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Charusila Dasi Vs. Jyotish Chandra Sirkar - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in33Ind.Cas.157
AppellantCharusila Dasi
RespondentJyotish Chandra Sirkar
Cases ReferredJones v. Thompson
Excerpt:
succession certificate act (vii of 1889,), section 4 - debt--insurance money, if debt--succession certificate, if necessary to realize insurance money. - .....the nomination by a husband for an unascertained sum of money in insurance is a debt for which succession certificate can properly be issued to his heirs under act vii of 1889. a good deal of argument has been addressed to the question whether such insurance money is part of the estate of the deceased. that it is part of the estate of the deceased is concluded by authority. a bench of the bombay court in shankar vishvanath vagh v. umabai 19 ind. cas. 736 : 37 b. 471 : 15 bom. l.r. 320, a bench of this court in ishani dasi v. gopal chandra dey 25 ind. cas. 286 : 20 c.l.j. 44 : 18 c.w.n. 1335 and the case of oriental government security life assurance company limited v. vantidu ammiraju 10 ind. cas. 263 : 35 m. 162 at p. 167 : (1911) 1 m.w.n. 276 : 9 m.l.t. 451 all based upon the.....
Judgment:

1. The question which arises in this appeal from order is one of considerable importance and it is this: Whether the nomination by a husband for an unascertained sum of money in insurance is a debt for which succession certificate can properly be issued to his heirs under Act VII of 1889. A good deal of argument has been addressed to the question whether such insurance money is part of the estate of the deceased. That it is part of the estate of the deceased is concluded by authority. A Bench of the Bombay Court in Shankar Vishvanath Vagh v. Umabai 19 Ind. Cas. 736 : 37 B. 471 : 15 Bom. L.R. 320, a Bench of this Court in Ishani Dasi v. Gopal Chandra Dey 25 Ind. Cas. 286 : 20 C.L.J. 44 : 18 C.W.N. 1335 and the case of Oriental Government Security Life Assurance Company Limited v. Vantidu Ammiraju 10 Ind. Cas. 263 : 35 M. 162 at p. 167 : (1911) 1 M.W.N. 276 : 9 M.L.T. 451 all based upon the English decision in Cleaver v. Mutual Reserve Fund Life Association (1892) 1 Q.B. 147 : 61 L.J.Q.B. 128 : 66 L.T. 220 : 40 W.R. 230 : 56 J.P. 180, clearly laid down that it does form part of the deceased's estate. It has also been argued for the respondent that the nomination does not operate as a personal transfer and that it creates no trust in favour of the nominee. This also may be conceded. It has also been pointed out that on the facts in Oriental Government Security Life Assurance Company Limited v. Vantidu Ammiraju 10 Ind. Cas. 263 : 35 M. 162 at p. 167 : (1911) 1 M.W.N. 276 : 9 M.L.T. 451, it was held that succession certificate can be given to the heirs for an ascertained sum of 2,000 (pounds) to be paid by the executors after the death of the deceased, as was laid down in Cleaver v. Mutual Reserve Fund Life Association (1892) 1 Q.B. 147 : 61 L.J.Q.B. 128 : 66 L.T. 220 : 40 W.R. 230 : 56 J.P. 180. But this is not the case here. Here we have an unliquidated sum and the remarks of Mr. Justice Mookerjee in the Full Bench case of Bancharam Majumdar v. Adyanath Bhattacharjee 3 Ind. Cas. 492 : 36 C. 936 at pp. 941, 942 : 10 C.L.J. 180 : 13 C.W.N. 966, though they are obiter, may, we think, be applied to the question before us, which as far as we know is res integra. Mr. Justice Mookerjee points out that where the amount is not liquidated, as in the case of a suit for accounts, by the representative of the deceased partner against another partner, and in the case of rent not yet due, there is no existing debt and as was laid down in the case of Jones v. Thompson (1858) 1 El. Bl. & El. 63 : 27 L.J. Q B. 234 : 4 Jar. (N.S.) 338 : 6 W.R. 443 : 120 E.R. 430 : 113 R.R. 545 it cannot, therefore, be described as a debt accruing due to the estate. That appears to us to be the governing factor in deciding whether a particular debt should or should not be the subject of succession certificate.

2. We may point out that an insurance policy is not contemplated by Section 3 of the Succession Certificate Act. We may also point out that the Act does not, as has erroneously been supposed in numerous cases we have seen from the mofussil, give any general power of administration of the estate of the deceased. It is confined and absolutely confined to the collection of debts which were existing in the life-time of the deceased and have accrued due prior to his death. This money which has since been ascertained to be the sum of Rs. 404 odd was during the life-time of the deceased an entirely undetermined sum depending on the prompt payment of the premiums as they became due and upon the duration of the insured's life. It was not as in Cleaver's case (1892) 1 Q.B. 147 : 61 L.J.Q.B. 128 : 66 L.T. 220 : 40 W.R. 230 : 56 J.P. 180 an ascertained sum to be paid on his death whenever that might occur. It was, therefore, not an existing debt at any time before his death; nor does it appear to us to be, strictly speaking, a debt at all, although it is a part of his estate. In the Succession Certificate Act, the nature of the debt is to be stated; as we have already pointed out, it does not appear that the Insurance money, excepting in so far as it became an ascertained debt before the death of the deceased, is included in that Act. We think that the proper order to pass in this case is that this sum of Rs. 404-7-11 should be excluded from the succession certificate, leaving it to the parties, if necessary, to obtain any other form of administration certificate contemplated by law.

3. The result is, that this appeal will be decreed, and the objection of Charusila Dasi will be upheld. The order of the lower Court is set aside in so far as it refers to the Policy No. 9048 in the Mutual Hindu Family Pension Fund, which will be excluded from the certificate granted to the petitioner.

4. The appellant is entitled to her costs in both Courts. We assess the hearing-fee in this Court at two gold mohurs.


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