ANNIE LEWIS Vs. L I C OF INDIA

JUDGEMENT

(1.) THIS revision is directed against the order dated February 13, 1985 passed by the learned Judge of the Court of Small Causes at Bombay sitting in Court Room No. 20 in Regular Suit No. 1189/1376 of 1982 and confirmed by the Full Court of that Court by its order dated April 8, 1985 in Full Court Application No. 49 of 1985 filed in the said suit whereby the learned trial Judge directed the return of the plaint for presentation to the proper Court that is, the High Court.

(2.) REGULAR Suit No. 1189/1376 of 1982 was a simple suit by the petitioner for recovery of her share of insurance amount on the policy of her deceased son. The son was insured with the respondent No. 1 defendant No. 1-Corporation. The son died December 23, 1981. He had nominated the respondent No. 2 defendant No. 2, his widow, in the policy. He died leaving behind him his mother the petitioner-plaintiff and the widow defendant No. 2. Both of them under the Indian Succession Act, 1925, are the heirs of deceased James Peter Lewis. As the defendant No. 1 Corporation did not pay the plaintiffs share to her, she filed the suit for recovery of her one-half share in the insurance amount. The suit was resisted on the ground that the trial Court had no jurisdiction to try it. The learned trial Judge relied on the decision of the Supreme Court in (Smt. Sarbati Devi v. Smt. Usha Devi) A.I.R. 1984 S.C. 346. In that case their Lordships of the Supreme Court considered the provisions of section 39 of the Insurance Act, 1938, and held that a mere nomination made under section 39 did not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. Their Lordships held that the nomination only indicated the hand which was authorised to receive the amount, on the payment of which the insurer would get a valid discharge of its liability under the policy. They further held that the amount, however, could be claimed by the heirs of the assured in accordance with the law of succession governing them. That decision does not lay down that such a suit is not triable by the trial Court. There is no dispute that both the mother and the widow have equal share in the assets left by the deceased and, therefore, the plaintiff mother was entitled to have one half share in the amount of insurance payable on the death of her son. It is a simple money suit. In a money suit if some legal question has to be decided as ancillary for determination of the rights of the parties, the suit does not get out of the jurisdiction of the trial Court. The jurisdiction of the trial Court to decide a particular claim has to be ascertained from the averments made in the plaint. On going through the averments made in the plaint, it must be held that this was a simple money suit for recovery of the plaintiffs one half share in the insurance amount which the defendant No. 1-Corporation, through demanded by the plaintiff, had not paid to her. Such a suit is not barred under any of the clauses of section 19 of the Presidency Small Causes Courts Act, 1882. Consequently, the judgments and orders passed by the learned trial Judge and the Full Court cannot be sustained. In the result, the petition is allowed. The judgment and order of the learned trial Judge dated February 13, 1985 and that of the Full Court dated April 8, 1985 are set aside. The suit shall go back to the trial Court and the trial Court shall, without any further delay in the matter, dispose it of expeditiously within six months of the receipt of the writ from this Court. It may be mentioned that the respondent No. 1-defendant No. 1 Corporation has deposited on July 17, 1987 in the trial Court as per the order of this Court a sum of Rs. 4,666.30 P., for payment to the claimants-the petitioner-plaintiff-mother and the respondent No. 2-defendant No. 2 widow in equal shares. There shall be no order as to the costs of this petition. Petition allowed.