Skip to content


P. Balamba Vs. K. Krishnayya and 3 ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai
Decided On
Judge
Reported in(1914)ILR37Mad483
AppellantP. Balamba
RespondentK. Krishnayya and 3 ors.
Cases ReferredWeston v. Richardson
Excerpt:
married women's property act (iii of 1874), section 6 - applicability to hindus--insurance--policy for the benefit of wife and children, if creates a trust--policy amount payable to the executors, administrators and assigns of the assured--right of beneficiary to enforce--presumption of advancement. - - 3. it is argued before us that that judgment ought not to be followed, and that the act is applicable to cases like the one before us. it appears to me, therefore, that section 6 does clearly apply, and i am confirmed in this view by a consideration of the general scheme of act iii of 1874, which shows also why the clause in section 2 is confined to the married women referred to therein. if a married woman had already separate property and if she chose to make any arrangement by means of.....sankaran nair, j.1. the first defendant is the daughter, and defendants now. 2 and 3 are the sons, of one deceased venkataratnam, who insured his life for rs. 2,000 which the insurance office agreed to pay to his wife and children. the plaintiff got a decree against venkataratnam and he claims the insurance money towards the decree, including the rs. 400 that fell to the first defendant.2. the first question for decision is whether the money insured is protected by the married women's property act (iii of 1874) or whether it is a part of the estate of the deceased. the judge, following the decision in oriental government security life assurance, ltd., v. vanteddu ammiraju i.l.r. (1912) mad. 162 as he was bound to do, held that the act did not apply. this is an appeal from that decision.3......
Judgment:

Sankaran Nair, J.

1. The first defendant is the daughter, and defendants Now. 2 and 3 are the sons, of one deceased Venkataratnam, who insured his life for Rs. 2,000 which the Insurance Office agreed to pay to his wife and children. The plaintiff got a decree against Venkataratnam and he claims the insurance money towards the decree, including the Rs. 400 that fell to the first defendant.

2. The first question for decision is whether the money insured is protected by the Married Women's Property Act (III of 1874) or whether it is a part of the estate of the deceased. The Judge, following the decision in Oriental Government Security Life Assurance, Ltd., v. Vanteddu Ammiraju I.L.R. (1912) Mad. 162 as he was bound to do, held that the Act did not apply. This is an appeal from that decision.

3. It is argued before us that that judgment ought not to be followed, and that the Act is applicable to cases like the one before us. Section 6 of Act III of 1874 runs thus:

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, as 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.' The Act applies to the whole of British India, Now, the words of the section seem to be clear, and according to it, the policy of insurance effected by the deceased Venkataratnam should enure for the benefit of the first defendant and others. But it is argued that Section 2 shows that this Section 6 does not' apply to Hindus. The clause relied upon runs thus:But nothing herein contained applies to any married woman who at the time of her marriage professed the Hindu, Muhammadan, Buddhist, Sikh or Jaina religion, or whose husband, at the time of such marriage professed any of those religions.' Now, it is obvious that this clause applies only to a married woman who professed any of the religions referred to in the section, or who may be a follower of any other religion, say Christianity, but whose husband professed any one of those religions. The proviso, therefore, does not apply to all Hindus and it applies to others than Hindus, It does not apply to males who profess those religions. That this is so, appears to be clear to me from the next clause which enables the Governor-General in Council to exempt from the operation of the Act members of any race. If, therefore, males who follow those religions have to be excluded, it must be by an order of the Governor-General in Council. This appears to be superfluous if the exemption clause applied to them also. The last clause of that section only states that the Section 4 of the Indian Succession Act shall not apply, and shall be deemed never to have applied, to any marriage one or both parties to which professed any of the above religions, and., is confined solely to that provision of the Indian Succession Act. It appears to me, therefore, that Section 6 does clearly apply, and I am confirmed in this view by a consideration of the general scheme of Act III of 1874, which shows also why the clause in Section 2 is confined to the married women referred to therein. In order to understand it, it is necessary to make a brief reference to Act X of 1865. That Act, with the exception of Section 4, dealt with property which was taken by succession, either under a will or under intestacy, and it was provided by Section 331 that, with reference to such property, the Act should not extend to Hindus, Muharnmadans or Buddhists. But Section 4 provided that' no person shall, by marriage, acquire any interest in the property of the person whom he or she marries, nor become incapable of doing any act in respect of his or her own property which he or she could have done if unmarried.'' This section applied also to property taken otherwise than by succession, and as this provision was deemed to be a proper one with regard to property taken by way of succession, and as it affected the property relations of married people, it was deemed more convenient to affirm the broad principle than to have the property taken by succession alone regulated by that law. This clause, therefore, went further than the rest and enacted the law which was peculiar to marriage and had nothing to do with succession while the rest of the law dealt with matters peculiar to succession and had nothing to do with marriage. Part VI which is headed 'On the effect of marriage' does not touch this question. Now, there was no restriction as regards the communities affected by Section 4 j Hindus and Buddhists were not excluded. This Act was passed in 1865, and in 1870 the Married Women's Property Act was passed in England (33 and 34 Vic, c. 93), and it was deemed advisable to enact some provisions of that Act in India which was done by Act III of 1874. The legislature then proceeded on the view that, as the Hindus, etc., had their own marriage law and their own succession law, it was undesirable to interfere with them, and that the new provisions to be enacted need be made applicable only to those whose law of succession was governed by the Indian Succession Act. Accordingly, it was provided by the last clause in Section 2 that Section 4 of the Indian Succession Act shall not apply, and shall be deemed never to have applied, to any marriage one or both parties to which professed at the time of marriage any of those religions. The Sikh and Jains religions were added as a doubt was entertained whether the Sikhs were Hindus and the Jains were Buddhists, as was thought at the time when the Indian Succession Act was passed. Now, it will be noticed that all the sections except Section 6 referred to laws which were peculiar to English marriage. Section 4 of Act III of 1874, which was Section 1 of the English Act of 1870, was intended to get rid of the right of the husband acquired by marriage under English law to strip his wife of her wages and earnings. Section 5 also, which is the first paragraph of Section 10 of the English Married Women's Property Act, also had reference to the peculiar marriage law of England. Under that law, as it then stood, if a wife effected a policy of insurance on her own life or on her husband's life otherwise than by separate property and died in her husband's life-time, the husband in the capacity of her administrator became the absolute owner of the property. If a married woman had already separate property and if she chose to make any arrangement by means of that separate property in any suit that may be instituted by her to enforce it, the husband must be a party, might raise any questions he liked and could rip up a good deal of domestic life to decide the question whether she had private property. The section avoided any such question as to what is separate property and laid down a rule that, if the wife contracts with an Insurance Office and provides the money by which the insurance is effected, the Insurance Office shall ask no questions as to whether the property in question was her separate property or not. But the Insurance Office should be liable to the wife and to the wife alone. Section 7 of the Act referred to legal proceedings by and against a married woman. It also was intended to place beyond doubt the difficulties which arose on account of the English marriage law.' So, too, Sections 8 and 9. Now, all those sections with the exception of Section 9 which were taken from the Married Women's Property Act of 1870 had reference to the disabilities of married women under the English law. Section 9 was intended to get rid of the husband's liability and was consequential on the removal of the wife's liabilities and deprivation of his rights by marriage. These sections had no reference whatever to the disabilities of married women under the Hindu law, and therefore, Section 2 distinctly declared that these provisions shall not apply to any married woman who professed the Hindu or any other of the religions referred to therein.

4. Now, Section 6 stands on a different footing. It had nothing to do with any marriage law, but dealt with the question of contract or of trust. Shortly before this Act III of ] 874 was passed, the legislature had passed the Indian Contract Act, by which it is enacted, following the English law, that the parties to a contract alone shall be entitled, save in exceptional cases, to enforce the contract. A third party to a contract to whom the Insurance? Office may have promised the money due under a policy of life insurance, cannot therefore enforce it. But it was deemed desirable for obvious reasons that there should be an exception in favour of wife and children, and that part of Section ]0 of the English Women's Property Act which refers to this matter was enacted as Section 6 of Act III of 1874. It will be noticed that Section 10 of the English Act was split into two separate Sections 5 and 6 in Act III of 1874 consistent with the intention to make Section 6 generally applicable and Section 5 inapplicable to Hindus. The reason is clear. The rule that debarred the wife from enforcing the provision in the contract between the husband and the Insurance Office in her favour is not a rule that, depended upon any marriage law. Unlike the other sections of the Act, it dealt with a question which had I reference not only to the Christians but also to the Hindus and Muhammadans. The section did not interfere with the Hindu or Muhammadan Marriage Laws and did not contravene the general policy disclosed by the other provisions not to interfere with such laws.

5. I am not at all sure that the legislature in enacting the Contract Act did not depart from the Hindu Law, under which it is not at all clear that the wife and children were not entitled to claim the insurance money. I can therefore easily perceive the distinction between Section 6 which relates to married men and the other sections of the Code which refer to the disabilities of married women under the English law and changes consequent thereon. For these reasons I think the legislature advisedly exempted only married women from the provisions of the Act.

6. 1 am also of opinion that the premiums paid by the deceased Venkataratnatn were his own self-acquired property. The Judge states that Veakataratnam 'received a house from his brothers as his share of the family property and that in due course he sold it that it is therefore for the defence to show that he did not use this property and the sale-proceeds and that otherwise the presumption is that all property in the hands of Venkataratnatn was family property. But it was apparently not brought to the notice of the Judge that the insurance policy was taken out in 1888 and that the sale of the house was only in the year 1904. The presumption therefore raised by the Judge does not apply. Prima facie what is paid as premium is a man's own property. I am accordingly of opinion that the plaintiff has not succeeded in proving that this is joint family property.

7. It has also been further urged before us that, even if the Act does not apply, the first defendant and the others named in the policy must be treated as beneficiaries for whose benefit the policy was taken out by the deceased Venkataratnam. According to English law, if a man purchase real property or an annuity, stock or other chattel interest or take a bond in the name of a stranger, the equitable ownership results to the person who advanced the purchase money. But an exception has always been recognised to this doctrine; that is, that if the person from whom the consideration moved stands in loco parentis to the person in whose name the purchase is made then a gift or advancement is presumed. This is what is stated by Lord Romilly in Garrick v. Taylor (1860) 29 Beav. 79 , S.C. E.R. 556 which was confirmed in appeal: 'If a purchase be made by one in the name of another, the presumption is that the latter is a trustee for the person who pays the money, unless the parties stand in the relation of parent and child.'

8. The same principle has been applied to policies of life insurance in Pfleger v. Browne (1860) 28 Beav. 391 : S.C. 54 E.R. 416 which was a case where an insurance office issued a policy on Pfleger's life the premiums of which were paid by Pfleger but the amount was payable to Browne. It was held that the onus of proof when the benefit of it was claimed by Browne lay on the latter even though the policy stood in his name.

9. The exception in favour of the children was recognised in Re Richardson; Weston v. Richardson (1882) 47 L.T. (N.S.) 514. In that case the question was whether a policy of life insurance effected by a man on his own life but in his daughter's name was for his benefit or for that of his daughter. He retained the policy in his own possession and he paid all the premiums himself from time to time except the last which on account of his want of money his son paid. Kay, J. held that ' the legal right be call upon the office to pay the sum assured was clearly in the daughter, and not in the executor, the contract of the insurance company having been to pay her. That she was a daughter was sufficient to raise a presumption that there had been an advancement to her. ' He further held that the mere retention by the father of the policy in his own hands did not show that the beneficial interest was not intended to pass to her.

10. On the other hand the decision of In re a Policy No. 6402 of the Scottish Equitable Life Assurance Society (1902) 1 Ch. 282, in which many of these cases are referred to and principles explained is an instance where the Court refused to draw such presumption, though the policy was taken on a man's life 'for the behoof of' a lady who was his deceased wife's sister and with whom he had gone through the ceremony of marriage. The question therefore is whether the relationship of the parties is such that we should presume a gift or an advancement in favour of the person in whose name the policy stands. In India Section 82 of the Indian Trusts Act states that where property is transferred to A for a consideration paid or provided by B, the property is presumed to belong to A unless it appears that B did not intend to pay or provide such consideration for the benefit of A. In the Madras 'Presidency, at any rate, there is an increasing disposition to make provision for the benefit of a person's wife and children including daughters as against his joint family, to whom his property would survive at his death, or as against the male heirs. Accordingly Turner, C.J., and Muthusami Ayyar, J., decided that where notes wore purchased in the name of a wife out. of funds belonging to the husband 'the presumption is that he intended that the notes transferred to his wife should become her property.'--Narayana v. Krishna I.L.R. (1885) Mad. 214. This view has been accepted in Madras in the case of Hindu females. I have very little doubt that, when persons in the position of Venkataratnam take the policy in the name of either the wife or daughters, they intend it for their benefit and they must be deemed to be the beneficiaries under the policy.

11. Various insurance offices in Southern India issue policies under which the moneys are to be paid to the daughters on their marriage. The consideration in such cases is not only the health, etc., of the person who pays the premiums but also considerations affecting the daughter. I have no doubt that all these persons^ who have been effecting these insurance policies always treated the policy money as the property of the daughter payable to her at a certain fixed period. It is not open to the father or husband to revoke that disposition without the consent of either the wife or the daughter. I would accordingly hold that in this case there was a gift or advancement in favour of the daughter and that the plaintiff is not entitled therefore to claim the share due to her.

12. As a beneficiary there is no doubt that the first defendant would be entitled to bring a suit against the insurance company for the recovery of the amount. No doubt in England it has been held that, if she is not the beneficiary and the amount is only payable to the daughter on the father's death, then the daughter is not entitled to sue. It is probable that in India this question may require further consideration on account of the ruling of the Privy Council in Khwaja Muhammad Khan v. Husaini Begam I.L.R. (1910) All. 410. The facts in this case show this was a settlement similar to the one in that case. But it is unnecessary to consider this question further in this case as the daughter is not the claimant. In Oriental Government Security Life Assurance, Ltd. v. Vanteddu Ammiraju I.L.R. (1912) Mad. 162 the conclusions are no doubt opposed to mine in this case but there the question was not considered. It was assumed that the Married Women's Property Act in its entirety did not apply to Hindus. There the counsel for the insurance office conceded in appeal the rights of the plaintiffs to recover the money. The question of advancement or gift or trust was not raised in that case.

13. I doubt therefore whether that is an authority to be followed. But as the question, is of general importance it is desirable that it should, be decided by a Full Bench. We accordingly refer to the full Bench the questions involved for decision:

(1) Whether Act III of 1874 applies to Hindu married males or not.

(2) Whether in cases similar to the one before us, the daughter is not entitled to enforce her claim against the insurance office or a creditor.

Sadasiva Ayyar, J.

14. I agree with my learned brother in the finding of fact that the deceased paid his premia out of his self-acquired moneys, and it is unnecessary to repeat the reasons given by him for arriving at that conclusion. The further question arising in the case and which we have resolved to refer for the opinion of a Pull Bench is of great importance. That; question is whether, when a Hindu male has insured his life with company by an agreement under which the insurance company undertook to pay the insurance money on the death of the insured to his wife and children, the said wife and children or, at least, the children are entitled to that money or whether such money is part of the estate of the deceased to which his male children who are his heirs are alone entitled. This question has been answered in favour of the second alternative in Oriental Government Security Life Assurance, Ltd. v. Vanteddu Ammiraju I.L.R. (1912) Mad. 162. As at present advised and with the greatest respect I feel grave doubts as to whether that decision } does not require re-consideration. The question involved might be considered cinder four heads:

(as) Whether under the Contract Act the wife and children can enforce a promise made by the insurance company as if the wife and children were promisees under the Contract Act.

(b) Whether the wife and children can take advantage of Section 6' of the Married Women's Property Act III of 1874 and claim that a trust for their benefit was created when the policy of insurance was effected.

(c) Whether even if the Contract Act and the Married Women Property Act did not apply, the wife and children could sue under the common law prevailing in India as near relations of the insured intended to be benefited by the insured.

(d) Whether under the Trusts Act, the wife and children became the cestui que trustent and the company became trustees and thus the trust could be enforced by the wife and children.

15. As regards the first point it was held in Chinnaya Rau v. Ramaya I.L.R. (1882) Mad. 137 that a third person who was not a party to a con-Tact could sue the promisor though the consideration proceeded from the third person's step-mother and not from the third person himself. Innes, J., held that the consideration moved indirectly from the third person and hence the third person himself became a promisee under the Contract Act. He relied upon the old case of Dutton v. Poole (1868) 2 Lev. 210 : S.C. 83 E.R. 523 decided in 1888. Kindersly, J., held that under Section 2 (d) of the Contract Act the consideration need not flow from the promisee and hence even a third person could sue as promisee though no consideration flowed from him. Dutton v. Poole (1868) 2 Lev. 210 : S.C. 83 E.R. 523 went upon the ground that, having regard to the near relationship between the plaintiff and the party from whom the consideration moved, the plaintiff might be considered to be a party to the consideration and that was also the ground on which Innes, J., based his decision. According to the argument of Kindersly, J., near relationship between the brother and the person from whom the consideration moved was not important under the Contract Act. This case of Chinnaya Rau v. Ramaya I.L.R. (1882) Mad. 137 seems to have been approvedof in Samuel v. Ananthanatha I.L.R. (1883) Mad. 351. If Chinnaya Rau v. Ramaya I.L.R. (1882) Mad. 137 decided in 1881 is good law, then the wife and children of the insured are entitled to sue as if they were parties to the contract itself between the insured and the insurance company. But Pollock and Mulla point out (see their notes to Section 2, page 17) that in the two cases Chinnaya Rau v. Ramaya I.L.R. (1882) Mad. 137 and Samuel v. Annnthanatha, Clauses (3) (a), (b) and (c) of Section 2 of the. Contract Act have been overlooked and clause {d) alone has been considered. Though under Clause (d), the consideration may move from the promisee or any other person, 'under Clauses (a), (h) and (c) no man could be called a promisee and no man could therefore become entitled to bring a suit as promisee unless he has accepted the proposal of the promisor and thus comes under the definition of promisee in Section 2(c). Here the wife and children were not asked by the promisor whether they assented to the proposal to benefit them and they did not accept any such proposal and hence cannot come under the Contract Act definition of promisee. So also in Chinnaya Rau v. Ramaya I.L.R. (1882) Mad. 137 the; beneficiary under the agreement was not a party to the agreement as he had not accepted any proposal and hence cannot be called a ' promisee ' under the Contract Act. However, I am willing to follow Chinnaya Rau v. Ramaya I.L.R. (1882) Mad. 137, as it was decided so far back as 1881 and its authority has not been expressly overruled, though if I were to construe the sections of the contract itself I am inclined to agree with the criticisms of Pollock and Mulla.

16. The next branch of the question relates to Section 6 of the Married Women's Property Act. In Oriental Government Security Life Assurance, Ltd. v. Vanteddu Ammiraju I.L.R. (1912) Mad. 162 it was hold that no person following the Hindu law can take advantage of that section because Section 2, paragraph 2, provided that that Act should not apply to any married woman who or whose husband at the time of her marriage professed the Hindu religion. It seems to me there are three answers to the argument based on Section 2.

17. In the first place, Section 6 speaks of a policy of insurance effected by any married man and hence the words in Section 2 which exclude the applicability of the Act to a Hindu married woman cannot have any bearing upon the provisions of Section 6 which relate to a policy of insurance effected by any married man and not by any married woman, whether Hindu or otherwise.

18. In the second, place, even if Section 2 will exclude a married Hindu woman from the benefit of a policy effected by her husband, his children cannot come under the phrase 'married woman' in Section 2; and if the insurance was in favour of the children also, Section 6 must apply because Section 6 says that the insurance shall be deemed to be a trust for the benefit of his wife and children or any of them according to the interests so expressed. Because the wife cannot take, I do not see why the children should not take In the third, place, the title of the Act III of 1874 says that it is an Act, not only 'to explain and amend the law relating to certain married woman' but also an Act ' for other purpose,'' referring evidently to the beneficent insurance provision laid down in Section 6. The preamble says that it is expedient to make provision for insurance on lives by persons married before or after that date. It does not say that the provision is restricted to insurance on lives of other than those of the Hindu, Muhammadan, Buddhist, Sikh or Jain religions. 'Though, the Act is called the Married Women's Property Act, this question of insuranse was also considered as an important matter falling to be dealt with by the Act and the provisions under Section 6 have nothing to do with the religion of the pay ties but are beneficent provisions, the reasons for enacting which are applicable whether the husband who insures his, life belongs to one religion or to another. It is clear from the history of the legislation that that provision, as Mr. Hobhouse says, was necessitated, by the old doctrine of the English Courts that a, husband as such, bad no insurable interest in his wife's life and similar doctrine.... It was also necessitated by the view of English Courts, that such a policy, even when allowed by statutes overriding the common law would only be in the nature of a voluntary settlement and hence would be liable to the dangers to which such settlements are exposed. It is well known that the legislature wanted to encourage those life insurance policies which' make previsions for wife and children and not to subject such policies to the dangers to which they were subjected under the English decisions, the Judges of English Courts being too much bound down by technicalities and precedents. In introducing the Bill (see extra supplement of 2nd August 1873 of the Gazette of India) Mr. Hobhouse said 'some gentlemen connected with insurance offices in this country applied to the Government a short time ago stating that those provisions,' ie., the provisions of the English Statute which overruled the English decisions,' 'were found exceedingly beneficial and they did not see why they should not be applied to India. 'We now propose therefore to introduce an Act which should embody for India the same provisions as those which had been thought fit for the people of England.' It will be found from this quotation that the religion of the parties had nothing to do with the introduction of these provisions in the Act; just as the 'people of England' were sought to be benefited by the English Act, and protected against the English decisions, so the people of India were sought to be protected by the introduction of this Section 6 in the Married Women's Property Act. Mr. Hobhouse in another speech said (see extra supplement, dated 6th September 1873, page 12 of the Gazette of India ) 'We must remember that a wife's contributions to the family wealth did not usually consist in payments of money. She may bring to her husband no money at all and yet may be a very treasure to him even if measured by a mere pecuniary standard. If the wife kept the household together, brought up the children, governed his servants, conducted all his petty dealings with tradesmen, and performed other similar domestic duties, the husband might be a far richer man for her services, although he might provide all the actual money that comes into the family. Then, if he chose that his wife should take every year so much out of the common stock, or out of his stock, and spend it in an insurance for herself or her children, why should she not do so. If the husband chose that that should be done with his property from time to time, Mr. Hobhouse did not see it was a matter for legal question, or that there should be any legal difficulty placed in the way of the wife's enforcing the contracts. It might be the most prudent, the most wise, and the most beneficial arrangement for the whole family, the very best mode of making a provision for them, and it also might be, and often was,, a matter of absolute justice, as between husband and wife, which he or his creditors ought not to dispute at any future time.' Mr. Hobhouse, therefore, thought that we ought not to import nice legal questions into such transactions; the broad intelligible mode of treating them was that, if the wife contracted independently with the Insurance Office, and paid the money, the Insurance Office should ask no questions, but should be liable to the wife and to the wife alone.

19. Section 6 provided that:--'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 interests so expressed, and shill 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.'

20. 'Mr. Hobhouse could not say that he attached a great deal of importance to that section. In the first place, such transactions were not very often effected, because people did not like putting their property beyond their control. In the second place the thing could be done as the Jaw now stood. The effect of the section would be to place such an arrangement on a safer last's. At present, it would be in the nature of what lawyers call a 'voluntary settlement'; and without leading the council into technicalities relating to Voluntary settlements, he would only state that in contests with the creditors of the settler, those settlements stood on a less favourable footing than settlements made for valuable consideration. We propose to follow the example of the English legislature in enacting that settlements effected in this particular way should be good as against creditors, but at the end of the section there was an express reservation of the rights of creditors in the case of fraud. He did not attach much importance) to that; for fraud would vitiate any transaction whether it was expressly so provided or not. And he did not believe in those foresighted, longheaded arrangements for the purposes of defrauding creditors, and in practice, had never known a single instance in which people deliberately plotted beforehand to defraud their creditors in this kind of way. At the same time, those who opposed alterations of the law of property in the case of husband and wife, always insisted on the possibility of frauds being facilitated thereby and we followed the English statute in putting on the face of our bill a warning that such things could not be done more easily than now,'

21. I have quoted thus at length in order to show that the religion of the insured had nothing to do with the introduction of the beneficent provision contained in Section 6 of the Act It seems to me, therefore, that Section 6 of the Married Women's Property Act does apply to a policy of insurance effected by a Hindu married man on his own life and expressed on the face of it to lie for the benefit of his wife or of his wife and children or any of them and that Section 2 does not prevent the application of the provisions of Section 6 to any such policy. Having regard however to Oriental Government Security Life Assurance, Ltd. v. Vanteddu Ammiraju I.L.R. (1912) Mad. 162, I do not wish to treat this as ray final considered opinion till T have heard further arguments on this point.

22. Then the third branch of this question concerns the argument that under the common law of India, a person who is the near relation of the party from whom the consideration has proceeded is entitled to sue the promisor, though he may not come within the strict definition of a promisee under the Contract Act. 1 think this is a very tenable position having regard to Dutton. v. Poole (1868) 2 Lev. 210 : S.C. 83 E.R. 523. The ratio decidendi of that case appeals to me a..'? valid, and though that case is usually treated as overruled, by Tweddle v. Atkinson (1861) 30 L.J. Q.B. 265 : S.C. b. & S. 393, that fact (namely that the later English case has overruled the earlier English case) need not prevent Indian courts from adopting and following the overruled case if it lays down that rule of law which appeals to the Indian courts as the more equitable rule. ' Consideration' in the Indian law under the Contract Act need not be given the restricted meaning given by later English decisions and, as Shephard, J., points out in his notes to Sections 2 and 2o of the Contract Act, the word ''consideration ' in Indian law comes nearer to the notion of 'causa' as understood in the Roman law. A motive based on near relationship or upon the moral obligation to provide for dependent relations must surely be treated as a very lawful consideration indirectly proceeding from the relative so as to enable such relative to bring a suit against the promisor though, if the person intended to be benefited was not such a dependent K Relative, the; law might hesitate to allow that stranger to sue upon the promise made for his benefit. Chinnaya Rau v. Ramaya I.L.R. (1882) Mad. 137 and Samuel v. Ananthanatha I.L.R. (1883) Mad. 351 already referred 1o might be treated as authorities on this basis, though the observations therein in respect of the provisions of the Contract Act may be of doubtful validity. The Privy Council case of Khwuga Muhammad Khan v. Husaini Begam I.L.R. (1910) All. 410, seems to me to lend vary great support to the above conclusion. Their Lordships say, ' First, it is contended, on the authority of Tweddle v. Atkinson (1861) 30 L.J. Q.B. 265 : S.C. 1 B & S. 393, that as the plaintiff was no party to the agreement, she cannot take advantage of its provisions. With reference to this it is enough to say that the case relied upon was an action of assumpsit, and that the rule of (English) Common 1aw on the basis of which it was dismissed is not, in their Lordships' opinion, applicable to the facts and circumstances of the present case.... In their Lordships' judgment, although no party to the document, she is clearly entitled to proceed in equity to enforce her claim. Their Lordships desire to observe that in India and among communities circumstanced as the Muhammadans, among whom marriages are contracted for minors by parents and guardians, it might occasion serious injustice if: the common-law doctrine was applied to agreements or arrangements entered into in connection with such contracts.' On analogous principles, it seems to me that cases decided under the English has' about consideration having to flow from the promisee or about persons having insurable interests only in the lives of particular persons and all such technicalities of English law should not be applied in India so as to defeat plain equities favouring the wife and children of an insured person.

23. The fourth branch of the argument is based on the doctrine of trusts, I have gone through Sections 3 to 11 of the Trusts Act with some care, and I am unable to see any difficulty in holding that a married man who insures his life for the benefit of his wife and children in a company which promises to pay the insurance money at his death to the said wife and children creates a 'trust,' that he becomes the author of the trust, that the company becomes the trustee, find that the wife and children are beneficiaries. It seems to me that the cases--Shuppu Ammal v. Subramaniyan I.L.R. (1910) Mad. 238, Arumuga Goundan v. Chinnammal (1911) 10 M.L.T. 214, Rakhmabai v. Govind (1904) 6 Bom. L.R. 421, and Protap Narain Mukerjee v. Surat, Kumari Debi (1910) 5 C.W.N. 386 , have been decided on analogous principles. As Sundara Ayyar, J., points out in Rajagopala Raju v. Radhayya : (1912)22MLJ159 marriage settlements are included in trusts, and Pollock points out as follows:--'Closely connected with the cases covered by the doctrine of trusts, but extending beyond them, we have the rules of equity by which special favour is extended to provisions made by parents for their children.' A policy of insurance effected by the father of a family for his children should therefore be looked upon with great favour by Courts of equity and I see no reason why the children should not directly claim rights against the promisor or trustee who has undertaken to act for their benefit. For all the above four reasons, I concur in referring the question for the decision of a Full Bench.

24. This Second Appeal again came on for hearing in due course before the Pull Bench constituted as above.

25. V. Rnmadas for the appellant. The first point for consideration is whether the Married Women's Property Act, III of 1874, applies to Hindus. The Act applies to cases where a Hindu male insures his life for the benefit of his wife and children or of any of them. The exclusion contained in Section 2 relates exclusively to a married woman who herself or whose husband professed the Hindu faith at the time of the marriage. This exclusion prevents the application of the Act to cases of insurance by Hindu women which fall under Section 5. There is nothing in Section 2 to control the operation of Section 6 in favour of the beneficiaries under a policy taken out by a Hindu male on his own life for the benefit of his wife and children or any of them. The short title of the Act is not to be considered in determining the scope and extent of the Act. The Act deals with subjects other than married women's property. The Act is rightly describes in the heading as an Act to explain and amend the law relating to certain married women and to certain other purposes. There is no indication in the Act to justify the view that Section 6 is not applicable to Hindus. Sections 5 and G are to be read as relating to two distinct subjects. Section 10 of the English Act of 1874 was split up into Sections 5 and 6 of the Act, so they do not go together for the purpose of deciding whether they apply to Hindus. Oriental Government Security Life Assurance, Ltd. v. Vanteddu Ammiraju I.L.R. (1912) Mad. 162 is not correctly decided. The decision gives no reason. It seems to have been conceded at (lie bar in that case that the Act did not apply.

26. The next point for consideration is whether, assuming that the Act does not apply to Hindus, the daughter cannot take the benefit of the contract between her father and the Insurance Company. According to the decisions, third parties can take the benefit of the contract; Chinnaya Ran, v. Ramaya I.L.R. (1882) Mad. 137, Khwaja Muhammad Khan v. Husaini Begam I.L.R. (1910) All. 410 Shuppu Ammal v. Subramaniyan I.L.R. (1910) Mad. 238 and Arumuga Goundan v. Chinnammal (1911) 2 M.W.N. 524 ; then again though the daughter was not the promisee there may be a presumption of advancement in her favour as the consideration for the promise proceeded from her father; Dutton v. Poole (1868) 2 Lev. 210. Courts in India are not bound to apply Tweddle v. Atkinson (1861) 30 L.J. Q.B. 265 : S.C. 1 B. & S. 503. Lastly the transaction created a valid trust in favour of the daughter. There is nothing in the Indian Trusts Act to prevent the creation of a valid trust in circumstances like these.

27. T. Ramachandra Rao for the fourth respondent.

28. Oriental Government Security Life Assurance, Ltd. V. Vanteddu Ammiraju I.L.R. (1912) Mad. 162 in rightly decided, The Married Women's Property Act does net apply to Hindus. The short title makes this clear. The exception in Section 2 is very general and applies even in caees falling under Section 6. ''Wife' in Section 6 being a married woman must be subject to the exception in Section 2 and therefore the 'husband' referred to in Section 6 must be one who la not a Hindu, Buddhist, Sikh or Jain. If the wife is excluded as being a married woman it would follow that the section cannot ho limited to the case of children alone. Again the words' Or any of them 'in Section 6 only apply to children and do not refer to the wife; therefore a policy for the benefit of one or more children to the exclusion of the wife does not come within the terms of the section.

29. There is no promise to pay the money to the daughter. She. is not a beneficiary at all. So there can be no question of advancement in this case. Nor can the daughter sue in the absence of an assignment in her favour. The cases relied on in support of the right of third parties to sue have no application to the facts of tills case. Nor is there a trust in favour of the. daughter. The previsions of the Trusts Act are against the creation of a trust in such eases.

Charles Arnold White, Kt., C.J.

30. The first question which has been referred to us is whether the Married Women's Property Act, 1874 (Act 11.1 of 1874) applies to Hindu males.

31. I feel a difficulty in answering this question in the form in which it has been framed. A general answer might possibly cover a case not contemplated in the order of reference, and not argued before us. The argument before us was confined to the question whether, where a Hindu male effected a policy of insurance on his own life which expressed on the face of it that it was for the benefit of his wife, or his wife and children, or any of them, Section 6 of the Act applied. This is the question I propose to deal with.

32. Under Section 2 of the Act nothing in the Act applies to a married woman, who at the time of her marriage professed the Hindu religion, or whose husband at the time of marriage professed the Hindu religion.

33. I am of opinion that Sections 4, 5, 7 and 8 do not apply where either of the spouses professed the Hindu religion at the time of the marriage. These sections contain the words 'married woman' and therefore Section 2 applies to them in terms. They were intended to confer rights on a married woman which, under the law of England, she did not possess, and to remove disabilities imposed on her by the law of England. These enactments, if not in conflict with, are entirely foreign to, Hindu law. The words 'married woman' do not occur in Section 9, but the subject- matter of the section is foreign to Hindu law, and in my opinion this section also does not apply where either of the spouses was, at the time of the marriage, a Hindu.

34. Then as to Section 6. The words 'married woman' do not occur in the section. The section no doubt is in the interest of the wife and children, but its primary object is to enable a man to make provision for his wife and children by insuring his life for their benefit, without executing a separate deed of trust. The section enables a Hindu male to do something which, but for the section, lie would not be able to do. The result may be that a Hindu woman derives a benefit, but I do not feel bound to hold that she is shut out from this benefit by reason of the general enactment that the Act shall not apply to Hindu women. As Sankaran Nair, J., points out in the order of reference, Section 10 of the English Act of 1874 was split into two sections in the Indian Act, Sections 5 and 6, which is consistent with an intention to make Section 6 applicable and Section 5 inapplicable to Hindus.

35. Section 2 only excludes the operation of the act as regards married women. There is no exclusion as regards children. If a Hindu male can take the benefit of the section for the purpose of providing for his children but is precluded from taking the benefit of the section in order to make provision for his wife, a curious anomaly arises, and a state of things is brought about which can scarcely have been intended by the legislature.

36. This suggested anomaly was met by the contention that a similar anomaly arose under the language of Section 6 itself since the words 'or any of them' only applied to children, and that a policy for the benefit of one or more children, to the exclusion of the wife, did not come within the terms of the section. The words of the Indian Act are the same as those of Section 10 of the English Act of 1874 (except that the English Act say a 'be deemed to be a trust for the benefit of his wife and of his children or any of them' whilst the Indian Act says 'be deemed to be a trust for the benefit of his wife, or of his wife and children, or any of them').

37. These words may be ambiguous, but in Section 11 of the English Act of 1882 we have the words 'for the benefit of his wife or of his children, or of his wife and children, or any of them.' This makes the matter quite clear, and in my opinion this is the sense in which we should construe the words in Section 6 of the Indian Act of 1874. This seems to dispose of the argument that the section itself creates an anomalous distinction between wife and children.

38. There are three possible views, as it seems to me:

(1) That the section does not apply to a policy of insurance effected by a Hindu male.

(2) That it applies to a policy effected by a Hindu male for the benefit of his children, but not to a policy effected for the' benefit of his wife, and

(3) That it applies to a policy effected for the benefit of his wife or of his children, or of his wife and children, or any of them.

39. In my opinion the third view is the right one.

40. Section 6 dispenses with the necessity for a separate deed of trust. It does not affect the law of contract or the law of trusts as regards the persons entitled to enforce the contract under the policy. When by virtue of the section a trust is created, the person entitled to enforce the rights of the beneficiary is the trustee, if a trustee has been appointed, and if no special trustee has been appointed, the official trustee to whom the money is payable under the second paragraph of the section.

41. Limiting my answer to the first question, to the question whether Section 6 of the Act applies, I would answer it in the affirmative.

42. The second question is, 'Whether in cases similar to the one before us, the daughter is not entitled to enforce her claim against the insurance officer or a creditor.' The first point to be considered is, assuming Section 6 (in accordance with the view 1 have already expressed) would apply if the facts brought the case within the section, whether this particular policy enures as a trust for the wife and children, or forms part of the estate of the assured.

43. In the case before us the insurance company contracted to pay, not the parties for whose benefit the policy purports to have been taken out, but the executors, administrators or assigns of the assured, whereas in Oriental Government Security Life Assurance, Ltd v. Vanteddu Ammiraju I.L.R. (1912) Mad. 162 and in the May-brick case Cleaver v. Mutual Reserve Bund Life Association (1892) 1 Q.B. 147, the company contracted to pay the parties for whose benefit the policy purported to be taken out. In the Maybrick case the contract was to pay to the beneficiary.

44. In Oriental Government Security Life Assurance, Ltd. v. Vanteddu Ammiraju I.L.R. (1912) Mad. 162, the contract was to pay to the trustees who might be appointed under the Married Women's Property Act and failing trustees to the beneficiaries. There is nothing on the face of the policy in the present case to indicate that it was for the benefit of wife and children except the words ' for the benefit of his wife and children/' which are written in, in ink, in. the printed form. There is no evidence as to how, or when these words came to be written. For all we know they may have been written in by the assured after the policy had been taken out. I will assume, however, that the words 'for the benefit of his wife and children' were part of the policy when the contract was made. How would the matter stand then? I do not think there would be a trust if the section did not apply. The legal interest in the policy money could not be said to vest in the executors in trust for the wife and children or in the company in trust for the wife and children, because the trust, if any, would, in my opinion, be by reason of the operation of the section, and under the section itself, if no trustee is appointed, the legal interest vests in the Public Trustee., Further, so far as the company are concerned, they are under contractual obligation to pay the executors.

45. If the policy had been in the same terms as the policy in Oriental Government Security Life Assurance, Ltd. v. Vanteddu Ammiraju I.L.R. (1912) Mad. 162 and the company had contracted to pay the parties for whose benefit the policy was taken out (and this is the assumption on which the order of reference was made) I think there would have been a trust under the section, bat the person entitled to enforce the claim as against the company would have been, not the daughter, the beneficiary, but, if no trustee had been appointed the party in whom, under the section, the legal interest vests, viz., the Public Trustee.

46. As regards Oriental Government Security Life Assurance, Ltd. v. Vanteddu Ammiraju I.L.R. (1912) Mad. 162, the question whether a male Hindu could take the benefit of Section 6 of the Married Women's Property Act does not appear to have been argued. All that the learned Judges say upon the point is, 'We may point out that the Married Women's Properly Aft is' not Applicable to Hindus.' With all respect to ihe learned Judges I cannot accept this proposition in its entirety. For the reasons I have stated I think a male Hindu can take the benefit of Section 6.

47. If the view taken by the learned Judges as to the Married Women's Property Act was right, I should agree with their-conclusion in that case that no cause of action arose to the beneficiaries and that the policy money formed part of the estate of the assured, notwithstanding that under the contract the money was payable to the beneficiaries in default of trustees. In the Mbiybrick case--Cleaver v. Mutual Reserve Fund Life Association (1892) 1 Q.B. 147--on the facts, the trust created by the Act ceased to exist. I be policy moneys therefore formed part of the estate of the assured and were payable to his executors. In Oriental Government Security Life Assurance, Ltd. v. Vanteddu Ammiraju I.L.R. (1912) Mad. 162 in the view taken by the Judges with regard to the Married Women's Property Act Section 6 did not apply, and no trust, in my opinion was created apart from the Act. The moneys, therefore, as it seems to me, were payable to The executors, since the wife was no party to the contract with the company. The decision of the Privy Council in Khwaja Muhammad Khan v. Husaini Begam I.L.R. (1910) All. 410 has been relied upon as an authority in support of the contention that the daughter in the present case can enforce the- contract, and in the Privy Council case the facts were of a special character, arid the agreement on which the plaintiff was, held entitled to sue, though not a party thereto, gave her a charge on immoveable property, I do not think, the present case, on the facts, comes within the principle of the decision in Khwaja Muhammad Khan v. Husaini Begum Khwaja Muhammad Khan v. Husaini Begam I.L.R. (1910) All. 410 .

48. There is no doubt a special class of cases of which. Weston v. Richardson (1882) L.R. 47 L.T. 514 is an example. If a man insures his own life in his daughter's name, this may amount to a complete gift to the daughter so as to entitle her on her father's death to sue for the policy moneys. But the daughter can sue in this class of cases because the fact that she is a daughter raises the presumption that there was an advancement to her by way of gift.

49. In the case before us it seems to me that any presumption that an advancement to a daughter is intended is rebutted by the; words 'for the benefit of his wife and children.' I do not think we can hold that, although there is no gift to the wife under the doctrine of advancement,' there is a gift to such of the children as may be daughters.

50. My answer to the second question, therefore, is that the daughter is not entitled to enforce her claim as against the insurance office, or as against a creditor.

Sankaran Nair, J.

51. I agree with the Chief Justice that Section I 6 of the Act applies to a policy of insurance effected by a Hindu male for the benefit of his wife or his children or of his wife and children or any of them. I adopt the reasons given in his judgment.

52. The question whether there was an advancement by way of gift, as held by me in the order of reference, does not arise on the facts of the case. It is pointed out that the insurance office did not agree to pay the money to the daughter.

Tyabji, J.

53. I agree with the learned Chief Justice, that the first defendant's rights are affected by Section 6 of the Married Women's Property Act, notwithstanding Section 2. On some of the points mentioned by him I wish to express no opinion.

54. The first question referred to us is 'whether Act III of 1874 applies to any Hindu married males or not,'

55. Section 2 of the Act so far as material is as follows:

Nothing herein contained applies to any married woman who at the time of her marriage professed the Hindu, Muhammadau, Buddhist, Sikh or Jaina religion, or whose husband at the time of such marriage, professed any of those religions. 'This Clause (to which [ shall hereinafter refer as the 'saving clause') prima facie implies the rights and liabilities of any such married woman as is mentioned in the clause. It is however not easy to determine with precision what is meant by ' anything contained in the Act applying to a person,' within the meaning of the saving clause. I wish to express no opinion, in any part, of this judgment, on the point whether there may be provisions in the Act, altering the rights or liabilities of a married woman, which provisions, by reason of their nature, or form, or otherwise, cannot be described as applying to a married woman within the meaning of the saving clause; in any case, provisions which do not alter the rights or liabilities of a person, cannot, In my opinion, be said so to apply to that person. Hence, it would seem to follow that if any provisions contained in the Act affect the rights or liabilities only of a male, whether Hindu or otherwise and whether married or not, then those provisions are not prevented from having full effect by reason of the saving clause,--so long at least as those provisions do not come into operation by affecting in the first instance the rights of any such married woman.

56. If the first question referred to us is meant to raise the point whether any provisions of Act III of 1874 are operative (in spite of the saving clause) incase a Hindu married male effects a policy of insurance--and the referring judgments contain indications to that effect, the main arguments before us also being based on the same interpretation of the question--then, in my opinion, the answer to the question is, that the Act operates at least in so far as it does not purport to affect the rights or liabilities of any such married woman as is referred to in the saving clause; as to whether or not the saving clause prevents the Act from operating in so far as it affects the rights or liabilities of any married woman under a policy of insurance effected by her husband, that question, obviously, does not arise on the facts now before us, because we have to deal with the rights of the daughter of the person effecting the policy of insurance, and not with the rights of his wife, and I express no opinion on the rights of the wife. The point that does arise is more definitely referred to us under the second question that we are asked to answer, and I will deal with it in answering that question.

57. The second question referred to us is as follows:--' Whether, in oases similar to the one before us, the daughter is not entitled to enforce her claim against the insurance office or a creditor.'

58. Section 6 of the Act lays down that '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 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.'

59. The second question, as I understand it, is framed for the purpose of having it determined whether these provisions of j Section 6 can be said to apply to the first defendant in this case within, the terms of the saving clause above referred to. That question, it seems to me, must be determined in the following manner: If, under the facts of this case, the rights or liabilities of the first defendant would become altered on the supposition that those rights or liabilities are governed by Section 6, in that case alone and not otherwise may Section 6 be said to apply to the first defendant In that case the further question would have to be determined, whether the first defendant is a married woman within the terms of the saving clause in respect of Section 6 : for, if she is such, then her rights or liabilities are not to be altered by reason of the said section, but must continue to be the same as they would have been had the said section not been enacted.

60. The facts of the ease now before us, in so far as this Court is concerned, are as follows:--One Venkataratnam (to whom I shall hereafter refer as the 'assured') insured his life for Rs. 1,000, under each of two policies of insurance [Exhibit 1 and 1(a)] which are In identical terms, and are dated the 5th June 1888. The policies commence with a recital that the assured 'hath proposed to effect an insurance for the benefit of his wife and children ' with the insurance company. The latter portion of the insurance policy is not printed, but the arguments addressed to us were on the basis that each of the policies of insurance in question was 'expressed on the face of it to be for the benefit of his (the assured's) wife, or of his wife and children, or any of them ' within the terms of Section 6, and my judgment is on the same basis. It seems to me to be beyond our province to deal with the question whether the first defendant acquires any interest and, if so, what interest, under the insurance policy. I confine myself to the question whether, assuming that the policy is such as is referred to in Section 6 of the Married Women's Property Act, the first defendant's rights and liabilities, if any, are affected by Section 6, notwithstanding the saving clause -leaving it to the Bench who have referred the case to determine the rights of the first defendant on a construction of the policy. The assured died leaving one daughter and two sons, being respectively the first, second and third defendants. The question arose whether, if it be a fact that some portion of the insurance money was payable to the first, defendant on the death of the assured, that portion formed part of the estate of the deceased and was thus payable to the creditors of the deceased, or whether it belonged absolutely to the first defendant, and, as such, was not liable to be attached in execution of the debts of the deceased. If Section 6 governs' the rights of the parties, then (if the provisions of the policies be as is above mentioned) the legal result will be that the policies ' 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 expressed (in the policies of insurance) and shall not, so long as any object of the trust remains, be subject to the control of the husband (the assured), or to his creditors, or form part of his estate.' Speaking with reference to the facts of this particular case, if Section 6 governs them, then assuming that the policies in question are of the nature referred to in Section 6, the interest of the first defendant under the policies or the moneys payable to the first defendant by reason of them, will net be capable of being attached in execution of the plaintiff's decree; otherwise the interest of the first defendant under the policies will form part of the estate of the assured and be subject to attachment by his creditors.

61. Therefore, it seems to me, that we must hold that the operation of Section 6 would affect the rights or liabilities of the first defendant if it governs the facts of this case; or--to use the expression contained in the saving clause--it would, in that case (subject to the saving clause) apply to the first defendant.

62. Is then the operation of Section 6 on the rights of the first defendant prevented by the saving clause? I think not. In order I hat the saving clause should have any baring upon the operation of a provision contained in the Act and affecting any person's rights or liabilities, it is necessary, not only that (1) that person's rights or liabilities should be affected by that provision of the Act, but it is also necessary that (2) that person should be such a married woman as is referred to in the clause. It seems to me that the first defend ant cannot (for the purposes of Section 6') be taken to be included within the description-of a 'married woman' within that clause. It is true that the first defendant may, as a matter of fact, be married, but I think that, for the purposes of the question before us, the expression ' married woman ' cannot refer to any woman other than one who is married to the assured. The first defendant in connection with Section 6 is included in the expression 'children '. If any married woman is referred to in Section 6, it is the person mentioned at; his wife, i.e., the wife of the assured. I need express no opinion on the point whether the expression would refer to the woman married to the assured. All I hold is that it does not refer to the daughter of the assured, even if she is married: it is obvious that the rights of the first defendant do not arise in any way out of the application of Section 6 to a married woman, unless the first defendant is herself a married woman within the section.

63. Hence in answer to the second question referred to us I would say that the daughter's rights under the insurance policies are affected by Section 6 of the Married Women's Property Act and that the operation of that section on her rights is not prevented by the saving clause.

64. The second question referred to us apparently involves not only the point with which I have dealt, viz., whether or not Section 6 of the Act operates on the incidents of a policy of insurance effected by a Hindu married man 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; but it also involves the further point whether, in either alternative, on the construction of the particular policies before us the first defendant is or is not entitled to enforce her claim against the insurance office or a creditor. This latter point does not seem to me to have been alluded to in the referring judgments. The operative portion of the policies has not, as I have already said, even been printed; and I have not had an opportunity of considering it. For these reasons I desire, with deference, to express no opinion on the construction to be placed upon them, except in so far as appears from my judgment.

65. What I have stated above is enough in my opinion for furnishing answers to the questions referred to us so far as those questions are really contemplated by the order of reference. If the mode of dealing with the matter which I have adopted is correct, then the allusions to the policy underlying the Act, which were made by the learned judges who referred the case to us, need not be considered. According to the opinion expressed in those judgments, it would appear that, if the first defendant, instead of being the daughter of the assured, had been his wife, her rights would equally have been governed by Section 6 of the Married Women's Property Act, as the operation of that section on the wife's rights would equally have been unaffected by the saving clause. I am conscious that, if the reasoning on which I have proceeded in this judgment is correct, and the results arrived at on the basis of that reasoning are not to be modified by any other considerations, then the rights of the widow of the assured might have to be held to be different from the rights of his daughter; inasmuch as the rights of the daughter have been determined by me on the basis that Section 6 of the Act governs them, whereas the rights of the widow might have to be determined on the basis that the effect on them of Section 6 of the Act is excluded by the saving clause; because the reasons which I have referred to as being sufficient to prevent the operation of the saving clause on the rights of the daughter may have no bearing in a case where the rights of a widow are in question. This result would no doubt be anomalous, but it would be so only if I had expressed the opinion that the Act should be construed solely on the principles adopted in this judgment, even where the rights in question are those of the widow under Section 6, and that there is nothing in the policy of the legislature or otherwise to show that the saving- clause was not intended to interfere with the operation of Section 6 upon the rights of oven the widow. If a construction can be put upon the Act which would bring about the result of giving to the widow the same rights, as, according to my view, the daughter has under the Act, it would not necessarily be opposed to the reasoning adopted in this judgment. But I do not feel called upon to express any opinion on that point at present; I allude to it as, in the first place, I wish to guard myself from appearing to lay down that, 'because I have pursued a particular mode of interpreting- this Act in order to arrive at a decision on the questions now before us, that mode of interpreting the Act may not have to be modified by taking into consideration other matters when the question relates to the rights of the widow. I have construed the Act in accordance with the strict meaning of its terms, because I find that it would do violence to the language of the Act to hold that the saving clause prevents the daughter's rights from being governed by Section 6 of the Act. I do not base any part of my judgment on the considerations on which my learned brothers rely in the referring judgments, viz., the general policy of the legislature, because for the purposes of the questions now before us, it is unnecessary to rely on those considerations ; and I find that, on a strict construction of the Act, the result at which I arrive is the same as would be arrived at on a consideration of what my learned brothers have stated to be the underlying policy of the Act. It is unnecessary to express any opinion on the point whether those considerations would require or permit of the same result being arrived at, when the person whose rights are in question is not the daughter, but the widow, of the assured.

66. This second appeal came on for hearing on 25th August 1913, after the expression of the opinion of the Full Bench, before Sankaran Nair and Sadasiva Ayyar, JJ., who delivered the following judgment:

In accordance with the opinion of the Pull Bench we reverse the decree of the Lower Appellate Court and restore that of the Munsif with costs in this and in the Lower Appellate Court.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //