Regional Commissioner, Coal Mines Provident Fund vs Bhuria Bai

Sanjay Yadav, J.—There is delay of 1047 days in filing this Civil Revision condonation whereof, is being sought vide I.A.No.13265/2013. It is contended that in a proceedings under Section 372 Indian Succession Act 1925 preferred by respondent no.1 Bhuria Bai, the applicant Regional Commissioner, Coal Mines, the keeper of Provident Fund of coal Mines employees was not impleaded as party. That with the passing of the impugned order dated 20.10.2010 in Misc. Civil Case No.5/2010, preferred under Section 384 of 1925 against the order dated 29.2.2008 in Succession Case No.5/2003, the applicant came to know on 24.3.2013 when the order was placed for compliance. That taking note of the provisions of the scheme of Provident Fund framed under Coal Mines Provident Fund and Miscellaneous Provisions Act 1948 and finding the Appellate Order contrary to the Scheme, a decision was taken to challenge the same in higher forum. And it was in the process there of the delay has occurred in filing the Civil Revision , which being not deliberate deserves to be condoned.

Though respondent no.2 has opposed the prayer for condonation.

However, taking into consideration the fact that the applicant was not impleaded as party in the Succession case, though the claim related to the share in the Provident Fund of the deceased employee of the Coal Mines sufficient ground is made out. The delay being duly explained deserves to be and is condoned.

With consent the matter is finally heard.

Brief facts are that Ghudan Kalar was employed as Tub loader with the Western Coal Fields Limited at Mohan Colliery who having died in harness led to the appointment of his son Suvesh on compassionate ground as operator who also died on 17.11.2002 leaving behind his mother, Bhuria Bai and widow Usha bai. As the deceased while in service had nominated his mother to receive the provident fund, the nomination got, invalid (as per proviso to sub clause (b) of Clause 62 of Scheme) on Suvesh marrying Usha Bai and since Suvesh died without any nomination, the claimants were called upon to obtain a succession certificate which led the non-applicant no.1 Smt. Bhuria Bai (mother of the deceased) to file an application for grant of succession certificate under section 372 of the Act of 1925, registered as succession case no.5/2003.

The trial Court vide order dated 29.2.2003 dismissed the claim on the findings that the applicant Smt. Bhuria Bai since did not implead minor children of the deceased Suvesh, the application was held to be not maintainable. This order has been reversed in an appeal under section 384 on a finding based on sub Section (3) of Section 373 of 1925 Act on the principle of best title, by taking into consideration that the minor children of deceased Suvesh were duly represented through their mother Usha Bai who had taken a defence of their right in the estate of late Suvesh. The Appellate Court by taking into consideration dependency and succession ordered two shares in favour of widow and one share each to children and the mother, i.e., 40 % to widow and 20% each to children and the mother, by impugned order dated 10.8.2010.

Though none of the beneficiaries, have chosen to challenge the order. It is the Regional Commissioner, Coal Mines Provident Fund who challenges the order vide this Revision on the ground that the determination of the ratio of share is in contravention to the provisions of clause 64(ii) of the Coal Mines Provident Scheme 1948. It is urged that the Court having exceeded the jurisdiction , a material irregularity has crept in the impugned order which deserves to set aside, with direction that the determination of share would be as per ratio under clause 64(ii) of the same.

The scheme i.e., Coal Mines Provident Fund Coal Mines Family Pension And Coal Mines Deposit Linked Insurance Schemes has been framed by the Central Government in exercise of the powers conferred by Section 3 of the Coal Mines Provident Fund And Miscellaneous Provision Act 1948 (XLVI of 1948).

That clause 2 (h) of the Scheme defines "family" to mean:

"Family" means -

*[In the case of a male member, his wife, his children, whether married or unmarried, his dependent parents and his deceased son''s widow and children.

Provided that if a member proves that his wife has ceased under the personal law governing him or the customary law of the community to which the spouse belongs to be entitled to maintenance she shall no longer be deemed to be a part of the member''s family in matters to which this scheme relates, unless and the member subsequently intimates by express notice in writing to the commissioner that she shall continue to be so regarded ; and

@ [in the case of a female member, her husband, her children whether married or unmarried, her dependent parents, her husband''s dependent parents and her deceased son''s widow and children.]

Provided that if a member by notice in writing to the commissioner expresses her desire to exclude her husband from the family, the husband shall no longer be deemed to be a part of the member''s family in matters to which this scheme relates unless the member subsequently cancels in writing any such notice.

Explanation-In either of the above two cases, if the child of a member +*[or, as the case may be, the child of a deceased son of a member] has been adopted by another persons and if, under the personal law of the adopter adoption is legally recognised such a child shall be considered as excluded from the family of the member;

Clause 64 provides for accumulation of a deceased member. Sub Clause (ii) and the first proviso envisages:

"(ii) if no nomination subsists or if the nomination relates only to a part of the amount standing to his credit in the Fund, the whole amount or the part there of to which the nomination does not relate, as the case may be, shall become payable to the members of his family in equal shares.

Provided that no share shall be payable to-

(a) sons who have attained majority ;

(b) sons of a deceased son who have attained majority ;

(c) married daughters whose husbands are alive;

(d) married daughters of a deceased son whose husbands are alive if there is any members of the family other than those specified in clauses (a), (b), (c) and (d):

Provided further that the widow or widows, and the child or children of a deceased son shall receive between them in equal parts only the share which that son would have received if he had survived the member and had not attained the age of majority at the time of the member''s death.

Contention of the Applicant is that the Appellate Court ought to have determined the ratio of share strictly as per clause 64 (ii) and first proviso and by not doing so it exceeded the jurisdiction.

The question is whether the Appellate Court exceeded the jurisdiction so vested, resulting in material irregularity.

Evidently, the appeal is under Section 384 of 1925 Act sub Section (1) whereof empowers the Appellate Court, that subject to the other provisions in part X of 1925 Act, to declare the person to whom the certificate should be granted.

Section 373 under Chapter X stipulates the procedure to be followed on an application under Section 372. Sub Section (3) of Section 373 empowers the Court to grant certificate to the applicant if it appears to it that prima facie he has the best title.

In the case at hand as per the definition clause 2(h) mother and the widow are included within the definition of family. And there being no evidence on record, that the mother was not dependant, the appellate Court is well within its jurisdiction in determining the ratio of share.

Though learned counsel for the applicant submits that the proviso to sub clause (ii) of Clause 64 of scheme restricts the accumulation in favour of class of persons mentioned therein; however, taking into consideration that the accumulation is a estate of the deceased employee statute which governs the right of survivers would hold the field and will have the overriding effect over the proviso to sub clause (ii) of clause 64. For example a Hindu dying interstate the succession in his property/estate would be as per Section 8 of Hindu Succession Act 1956. In that case curtailing of right of the successor to estate as per clause 64(ii) of scheme would be violative of the statutory right based on custom.

In this context a reference can be had of a Division Bench judgment of Kerala High Court in M.N. Bhaskaran Vs. V. Kalliani, wherein it is held:"

"6...................on the death of subscriber before receiving the amount payable under the scheme it becomes part of his estate succession to which is governed by the law of succession applicable to him. Succession opens automatically on the death of the subscriber. The right of legal heirs so acquired under the law of succession on the death intestate of the subscriber cannot be defeated by any of the provisions in the scheme in question which is only a Scheme established by the Government in its executive power. A provision made in a non statutory scheme like the one in question even if it has the effect of excluding the legal heirs from claiming right to an asset of the deceased subscriber cannot override the provisions of law governing succession namely the Hindu Succession Act in this case . Supreme Court while considering the scope and effect of Section 39 of the Insurance Act, in the decision reported in Smt. Sarbati Devi and Another Vs. Smt. Usha Devi, has held thus at page SC 349 AIR 1984:

"The summary of the relevant provisions of Section 39 establishes clearly 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 the lifetime of the policy holder. If that is so, on the death of the policy holder the amount payable under the policy becomes part of his estate which is governed by the law of succession applicable to him. Such succession may be testamentary or intestate. There is no warrant for the position that Section 39 of the Act operates as third kind of succession which is styled as "statutory testament" . The provision in sub section 6 of Section 39 which says that the amount shall be payable to the nominee or the nominees does not mean that amount shall belong to the nominee or nominees. The language of Section 39 is not capable of altering the course of succession under law".

This court has also taken a same view about the effect of nomination under Section 39 of the Insurance Act in the Full Bench decision reported in Sarojani Amma V. Neelkanta Pillai (1960 KLT. 1319) which was approved by the Supreme Court in Sarbati Devi Case. In the facts and circumstances of the case, we are of the view that same principles are applicable to regulate the rights and liabilities of the nominees and other legal heirs of the deceased subscriber under the scheme. Applying the above principle it has to be held that whatever may be the intention of the framers of the scheme in question, the nominee or nominees who may be a member or all the members of the subscriber family as defined in the scheme can receive payment of amount due under the scheme only the subject to the rights of all other legal heirs of the subscriber to claim their right to such amount in accordance with law governing succession."

In view whereof, the contentions that the Appellate Court exceeded the jurisdiction vested in it and has committed the material irregularity by not adhering to the ratio as delineated in clause 64(iii) is repelled.

Consequently, Revision fails and is dismissed. No costs.