M.P. Mehrotra, J.
1. This is the plaintiffs second appeal.
2. The relevant facts are these: The plaintiff filed the suit against two defendants-respondents. Defendant-respondent No. 1 is the alleged widow of Mahanth Shankeranand Nath deceased and the defendant-respondent No. 2 is the Life Insurance Corporation of India. Two main reliefs were claimed by the plaintiff.
(1) A declaration was sought to the effect that the plaintiff was entitled to Rs. 7,000/- or any other amount due on the two insurance policies in dispute.
(2) A permanent injunction was claimed in favour of the plaintiff against the defendant-respondent No. 1 restraining her from realising the amounts due on the said two policies from the defen-dent-respondent No. 2. According to the plaint allegations there is a Math known as Bawa Sarwanath Math of which Mahanth Mahadeo Nath happened to be the Mahanth Gaddinashin and in that capacity he filed the suit. It was stated that the Mahanth had no personal interest in the income of the Math's properties. Mahanth Shankeranand Nath was the preceding Mahanth of the Math who got himself insured with the Life Insurance Corporation of India under two policies -- one dated 28-12-1957 for Rupees 25,000/- and the other dated 5-8-1960 for Rs. 30,000/-. Certain instalments of premium due under the said two policies were paid by the assured out of the Math's fund and the said policies were taken out for the benefit of the Math and belonged to the Math. Subsequently, Mahanth Shankeranand Nath resigned his Mahantship in 1961 and the plaintiff became the Mahanth of the Math. Mahanth Shankeranand Nath died on 2nd September, 1963. On his death the plaintiff claimed the proceeds of the two policies of the defendant-respondent No. 2 but the latter stated that the assured had nominated the defendant-respondent No. 1 as the nominee of the two policies and as such she was entitled to the proceeds of the policies unless the court directed to the contrary. It was further alleged in the plaint that the claim of the defendant-respondent No. 1 that she was the wedded wife of the deceased Mahanth Shankeranand Nath was incorrect and she was a mere kept and there was no valid marriage. The defendant-respondent No. 1 contested the suit. She claimed to be the legally wedded wife of the deceased Mahanth Shankeranand Nath. She further claimed that the deceased Mahanth owned personal assets moveable and immovable and the Math had no concern with the same. It was also asserted that the instalments of premium in respect of the said policies were paid out of his personal funds by the assured and not out of the Math's fund. The policies were not taken out for the benefit of the Math but were taken out for his own benefit and the benefit of the nominee. After his marriage with the defendant-respondent No. 1 the assured endorsed the policies in favour of the said defendant-respondent No. 1 and nominated her as the person to whom the amount was to be paid in the event of the death of the assured. By the will dated 18-7-1963 executed by the deceased Mahanth, she was entitled to the proceeds of the said policies. The suit was also said to be bad under the provisions of the Specific Relief Act.
3. The trial court framed eleven issues. No finding, however, was returned on issues Nos. 1 to 6 and 8 in view of the statement made by the counsel on behalf of the parties. These issues raised the question of the validity of the alleged marriage of the deceased Mahanth with the defendant-respondent No. 1. In respect of issues Nos. 9 and 10 it was observed by the trial Court that no arguments were addressed by the contesting defendants. They were therefore, treated as not pressed and decided in the negative. Issue No. 11 was as follows:
'To what relief, if any, is the plaintiff entitled?'
Issue No. 7 alone was examined on merits and decided by the trial court. The said issue was as follows:
'What was the source from which the moneys were Daid by Shankeranand Nath towards the premiums of the policies in dispute Its effect ?'
The trial Court after examining the evidence adduced by the parties held that it was not proved that the moneys towards the insurance premiums were paid from the Math's funds. It was further held that even if it were accepted that the Math's funds were utilised for making payment towards the insurance premium, still, the defendant-respondent No. 1 was in law entitled to the proceeds of the two policies and not the plaintiff. The plaintiff took out an appeal to the lower appellate Court but did not succeed. The lower appellate Court also endorsed the aforesaid findings recorded by the trial Court. Feeling aggrieved the plaintiff has come up in the instant appeal and in support thereof I have heard Shri V. K. S. Chaudhary, learned counsel for the plaintiff-appellant. In opposition, Shri K. C. Saxena, the learned counsel for the de-fendant-resopndent No. 1 has made his submissions. Shri Chaudhary's first contention is that the Courts below have not correctly interpreted the relevant provisions of the Insurance Act. The trial Court and the lower appellate Court on an interpretation of Section 39 of the Insurance Act held that the nominee was bound to be paid the amount of the policies and the Insurance Company had no choice in the matter. The Lower Appellate Court in its judgment relied upon the following three cases:
Kesari Devi v. Dharma Devi, 1962 All LJ 265 = (AIR 1962 All 355); D. M. Mudaliar v. I. I. & B. Corpn., (AIR 1957 Mad 115); M. Brahmamma v. K. Venkataraman Rao, (AIR 1957 Andh Pra 757): Shri Chaudhary's first contention is that under the Insurance Act there is a difference between assignment and nomination. Nomination is only for the purpose of enabling the insurer to get a valid discharge but it creates no title in the nominee whereas the assignment of the policy does create a title in the assignee. Counsel has drawn attention to Sub-section (5) of Section 39 of the Insurance Act and contends that the provisions therein clearly prove that the nominee gets no vested right in the policy, otherwise his heirs would be entitled to the proceeds of the insurance policy. It is contended that Sub-section (1) and Sub-section (6) of Section 39 are injunctions for the benefit of the insurer but a court of law is not bound by the said injunction and it has full right to direct payment of the policy to persons other than the nominee. Reliance has been placed on the following cases:
Kesari Devi v. Dharma Devi, (AIR 1962 All 355); Raja Ram v. Mata Prasad, (AIR 1972 All 167) (FB); Sarojini Amma v. Neelkanta, (AIR 1961 Ker 126) (FB); L. I. C. v. United Bank. (AIR 1970 Cal 513); Parbati Kuer v. Sranghar, (AIR 1960 SC 403); Radha Debi v. Controller, Estate Duty, ((19681 72 Cal WN 696); Sethalakshmi Ammal v. Controller of Estate Duty, (1966) Mad LJ 484.
4. The next contention of the learned counsel for the appellant is that an ascetic cannot have his separate property. If he acquires any it will be of the Math. Whatever property will be found to belong to the Mahanth at the time of his death will devolve not on his personal heirs but on his disciples. Further, all the offerings made to a Mahanth belong to the Math and not to him personally. For this submission reliance has been placed on the following:
(1) Mulla's Hindu Law, 1966 Edn. Section 58 and Section 111.
(2) Mitakshara, Section 8, verses (i), (ii), (iii). (iv), (v) and (vi). Colebrook's Translation Counsel also relied on para. 3 of the Memorandum of Association and on Rules 3, 14, 19, 20, 21 and 23 of the Rules and Regulations of Panchayati Akhara Shri Nirajani Gosais of Naga Sect. It may be stated that the said documents are sought to be brought on the record in this appeal with the aid of Order 41, Rule 27. Civil Procedure Code. Shri Chaudhary's next contention is that the finding of fact recorded by the two courts below to the effect that the plaintiff failed to prove that the instalments of insurance premium were paid from the Math fund is vitiated in law. He contends that the relevant entries of the cash book of the Math were fully proved to prove the payment from the fund of the Math. Moreover, the payments were made by cheques or bank draft and, therefore, there was no dispute about the payment The instalments in question were admittedly received by the insurer and no instalment was paid on the said policies after the deceased Mahanth resigned his Mahantship on 28-3-1962. It was next contended that the courts below did not properly appreciate the probative value of Ex. B-14 which is the letter dated 2-4-1960 addressed by the deceased Mahanth Shankeranand Nath to the insurer. In this letter the Mahanth wrote that he would make the nomination in respect of the policies after the election of the Mahanth was held. It was alleged in the letter that that was the practice or custom. Similarly, it was contended that the courts below did not properly appreciate the probative value of Ex. 5 which is the reply to the Income-tax Officer, A-Ward, Saharanpur on behalf of the deceased Mahanth with reference to the notice under Section 23(3) of the Income-tax Act for the assessment year 1959-60 which had been issued by the said officer to the deceased Mahanth. Counsel also drew attention to certain other exhibits on the record, viz., Ex. B-5, B-7, B-8, B-9, B-10, B-11 and B-18 which documents have been filed by the defendant-respondent No. 2 and to Exts. 1, 2 and 3 which are the plaintiff's documents.
5. Shri K. C. Saxena. learned counsel for the defendant-respondent No. 1, contended that the two courts below recorded a finding of fact in favour of his client, namely, that the premium was paid by the deceased Mahanth from his personal fund and not from the fund of the Math. In the second appeal the said finding of fact could not be assailed as it was based on good evidence and was not perverse. Both the courts below had recorded a finding of fact that the deceased Mahanth was possessed of his personal property apart from the assets of the Math. Again, the said finding was a finding of fact which could not be assailed in second appeal. Moreover, in addition to her status as the nominee of the two policies, the defendant-respondent No. 1 was also entitled to the proceeds of the policies under a registered will which had been executed by the deceased Mahanth in her favour. Learned counsel next submitted that there is no law which lays down that a Mahanth can have no separate personal property apart from the property of the Math. Indeed, his powers as a Mahanth are very extensive in respect of even the Math funds. Reliance has been placed on paras. 814 and 819 of Derret's Introduction to Modern Hindu Law. Sri Saxena further contended that the Insurance Company in law is bound to pay the proceeds of the policies to the nominee and to no one else. On the death of the deceased Mahanth, who had ceased to be a Mahanth earlier, the insurance policies did not become the assets of the Math. If a person has advanced moneys to enable the policy holder to make payments towards the premium then such a creditor can have his remedies against the policy holder for the recovery of the amount advanced by him but he has no claim to the insurance policy or its proceeds. Counsel contended that the appreciation of the evidence by the courts below was not legally defective.
6. In my opinion. Shri V. K. S. Chaudhary is right in his contention that there is a big difference between assignment and nomination under the Insurance Act. Assignment is a transfer and creates right in the assignee to claim the benefits of the policy in his own name. Nomination, however, does not amount to a transfer but it merely enables the nominee in the event of the death of the assured to get the amount of the insurance policy. In (1968) 72 Cal WN 696 it was laid down:
'Under the Insurance Act, 1938. assignment of a policy stands on a footing different from nomination, by a policy-holder, of a person to whom the money secured by the policy should be paid in the event of the death of the policy-holder. An assignment is transfer of a policy. The consequences which follow on assignment of a policy are to be found in Sub-section (5) of Section 38 of the Insurance Act, .....
Nomination by a policy-holder is governed by the provisions of Section 39 of the Insurance Act. The nomination effects no transfer or assignment of the policy which has merely the effect of nominating the person or persons to whom the money, secured by the policy, shall be paid in the event of the death of the policy-holder.'
7. In (1966) 2 Mad LJ 484 a Division Bench of the Madras High Court laid down as under:
'A nomination does not involve a transfer of the rights under a policy unlike an assignment. This distinction was recognised by a Division Bench of this Court in Mohanavelu Mudaliar v. The Indian Insurance and Banking Corporation Ltd., (1956) 2 Mad LJ 476 = (AIR 1957 Mad 115) in relation to Sections 38 and 39 of the Insurance Act. Section 38(5) clearly states the effect of an assignment as that the assignee is the only person entitled to benefit under the policy end such a person shall also be subject to all liabilities and equities to which the assignor was subject at the date of assignment. But 'nomination' as seen from Sub-section (1) of Section 39 merely means that the person nominated is the one to whom the moneys secured by the policy shall be paid in the event of the death of the assured. Unlike an assignment which is irrevocable, a nomination may, at any time before the policy matures for payment, be cancelled or changed. In the event of the policy maturing during the lifetime of the assured, the nomination will have no effect and the policy money will, in that event, be payable to the assured. It follows that while an assignee is not merely entitled to receive but has a right to the policy money itself, a nominee is no more than a person who is competent to receive the money if the assured did not survive maturity of a policy and has no right to the money.'
8. In AIR 1972 All 167 (FB) it was laid down as under:
'The policy-holder continues to hold interest in the policy till the moment of his death and if the policy matures during his lifetime then the benefit arising thereunder shall be his and not of his nominee. aS the benefit secured by the policy forms part of the estate of the deceased policy-holder, his creditors can realise their loans from the money paid to the nominee. Nominee in such circumstances would be legal representative of the deceased policy-holder.'
9. In AIR 1962 All 355 the contest was between the widow of the assured and the heirs of the nominee. The assured had died before the maturation of the insurance policy. The nominee died after the maturation of the policy but before payment of the policy money. In these circumstances, the Division Bench held that the heirs of the nominee were entitled to the payment of the money from the Insurance Company. The facts in the present case are different.
10. In AIR 1960 SC 403 it was laid down as under:
'There is no proposition of law by which insurance policies must be regarded as the separate property of the coparceners on whose lives the insurance is effected by a coparcenary and that the proceeds of an insurance policy do not belong to the joint family.
It might be true that for purposes of insurance by the family is meant the wife and children of the Karta, the assured. But the question is not whether the Karta took out the policies for the benefit of his own family but whether he did so without detriment to the joint family funds and if it was the latter, then any thing obtained with the joint family funds would belong to the joint family.'
11. It is not necessary to discuss the other cases as the point seems to be clear that the nomination creates no interest in the nominee in respect of the title to the insurance policy. I, therefore, hold that the courts below were not right in thinking that in view of her nomination the defendant No. 1 was entitled to the proceeds of the policy in dispute. The true owner's right will not be affected by the nomination. In my view, the Supreme Court case referred to above is clear on the point.
12. In the instant case, if the insurance policies in dispute be found to be the assets of the Math then, in my view, the defendant-respondent No. 1 as a nominee cannot have preference over the title of the Math to the policies ia dispute.
13. The two courts below have undoubtedly recorded findings of fact as to the source of the premiums paid and in a second appeal ordinarily I should be disinclined to interfere with such finding. However, in the facts of the present case I felt that the courts below have not properly considered the significance and effect of the documentary evidence; on the record. Ex. B-14 is a communication by the deceased Mahanth Shankeranand Nath addressed to the defendant-respondent No. 2 (Life Insurance Corporation). It is clearly recited there that the nomination would be made after the election and it also stated that such was the practice. On a reasonable interpretation oi this document it is clear that it referred to the election of the Mahanth of the Math. This document clearly negatives the case set up by the defendant-respondent No. 1 that the insurance policies were the personal or private assets of the deceased Mahanth. Ext. B-7 is the letter dated 28-7-1962 from the defendant No. 2 to the deceased Mahanth. It is stated in this letter:
'With reference to your unsigned letter dated 14th inst. we have to inform you that at the time of taking over the above policies you were having no dependants to provide for and you could not nominate any person as a nominee. You also informed us vide your letter dated 2-4-1960 that according to your rules the nominee would be nominated only after the election of the successor for the Gaddi of the Mahant. But now you want to nominate your wife Smt. Uma Sharma aged about 23 years instead of your successor for the Gaddi. Besides this your present address shows that you are residing at Dehradun. Therefore, please let us know if you have left the Mahant Shrawan Nath Math and have married yourself in a near future (?) or you changed the idea of nominating your successor due to some other reason.'
To this letter Shri Shankeranand Nath, the deceased Mahant. sent his reply dated 16-8-1962 which is Ext. B-8. He wrote:
'With reference to your letter No. PHS/Hom. dated 28-7-1962 I beg to inform you that I have resigned from the Mahantship of Shri Sharawan Nath Math and have married with my nominee Smt. Uma Sharma. Therefore. I have changed my previous idea and I have accordingly nominated my wife.'
14. In my view, these documents make it clear that at the earlier stage before his marriage with the defendant-respondent No. 1 the deceased Mahant was clear in his mind and stated so that the nominee was to be the successor in the office of the Mahant of the Gaddi. These documents (whose genuineness has not been questioned by the courts below) reasonably establish that the policies were the assets of the Math and the deceased Mahant dealt with the same on the said footing till he got himself married with the defendant-respondent No. 1. In the same way, I think, the true significance of Ex. 5 has not been appreciated by the courts below. The said exhibit is the reply addressed on behalf of Mahant Shankeranand Nath, the deceased Mahant. to the Income-tax Officer. A-Ward, Saharanpur. The said communication was sent in reply to the notice under Section 23(3) of the Income-Tax Act for the year 1959-60 which had been issue by the said I-T. Officer. This reply is dated 5th May, 1960, and it is stated there:
'Insurance. The Mahant got himself insured in the year 1950 and correspondence is going on with the Life Insurance Corporation of India, Head Quarters for the purpose of nominating the successor Mahant for the benefit of the policy. This can safely be said as a great saving of the Muth. The insured is Rs. 25,000/- and after the death of the present Mahant the next Mahant i. e. the Muth would be entitled to get this big sum. The Mahanth has not done this for the purposes of utilising the sum assured for his personal benefit or the benefit of any person whom he may nominate.'
The genuineness of this letter has also not been questioned by the courts below. A reference in this document is made to the correspondence with the defendant-respondent No. 2 which the deceased Mahant was having with regard to the question of making nomination in respect of the insurance policy. I have already referred to Ex. B-14 which is dated 2-4-1960. Its reply, which is dated 5-5-1960. therefore, seems by implication, to make a reference to the said Ex. B-14. Both these documents should be read together and when so read together, in my opinion, they make it clear that the insurance policies were really the assets of the Math. This finding based on these documents can stand despite the infirmities which have been rightly pointed out by the courts below in regard to the cash book etc., filed on behalf of the plaintiff-appellant. I do not think that the courts below were right in discarding the probative value of Ex. 5 on the ground that there was nothing to show that the counsel, who signed the said communication on behalf of the deceased Mahanth, had instructions to do so. In my opinion, there is a presumption that a counsel acts on the instructions of the client and, therefore, taking a reasonable view I think that these documents clearly prove the ownership of the Math in regard to the two insurance policies. Despite my limitation to interfere in second appeal. I think, in the instant case, I am entitled to do so inasmuch as the courts below have not correctly interpreted the documents which throw light and clearly establish the ownership of a party. It is also important to bear in mind that no instalment of premium was paid by the deceased Mahant after he ceased to be the Mahanth of the Math.
15. Sri K. C. Saxena emphasised that the powers of a Mahanth of a Math are wider than the powers of a Shebait. That may be so but the width of such powers can, in no case, extend to alienating the assets of the Math for the benefit of his dependants. In Mulla's Hindu Law, 13th Edn. para. 414 it is laid down:
'The property of a Math is held by the Mahanth as spiritual head of the institution, but the property may by the usage and custom of the institution vest in trustees other than the spiritual head. In any case, the property is held solely in trust for the purposes of the institution; surplus income must be added to the endowment and not applied for the personal enjoyment of the head of the Math. A Mahant is not a trustee in the English legal sense of the term. His functions and duties are regulated by custom. His very wide discretion as to the application of the income is subject to the obligation to manage the property so as to serve effectively the objects for which the Math exists. In the conception of Mahantship as in Shebaitship, both the elements of an office and property are blended together and neither can be detached from the other. The personal or beneficial interest of the Mahant in the endowment attached to an institution is manifested in his large powers and disposal and his right to create derivative tenures in respect of endowed properties and these and other rights of a similar character of proprietary right which, though anomalous to some extent, is still a genuine legal right. A Mahant, as a superior of a Math has in addition to his duties, a personal interest of a beneficial character which is much larger than that of a Shebait in a debutter property.'
16. In para. 415 of the said book it is laid down as under:
'As a general rule of Hindu Law, property given for the maintenance of religious worship, and all charities connected with it, is inalienable. It is competent, however, for the Shebait or Mahanth incharge of the property, in his capacity of Shebait or Mahanth and as manager of the property, to incur debts and borrow money on a mortgage of the property for the purpose of keeping up the religious worship, and for the benefit and preservation of the property. The power, however, to incur debts must be measured by an existing necessity for incurring them.
The power of a Shebait or a Mahant to alienate debutter property is analogous to that of a manager for an infant heir as defined by the Judicial Committee in Hunooman Persaud v. Mussamat Bubooee, (1856) 6 Moo Ind App 393 (PC). As held in that case, he had no power to alienate debutter property except 'in a case of need or for the benefit of the estate.' He is not entitled to sell the property for the purpose of investing the price of it so as to bring in an income larger than that derived from the property itself. Nor can he, except for legal necessity, grant a permanent lease of debutter property, though he may create proper derivative tenures, and estates conformable to usage.'
17. In para. 814 of Derrett's Introduction to Modern Hindu Law it has been laid down:
'The Mahant as spiritual leader of the sect has a customary right to offerings from the members of that sect. These are normally both for the upkeep of the Math and its purpose, which naturally include the dignity and the efficiency of the Mahant himself, and such offerings are accepted by him as acquisitions of the Math. If he takes offerings as presents to himself personally, on the other hand, he may well treat them as a personal estate, for even Sanyasis are competent in law to own personally property.'
18. In para. 819 of the same volume it is laid down:
'A mahant is entitled to be installed and put into possession of all the Math property, which will remain distinct from the Mahant's private property, though it is open to him at any time to merge his private assets with the former.'
19. In my opinion, these observations are not relevant in the instant case. Even if the deceased Mahanth had private sources of income, still, we are really concerned with the question whether the two insurance policies were the assets of the Math or whether the same were his private assets. In my opinion, the documentary evidence to which I have made a reference, clearly establishes that the insurance policies were the assets of the Math and were so declared by the deceased Mahant himself to two independent bodies like the defendant-respondent No. 2 and the Income-tax Department before any controversy arose about the ownership of the said insurance policies. Therefore, it is not necessary to discuss whether the deceased Mahanth had private sources of income or not. Even if he had, the insurance policies were held by him as the assets of the Math and it was not open to him to transfer or alienate the same for the benefit of his wife. The ownership of the Math remained unaffected by the nomination made by the deceased Mahanth after he ceased to be the Mahanth. The policies in question could not be disposed of by the Mahanth except for a legal necessity or benefit of the estate in his lifetime and he could not make the said assets the subject-matter of a will for the benefit of his wife.
20. The appeal is accordingly allowed and the decree passed by the courts below is set aside. The plaintiff's suit shall stand decreed against the defendant-respondents. In the circumstances, the parties shall bear their costs throughout.