KAVITA Vs. BHATERI

JUDGEMENT

(1.) The petition is against the order passed under Section 372 of the Indian Succession Act at the instance of the wife and son of one Rakesh Kumar, who was an army personnel. There were two petitions filed, one at the instance of the mother Bhateri claiming her share as class I heir to all the outstandings while the wife and the son claimed by another application for the whole of the outstanding placing reliance on a Will stated to have been executed. The court held that the Will was not even proved and it was not shown to have been signed by the deceased. It set up certain amounts such as defence pension (AWWA) and the family pension as payable only to one member of the family and excluded the mother from the claim. In respect of the remaining amount, the court awarded 1/3rd share.

(2.) The learned counsel appearing on behalf of the petitioners/wife and son would contend that in terms of Rule 189 of the Army Group Insurance Funds, nominations could be made in the name of his wife and this must be understood as making possible only the nominee to claim the amount. The counsel would also contend that there is no challenge to the rule by the mother and consequently the amount shall be given only to the wife as a nominee.

(3.) I cannot find any fault about the observations of the court below that a nominee is always a trustee and if there is a rule which specifies a person to whom a nomination can be made, it cannot be taken as operating to exclude the right of legal heir to claim the amount. There is no requirement in law to even challenge the rule stipulating the nomination, since nomination is not the same thing as an authority to exclude the persons who are entitled to the amount as per law. This point of how nomination is to be considered in insurance and whether it should be taken as excluding the claim of a legal heir was considered by the Supreme Court in Sarbati Devi Vs. Usha Devi, 1984 AIR(SC) 346. This judgment was at all times approved and followed in several other decisions of the Supreme Court and I state them all only because of conviction of the counsel for the petitioners of the position that he argues seems so strong that would require to be dislodged by a whole bunch of law available against him. The said decisions are Usha Ranjan Bhattachargee v. Abinash Chandra Chakroborty, 1997 10 SCC 344; Vishin N Khanchandani V. Vidya Lachnandas Khanchandani, 2000 6 SCC 724; Challamma V. Tilaga, 2009 9 SCC 299; and Shipra Sengupta V. Mridul Sengupta, 2009 10 SCC 680.