A legatee under a Will is entitled to recover the amount of provident fund and gratuity from the nominee of the deceased, subject to the principles of res judicata and Order II, Rule 2, Code of Civil Procedure.

B.Rai, J.

1. This is plaintiffs Regular Second Appeal against the judgment and decree, dated February 23, 1979, of the learned Additional District Judge (II), Hissar, dismissing the appeal of the plaintiff and affirming the judgment and decree, dated June 1, 1978 of the Court of Senior Subordinate Judge, Hissar.

2. Brief facts of the case are that Smt. Multi Devi had filed a suit seeking perpetual injunction against defendant No.2 that he be restrained from making the payment of the provident fund etc. to defendant No.1 and in the alternative, a decree for mandatory injunction directing defendant No.1 to hand over the amount of provident fund and gratuity to her after receiving the same from the State of Haryana, She alleged that she is daughter of the brother-in-law of deceased Chandu Ram. Chandu Ram was working as Peon in the office of Deputy Commissioner, Hissar, Chandu Ram executed a registered Will, November 6, 1974 bequeathing his entire estate in favour of the plaintiff; that she being heir of Chandu Ram is entitled to get the amount of provident fund and gratuity of said Chandu Ram; that defendant No.1 alleges himself as nominee of Chandu Ram for getting the provident fund; and that in earlier Suit No. 142 of 1975 between the plaintiff and Amar Singh defendant No.1 etc. and decided in appeal on August 27, 1976, Amar Singh defendant has been declared as nominee of Chandu Ram. It was further pleaded that in any case the plaintiff is entitled to get the amount of provident fund and gratuity from Amar Singh defendant after he receives the same from the Government as she is heir of Chandu Ram on the basis of Will that notice Under Section 80 of the Code of Civil Procedure was served upon defendant No.2 but to no effect. Hence, she filed the suit for perpetual injunction and in the alternative for mandatory injunction, as mentioned earlier.

3. The suit was contested by Amar Singh. He denied that Multi Devi is heir of Chandu Ram deceased on the basis of Will or otherwise. He claimed himself to be a nominee of Chandu Ram and, thus, was entitled to claim the amount of provident fund etc. for himself. It was also pleaded that the suit was barred by principles of res judicata and also under Order II, Rule 2, Code of Civil Procedure. He also raised the objection that the plaint was not properly valued for the purpose of court-fee and jurisdiction that the suit was not maintainable in the present form; and in notice Under Section 80, Code of Civil Procedure, served by the plaintiff on defendant No. 2, he was not a party. On these allegations, he prayed for dismissal of the suit.

4. Pleadings of the parties gave rise to the following Issues:

1) Whether the deceased Chandu Ram has left any valid will in favour of the plaintiff? OPP

2) If issue No. 1 is proved whether the plaintiff is entitled to recover the amount of gratuity and provident fund? OPP

3) Whether there was any valid nomination for the amount in favour of defendant No. 1, if so to what effect ? OPD(1)

4) Whether the notice Under Section 80 C.P.C. is not valid? OPD (2)

5) Whether the suit is barred by res judicata? OP Parties

6) Whether the suit is barred under Order 2 Rule 2 CPC? OPD (1)

7) Whether the suit is not valued correctly for the purpose of court-fee and urisdiction? OPD

8) Whether the suit is not maintainable in the present form? OPD (Onus objected to)

9) Relief.

5. In view of the findings recorded in the earlier suit (No. 142 of 1975) and after considering the evidence led by the parties, under Issue No.1 it was held that the factum and validity of the Will Copy Exhibit P1 executed by Chandu Ram in favour of the plaintiff was not contested whereby Chandu Ram had bequeathed his entire estate in favour of the plaintiff to the exclusion of all heirs and relations and a finding was returned that Chandu Ram had executed a valid Will in favour of the plaintiff in respect of his entire estate. Issue No. 3 was not contested before the trial Court as in the ear