K.C.Das Gupta, J. - (1.) The dispute in this case is over a- total sum of Rs. 11,593-10-0 of which Rs. 9500/- was the amount standing to the credit of Sailendra Nath Bose, a Railway servant, in the Railway Provident Fund, Rs. 1820/- also standing to his credit as the special contribution thereto, Rs. 183-10-0 due' to him as arrears of his salary and dearness allowance etc. and Rs. 90/- on account of the value of his share in the Employees' Co-operative Credit Society. It is admitted now that after the death of Sailendra Nath Bose, Ajit Kumar Bose, Ranjit Kumar Bose and Sunil Kumar Bose jointly applied to the Railway authorities for payment of these monies but were informed by the Railway authorities that the Provident Fund money was, under the rules applicable to the deceased Railway servant as regards the Provident Fund, payable only to the minor sons. It was after this that the two sons Ajit and Ranjit started the present action in which they alleged that Sunil was not the son of their father at all and asked for a declaration that they two were the only sons of Sailendra Nath Bose and were as such entitled to get all the monies mentioned above. An alternative case was however also made the averment of which in the plaint is in these words : "Conceding but not admitting that the defendant No. 1 is a son of the said Sailendra Nath Bose alias S.N. Bose by his second wife the defendant No. 1 would not be, at any rate, entitled to get more than one-third of all the monies mentioned in Schedule "A" hereto; and the plaintiffs would be entitled to get the remaining two-thirds of the same under the Provident Fund Act and the Rules framed there under." On the basis of this averment, the alternative prayer was made that if the court held that defendant No. 1 was also a son of the deceased, a declaration should be given that the plaintiffs and the defendant No. 1 are entitled to get the monies mentioned in equal shares.
(2.) It appears that at the time of the trial this unfortunate and scandalous allegation that Sunil Bose was not the son of Sailendra Nath Bose was given up and the plaintiffs wanted only a declaration on the basis that Sunil- was also a son of the deceased, that they were entitled to two-thirds of the money and Sunil to the remaining one-third.
(3.) The learned Subordinate Judge held that the rule of the Provident Fund so far as it restricts payment to the minor sons only is invalid and that under the general provisions of the Provident Fund Act all the sons and daughters would get the deposited amount according to their respective shares. The rules to which the Subordinate Judge refers were framed by the Governor-General in Council under Sub-section (2) of Section 241 of the Government of India Act, 1935. They are published as part of the Indian Railway Establishment Code and are numbered 1301 to 1339 of the first volume of the Code. Rule No. 1336 is in these words; "1336. Subject to the provisions of Rule 1337 on the death of a subscriber before the amount standing to his credit has become payable, or where the amount has become payable, before payment has been made-- (i) the amount of the special contribution credited to the subscriber's account under Rule 1314 shall become payable to the widow or widows or/ and dependent children of the deceased subscriber in such shares as the Controlling Officer may determine. (ii) if a nomination made by the subscriber in accordance with Rule 1334 subsists the amount standing to his credit in the Fund, excluding any amount which becomes payable under Clause (i), or that part thereof to which the nomination relates, shall become payable to his nominee or nominees in accordance with such nomination; provided that if the amount exceeds rupees five thousand and the nominee is not a dependent, it shall be payable only on production by the nominee of probate or letters of administration evidencing the grant to him of administration to the estate of the deceased or a succession certificate entitling him to receive 'payable' of the amount; (iii) 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 thereof to which the nomination does not relate, as the case may be, shall, subject to the provisions of Clause (1), become payable to the members of his family in equal shares, and if there are no such members shall become payable; (a) if the amount does not exceed rupees five thousand to any person appearing to the Accounts Officer to be entitled to receive it; (b) if the amount exceeds rupees five thousand, to any person who produces probate or letters of administration evidencing the grant to him of administration to the estate of the deceased or a succession certificate entitling him to the payment of the amount. Provided that no share shall be payable to-- 1. sons who have attained legal majority; 2. sons of deceased son who have attained legal majority; 3. married daughters whose husbands are " alive; 4. married daughters of a deceased son whose husbands are alive; 5. if there is any member of the family other than those specified in Clauses (1), (2), (3) and (4). 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 subscriber and had not attained the age of legal majority at the time of the subscriber's death.";