The nominee's entitlement is subject to the rights of all other legal heirs of the subscriber, and the Scheme's provisions are insufficient to constitute the nominee or family as absolute owners of the amount due under the Scheme.

Ramakrishnan, J.

This appeal comes before us on a reference by P.K. Shamsuddin, J.

2. First respondent-plaintiff filed the suit for realisation of an amount of Rs. 11,050/- with interest and costs from the appellant-defendant. Plaintiff and defendant are respectively the mother and husband of one Gowri, who died on 11-3-1978. At the time of her death, she was a Typist in the Sales-Tax Department and was a subscriber to the Family Benefit Scheme (hereinafter referred to as the scheme') introduced by. The Kerala Government as per G.O. (P) 405/77/Fin. dated 19-10-1977. Gowri died issueless and on her death the Department awarded an amount of Rs. 10,000/- as the amount standing to her credit under the Scheme. The said amount was admittedly received by the defendant. According to the plaintiff, the defendant received the amount misrepresenting that he is the sole legal representative of deceased Gowri. The plaintiff claimed that she is the only legal heir of deceased Gowri entitled to succeed to all the assets left by her including the money due under the Scheme. The defendant resisted the claim stating that the amount due under the Scheme is intended to benefit exclusively the "family" of the subscriber as defined in the Scheme and not to any other legal heir of the subscriber. According to the defendant, the plaintiff is not entitled to the amount, as she is not a member of the "family" of the subscriber as defined in the Scheme. Further it was contended that after the commencement of Joint Hindu Family System (Abolition) Act, 1976 succession is governed by S.15 of the Hindu Succession Act and as such he is the only legal heir entitled to succeed to the assets left by the deceased.

3. The trial court on a consideration of the rival contentions found that the plaintiff-mother is the legal heir entitled to inherit the assets left by deceased Gowri. It also found that the provisions in the Scheme cannot override the general law of inheritance so as to defeat the right of the plaintiff who is the sole legal heir of the deceased to the estate of the deceased. The trial court also rejected the contention of the defendant that the amount awarded under the Scheme is intended only to benefit the "family" of the subscriber as defined in the Scheme, to the exclusion of all others including the other legal heirs of the deceased subscriber who do not come within the definition contained in the Scheme.

4. Admittedly, the Scheme in question is one framed by the Government of Kerala in exercise of its executive power and as such non-statutory in character. As per paragraph 2 of the Scheme it is made applicable to all regular employees under the State Government and other classes of employees mentioned therein and is optional. On an employee opting to join the Scheme he/she is bound to make a nomination as provided in Paragraph 5 of the Scheme, the relevant portion of which is in the following terms:

Nomination: A subscriber to the scheme should nominate only the members of his family. Family for this purpose will include wife/husband and children of the subscriber. In the case of a subscriber who does not have a family as defined above, at the time of nomination, he may nominate any other person. However, such nomination will become invalid in the event of his acquiring a family. On acquiring family, such a subscriber should make a fresh nomination in favour of his family"

Under the Scheme, on the basis of the amount contributed by the employee, the Government also makes a contribution at the rates provided in Schedule I of the Scheme. The Scheme makes elaborate provisions specifying the rate of subscription payable by the different class of employees, the contribution to be paid by the Government, the mode of recovery of subscription and the arrears thereof, disbursement of the amount due under the Scheme on death of the subscriber while in service or otherwise when he ceases to be a member of the service. Paragraph 14 deals with the proc