In other words, he continues to have interest in the money during his lifetime, just like policy holder of life insurance policy. If that is so, following the decision in Sarbati Devi and another v. (Smt.) Usha Devi, (supra) there cannot be any doubt that on his death, the amount due from the welfare fund has to be treated as part of his estate to be distributed amongst his heirs in accordance with law of succession, subject to any testamentary disposition which he might make. 6. In terms of Section 17(2) of the Act in case of death of the advocate member, the amount is to be paid to the nominee, and where no such nominee has been made, to his legal representatives. It is true that respondent No. 7 claims to have been duly nominated by his father about which there is serious dispute. 6. In terms of Section 17(2) of the Act in case of death of the advocate member, the amount is to be paid to the nominee, and where no such nominee has been made, to his legal representatives. It is true that respondent No. 7 claims to have been duly nominated by his father about which there is serious dispute. I would observe that even if the case of the respondent in this regard is accepted, in view of the above-mentioned decision is the case of Sarbati Devi and another v. (Smt.) Usha Devi, (supra) he is merely entitled to receive the amount but cannot appropriate the whole of it himself. The amount has to be distributed amongst all the heirs in accordance with law. 7. Section 17(7) of the said Act provides that where an application is made for payment of the amount from the welfare fund, the Trustee Committee shall dispose of the application after making necessary enquiry. It is expected that while disposing of the application of respondent No. 7 Hirday Narayan Kumar, the Trustee Committee shall bear in mind the above-stated legal position. It would only be appropriate for the committee to ask all the heirs to appear before it, hear them and then take an appropriate decision. 8. This writ petition is disposed of with the observations noted above.