K. Satyavathi Vs. Regional Director, Employee State Insurance Corporation, Hyderabad and anr. - Court Judgment

Excerpt:
labour and industrial - succession benefits - section 8 of hindu succession act, 1956, sections 38 and 39 of insurance act, 1938 and section 5 of provident fund act, 1925 - petitioner is mother of deceased and second respondent is his widow - deceased nominated petitioner for benefits under insurance scheme - deceased requested in writing to first respondent to include second respondent's name as his family member and for purpose of death cum retirement gratuity - he also nominated second respondent to receive full amount payable by first respondent - deceased died in an accident - petitioner filed writ petition claiming equal proportion of amounts irrespective of nomination of second respondent - basis of claim is that amounts form part of deceased's estate and on death she is also entitled to moiety as class i heir under act of 1956 - central civil service pension rules lays down that amount shall be paid to wife alone - interpretation of relevant rules provides that amount payable to deceased under head 'death cum retirement gratuity' does not form part of estate of deceased - petitioner cannot claim any part of said amount by way of general succession - held, second respondent-wife is exclusively and absolutely entitled to same. - - order 1. the writ petition is filed for a direction to the first respondent to make payments of gratuity, group insurance, general provident fund, pension and co-operative society benevolent fund benefits to the petitioner as well as to the second respondent in accordance with section 8 of the hindu succession act of 1956. 2. the relevant facts are as follows :the petitioner is the mother of one k. 4. the said claim is contested both by the first respondent as well as second respondent. the first respondent in its counter clearly stated that in view of the nomination of the second respondent as a member of his family, she alone will be entitled to receive the death-cum-retirement gratuity from the first respondent. like-wise, all the other benefits. as well as the father and the mother. exclusion of the other heirs including the mother in a case where the wife and children are available and the invalidation of the nomination of the mother in a case where he nominates his wife, clearly indicates that this amount is payable exclusively to the wife. this rule, in my opinion, clearly lays down that the amount shall be paid to the wife alone, as in our case, (she is the only surviving member of the family in clauses (i) to (iv) exclusively and absolutely. further, sub-rule (8) of rule 54 clearly mentions that family pension shall not be payable to more than one member of the family at the same time. this also clearly indicates that even if the mother is treated as a member of the family, only one family member at a time can be paid the family pension. ' the learned judge after considering the provisions of 'the act' as well as the special provisions contained in the railway provident fund rules, ultimately held that the provident fund vests in the dependent -nominee and payable to the nominee, and she is entitled to receive the same, and the said fund would not become the estate of the subscriber on his death. the first respondent as well as the second respondent stated in their counters that this co-operative society benevolent fund is payable exclusively to the wife-second respondent herein and the same cannot be shared by the others.order1. the writ petition is filed for a direction to the first respondent to make payments of gratuity, group insurance, general provident fund, pension and co-operative society benevolent fund benefits to the petitioner as well as to the second respondent in accordance with section 8 of the hindu succession act of 1956. 2. the relevant facts are as follows : the petitioner is the mother of one k. v. v. satyanarayana and second respondent is his widow. shri k. v. v. satyanarayana was working in the office of the first respondent as upper division clerk and he has put in a service of about 12 years. he submitted a nomination on august 21, 1977, in form iv nominating his mother, the petitioner herein, for the benefits under the central government employees insurance scheme etc. while so, he married second respondent in october 23, 1985. subsequently, by a letter to the first respondent dated october 28, 1985 shri k. v. v. satyanarayana requested to include the second respondent's name as his family member and for the purpose of death-cum-retirement gratuity, he also nominated the second respondent on july 8, 1986 to receive the full amount payable by the first respondent. 3. while so, he died in a scooter accident on october 18, 1987. the petitioner filed this writ petition claiming that irrespective of the nomination of the second respondent, she, being a class i heir, is entitled, along with the second respondent under section 8 of the hindu succession act, to the amounts in equal proportion. the basis of the claim is that the amounts form part of his estate and on his death, she is also entitled to moiety as a class i heir under the hindu succession act. the amounts which were due and payable on the death of k. v. v. satyanarayana were : 1. death-cum-retirement gratuity; 2. family pension; 3. provident fund payable under the provisions of act, 1925. 4. group insurance amount; and 5. co-operative society benevolent fund. a claim is made by the petitioner for all these amounts. 4. the said claim is contested both by the first respondent as well as second respondent. the first respondent in its counter clearly stated that in view of the nomination of the second respondent as a member of his family, she alone will be entitled to receive the death-cum-retirement gratuity from the first respondent. like-wise, all the other benefits. 5. the second respondent also filed counter claiming the amounts exclusively to herself. 6. in so far as the amount payable under group insurance is concerned, the learned counsel for the petitioner contends that the amount of premium having been contributed by the deceased (k. v. v. satyanarayana) payable under the policy becomes part of his estate which is governed by law of succession as applicable to him and, therefore, it forms part of the estate of the deceased. if so, the mother is also entitled to a share in the said amount as per the hindu succession act. 7. in support of the said contention, the learned counsel relied upon a decision in sarbati devi v. usha devi : [1984]1scr992 . this judgment, in my opinion, fully supports the contention advanced by the learned counsel for the petitioner. the learned judges in the case referred to supra, taking into consideration the language of section 39 of the insurance act, 1938 (act 4 of 1938) came to the conclusion that the insurance amount covered by the policy forms part of the estate of the deceased. the ratio of the decision, as i understand it, is that if the policy holder is alive when the policy matures for payment, he alone will receive the payment of money due under the policy and not the nominee. the power of cancellation of or effecting a change in the nomination implies that the nominee has no right to the amount during the life time of the assured and if the policy is transferred or assigned under section 38 of the act, the nomination will automatically laps. these conclusions were arrived at on the interpretation of sections 38 and 39 of the insurance act, 1938. in view of the decision referred to supra, i hold that the amount payable to the deceased under the group insurance scheme forms part of the estate of the deceased and, therefore, the writ petitioner-mother is also entitled to a share in it as one of the class i heirs under the hindu succession act. to what share she is entitled to and who are all the heirs will be decided in a separate proceedings. however, it is made clear that in view of the nomination of the second respondent to receive the said amount also, she is entitled to receive it from the first respondent. that will amount to a valid discharge of the obligation of the first respondent. 8. so far as the amount covered by death-cum-retirement gratuity is concerned, in my opinion, the second respondent is entitled to the same exclusively for the following reasons. death-cum-retirement gratuity is covered by rule 50 of central civil services pension rules (hereinafter referred to as 'the rules' which is as follows :) 'rule 50. death-cum-retirement gratuity' (1) x x x x(2) if a government servant, who has become eligible for a service gratuity or pension, dies within five years from the date of his retirement from service including compulsory retirement as a penalty and the sums actually received by him at the time of his death on account of such gratuity or pension including ad hoc increase, if any, together with the death-cum-retirement gratuity admissible under sub-rule (1) and the commuted value of any portion of pension commuted by him are less than the amount equal to 12 times of his emoluments, a residuary gratuity equal to the deficiency may be granted to his family in the manner indicated in sub-rule (1) of rule 51. (3) x x x x(4) x x x x(5) x x x x(6) for the purposes of this rule and rules 51, 52 and 53, 'family' in relation to a government servant, means - (i) wife or wives (including judicially separated wife or wives) in the case of a male government servant; (ii) husband, (including judicially separated husband) in the case of a female government servant; (iii) sons including step-sons and adopted sons. (iv) unmarried daughters including step-daughters and adopted daughters; (v) widowed daughters including step-daughters and adopted daughters; (vi) father, including adoptive parents in the case of individuals (vii) mother, whose personal law permits adoption, (viii) x x x x (ix) x x x x (x) x x x x (xi) x x x x rule 51. persons to whom gratuity is payable : (1) (a) the gratuity payable under rule 50 shall be paid to the person or persons on whom the right to receive the gratuity is conferred by means of a nomination under rule 53; (b) if there is no such nomination or if the nomination made does not subsist, the gratuity shall be paid in the manner indicated below :- (i) if there are one or more surviving members of the family as in clauses (i), (ii), (iii) and (iv) of sub-rule (6) of rule 50, to all such members in equal shares; (ii) if there are no such surviving members of the family as in sub-clause (i) above, but there are one or more members as in clauses (v), (vi), (vii), (viii), (ix), (x) and (xi) of sub-rule (6) of rule 50, to all such members in equal shares.' sub-rule (6) of rule 50 of the rules defines 'family', in relation to a government servant : wife, husband, sons etc. as well as the father and the mother. if there is no nomination or if the nomination already made is found to be invalid or does not subsist, rule 50 of the rules says that the gratuity shall be paid to the four categories mentioned in sub-rule (6) of rule 50 viz., wife, husband, sons and unmarried daughters. mother will come in only if there are no such surviving members of the family as indicated above. it is also clear from sub-rule (4) of rule 53 that the nomination made by a government servant who has no family at the time of making it, or the nomination made by a government servant under the second proviso to clause (i) of sub-rule (3) where he has only one member in his family, shall become invalid in the event of the government servant subsequently acquiring a family, or an additional member in the family. in this case, the deceased nominated his mother before his marriage for the death-cum-retirement gratuity. subsequent to his marriage, he nominated his wife and thereby the nomination of the mother became invalid and the said nominee i.e. wife alone under rule 53 is entitled to receive the amount of death-cum-retirement gratuity. exclusion of the other heirs including the mother in a case where the wife and children are available and the invalidation of the nomination of the mother in a case where he nominates his wife, clearly indicates that this amount is payable exclusively to the wife. the only question that has to be answered in this connection is whether this fund can be termed as estate of the deceased. rule 51(i)(b) says that if there is no such nomination or if the nomination made does not subsist, the gratuity shall be paid to the surviving members of the family mentioned in clauses (i), (ii), (iii) and (iv) of sub-rule (6) of rule 50 in equal shares. therefore, even if there is no such nomination, rule 51 specifically says that only the members of the family mentioned in those four clauses are entitled in equal shares. in case the members of the family mentioned in the four clauses are not surviving, then alone it goes to the other members of the family including mother. this rule, in my opinion, clearly lays down that the amount shall be paid to the wife alone, as in our case, (she is the only surviving member of the family in clauses (i) to (iv) exclusively and absolutely. it is significant to notice that there is no power of assignment or transfer of this amount to any person or persons under the rules. therefore on an interpretation of the relevant rules extracted above, i hold that the amount payable to the deceased under the head of 'death-cum-retirement gratuity' does not form part of the estate of the deceased. therefore, the mother, the writ petitioner cannot claim any part of the said amount by way of general succession. the second respondent-wife alone is exclusively and absolutely entitled to the same. 9. next, it is contended that the petitioner is entitled to a share in the family pension payable consequent on the death of k. v. v. satyanarayana. the relevant rule governing this particular aspect is rule 54 of the rules. sub-clause (b) of sub-rule (2) of rule 54 says that the family of the deceased shall be entitled to family pension. 'family' is defined in sub-clause (b) of sub-rule 14 of rule 54 which is as follows : '(i) wife in the case of a male government servant, or husband in the case of a female government servant, provided the marriage took place before retirement of the government servant'. mother is not one of the members of the family as defined in sub-rule. when rule 54 says that the family is entitled to the family pension and the mother is not included in the definition of the 'family', the mother will not be entitled to any share in the family pension payable by the first respondent. further, sub-rule (8) of rule 54 clearly mentions that family pension shall not be payable to more than one member of the family at the same time. this also clearly indicates that even if the mother is treated as a member of the family, only one family member at a time can be paid the family pension. in this case, the mother is not included in the definition of 'family'. therefore, on a construction of rule 54, i hold that the wife alone is entitled to the family pension. 10. so far as provident fund is concerned, it is contended by the counsel on behalf of the second respondent that the same is governed by provident fund act, 1925 and supplemented by any of the regulations made by the first respondent. the learned counsel drew my attention to section 5 of the provident fund act, 1925 (act 19 of 1925) (hereinafter referred to as 'the act'). on the language of section 5 of the act, the learned counsel contended that on the death of the subscriber or depositor, the nominee is entitled, to the exclusion of all other persons, to receive such sum or part thereof, as the case may be. therefore, the learned counsel contends that the wife is entitled to receive the amount to the exclusion of all other persons. for the proposition that this amount is not payable to the petitioner and exclusively payable to the second respondent, the learned counsel relief upon a decision of this court in kadiam kusuma v. kadiam appachiakka. (1985-i-llj-194). the learned judge, who decided the said case, on a consideration of all the provisions of 'the act', held as follows (p. 198) : 'thus, we see when the nominee is a dependent by virtue of the operation of section 3(2) read with section 4(1)(a) and section 5(1) of the act, the fund vests in the nominee and is payable absolutely to the nominee to the exclusion of others. it is difficult to hold that the said vesting is for a limited purpose of receiving the amount but not carrying the beneficial interest with it.' the learned judge after considering the provisions of 'the act' as well as the special provisions contained in the railway provident fund rules, ultimately held that the provident fund vests in the dependent - nominee and payable to the nominee, and she is entitled to receive the same, and the said fund would not become the estate of the subscriber on his death. in view of the above said decision holding that the provident fund does not become estate of the subscriber on his death, the learned judge held that the wife alone is entitled exclusively to the provident fund amount. in the present case also, no special provident fund regulations are brought to my notice to establish that the provident fund amount becomes the estate of the deceased. in view of the judgment referred to above, i hold that the provident fund amount standing to the credit of the deceased is payable exclusively and absolutely to the second respondent-wife and it is not the estate of the deceased. 11. the only other item which has to be dealt with is the one covered by co-operative society benevolent fund payable by the first respondent corporation. under the provisions of co-operative societies act, the legal heir and nominee is entitled to receive the same exclusively and absolutely. no provision or any rule is brought to my notice by the learned counsel for the petitioner to hold that the mother is also entitled to a share therein. the first respondent as well as the second respondent stated in their counters that this co-operative society benevolent fund is payable exclusively to the wife-second respondent herein and the same cannot be shared by the others. 12. in view of the above, the claim of the writ petitioner with reference to all the items is unsustainable and it is hereby rejected except to the extent of group insurance fund. i have already stated that in so far as the group insurance is concerned, the petitioner is entitled to a share, but the said share and other aspects will have to be decided in a separate proceedings to be taken by her, if she is so advised. however, the second respondent is entitled to receive the said amount also. 13. this is a case where the petitioner was set up by the members of the family to file this writ petition. the petitioner is not without any support and she is not destitute. her husband sri k. v. apparao is now working in t.v.s. company and earning handsome salary. her another son, who is un-married and staying with them, is also working in m/s. gangappa industries. all her daughters are also employed. in view of the fact that the petitioner's husband and her son and daughters are earning, and she is not without any support, even if any illegality is there, i am not inclined to exercise my discretion in this writ petition to grant the relief to the petitioner. i have held that the petitioner has no right whatsoever, except to the extent indicated above with regard to group insurance. 14. for all the above said reasons, this writ petition is dismissed subject to the observation made above in respect of group insurance amount. no costs.

Judgment:
ORDER

1. The writ petition is filed for a direction to the first respondent to make payments of Gratuity, Group Insurance, General Provident Fund, Pension and Co-operative Society Benevolent fund benefits to the petitioner as well as to the second respondent in accordance with Section 8 of the Hindu Succession Act of 1956.

2. The relevant facts are as follows : The petitioner is the mother of one K. V. V. Satyanarayana and second respondent is his widow. Shri K. V. V. Satyanarayana was working in the office of the first respondent as Upper Division Clerk and he has put in a service of about 12 years. He submitted a nomination on August 21, 1977, in Form IV nominating his mother, the petitioner herein, for the benefits under the Central Government employees Insurance Scheme etc. While so, he married second respondent in October 23, 1985. Subsequently, by a letter to the first respondent dated October 28, 1985 Shri K. V. V. Satyanarayana requested to include the second respondent's name as his family member and for the purpose of death-cum-retirement gratuity, he also nominated the second respondent on July 8, 1986 to receive the full amount payable by the first respondent.

3. While so, he died in a Scooter accident on October 18, 1987. The petitioner filed this writ petition claiming that irrespective of the nomination of the second respondent, she, being a Class I heir, is entitled, along with the second respondent under Section 8 of the Hindu Succession Act, to the amounts in equal proportion. The basis of the claim is that the amounts form part of his estate and on his death, she is also entitled to moiety as a Class I heir under the Hindu Succession Act. The amounts which were due and payable on the death of K. V. V. Satyanarayana were :

1. Death-cum-Retirement Gratuity;

2. Family Pension;

3. Provident Fund payable under the provisions of Act, 1925.

4. Group Insurance amount; and

5. Co-operative Society Benevolent Fund.

A claim is made by the petitioner for all these amounts.

4. The said claim is contested both by the first respondent as well as second respondent. The first respondent in its counter clearly stated that in view of the nomination of the second respondent as a member of his family, she alone will be entitled to receive the death-cum-retirement gratuity from the first respondent. Like-wise, all the other benefits.

5. The second respondent also filed counter claiming the amounts exclusively to herself.

6. In so far as the amount payable under Group Insurance is concerned, the learned counsel for the petitioner contends that the amount of premium having been contributed by the deceased (K. V. V. Satyanarayana) payable under the policy becomes part of his estate which is governed by law of succession as applicable to him and, therefore, it forms part of the estate of the deceased. If so, the mother is also entitled to a share in the said amount as per the Hindu Succession Act.

7. In support of the said contention, the learned counsel relied upon a decision in Sarbati Devi v. Usha Devi : [1984]1SCR992 . This Judgment, in my opinion, fully supports the contention advanced by the learned counsel for the petitioner. The learned Judges in the case referred to supra, taking into consideration the language of Section 39 of the Insurance Act, 1938 (Act 4 of 1938) came to the conclusion that the Insurance amount covered by the policy forms part of the estate of the deceased. The ratio of the decision, as I understand it, is that if the policy holder is alive when the policy matures for payment, he alone will receive the payment of money due under the policy and not the nominee. The power of cancellation of or effecting a change in the nomination implies that the nominee has no right to the amount during the life time of the assured and if the policy is transferred or assigned under Section 38 of the Act, the nomination will automatically laps. These conclusions were arrived at on the interpretation of Sections 38 and 39 of the Insurance Act, 1938. In view of the decision referred to supra, I hold that the amount payable to the deceased under the Group Insurance Scheme forms part of the estate of the deceased and, therefore, the writ petitioner-mother is also entitled to a share in it as one of the Class I heirs under the Hindu Succession Act. To what share she is entitled to and who are all the heirs will be decided in a separate proceedings. However, it is made clear that in view of the nomination of the second respondent to receive the said amount also, she is entitled to receive it from the first respondent. That will amount to a valid discharge of the obligation of the first respondent.

8. So far as the amount covered by death-cum-retirement gratuity is concerned, in my opinion, the second respondent is entitled to the same exclusively for the following reasons. Death-cum-retirement gratuity is covered by Rule 50 of Central Civil Services Pension rules (hereinafter referred to as 'the Rules' which is as follows :)

'Rule 50. Death-cum-retirement gratuity'

(1) x x x x

(2) If a Government servant, who has become eligible for a service gratuity or pension, dies within five years from the date of his retirement from service including compulsory retirement as a penalty and the sums actually received by him at the time of his death on account of such gratuity or pension including ad hoc increase, if any, together with the death-cum-retirement gratuity admissible under sub-rule (1) and the commuted value of any portion of pension commuted by him are less than the amount equal to 12 times of his emoluments, a residuary gratuity equal to the deficiency may be granted to his family in the manner indicated in sub-rule (1) of Rule 51.

(3) x x x x

(4) x x x x

(5) x x x x

(6) For the purposes of this rule and Rules 51, 52 and 53, 'family' in relation to a Government servant, means -

(i) wife or wives (including judicially separated wife or wives) in the case of a male Government servant;

(ii) husband, (including judicially separated husband) in the case of a female Government servant;

(iii) sons including step-sons and adopted sons.

(iv) unmarried daughters including step-daughters and adopted daughters;

(v) widowed daughters including step-daughters and adopted daughters;

(vi) father, including adoptive parents in the case of individuals

(vii) mother, whose personal law permits adoption,

(viii) x x x x

(ix) x x x x

(x) x x x x

(xi) x x x x

Rule 51. Persons to whom gratuity is payable :

(1) (a) The gratuity payable under Rule 50 shall be paid to the person or persons on whom the right to receive the gratuity is conferred by means of a nomination under Rule 53;

(b) if there is no such nomination or if the nomination made does not subsist, the gratuity shall be paid in the manner indicated below :-

(i) if there are one or more surviving members of the family as in clauses (i), (ii), (iii) and (iv) of sub-rule (6) of Rule 50, to all such members in equal shares;

(ii) if there are no such surviving members of the family as in sub-clause (i) above, but there are one or more members as in clauses (v), (vi), (vii), (viii), (ix), (x) and (xi) of sub-rule (6) of Rule 50, to all such members in equal shares.'

Sub-rule (6) of Rule 50 of the Rules defines 'family', in relation to a Government servant : wife, husband, sons etc. as well as the father and the mother. If there is no nomination or if the nomination already made is found to be invalid or does not subsist, Rule 50 of the Rules says that the gratuity shall be paid to the four categories mentioned in sub-rule (6) of Rule 50 viz., wife, husband, sons and unmarried daughters. Mother will come in only if there are no such surviving members of the family as indicated above. It is also clear from sub-rule (4) of Rule 53 that the nomination made by a Government servant who has no family at the time of making it, or the nomination made by a Government servant under the second proviso to clause (i) of sub-rule (3) where he has only one member in his family, shall become invalid in the event of the Government servant subsequently acquiring a family, or an additional member in the family. In this case, the deceased nominated his mother before his marriage for the death-cum-retirement gratuity. Subsequent to his marriage, he nominated his wife and thereby the nomination of the mother became invalid and the said nominee i.e. wife alone under Rule 53 is entitled to receive the amount of death-cum-retirement gratuity. Exclusion of the other heirs including the mother in a case where the wife and children are available and the invalidation of the nomination of the mother in a case where he nominates his wife, clearly indicates that this amount is payable exclusively to the wife. The only question that has to be answered in this connection is whether this fund can be termed as estate of the deceased. Rule 51(i)(b) says that if there is no such nomination or if the nomination made does not subsist, the gratuity shall be paid to the surviving members of the family mentioned in Clauses (i), (ii), (iii) and (iv) of sub-rule (6) of Rule 50 in equal shares. Therefore, even if there is no such nomination, Rule 51 specifically says that only the members of the family mentioned in those four clauses are entitled in equal shares. In case the members of the family mentioned in the four clauses are not surviving, then alone it goes to the other members of the family including mother. This rule, in my opinion, clearly lays down that the amount shall be paid to the wife alone, as in our case, (she is the only surviving member of the family in clauses (i) to (iv) exclusively and absolutely. It is significant to notice that there is no power of assignment or transfer of this amount to any person or persons under the Rules. Therefore on an interpretation of the relevant rules extracted above, I hold that the amount payable to the deceased under the head of 'death-cum-retirement gratuity' does not form part of the estate of the deceased. Therefore, the mother, the writ petitioner cannot claim any part of the said amount by way of general succession. The second respondent-wife alone is exclusively and absolutely entitled to the same.

9. Next, it is contended that the petitioner is entitled to a share in the family pension payable consequent on the death of K. V. V. Satyanarayana. The relevant rule governing this particular aspect is Rule 54 of the Rules. Sub-clause (b) of sub-rule (2) of Rule 54 says that the family of the deceased shall be entitled to family pension. 'Family' is defined in sub-clause (b) of sub-rule 14 of Rule 54 which is as follows :

'(i) wife in the case of a male Government servant, or husband in the case of a female Government servant, provided the marriage took place before retirement of the Government servant'.

Mother is not one of the members of the family as defined in sub-rule. When Rule 54 says that the family is entitled to the family pension and the mother is not included in the definition of the 'family', the mother will not be entitled to any share in the family pension payable by the first respondent. Further, sub-rule (8) of Rule 54 clearly mentions that family pension shall not be payable to more than one member of the family at the same time. This also clearly indicates that even if the mother is treated as a member of the family, only one family member at a time can be paid the family pension. In this case, the mother is not included in the definition of 'family'. Therefore, on a construction of Rule 54, I hold that the wife alone is entitled to the family pension.

10. So far as Provident Fund is concerned, it is contended by the counsel on behalf of the second respondent that the same is governed by Provident Fund Act, 1925 and supplemented by any of the regulations made by the first respondent. The learned counsel drew my attention to Section 5 of the Provident Fund Act, 1925 (Act 19 of 1925) (hereinafter referred to as 'the Act'). On the language of Section 5 of the Act, the learned counsel contended that on the death of the subscriber or depositor, the nominee is entitled, to the exclusion of all other persons, to receive such sum or part thereof, as the case may be. Therefore, the learned counsel contends that the wife is entitled to receive the amount to the exclusion of all other persons. For the proposition that this amount is not payable to the petitioner and exclusively payable to the second respondent, the learned counsel relief upon a decision of this court in Kadiam Kusuma v. Kadiam Appachiakka. (1985-I-LLJ-194). The learned Judge, who decided the said case, on a consideration of all the provisions of 'the Act', held as follows (p. 198) :

'Thus, we see when the nominee is a dependent by virtue of the operation of Section 3(2) read with Section 4(1)(a) and Section 5(1) of the Act, the fund vests in the nominee and is payable absolutely to the nominee to the exclusion of others. It is difficult to hold that the said vesting is for a limited purpose of receiving the amount but not carrying the beneficial interest with it.'

The learned Judge after considering the provisions of 'the Act' as well as the special provisions contained in the Railway Provident Fund Rules, ultimately held that the Provident Fund vests in the dependent - nominee and payable to the nominee, and she is entitled to receive the same, and the said fund would not become the estate of the subscriber on his death. In view of the above said decision holding that the Provident Fund does not become estate of the subscriber on his death, the learned Judge held that the wife alone is entitled exclusively to the Provident Fund amount. In the present case also, no special provident fund regulations are brought to my notice to establish that the provident fund amount becomes the estate of the deceased. In view of the Judgment referred to above, I hold that the provident fund amount standing to the credit of the deceased is payable exclusively and absolutely to the second respondent-wife and it is not the estate of the deceased.

11. The only other item which has to be dealt with is the one covered by Co-operative Society Benevolent Fund payable by the first respondent Corporation. Under the provisions of Co-operative Societies Act, the legal heir and nominee is entitled to receive the same exclusively and absolutely. No provision or any rule is brought to my notice by the learned counsel for the petitioner to hold that the mother is also entitled to a share therein. The first respondent as well as the second respondent stated in their counters that this Co-operative Society Benevolent Fund is payable exclusively to the wife-second respondent herein and the same cannot be shared by the others.

12. In view of the above, the claim of the writ petitioner with reference to all the items is unsustainable and it is hereby rejected except to the extent of Group Insurance Fund. I have already stated that in so far as the Group Insurance is concerned, the petitioner is entitled to a share, but the said share and other aspects will have to be decided in a separate proceedings to be taken by her, if she is so advised. However, the second respondent is entitled to receive the said amount also.

13. This is a case where the petitioner was set up by the members of the family to file this writ petition. The petitioner is not without any support and she is not destitute. Her husband Sri K. V. Apparao is now working in T.V.S. Company and earning handsome salary. Her another son, who is un-married and staying with them, is also working in M/s. Gangappa Industries. All her daughters are also employed. In view of the fact that the petitioner's husband and her son and daughters are earning, and she is not without any support, even if any illegality is there, I am not inclined to exercise my discretion in this writ petition to grant the relief to the petitioner. I have held that the petitioner has no right whatsoever, except to the extent indicated above with regard to Group Insurance.

14. For all the above said reasons, this writ petition is dismissed subject to the observation made above in respect of Group Insurance amount. No costs.