1. This is an appeal against a decree of the First Class Subordinate Judge with appellate powers at Broach dismissing the appellant's appeal against an order passed by the Subordinate Judge of Ankleshvar under Section 47, Civil Procedure Code. The facts are that a creditor obtained a decree against the estate of one Hormasji Ardeshir Mirapurwala represented by his wife Bai Dinbai, who had taken out letters of administration to the estate, and also against some other heirs of the deceased Hormasji, and in execution of that decree, the judgment-creditor sought to attach an insurance policy on the life of Hormasji. The widow contended that that policy did not form part of her husband's estate but was her own property. The objection was considered by the Subordinate Judge, who found that the insurance money was part of the estate of the deceased Hormasji, and, therefore, ordered execution to proceed. The widow appealed, but in appeal the order of the lower Court was affirmed, and the appeal dismissed, and she now makes this second appeal.
2. A preliminary objection has been taken by the learned Counsel for the respondent that no appeal lies, on the ground that the objection taken by the widow was one under Order XXI, Rule 53, and the Court having under Rule 58 decided that the objection was unsustainable, the only remedy of the widow was to bring a suit under Order XXI, Rule 63, and no appeal lay. But, as a matter of fact, the objection raised by the widow was not in her capacity as heir of the deceased Hormasji, but in her own right. The point is covered by authority. If property is attached as property of the deceased judgment-debtor in the hands of his legal representative, and the latter objects that it is not the property of the deceased but his own property, the case falls under Section 47, for the legal representative is not setting up a jus tertii. That has been held by this Court in Murigeya v. Hayat Saheb I.L.R. (1898) Bom. 237 followed recently in Ursula v. Pana : AIR1928Bom534(1) . In this latter case all the rulings on the subject are referred to. It follows, therefore, that the fact that the widow objected to the attachment claiming the insurance policy as her own property and not as forming part of the estate of her husband does not remove the case from the operation of Section 47 of the Code, and, therefore, no separate suit would lie, but the matter has to be determined in execution proceedings, and an appeal will lie in the ordinary course.
3. Turning to the merits, the learned advocate for the appellant relies on Section 6 of the Married Women's Property Act, III of 1874. That section says:
A policy of insurance effected by any married man on his own life, and expressed on the face of it to be for the benefit of his wife, or of his wife and children, or any of them, shall enure and be deemed to be a trust for the benefit of his wife, or of his wife and children, or any of them, according to the interest so expressed, and shall not, so long as any object of the trust remains, be subject to the control of the husband, or to his creditors, or form part of his estate.
4. It is to be noted that in the first Court the pleader representing the widow expressly said that he did not take shelter under this Act, and in the memorandum of appeal to the lower appellate Court there is no ground under the Married Women's Property Act. But, as a matter of fact, the case seems to have been argued on that Act before the first appellate Court, and a good deal of time has been taken up this morning in discussing whether this Act will apply. Section 2 of the Act makes it extend to the whole of British India, and, so far as regards subjects of Her Majesty, to the dominions of Princes and States in India in alliance with Her Majesty. The appellant is a Parsi, and therefore the Act would apply, but she is described in the darkhast as residing at Mirapur in the Rajpipla State and her husband was called Mirapurwala, thereby indicating some connection with this place Mirapur-probably his ancestors originally came from there. As no stress was laid on this Act before the first Court, no issue was framed on this point, and no evidence was led as to the actual domicile of the plaintiff, and therefore the appellate Judge was quite right when he says that there is no evidence to show that the deceased Hormasji Ardeshir or his widow Dinbai, the appellant, was at any time the subject of Her Majesty before they or either of them became domiciled in Mirapur under the Rajpipla State. It has been argued by the learned advocate for the appellant that it is the duty of the respondent to show that they were not domiciled in British India. In the absence of evidence, where a party is described as residing in a particular State or under a particular jurisdiction, and he desires to show that he is not a subject of that jurisdiction, I should think the burden would be on him to show that though resident in a Native State or elsewhere, he is in fact a British Indian subject. There is no evidence in this case, and, therefore, it is doubtful whether the Married Women's Property Act would apply, but this is a point of very minor significance, because I am quite clear on the terms of the policy that it is not a policy within the meaning of Section 6 of the Act. The policy itself is not forthcoming, but the company have written a letter, which is Exh. 19, in which the terms of the policy are given, and it appears that the sum payable under the policy was payable at death or at age fifty-five with profits to the insured, but in the event of his death before his wife it was to go to the wife, and failing her, to the insured, his executors, administrators or assigns. Now it cannot be argued that this is a policy which falls within Section 6 of Act III of 1874. The policy contemplated there is one which is for the benefit of his wife or of his wife and children. On the face of it this policy is for the benefit of the assured himself if he attains the age of fifty-five, and if he had attained the age of fifty-five, the policy would have been payable to him, and would undoubtedly have formed part of his estate, nor would his wife have had any interest in it. The person whom the Act contemplates as receiving the actual payment of a policy under Section 6 is the Official Trustee of the Presidency in which the office of the insurance company is situate, and it must be presumed that such a policy would be payable to him alone. In the present case, if the insured had not died before attaining the age of fifty-five, payment could not possibly have been made to the Official Trustee, the Administrator-General in this Province. It is quite true that the learned Judge of the lower Court has committed an error when he refers to Shankar Vishvanath v. Umabai I.L.R. (1913) Bom. 471 : 15 Bom. L.R. 320 because that case is a case of Hindus, and it is expressly stated at p. 479, that as the Act of 1874 does not apply to Hindus, the plaintiff could not claim the benefit of its provisions, but apart from that, in this case the terms of the policy are such, in my opinion, as not to fall within Section 6 of the Married Women's Property Act, assuming that Act to apply, and therefore the policy must be regarded as forming part of the estate of the deceased Hormasji, and the appeal must be dismissed with costs.
5. I concur. The appellant can only succeed if her case is governed by Section 6 of the Married Women's Property Act. The policy in this case is an endowment policy payable at death or at the age of fifty-five with profits, and it is made payable to the assured's wife Dinbai provided she survives the assured, and failing her, to the assured, his executors, administrators or assigns. Section 6 of this Act contemplates that in order that there may be a valid trust created for the purpose of the wife or the wife and the children of the insured, the policy must be expressed on the face of it to be for the benefit of them, and that the policy shall not, so long as any object of the trust remains, be subject to the control of the husband or of his creditors or form part of his estate. This means that the trust that is to be created must be a trust which is not conditional upon some event happening, but which must come into operation just at the time when it is created by the policy being made payable to either the wife or the wife and children. Here, if the assured had survived the age of fifty-five, the amount of the policy would have been payable to him alone, even though the wife is shown to be the beneficiary. That shows that no trust is created within the meaning of this section, and, therefore, even though we have in this case the accident of the assured dying before the age of fifty-five, it cannot be said that the wife was created a beneficiary, and the company became a trustee for the wife from the time when the amount was made payable to her. Besides, this section contemplates that when the amount becomes payable, it shall be paid to the Official Trustee of the Presidency, which also means that the amounts is to be payable not to the assured, but becomes payable after his death. Therefore, in this ease, Section 6 would not apply at all, as the policy is not one in which the amount is made payable after the death of the assured. That being so, it is not necessary to dwell upon the other aspect of the case, i. e., as to the applicability of this Act on the ground that the appellant, who is residing in the Native State of Rajpipla, can be regarded as being domiciled in British India for the purpose of this Act. Although this point seems to have been argued in the lower appellate Court, the pleader on behalf of the appellant expressly stated in the trial Court that he did not wish to take advantage of the provisions of this Act. It was clearly on the appellant to prove not only that the Act applied to her, but that she can get the benefit of Section 6 of the Act. In view of the fact that she has been described in the decree as residing in the Native State of Rajpipla, it was for her in the first instance to prove that the Act was applicable to her, and if she had pleaded that, then an issue would have been framed and evidence led on this point, but no such thing is done because this case has been abandoned in the trial Court. Even assuming that the appellant is entitled to make or can be allowed to make that case here in second appeal, it would have been necessary to send this case down to the lower Court for evidence, but in view of the fact that her case is not governed by Section 6, even assuming: that the Act is applicable to her, it is not now necessary to dwell any laager on this aspect of the case. I, therefore, agree that this appeal should be dismissed with costs.