S M ENAYATULLAH SAHEB Vs. SAKJEELANI SAHEB

JUDGEMENT

(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 31 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/s. Krishnayya , 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/s. Umabhai (1913) I.L.R. 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/s. Gopal Chandra Dey (1914) 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/s. Krishnayya . 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 31 day of December, 1913 or in any other part of British India after the 1 day of April, 1923.