Thanjavur Permanent Bank Ltd. vs Dharmasamvardhani Ammal

Veeraswami, J.—This is a defendant''s appeal against a decree for the respondent to recover a certain sum of money. The respondent''s

husband was an employee of the appellant, a private Bank. There is no dispute that at his death was due to him the sum amount claimed by the

respondent on the Employees'' Provident Fund account he had with the appellant. The respondent claimed that, on his death the amount due under

the fund became vested in her free of all his liabilities. There was also no controversy as to the precise amount due from the fund. But the appellant

resisted the suit on the ground that the respondent should produce a succession certificate in order to get a decree, and that the amount was liable

to a set off claimed by the Bank on account of alleged misappropriations by the respondent''s husband during the time the was Secretary of the

appellant.

The appellant claimed the set off on the basis that there were certain rules framed to govern the provident fund and that under one of them it was

entitled to adjust amounts due from the employees against the provident fund payable to the employee. The trial Judge found that the rules alleged

by the appellant were not proved. But he proceeded to decide the case on the assumption that the statutory principles relevant to the Employees

Provident Fund were applicable to the case. On that basis, he considered that the respondent was an heir and a dependant, and that as such the

amount due under the provident fund had on the death of her husband vested in her free from any liability of his, either on account of alleged

misappropriation or any other. On that view, he also thought that, as the respondent was not suing as merely an heir, the law did not require her to

produce a succession certificate. The suit, therefore, ended in a decree.

Before us, Mr. M. S. Venkatarama Iyer, Jhas argued (1) that the trial judge was not right in his view that the rules relating to the provident fund

of the appellant were not proved and that, in any case, this Court must give the appellant an opportunity of proving those rules, and (2) that, even

assuming that there were no rules, the trial Judge was not right in applying to the case statutory principles relating to General Provident Fund, (3)

that either on the basis of one of the rules, or even outside the rules, the appellant was entitled to set off amounts misappropriated by the

respondent''s husband, against amounts due to him under the provident fund account, and (4) that in any event, as the respondent''s suit claim was

only as an heir to her husband, she was bound to produce a succession certificate, without which the trial Court could not validly pass a decree in

her favour. We shall consider these points seriatim.

It appears that the appellant did not file into the trial Court any document until after framing of issues. But in I. A. No. 280 of 1959, on the file of

the trial Court, the appellant sought that Court to excuse the delay in producing certain documents listed, of which item 91 apparently related to a

copy of the rules. The respondent filed a counter and objected to the documents being received so late. The delay was, however, excused and the

documents would appear to have been received. On 15-3-1960, the parties went to trial, when the documents, including a copy of the rules, were

marked. Apparently on the respondent raising an objection to the admissibility and genuineness of this copy, the Court marked it subject to proof

and admissibility.

The trial was over on the same day and the judgment was pronounced on 29-3-1960. No at tempt seems ever to have been made by the

appellant, in spite of the objection taken by the respondent before and at the trial, to examine some one from the Bank for the purpose of proving

the copy of the rules. In the circumstances, the trial Judge considered the question of genuineness of the copy of the rules, and, for the reasons

mentioned by it, came to the conclusion that the rules were not proved. On a consideration of all the circumstance, we are also of the same

opinion. The copy of the rules is a printed document. But that in itself is not a guarantee of its genuineness. When these rules were framed, there is

no knowing. Whether the rules as printed were only in the draft form or were finalised, there is again no light thrown.

From the list of documents appended to the affidavit in support of I. A. No. 280 of 1959, it was made to appear that these rules were framed

sometime in July, 1923. Whether they were given effect to in the form in which they appear in the copy or whether they ceased to be in operation

or modified subsequent to the enactment in 1925 of the Provident Funds Act, we do not know. No doubt, the copy of the rules has been certified

to be a true copy by the Secretary of the Bank. That again is hardly sufficient as proof of the genuineness thereof or of the rules contained therein.

He was not examined in Court. It was in these circumstances the lower Court was not satisfied that the copy of the rules was proved, and we see

no reason to differ from that conclusion.

Mr. M. S. Venkatarama Aiyar strenuously urged before us that there must have been some misunderstanding on 15-3-1960, when the trial took

place, that the appellant should have mistakenly thought that only preliminary arguments were to be urged on that day and that, therefore, it took n6

steps to prove the copy of the rules on that day. We are unable to accept this argument. As we said, the copy of the rules was, as a matter of fact,

filed into Court much earlier and the appellant must have been aware of the objection raised by the respondent to their filing. Further, there was no

question of any preliminary arguments being addressed on 15-3-1960, and we are not satisfied that there was any room for the appellant to

misunderstand the situation. When the document was marked subject to proof as to its genuineness and admissibility one would have expected the

appellant to take some steps at least after the judgment was reserved on that day following a full trial on all the issues.

As we have already mentioned, no such step was taken. Even in the grounds of appeal, the only ground taken in regard to the matter is that the

proof was reserved to a later stage when the rest of the trial might be proceeded with. But, as we know, there was no basis for the assumption that

only a part of the trial was to take place on 15-3-1960, and the rest on some other day. In our view, the appellant was far from being diligent in

respect of proving the copy of the rules. We do not think that, in the circumstances of this case, justice requires that we should give the appellant

another opportunity of proving the copy of the rules. We, therefore, reject the first point of the appellant.

We consider that the second point of the appellant is well founded. The Provident Funds Act, 1925 was enacted with the object of amending

and consolidating the law relating to Government and other provident funds. This Act contains detailed provisions regarding protection of

compulsory deposits, repayments, rights of nominees, power to make deductions, and power to extend the provisions to institutions other than

those mentioned in the schedule to the Act. The Act contains also a definition section, which, among other things, defines a, ""dependent"" to include

the wife of a subscriber.

Section 3(1) affords protection to compulsory deposits against attachment under any decree or order of any Court in respect of any debt or

liability incurred by the subscriber or depositor. Sub-section (2) of this section states that on the death of a subscriber, the fund to his credit shall

vest in his dependent, and shall, subject to certain limitations, be free from any debt or other liability incurred by the deceased subscriber. Section

8(1) empowers the appropriate Government, by notification, to extend the provisions of the Act to any provident fund established for the benefit of

employees under local bodies. Sub-section (2) gives a similar power to the Government to extend the provisions of the Act for the benefit of the

employees of any of the institutions specified in the schedule to the Act, as if the provident fund were a Government provident fund.

It is very clear from these provisions that they apply primarily to provident funds under the aegis of the Government, and the provisions, by

notification, may be extended to quasi Governmental bodies and also to other institutions which may not be governmental institutions. It is not

pretended in this case that there was any such notification by the appropriate Government extending the provisions of the Act to the fund in

question. But the trial Judge assumed that though the provisions of the Act as such may not apply, the statutory principles underlying them may well

be applied to the fund here.

Mr. M. S. Venkatarama Aiyar for the appellant contends, and we think rightly, that this assumption cannot be justified. We take this view mainly in

view of the scheme of the Act, particularly Section 8. That section, as we already indicated, contemplates that whenever an extension of the

provisions of the Act to non-governmental institutions is desired by the Government it can extend them in the manner indicated by the Legislature.

Implicit in this provision, as we think, is the fact that when the provisions of the Act can be extended only in the manner indicated, the principles

underlying them cannot be extended to private institutions in any other manner. The manner of extension of the provisions being indicated we are of

the opinion that extension of the principles of the provisions as distinguished from the provisions themselves, will not be consistent with the special

mode of extension provided by the section. We, therefore, accept the second point of the appellant.

On the third point, we have already held that the copy of the rules has not been proved. It follows, therefore, that this case should be decided on

the basis that there are no rules to govern the Provident Fund. What is contended for the appellant is that the respondent can only claim as an heir,

and that, therefore, the fund to the credit of the husband at his death would first be answerable to his debts. On that basis, it is argued that the

appellant''s claim to set off, on account of alleged misappropriation by the respondent''s husband, should be recognised and allowed. We do not

think that it is necessary for us, for disposal of this appeal, to decide whether the fund would be so liable. The question here to decide is only

whether the appellant is entitled to a set off, so to speak, in the present suit.

Order VIII Rule 6 of the Civil Procedure'' Code, no doubt, allows a defendant to claim a set off against a plaintiffs demand; but it should be noted

that the set off claimed should be in respect of an ascertained sum of money, legally recoverable by the defendant from the plaintiff: ""Ascertained

sum"" clearly means a sum which has been determined and quantified. It is not the appellant''s case that its claim on account of alleged

misappropriation by the respondent''s husband of the bank''s money has been established, and, if so, quantified or ascertained. So long as the

liability, if any, of the respondent''s husband is not established and ascertained in a precise sum, we do not see how the appellant could be

permitted to claim a set off.

Further, we doubt whether a claim of this nature, namely, that the respondent''s husband was liable for misappropriation of the Bank''s money,

could be tried in the present litigation in the guise of a set off. We are also told that, as a matter of fact, the appellant instituted another suit, in,

which the respondent figured as a defendant, in order to establish and quantify the liability of the relative defendants and of the respondent''s

husband on account of alleged misappropriation and that this suit was dismissed, and an appeal arising there from is pending disposal. In these

circumstances, we are inclined to think that the trial Judge was right in disallowing the set off claimed by the appellant.

There remains the last point of the appellant for consideration. We have already held that the statutory principles cannot be extended to the fund

in question. It follows, therefore, that the respondent could not claim in the suit, in her capacity as a dependent, as defined in the Provident Funds

Act, 1925. The only other basis for her claim is that she is an heir of her husband. It is clear, therefore, that she is obliged to produce a succession

certificate is order to get a decree in her favour. Section 214 of the Indian Succession Act clearly forbids the Court from passing a decree against a

debtor without the claimant producing a succession certificate. The trial Court was, therefore, wrong in passing a decree without a succession

certificate. We have considered the question whether we should keep'' this appeal in our file giving an opportunity to the respondent to produce the

succession certificate. In view of the language of Section 214 of the Succession Act, we think that the right course would be to set aside the decree

of the Court below and remit the suit for disposal only on the point relating to succession certificate, after giving the respondent a reasonable

opportunity to produce it. There will be an order accordingly. We make it clear that the trial Court will proceed upon the footing that all other

points argued before us are concluded by this judgment and are no longer open before the trial Court. The appeal is allowed in those terms. There

will be no costs in this appeal. The Court fee paid on the Memorandum of appeal will not be refunded.