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Shankar Vishvanath Wagh Vs. Umabai Sadashiv Wagle - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai
Decided On
Case NumberFirst Appeal No. 179 of 1911
Judge
Reported in(1913)15BOMLR320; 19Ind.Cas.736
AppellantShankar Vishvanath Wagh
RespondentUmabai Sadashiv Wagle
DispositionSuit dismissed
Excerpt:
.....a decree against the deceased husband of the plaintiff and in execution of the decree attached a policy of insurance effected by the deceased upon his own life. the policy was expressed to be for the benefit of his wife. under its terms, the insurance company promised on proof of the death of the assured to pay the policy monies to the trustee who might be appointed by the assured by separate writing and in default of trustee to the beneficiary (i.e., the plaintiff'). the plaintiff applied to raise the attachment. her application being rejected, she filed the present suit for a declaration that the policy was not liable to attachment in execution of the decree :-;dismissing the suit, that as the assured did not divest himself of his beneficial interest under the policy either by..........he might exercise for his own benefit'. the policy is a contract between the deceased and the insurance company expressed to be for the benefit of the wife of the assured whereby the company promise on proof of the death of the assured to pay the policy monies to the trustee or trustees who may be appointed by the assured by separate writing and in default of trustees to the beneficiary (i.e. the widow of the assured) and if the beneficiary be dead to the assured's heirs, executors, administrators or assigns. unless and until trustees should be appointed on behalf of the wife it was in the power of the assured at any time to put an end to the contract by ceasing to pay the premia or otherwise to defeat the expectation of his wife by assigning the policy to a creditor. he could.....
Judgment:

Basil Scott, Kt., C.J.

1. The defendants are judgment-creditors of Sadashiv Nilkanth, the deceased husband of the plaintiff. In execution of their decree they attached a policy of insurance effected by the deceased upon his own life. The policy was expressed to be for the benefit of his wife, and the plaintiff therefore applied to raise the attachment. Her application being, rejected she filed this suit for a declaration that the policy is not liable to attachment in execution of the defendants' decree.

2. The policy is attachable if it falls within the description contained in Section 60 of the Civil Procedure Code as 'a security for money or other saleable property belonging to the judgment-debtor over which he had a disposing power which he might exercise for his own benefit'. The policy is a contract between the deceased and the Insurance Company expressed to be for the benefit of the wife of the assured whereby the Company promise on proof of the death of the assured to pay the policy monies to the trustee or trustees who may be appointed by the assured by separate writing and in default of trustees to the beneficiary (i.e. the widow of the assured) and if the beneficiary be dead to the assured's heirs, executors, administrators or assigns. Unless and until trustees should be appointed on behalf of the wife it was in the power of the assured at any time to put an end to the contract by ceasing to pay the premia or otherwise to defeat the expectation of his wife by assigning the policy to a creditor. He could divest himself of his beneficial interest under the policy only by assignment in writing as provided by Section 130 of the Transfer of Property Act or by signed declaration of trust as provided by Section 5 of the Trusts Act. He adopted neither course. The policy on his death therefore formed part of his estate, the right of action against the Company being in his executors or other representatives untrammelled by any trust in favour of his wife. See Cleaver v. Mutual Reserve Fund Life Association [1892] 1 Q.B. 147. This distinguishes the case from In re Flavell (1883) 25 Ch. D. 89. We were asked to adopt the view taken by a Bench of this Court in Bhikaji v. Dattatraya (1900) 2 Bom. L.R. 888 that the policy was given in effect to the wife-subject to the condition that she should survive the donor. In that case the rights of creditors of the assured did not come under consideration nor do the provisions of Chapters VII and VIII of the Transfer of Property Act appear to have been brought to the notice of the Court. We cannot, therefore, regard it as any authority upon the point which we have to decide.

3. It was in order to confer upon wives claiming under such policies the position of cestuis que trustent that the Married Women's Property Act, 1870, Section 10, was enacted which in India is reproduced in Section 6 of Act III of 1874. In Holt v. Everall (1876) 2 Ch. D. 266 Lord Justice Hellish said: ' Supposing that before the Act a married man had effected a policy on his own life, it might be doubtful whether, before the Act, a simple declaration on the face of the policy that it was for the benefit of his wife and for his children, would have been sufficient to make a trust for the wife and children'. It appears from Bunyan on Insurance (p. 463) that before 1870 the difficulty was sometimes overcome by getting the Insurance Company to declare themselves trustees for the wife. This however has not been done in the present case, indeed the Company stipulate by the policy that it shall have no concern with or be responsible for the validity or proper execution of any trusts to which the sura payable may be subject; and as the Act of 1874 does not apply to Hindus the plaintiff cannot claim the benefit of its provisions.

4. It was however argued that as under Section 2 Clause (d) of the Contract Act the consideration might be provided by some other person, the plaintiff could sue on a policy the consideration for which was provided by her husband. There is however nothing in the present case to show that the plaintiff was either the promisor or the promisee and therefore a party to the agreement. There is nothing in the Act to show an intention that a person not a party to the contract can sue on it. So far as it goes Section 2 (i) is an indication to the contrary. In Samuel v. Ananthanatha I.L.R. (1883) Mad. 351, relied for the plaintiff, the contract was between the plaintiff and the defendant though a third party supplied the consideration. In Chinnaya Rau v. Ramaya I.L.R. (1881) Mad. 187 there was also a direct agreement between the plaintiff and the defendants.

5. For the above reasons we reverse the decree of the lower Court and dismiss the suit with costs throughout on the plaintiff.


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