The appeal is preferred against the judgment and decree passed in O.S.No.108 of 1991, dated 02.08.1993, on the file of Subordinate Court, Nagercoil. The suit was filed for a declaration that the plaintiffs 1, 5, 6 and 7 and the 5th defendant alone is entitled for a sum of Rs.31,324/- with interest available with the first defendant/ Regional Employees Provident Funds.
2.The brief facts of the case are as follows:-
One Sankaranarayana Pillai was contributing to his Employees Provident Funds Scheme in K.R.No.914/1 with the first defendant/Regional Employees Provident Funds at Kerala. He had nominated his wife one Chellammal, as nominee. The said Chellammal died on the morning of 17.05.1986 and on the evening of 17.05.1986, the said Sankaranarayana Pillai had also died. One Kolappan and Sundaram are his sons and Meenakshi and Padmavathi are his daughters. The said Kolappan predeceased his parents leaving behind the first plaintiff (widow) and the plaintiffs 2 to 7 and the 5th defendant, as his legal heirs. The second defendant is the son of Sankaranarayana Pillai. The defendants 3 and 4 are the daughters. There is a dispute between the parties regarding who has to receive the amount available with the first defendant, under the Employees Provident Funds Scheme. However, the present suit was filed by the legal heirs of the predeceased son Kolappan, to declare that they are entitled to receive the money excluding the son and daughters of Sankaranarayana Pillai.
3.Before the trial Court, they relied on the Scheme Rule 70(ii) of the Employment Provident Fund and Miscellaneous Provision Act, 1952, which would state that the widow and the minor children of the predeceased son are entitled to receive the Provident Fund.
4.The learned trial Judge accepted the case of the plaintiff and said that the plaintiff 1, who is a widow, and 5, 6 and 7, who are the children of predeceased son of Kolappan, alone are entitled to the amount. Aggrieved by the same, the defendants 2 to 4 have preferred the present appeal on the ground that the trial Court is wrong in excluding the other sons and daughters of the person, who was the member in the Employees Provident Funds.
5.The learned counsel for the appellant submitted that the interpretation of the Rule 70(ii) by the trial Court is wrong and the members of the family of the deceased has to share the amount equally. The learned counsel for the first respondent, Regional Employees Provident Funds, would submit that whatever being the decision of the Court, they will abide by it.
6.The learned counsel for the respondents 3 to 9 would submit that as per the Rule 70(ii), the widow, minor sons of the predeceased Kolappan, are entitled for the amount and the sons, who have attained majority and the married daughters whose husband are alive are not entitled to.
7.The point for consideration in this appeal is whether the trial Court is right in recognising the right of the first plaintiff and the plaintiffs 5, 6 and 7 to receive the fund available in the Scheme excluding the other sons and daughters of the member in the Employees Provident Funds Scheme.
8.The facts and relationships are admitted. As stated earlier, the plaintiffs are the widow and children of the predeceased son Kolappan. The defendants 2 to 4 are the sons and daughters of the deceased Sankaranarayana Pillai.
9.Rule 70(ii) of the E.P.F. & M.P. Act, 1952, reads as follows:-
(i)...
(ii) If no nomination subsists or if the nomination relates only to 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 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 member 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 maturity at the time of the member's death.
10.Under Rule 70(ii), if no nomination subsists the amount stands to the credit of the member shall become payable to the members of his family in equal shares. Proviso states that no shares shall be payable to
(a) sons who have attained majority;
(b) sons of the deceased son who have attained majority;
(c) married daughters whose husbands are alive;
(d) married daughters of the deceased son whose husbands are alive;
11.As these persons are excluded, the intention of the scheme is that the minor sons and widow daughters are preferred than the sons who have attained majority. The same proposition applies to the sons of the deceased son, i.e, the minor grandsons are preferable to the major grandchildren of the member and widowed grand daughter is preferable to married granddaughter. The proviso is clear. Further, the second proviso reads, in case of widow and the children of the predeceased son they shall receive between them in equal parts only the share which the predeceased son would have received, if he had survived the member and had not attained the age of maturity at the time of member's death.
12.In the present case, the first plaintiff is the widow of the predeceased son. The plaintiffs 2 to 4 and 5th defendant, who are the other children of the predeceased son, have attained majority at the time of filing of the suit. Under the above said proviso, the widow and the minor son are entitled to the payment. The trail court is wrong in including the plaintiffs 5 and 6 who have attained majority at the time of filing the suit. Whether the entire amount is payable to them is the question. Under the second proviso they shall receive between the them in equal parts only the share which the said Kollappan would have received. In other words the share of the widow and the son of the predeceased son is restricted. As stated earlier the intention of the rule is;
1. payable to the members of his family in equal shares and
2. preference is to be given to the minor sons, minor grand sons and widowed daughters. The sons of the predeceased son will share with the widow of the predeceased son only the share which the predeceased son would have received, if he had survived the member. This restriction is not applicable to the minor sons and widowed daughters.
Under clause (iii) if no person is available under clause (ii) the amount is payable to the persons legally entitled to. Then the minor son of the predeceased son will be sharing the amount with the members of the family in equal share.
13.The trial Court is wrong in allowing the entire amount to the widow and the minor children of the predeceased son, when the predeceased son is entitled for only the share which he would have received along with the other members of the family. Therefore, the findings of the trial Court is wrong.
14.Therefore, the amount has to be shared between the sons and the daughters of the predeceased Sankaranarayana Pillai, who had two sons and two daughters. Each entitled to 1/4th share. The first plaintiff and the 7th plaintiff being the widow and minor son of the predeceased son, will receive only 1/4th share and the defendants 2 to 4 will also receive each 1/4th share.
15.Pending appeal, the second appellant died and the Legal Representative are not brought on record and therefore, the appeal, as against the second appellant, was dismissed as abated. However, the share cannot be denied to one daughter, the legal heirs of that second appellant are entitled to her 1/4 share.
16.In the result, the appeal is partly allowed and the decree of the trail court is modified to the extent indicated above. No costs.
MPK To The Subordinate Judge, Nagercoil.