MIRDUL SENGUPTA v. SHIPRA SENGUPTA — 1998 DIGILAW 812 (MP)

S. C. PANDEY, J. ( 1 ) THIS revision is directed against the order dated 5. 9. 1994, passed by District Judge, Bhopal, in Misc. Civil appeal No. 11/94, arising out of order dated 13. 6. 1994 in Misc. Judicial Case No. 79/71 passed by IIIrd Civil Judge, Class-1, Bhopal. ( 2 ) SHORTLY stated the undisputed facts of this case are as follows. Shri Shyamal Sengupta was a Head Clerk in State Bank of India, bhopal. He was initially an employee of Imperial bank of India. After the constitution of State bank of India under the State Bank of India act, 1955, the business of Imperial Bank of india was taken over by the State Bank of India as per provisions of the State Bank of India act, 1955. Shyamal Sengupta died issue-less on 8. 11. 1990 at Bhopal, He left behind him his widow Smt. Shipra Sengupta, his mother Niharbala Sengupta, his brothers pushpal Sengupta and Mirdul Sengupta. ( 3 ) THE non-applicant No. 1, the widow of Shyamal Sengupta filed an application under section 372 of the Indian Succession Act (henceforth 'the Act' ). She stated that she was entitled to Rs. 8,930. 20 (Rupees Eight Thousand nine Hundred Thirty and Paise Twenty)out of the amount of life insurance payable to legal heirs of Shyamal Sengupta. It was further claimed by her that Shyamal Sengupta was entitled to receive Rs. 90,499. 25 (Rupees ninety thousand four hundred ninety-nine and paise twenty five) by way of gratuity. Out of that amount, her share of 1/2 came to the extent of Rs. 45,224. 87 (Rupees forty-five thousand two hundred twenty-four and paise eighty seven ). She estimated her share to the tune of rs. 50,000/- (Rupees fifty thousand) approximately in respect of Public Provident Fund credited in the name of Shyamal Sengupta without mentioning exactly the amount of Public provident Fund deposited in the name of shyamal Sengupta. She cfaimed again that she was entitled to Rs. 1,14,882. 47 (Rupees one lakh fourteen thousand eight hundred eighty-two and paise forty-seven) out of total General provident Fund deposited in thej name of shyamal Sengupta. The total amount of General provident Fund comes to Rs. 2,29,764. 25 (Rupees two lakhs twenty-nine thousand seven hundred sixty-four and paise twenty-five ). The non-applicant No. 1 - Shipra Sengupta also made claim in respect of other items mentioned in paragraph 6 of her application. The total amount of General provident Fund comes to Rs. 2,29,764. 25 (Rupees two lakhs twenty-nine thousand seven hundred sixty-four and paise twenty-five ). The non-applicant No. 1 - Shipra Sengupta also made claim in respect of other items mentioned in paragraph 6 of her application. However, it is not necessary to deal with them as there are only four items involved in this revision. ( 4 ) THE claim of non-applicant No. l was based upon the proposition that any nomination, made by Shyamal Sengupta prior to his marriage with her, automatically stood cancelled by the fact of her marriage. After death of her husband, she, alongwith mother of the deceased niharbala Sengupta, was Class-1 heir under the schedule of the Hindu Succession act, 1956. She was, therefore, equally entitled to succeed to the property with Niharbala sengupta. Therefore, she claimed that the Trial court be pleased to award a succession certificate in respect of the aforesaid amount, alongwith the other items, mentioned and detailed in paragraph 6 of the application. She further made a claim in the application that the Court be pleased to declare other nominations as invalid or in the alternative it be declared that the nominees are not to lay their claim on the basis of nominations existing in favour of Niharbala Sengupta or Pushpal sengupta, who was the brother of the deceased shyamal Sengupta. ( 5 ) THE applicant No. 2-Pushpal Sengupta and Niharbala Sengupta contested the claim of the non-applicant No. 1 that the prior nomination in favour of Niharbala Sengupta in respect of amount of Insurance, Gratuity and general Provident Fund absolutely vested in niharbala Sengvipta. So far as Public Provident fund was concerned, it was Pushpal sengupta who was entitled to that amount. The case of Niharbala Sengupta and applicant no. 2 appears to have been based on previous nominations. ( 6 ) THE non-applicant No. 2, the State bank of India took the stand that Niharbala sengupta, being the nominee of Shyamal sengupta, was entitled to General Provident fund and Gratuity in the capacity of" the nominee. The applicant No. 2 - Pushpal Sengupta was not entitled to any share in respect of those items. ( 6 ) THE non-applicant No. 2, the State bank of India took the stand that Niharbala sengupta, being the nominee of Shyamal sengupta, was entitled to General Provident fund and Gratuity in the capacity of" the nominee. The applicant No. 2 - Pushpal Sengupta was not entitled to any share in respect of those items. ( 7 ) THE trial Court granted succession certificate to the non-applicant No. 1 and niharbala Sengupta in respect of total amount of Life Insurance, Gratuity, Public Provident fund, and General Provident Fund due to shyamal Sengupta. It held that both of them shall be. entitled to" half share in the amount aforesaid. As to rest of the items, mentioned in paragraph 6 of the application, it was held that non-applicant No. 1 alone was entitled to succession certificate. ( 8 ) IN appeal, filed by Niharbala Sengupta and Pushpal Sengupta, learned Judge of the appellate Court, turned down the contention of the applicants that on account of nomination made in favour of Niharbala Sengupta, in respect of the aforesaid items, the non-applicant no. 1 did not get any share in the amount credited or payable to Shyamal Sengupta. Learned District Judge appears to have held that nominations did not confer any 'beneficial interest' in the amount due towards Life insurance, Gratuity, Public Provident Fund and general Provident Fund. The learned District judge relied upon the decision of the Supreme court in the case of Smt. Sarbati Devi and Anr. v. Smt. Usha Devi' and in the caseof Omwati v. Delhi Transport Corporation. However, the learned District Judge modified the order of Civil Judge in respect of other items, holding that Niharbala Sengupta, being the class-I heir under the Hindu Succession Act, was equally entitled to 1/2 share alongwith non-applicant No. 2-Shipra Sengupta. Accordingly, the learned District Judge modified the order passed by the Civil Judge and directed him to issue succession certificate in accordance with the modifications made by him in the order of the Civil Judge. ( 9 ) AGGRIEVED by the order of the learned district Judge, Niharbala Sengupta as well as pushpal Sengupta filed this revision. During the pendency of the civil revision, Niharbala sengupta died. Her other son Mirdul Sengupta was substituted in her place on the basis of an alleged Will executed by her prior to her death in favour of Mirdul Sengupta. During the pendency of the civil revision, Niharbala sengupta died. Her other son Mirdul Sengupta was substituted in her place on the basis of an alleged Will executed by her prior to her death in favour of Mirdul Sengupta. The Will expressly dealt with the amount which she was entitled to receive as a consequence of grant of succession certificate to which she was entitled in the pending litigation. ( 10 ) THE non-applicant No. I did not appear in the civil revision. Pushpal Sengupta, who is affected by the Will, did not challenge the Will. Therefore, the position that emerges is that the Court must presume for the purpose of this revision that the Will is validly executed in favour of Mirdul Sengupta. ( 11 ) IT is strange that the non-applicant no. 2, which being the trustee of the Fund, in their hands, have made a complete volte face in this revision. It is being argued now that nominations in respect of G. P. F. , Gratuity and public Provident Fund are of no consequence. It is further argued by way of preliminary objection that this revision abated with the death of Niharbala Sengupta and, therefore, it had become infructuous. It would be convenient to decide the preliminary objection alongwith the merits of case of the applicants and, therefore, it is not being dealt with separately. ( 12 ) THE first question that arises is : What is the effect of nomination in favour of niharbala Sengupta in respect of Ufe Insurance policy? It is not in dispute now that niharbala Sengupta was the nominee of shyamal Sengupta prior to his marriage with non-applicant No. 1. That nomination was not changed by him in favour of non-applicant No. 1 and he died as such. However, this question need not detain us any more for the Supreme court in the case of Smt. Sarbati Devi and Anr. (supra), has conclusively held that a nomination in respect of Life Insurance Policy did not confer any 'beneficial interest' in the nominee. The Supreme Court over-ruled the contrary decisions of those High Courts which held that such beneficial interest was conferred. It approved the decisions of those High Courts which held that no such beneficial interest was conferred by Section 39 of the Insurance Act, 1938. The Supreme Court over-ruled the contrary decisions of those High Courts which held that such beneficial interest was conferred. It approved the decisions of those High Courts which held that no such beneficial interest was conferred by Section 39 of the Insurance Act, 1938. The Supreme Court further held that in absence of conferral of beneficial interest in the nominee the insurance amount due remained the estate of the deceased. Its succession was governed by the personal law of the deceased. Therefore, the learned District Judge rightly held that the amount of insurance was liable to be distributed equally among the class-i heirs of Shyamal Sengupta as per provisions of the Hindu Succession Act, 1956. ( 13 ) THE next question is regarding the amount of Gratuity of Rs. 90,449. 95 (Rupees ninety thousand four hundred forty-nine and paise ninety-five) payable to. Shyamal Sengupta. The non-applicant No. 2 would be ah establishment within the meaning of Shops and establishment Act and, therefore, Section 1 (3) (b) of the Payment of Gratuity Act, 1972 (henceforth 'the Act of 1972') applied. It can hardly be disputed that ten or more than ten persons were working in the branch of State bank of India at the time of his death. The nomination in favour of Niharbala Sengupta was made prior to commencement of 'the Act of 1972'. However, under the Hindu Adoptions and Maintenance Act, 1955, Shyamal sengupta was bound to maintain his aged mother. Therefore, the prior nomination in favour of Niharbala Sengupta enured to her benefit. Shyamal Sengupta did not exercise his option to change the nomination in favour of his wife or any other person as per Section 6 (4) of 'the Act of 1972', The subsisting nomination in favour of Niharbala would be governed by the provisions of 'the Act of 1972', She would be dependent mother within the meaning of Section 2 (h) of 'the Act of 1972' and would be a member of the 'family of Shyamal Sengupta'. Under Section 4 (c) of 'the Act of 1972' the employer becomes liable to pay the Gratuity to her. Now comes the real question. Could we say that nomination in favour of Niharbala Sengupta was absolute in the sense that she became full owner of the gratuity amount after Shyamal Sengupta died? there is nothing on record to show this. Nor does the law say so. Now comes the real question. Could we say that nomination in favour of Niharbala Sengupta was absolute in the sense that she became full owner of the gratuity amount after Shyamal Sengupta died? there is nothing on record to show this. Nor does the law say so. Therefore, merely because the sum of Gratuity was payable to Niharbala sengupta as per nomination made by Shyamal sengupta in her favour, it cannot be inferred that the money payable as Gratuity to Shyamal sengupta became the property of Niharbala sengupta, on his death. She does not appear to have enjoyed any beneficial interest according to 'the Act of 1972'. She had the mere right to receive theamount. The amount, being the estate of Shyamal Sengupta after his death was liable to be distributed in accordance with the Hindu Succession Act, 1956, accordingly, Niharbala Sengupta and non-applicant no.-1-Shipra Sengupta were rightly held to be entitled to 1/2 share each in the Gratuity amount. They were class-I heirs and entitled to receive simultaneously. Therefore, there is no reason to interfere with the order of learned District Judge on this point. The view of this Court is supported on principle by the decision of the Supreme Court in the case of smt. Sarbati Devi and Anr. (supra ). ( 14 ) THE third question is regarding the public Provident Fund. It appears that the non-applicant No. 1 had stated in paragraph 6 of her application that she was entitled to Rs. 50,000/- (Rupees fifty thousand) approx. out of the Public Provident Fund deposit. It is not very clear if Rs. 50,000/- were claimed by way of half share or the total amount in deposit was claimed by her. However, it appears that non-applicant No. 2 had made it clear that shyamal Sengupta had Public Provident Fund account No. L/78 L. P. No. 3/227 amounting to Rs. 50,000/- (Rupees fifty thousand), Both the Courts have granted 1/2 share each to niharbala Sengupta and Shipra Sengupta. The nomination in favour of Niharbala Sengupta was not changed by Shyamal Sengupta after his marriage. 50,000/- (Rupees fifty thousand), Both the Courts have granted 1/2 share each to niharbala Sengupta and Shipra Sengupta. The nomination in favour of Niharbala Sengupta was not changed by Shyamal Sengupta after his marriage. The contention of learned Counsel for the applicants is based upon Section 8 of the Public Provident Funds Act, 1968 (henceforth 'the Act of 1968'), which may be reproduced as follows:"section 8: Payment on death of subscriber- (1) If a subscriber dies and there is in force at the time of his death a nomination in favour of any person, all amount standing to his credit in the fund shall be payable to the nominee. (2) Where the nominee is a minor, the amounts referred to in sub-section (1)shall be payable to any guardian of the property of the minor appointed by a competent Court or where no such guardian has been so appointed, to either parent of the minor, or where neither parent is alive, to any other guardian of the minor. (3) Where there is no nomination in force at the time of the death of the subscriber, the amounts referred to in sub-section (1) shall be payable to his legal heirs. " ( 15 ) IT has been argued that language of section 8 (1) of 'the Act of 1968' clearly envisages 'vesting of all amounts standing to the credit' of Shyamal Sengupta in the Fund in favour of Niharbala Sengupta. The emphasis in the use of word all in this sub-section. It is argued that the legislature has made all the amounts payable to the nominee in the event of his death and sub-section (3) of Section 8 of 'the Act of 1968' has amplified the intention of legislature by providing the one and only exception when the amount shall be payable to heirs i. e. when there is no nomination, It is subtly argued that the legislature does not waste the words. By sub-section (3) of Section 8 of 'the Act of 1968' an exception has been carved out of sub-section (1) thereof. The exception was in the nature of proviso. The argument though subtle and attractive cannot be accepted. It ignores the real object of using the word all. It has been provided under Section 6 of 'the Act of 1968', how the subscriber shall be paid back the deposit money in the provident Fund Scheme. The exception was in the nature of proviso. The argument though subtle and attractive cannot be accepted. It ignores the real object of using the word all. It has been provided under Section 6 of 'the Act of 1968', how the subscriber shall be paid back the deposit money in the provident Fund Scheme. The proviso to subsection (1) of Section 6 of 'the Act of 1968' makes it clear that the amount in deposit can be withdrawn as per scheme of Provident Fund only after. . five years. Sub-section (2) thereof grants liberty to withdraw the entire balance after fifteen years of initial deposit notwithstanding thescheme. However, death of subscriber required the legislature to deal with the nominee who could not be justly bound by the scheme. Therefore, the construction suggested by the Counsel for the applicants on sub-section (1) of Section 8 of 'the Act of 1972' is not accepted by this Court. Moreover, the learned counsel for the applicants is not right that subsection (3) of the Section 8 of 'the Act of 1972' would be redundant. In the opinion of this court, sub-section (3) of Section 8 was made with an object and purpose of informing the authority required to pay the amount to claimants that in absence of the nominee the legal heirs of subscribers shall be entitled to receive the amount. No doubt, it is declaratory of law already in existence, but the aforesaid sub-section is related to the Fund in question. The contention of learned Counsel for the applicants does not commend itself to this Court because it ignores the ground realities. Therefore, this Court comes to the conclusion that sum payable to nominee in sub-section (1) of section 8 cannot be ascribed any other meaning than that given by the Supreme Court, while interpreting Insurance Act, 1938 in the case of Smt. Sarbati Devi and Anr. (supra ). ( 16 ) THE fourth question is regarding the provident Fund deposited in the name of shyamal Sengupta amounting to Rs. 2,29,764. 25 (Rupees two lakhs twenty-nine thousand seven hundred sixty-four and paise twenty-five ). The non-applicant No. 1 had claimed entitlement to half of that amount ignoring the nomination. It was not disputed that the nomination in favour of Niharbala sengupta subsisted. 2,29,764. 25 (Rupees two lakhs twenty-nine thousand seven hundred sixty-four and paise twenty-five ). The non-applicant No. 1 had claimed entitlement to half of that amount ignoring the nomination. It was not disputed that the nomination in favour of Niharbala sengupta subsisted. It may be pointed out that niharbala Sengupta would be covered by the definition of a 'dependent' within the meaning of Section 2 (c) of the Provident Funds Act, 1925 (henceforth'the Act of 1925'}. Shyamal sengupta was an employee of the Imperial bank of India. It is in that capacity, he nominated his mother Niharbala Sengupta as a dependent on 7. 10. 1952. This is clear from the nomination form which has been seen by the court as it available on record of the case. 'the act of 1925' applied to the employees of the imperial Bank of India as per Item No. 13 of the Schedule issued under Section 8 (2) of 'the act of 1925'. The rules governing the provident fund of the employees of the Imperial bank of India are known as the Imperial Bank of India Employees Provident Fund Rules. A copy of these rules has been placed on record, ft appears from the reading of those rules that on the death of the subscriber, the amount, of provident Fund was payable to the nominee to the extent of Rs. 5,000/- (Rupees five thousand)without succession certificate and rest with certificate. However, widow or the dependent nominee was not required to get any succession certificate. The trustees of the fund were to pay the money to the dependent nominee or the widow and such payment was deemed to be complete discharge of the debt. This appears to the meaning and purport of the Rules 23, 24 and 26. However, the Counsel for the non-applicant No. 2 argued that the State Bank of India Employees Provident fund Rules would apply to the case of Shyamal sengupta. In the opinion of this Court, neither the State Bank of India Act, 1955, nor the rules relied upon by the learned Counsel for the non-applicant No. 2 support the contention of the learned Counsel. It was futile to refer to State Bank of India Act, 1955. It is much more futile to rely upon the rules. In the opinion of this Court, neither the State Bank of India Act, 1955, nor the rules relied upon by the learned Counsel for the non-applicant No. 2 support the contention of the learned Counsel. It was futile to refer to State Bank of India Act, 1955. It is much more futile to rely upon the rules. The copy of these rules, which have been produced before me shows that rules of State Bank of india came into force on 1st July, 1955. The rule 40 of the aforesaid rules does not give to the Central Board the power to extend these rules to members of the Imperial Bank of India employees' Provident Fund. The Rule 11 says that these rules shall not apply to the employees of the State Bank of India who are members of the Imperial Bank of India Employees' Provident fund same as provided by the Rule 40. It is very clear that Rule 40 does not apply these rules to the members of the Imperial Bank of india Employees' Provident Fund. On the other hand, it restrains the power of Board to extend these rules the members of the Imperial Bank of India Provident Fund. Orice this conclusion is reached by the rules of the State Bank of india are out of the way. ( 17 ) NOW that the above question is settled, this Court required to interpret 'the Act of 1925' read with the rules framed in respect of the members of the Imperial Bank of India employees Provident Fund Rules. There was a controversy among various High Courts regarding the interpretation of Section 5 of 'the act of 1925' prior to its amendment in the year 1946. it appears that in the case of Noor mahomed s/o Sulleman v. Mt. Sardar Khatun w/o Moula Bux and Ors. in the case of Hardial devi Ditto v. Jankl Das and Anr. and in the case of Union of Bharat, Ministry of Rly v. Mst. Asha Biy, the view was taken that a nominee cannot claim that he took beneficial interest in the provident fund deposit of the subscriber. The nomination gives only a right to receive the fund. in the case of Hardial devi Ditto v. Jankl Das and Anr. and in the case of Union of Bharat, Ministry of Rly v. Mst. Asha Biy, the view was taken that a nominee cannot claim that he took beneficial interest in the provident fund deposit of the subscriber. The nomination gives only a right to receive the fund. The nomination may be of testamentary in character, but fund in deposit continued to be estate of deceased in the hands of the nominee as nominee got only right to receive the money on behalf of the heirs of the deceased. On the other hand, a contrary view was taken in the case of Maung Bakin v. Ma Pwa Thin , in the case of Ahmad Abdul razaak and Ors. v. Jama/a Bint Mehdi, in the case of Mohammad Nairn and Another v. Mt. Munimunnissa and Others, in the case of m. Mon Singh v. Mothi Bai, in the case of lakshmamma and Anr. v. P. S. Subra-manyam, in the case of Mabel Head v. Miss kathleen Guest and Anr. , in the case of komalsing Kuwarsing v, Krishnabaf, in the case of Keshab Lal Rudra, Minor and Anr v. harani Rudra w/o Jiban Krishna Rudra, in the case of Nishtala Subramanya Somayajulu v. Kannepalli Lakshmi Somi Devi, and in the case of Koruprolu Talupulu v. Dasetti narasamma and Ors. ( 18 ) IN the opinion of this Court, the divergent authorities cited above, were based on the interpretation of the words of the old section. The authorities holding that nominee got the beneficial interest were impressed mostly by the words 'deem to confer such right absolutely until such nomination is varied' and by the non-obstante clause that the conferral of such right was despite the personal law. The authorities taking the opposite view held that the intention of the legislature was to confer a right to receive the money. The right was testamentary in nature, but it did not create any beneficial interest. This Court would be bound by the decision of the Division Bench in the case of Union ofbharat (supra), but for the fact that this view was based on the unamended Section 5 of 'the Act of 1925'. The amendment has changed Section 5. The right was testamentary in nature, but it did not create any beneficial interest. This Court would be bound by the decision of the Division Bench in the case of Union ofbharat (supra), but for the fact that this view was based on the unamended Section 5 of 'the Act of 1925'. The amendment has changed Section 5. There is scope for the argument that right conferred by amended Section 5 confers beneficial interest and, therefore, the words to the exclusion of others' have been added showing that the right to receive conferred an absolute right to have the provident fund. ( 19 ) HOWEVER, it is not necessary to give any opinion on this point for the reason this court is of the view that Niharbala Sengupta would get an absolute right under Section 3 (2)of 'the Act of 1925' read with Section 5 thereof. It may be noted that Niharbala sengupta was a dependent mother under Section 2 (c) of 'the Act'. It is also clear that being a dependent she was entitled to receive the amounts of General Provident Fund deposited in the name of Shyamal Sengupta as per rules of the Imperial Bank's Employees' Provident fund Rules. Therefore, Section 3 (2) would be directly applicable to her. It reads as under: "section 3 (2): Any sum standing to the credit of any subscriber to, or depositor in. any such Fund at the time of his decease and payable under the rules of the fund to any dependent of the subscriber or depositor, or to such person as may be authorised by law to receive payment, on his behalf, shall, subject to any deduction authorised by this Act and, save where the dependent is the widow or child of the subscriber or depositor, subject also to the rights of anassignee under an assignment made before the commencement of this Act, vest in the dependent, and shall, subject as aforesaid, be free from any debt or other liability incurred by the deceased or incurred by the dependent before the death of the subscriber or depositor. " the rules of the provident fund were applicable to Niharbala Sengupta, who was dependent to the subscriber. Section 3 authorised her to receive the sum on her behalf subject to deductions authorised by 'the Act of 1925. The assignment mentioned in the section was not applicable to her. " the rules of the provident fund were applicable to Niharbala Sengupta, who was dependent to the subscriber. Section 3 authorised her to receive the sum on her behalf subject to deductions authorised by 'the Act of 1925. The assignment mentioned in the section was not applicable to her. In other words, by the latter part of the section that balance amount payable to dependent nominee uested in her and it was free from any debt or other liability incurred by the deceased. In the opinion of the Court the use of the word 'vest' indicates that the intention of the Legislature was to confer a beneficial interest as opposed to mere right to receive the sum. The amount to be given to the dependent was to be free from any liability incurred by the subscriber or the depositor with exception that certain deductions could be made as per provision of 'the act' and the assignment made prior to commencement of 'the Act of 1925'. That too was excused the case of widow or child. Thus the whole scheme of Section 3 indicates statutory vesting. ( 20 ) SECTION 4 (1) (a) of 'the Act of 1925' reads as under: "section 4 (1) (a ). If the sum or balance, or any part thereof, vests in a dependent under the provisions of Section 3. pay the same to the dependent or to such person as may be authorised by law to receive payment on his behalf; or" it would be significant the legislature directs the concerned officer to pay to the dependent nominee after statutory deduction the balance of sum of provident fund which vests in the dependent under Section 3. It is also clear from section 5 that this sum shall be payable to nominee. Thus, there can be hardly any doubt that word Vest' was used in the wider sense indicating that it intended to confer rights of 'ownership as to right to obtain possession on behalf of true owners. This amounted to statutory vesting of the beneficial interest. Thus, after death of Shyamal Sengupta, the provident fund amount vested in her In absolute right. She was entitled to the beneficial interest created by Section 3 (2} of 'the Act of 1925' qua dependent nominee. This amounted to statutory vesting of the beneficial interest. Thus, after death of Shyamal Sengupta, the provident fund amount vested in her In absolute right. She was entitled to the beneficial interest created by Section 3 (2} of 'the Act of 1925' qua dependent nominee. ( 21 ) IN this connection, it would not be out of place to recall the words of Division bench in the decision in the case of N. K. Thaj mahomed Saib v. T, Balafi Singh16. The Division bench was required to consider if amount paid to the dependent soon after the death of the subscriber was liable to be attached in his hands as an asset of the deceased subscriber, who was Judgment-debtor in the case. Sundaram Chetty, J, at page 174 says :"what we have to consider is the effect of the statutory vesting of the fund in the dependent, under Section 3 (2 ). It is by reason of such vesting that the money has to be paid to the dependent, on the death of the subscriber or depositor. In the present case, the dependent is the minor son to whom the money was so paid: This statute has vested that fund in the son, and consequently, it has become the property of the son. This fund cannot therefore, be deemed to have devolved on the son by right of inheritance. That being so, how can it be regarded as the assets of the deceased depositor in the hands of his son? A son is not liable, under Hindu Law, to pay his father's debt except from out of his share in the ancestral or joint family properties. The fund in question which belonged to the son (as dependent specified in the Act) by reason of the statutory vesting, which is a special mode of acquisition by him, cannot be proceeded against, even after it was paid over to him, by a creditor, for the realisation of a decree-debt due. by the father. " ( 22 ) IT appears that a similar conclusion was reached by a Division Bench of the Orissa high Court in the case of M, Malati and Ors. v. M. Dharma Rao and Anr. The facts disclose that the nominee therein too was dependent. by the father. " ( 22 ) IT appears that a similar conclusion was reached by a Division Bench of the Orissa high Court in the case of M, Malati and Ors. v. M. Dharma Rao and Anr. The facts disclose that the nominee therein too was dependent. The Division Bench of Orissa High Court considered section 3 (2) of 'the Act of 1925', but rested its decision also on Section 5 of 'the act of 1925' relying on the authorities which interpreted the old Act. Although amended section was reproduced in the judgment it appears that pointed attention of the Court was not drawn to fact that authorities were based on the old section. This Court has already indicated that it does not want to express its opinion on the new amended Section 5 and, therefore, dissociates itself from the observations of the Division Bench of the Orissa High court so far as it relates to interpretation of section 5 of 'the Act of 1925'. ( 23 ) THIS takes us to the question sought to be argued that this revision abates with the death of Niharbala Sengupta. It may be noted that Order 22 of the Civil Procedure Code is not applicable to the proceedings of revision under Section 388 (3) of 'the Act'. . The decision in the case of Deo Kumar Singh v. Kallash Singh, is distinguishable because in that case the person who applied for succession certificate died during the pendency of application Niharbala Sengupta's rights were already declared by the Civil Judge and thereafter by the District Judge. She was declared to be entitled to 1/2 share in each of the items mentioned in paragraph 6 of the application. She died during the pendency of this revision. She had already acquired rights as a legal heir of Shyamal Sengupta. These were her assets. She gave them through a Will. None of the non-applicants could question the Will. The applicant No. 1 did not object to it. This Court, in exercise of its suo motu power, conferred by Section 115 of the Code of Civil Procedure read with Section 388 (3} of 'the Act', can do justice to the parties as they are before it. The non-applicant No. 2 should not have raised the objection as a trustee of the General provident Fund of Shyamal Sengupta. This Court, in exercise of its suo motu power, conferred by Section 115 of the Code of Civil Procedure read with Section 388 (3} of 'the Act', can do justice to the parties as they are before it. The non-applicant No. 2 should not have raised the objection as a trustee of the General provident Fund of Shyamal Sengupta. ( 24 ) FOR all these reasons, the preliminary objection is rejected for the reasons given in this judgment. The following authorities cited by the Counsel for the non-applicants are not germane to the facts of the case. They are as follows. The decision, in the case of Smt. Rajoo devi v. Nageshwar and Ors, in the case of abdul Karim and Anr. v. Raheesa Ansari, and in the case of 'omwati v. Delhi Transport corp. (supra ). ( 25 ) THIS takes us to the next question regarding the relief available to the applicants. It is directed that the Civil Judge shall issue succession certificate according to modification of the order of the District Judge as follows : (i) The amount of General Provident fund deposited in the name of shyamal Sengupta declaring that mirdul Sengupta shall be entitled to entire sum due to Shyamal sengupta together with interest to which he is entitled as per rules of deposit by the Bank till he is paid in full. (ii) So far as rest of the items, mentioned in paragraph 6 (a) of the application under Section 372 are concerned, it is declared that after the death of Niharbala Sengupta, mirdul Sengupta is entitled to succession certificate alongwith Shipra sengupta. Both of them shall be entitled to 1/2 share each as directed by the District Judge. {iii) The Civil Judge shall also direct the non-applicant No. 2 or any other authority to pay the interest on the amount mentioned in paragraph 2 till it is paid to them at the usual rate of 9% from the date of death of Shyamal Sengupta or the usual rate available to the depositor/ subscriber whichever be less. A succession certificate shall be issued accordingly. ( 26 ) THE result of the aforesaid discussion is that this revision partly succeeds and is allowed to the extent indicated above. The order passed by the District Judge is modified. No costs. Revision allowed accordingly. .