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S.M. Enayatullah Saheb Vs. S.A.K. Jeelani Saheb and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1942Mad136; (1941)2MLJ740
AppellantS.M. Enayatullah Saheb
RespondentS.A.K. Jeelani Saheb and anr.
Cases ReferredVide Ma Yait v. The Official Assignee
Excerpt:
- - , who were dealing with the matter that the amendment of section 6 introduced by the amending act of 1923 clearly implied that the full bench decision was wrong. but if the performance of the trust becomes impossible or the trust fails or is otherwise satisfied or comes to an end, the policy money will form part of the estate of the insured. it was therefore perfectly competent to the several defendants to revoke the trust created by the policies in their favour. as the first defendant company have partly failed and partly succeeded, i direct the company to bear their own costs in the memorandum of objections......that section 6 of the act applied to the policy in question. this decision would govern a similar policy effected by a mohammadan male. the bombay high court in shankar vishwanath v. umabhai i.l.r.(1913) 37 bom. 471 took a different view on a claim made by a widow in respect of a policy effected by her husband for her benefit and it was held that as the act of 1874 did not apply to hindus, she could not claim the benefit of its provisions. this view was followed in ishani dasi v. gopal chandra dey 18 c.w.n. 1335 and the learned judges were of the opinion that:..although section 2 of the act expressly provides that nothing in the act applies to any married woman who at the time of her marriage professed the hindu amongst other religions, or whose husband at the time of such marriage.....
Judgment:

Venkataramana Rao, J.

1. This appeal raises a question of some importance touching the applicability of Section 6 of the Married Women's Property Act to policies of life insurance effected in 1905 by a Mohammadan on his own life for the benefit of his children. The subject-matter of the suit out of which this appeal arises relates to five policies being Nos. 65284 to 65288. The plaintiff is the father, defendants 2 and 4 to 9 are his sons and defendants 10 and 11 are his daughters. Policy No. 65284 was effected for the benefit of the second defendant, No. 65285 for the benefit of the fourth defendant, No. 65286 for the benefit of the eighth defendant, No. 65287 for the benefit of one of his daughters who is not a party to the suit and No. 65288 for the benefit of the tenth defendant. The first defendant is the Oriental Life Assurance Company with whom the policies were effected. The third defendant is the Official Assignee of Madras representing the estate of the second defendant. The suit is for a declaration that the plaintiff is the owner of the said policies and that none of the several defendants for whose benefit the policies were effected are entitled to claim any rights thereunder. The basis of the claim is that the Married Women's Property Act does not apply to Mohammadans and therefore under Section 6 of the Act none of the children for whose benefit the plaintiff effected the policies will obtain any benefit thereunder; that even assuming they obtained such benefit, it was released or transferred in favour of the plaintiff in pursuance of a family arrangement by a release deed dated 31st July, 1935. The first defendant company has contended that the policies were effected in Bombay and that the Married Women's Property Act is 'not applicable to the policies in question as they were effected long before 1923. The contention on behalf of defendants 3 and 4 was that under Section 6 of the Married Women's Property Act a trust was created in favour of the several beneficiaries for whose benefit the policies were effected, that there was no family arrangement, that the deed of release on which reliance was placed by the plaintiff could not put an end to the trust in their favour and therefore the plaintiff is not entitled to any declaration. The parties did not adduce any oral evidence and contented themselves with filing certain documents. The learned City Civil Judge came to the conclusion that the Married Women's Property Act applied to the policies in question, that there was a family arrangement by which the parties surrendered their rights in favour of the plaintiff and the trust was therefore put an end to. On these findings he gave a declaration in favour of the plaintiff. The fourth defendant has preferred this appeal. The first defendant has filed a memorandum of objections raising a contention that the Married Women's Property Act would not apply to these policies and that in any event the second defendant not being a party to the deed of release it would not bind him.

2. The first question which arises for decision is whether Section 6 of the Married Women's Property Act governs the policies in question. In Balamba v. Krishnayya : AIR1914Mad595 , the applicability of Section 6 of the Married Women's Property Act to a policy of insurance effected by a Hindu male on his own life for the benefit of his wife and children came for decision and it was held that Section 6 of the Act applied to the policy in question. This decision would govern a similar policy effected by a Mohammadan male. The Bombay High Court in Shankar Vishwanath v. Umabhai I.L.R.(1913) 37 Bom. 471 took a different view on a claim made by a widow in respect of a policy effected by her husband for her benefit and it was held that as the Act of 1874 did not apply to Hindus, she could not claim the benefit of its provisions. This view was followed in Ishani Dasi v. Gopal Chandra Dey 18 C.W.N. 1335 and the learned Judges were of the opinion that:..although Section 2 of the Act expressly provides that nothing in the Act applies to any married woman who at the time of her marriage professed the Hindu amongst other religions, or whose husband at the time of such marriage professed that religion and does not expressly exempt their children from the operation of the Act. the intention of the Legislature taking the Act as a whole, is to exclude the children also from the benefits of Section 6 of the Act.

3. They dissented from the decision in Balamba v. Krishnayya : AIR1914Mad595 . Apparently in consequence of this conflict of view the Married Women's Property Act was amended in 1923 by an amending Act and the following proviso was introduced to Section 6:

Notwithstanding anything contained in Section 2 the provisions of Sub-section (1) shall apply in the case of any policy of insurance such as is referred to therein which is effected by any Hindu, Mohammadan, Sikh or Jain in Madras, after the 31st day of December, 1913 or in any other part of British India after the 1st day of April, 1923.

4. After this Amending Act came into force, the question of the applicability of the Act to life polices effected before 1913 came up for consideration in our High Court and it was contended before Venkatasubba Rao and Madhavan Nair, JJ., who were dealing with the matter that the amendment of Section 6 introduced by the Amending Act of 1923 clearly implied that the Full Bench decision was wrong. The contention was that as the proviso says:

the provisions of Sub-section (1) shall apply in the case of any policy of insurance such as is referred to therein which is effected by any Hindu, Mohammadan, Sikh or Jain in Madras after the 31st December, 1913,

it indicates that the Act would not apply to a policy effected before that date. This contention was repelled and the learned Judges held that the Full Bench decision governed the case and that all the policies effected before 1923 would be governed by the Act of 1874 as it stood before the amendment. Subsequent to this decision a question arose with reference to a claim made by a widow of a Hindu male on a policy effected in Calcutta by her husband for her benefit and the learned Judges, the Chief Justice and Bardswell, J., in The National Insurance Co., Ltd., Calcutta v. Seethammal : AIR1933Mad764 , made the following observations:

The point to be considered by us here is, where was this policy of insurance effected? If it was effected in Madras, then a trust has been created in favour of the assured's wife and the policy money has to be paid to the Official Trustee of Madras; and that is by reason of Section 6 of the Married Women's Property Act. If, on the other hand, the policy was effected in Calcutta, it having been effected in 1919, that is to say, before 1923, there is no trust and letters of administration will have to be taken out by the widow of the assured for the purpose of obtaining the policy money.

Neither the Full Bench decision in Balamba v. Krishnayya : AIR1914Mad595 , nor the decision in Rama Rao v. Kristnamma : AIR1929Mad825 , was noticed and considered. So far as this High Court is concerned, the Full Bench decision in Balamba v. Krishnayya : AIR1914Mad595 is a clear authority for the position that Section 6 of the Married Women's Property Act would govern a policy effected by a Mohammadan male for the benefit of his children. No doubt it may be contended, at it was contended in Rama Rao v. Kristnamma : AIR1929Mad825 , that the mention of date 'December, 1913' in the proviso introduced by the Amending Act was made with reference to the Full Bench decision in Balamba v. Krishnayya : AIR1914Mad595 , and it was the intention of the Legislature to make it plain that having regard to the interpretation placed on Section 6 in Balamba v. Krishnayya : AIR1914Mad595 , all policies effected after 1913 should be governed by the Act though the Act was passed in April, 1923. But the proviso cannot be construed as a declaratory enactment declaring what the previous law was and therefore from the positive nature of the enactment that from a particular date the Act should apply, it does not arise by necessary implication that the Act would not apply to a policy effected before that date. Whatever it is, so long as the Full Bench decision in Balamba v. Krishnayya : AIR1914Mad595 , stands it must be treated as the governing law so far as our Court is concerned.

5. If Section 6 of the Act were to apply there can be no doubt that a trust was created in favour of the several defendants for whose benefit the suit policies were effected though the interest taken by them was contingent. Justice Tomlin in dealing with a similar policy in Fleetwood's Policy, In re (1926) Ch. 48 observed thus:

It is true it is expressed to be for the benefit of his wife in a certain event only, but the fact that the benefit is of a limited or contingent character does not prevent it from being a benefit within the meaning of this Act. I think therefore that the policy creates a trust in favour of the wife, but only in the terms of the trust.

The next question is what is the effect of the family arrangement and the consequent execution of the release deed by the defendants who executed it? It is contended before me that such a release is invalid and inoperative having regard to the express language of Section 6 of the Act which says that so long as the object of the trust remains it can never become the property of the plaintiff. It is contended that the expression 'object' in the section means the beneficiary and so long as the beneficiary is alive, it must be taken that the object of the trust remains. This section is borrowed from the provisions of the English Act (S. 10, Married Women's Property Act, 1870) and there is a conflict m English law as to what the expression 'object' means. According to one view the expression 'object' means beneficiary; according to another view, it means purpose (vide In re Collier (1930) 2 Ch. 37 and Cousins v. Sun Life Assurance Society (1933) Ch. 126 . It seems to me that it is not necessary to deal with this conflict in the view I am taking of the effect of the deed of release.

6. Section 6 of the Married Women's Property Act provides that the policy money should not form part of the estate of the insured only so long as the object of the trust remains. But if the performance of the trust becomes impossible or the trust fails or is otherwise satisfied or comes to an end, the policy money will form part of the estate of the insured. In Cousins v. Sun Life Assurance Society (1933) Ch. 126 Romer, L.J., in construing Section 11 of the Married Women's Property Act, 1882--corresponding to Section 6 of the Indian Act--observed that the proviso meant that:

The policy moneys shall not form part of the estate of the insured or be subject to his or her debts until the trusts have come to an end.

7. Therefore the trust can come to an end by revocation of it. Section 78 (a) of the Trusts Act provides that a trust can be revoked where all the beneficiaries are competent to contract by their consent. It was therefore perfectly competent to the several defendants to revoke the trust created by the policies in their favour. Under Section 58 of. the Trusts Act it is also clear that it is competent for a beneficiary to transfer his interest. The interest taken by the several defendants under the policies though contingent can be transferred because the right created under the policies is not in the nature of a mere right to sue Vide Ma Yait v. The Official Assignee (1929) 58 M.L.J. 83 : 1929 L.R. 57 IndAp 10 : I.L.R. 8 Rang. 8(P.C). If the beneficiary is capable of transferring his interest, he can also release it. The effect of the deed of release therefore is to put an end to the trust. Once the trust is put an end to, the plaintiff becomes the owner of the policies and the moneys payable thereunder. The fourth defendant was a party to the deed of release and he was competent to contract on that date. On his own admission the deed of release was executed on account of the family arrangement by which the plaintiff settled his own property on his children. I would therefore dismiss the appeal of the fourth defendant with costs, one set to be shared between the first and second respondents.

8. In regard to the memorandum of objections it must be noticed that the second defendant was not a party to the release deed. The finding of the learned City Civil Judge as to the existence of the family arrangement was based on the admission made in the deed of release and as the second defendant was not a party to it, it will not be open to the Court to bind him by the said document. Therefore the declaration so far as the second defendant is concerned must be set aside. The memorandum of objection is allowed only so far as the second defendant is concerned. I may point out that the first defendant company stated before the learned City Civil Judge that they, did not dispute the jurisdiction of the Court to deal with the case and before me too, the question of jurisdiction was not raised. As the first defendant company have partly failed and partly succeeded, I direct the company to bear their own costs in the memorandum of objections.


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