DINBAI HORMASJI MIRAPURWALA Vs. BAMANSHA JAMASJI SHET

JUDGEMENT

(1.) This is an appeal against a decree of the First Class Subordinate Judge with appellate powers at Broach dismissing the appellant's appeal against an order passed by the Subordinate Judge of Ankleshvar under Section 47, Civil Procedure Code. The facts are that a creditor obtained a decree against the estate of one Hormasji Ardeshir Mirapurwala represented by his wife Bai Dinbai, who had taken out letters of administration to the estate, and also against some other heirs of the deceased Hormasji, and in execution of that decree, the judgment-creditor sought to attach an insurance policy on the life of Hormasji. The widow contended that that policy did not form part of her husband's estate but was her own property. The objection was considered by the Subordinate Judge, who found that the insurance money was part of the estate of the deceased Hormasji, and, therefore, ordered execution to proceed. The widow appealed, but in appeal the order of the lower Court was affirmed, and the appeal dismissed, and she now makes this second appeal.

(2.) A preliminary objection has been taken by the learned Counsel for the respondent that no appeal lies, on the ground that the objection taken by the widow was one under Order XXI, Rule 53, and the Court having under Rule 58 decided that the objection was unsustainable, the only remedy of the widow was to bring a suit under Order XXI, Rule 63, and no appeal lay. But, as a matter of fact, the objection raised by the widow was not in her capacity as heir of the deceased Hormasji, but in her own right. The point is covered by authority. If property is attached as property of the deceased judgment-debtor in the hands of his legal representative, and the latter objects that it is not the property of the deceased but his own property, the case falls under Section 47, for the legal representative is not setting up a jus tertii. That has been held by this Court in Murigeya V/s. Hayat Saheb (1898) I.L.R. 23 Bom. 237, followed recently in Ursula v. Pana . In this latter case all the rulings on the subject are referred to. It follows, therefore, that the fact that the widow objected to the attachment claiming the insurance policy as her own property and not as forming part of the estate of her husband does not remove the case from the operation of Section 47 of the Code, and, therefore, no separate suit would lie, but the matter has to be determined in execution proceedings, and an appeal will lie in the ordinary course.

(3.) Turning to the merits, the learned advocate for the appellant relies on Section 6 of the Married Women's Property Act, III of 1874. That section says: 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, 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.