TULSI DEBYA Vs. BIBHUTI BHUSAN GOSWAMI

JUDGEMENT

(1.) The petitioner in this rule is the widow of one Indra Narain Goswami who died intestate on the 17 Falgun 1341 and according to the petitioner she is the sole heiress. The petitioner's husband assured his life on 15 May 1926, when he was a bachelor, with the Sun Life Assurance Company for a sum of Rs. 1,500. According to the terms of this policy the amount would be payable to the assured on 15 May 1946; but if he should die earlier then the amount would be payable to his second brother Promotha Nath Goswami or in the event of his death to the executors or administrators of the assured. On the death of Indra Narain the petitioner filed an application for a succession certificate for enabling her to collect the amount of Rs. 1,243 which was payable under the aforesaid policy. The Courts below have agreed in rejecting the application holding that the amount of the policy was due to the second brother who was the nominee mentioned therein. It is contended for the petitioner that this view is wrong and the learned advocate appearing for the opposite party has also conceded that the ground upon which the decision was given in the Courts below cannot be supported. That the money is a part of the estate of the deceased is concluded by authority beginning from the case in Cleaver V/s. Mutual Reserve Fund Life Association (1892) 1 Q B 147 down to the case in Krishna Lal Sadhu V/s. Promila Bala Dassi . It is also conceded that the nomination in the policy does not operate as a personal transfer in favour of the second brother and no trust is thereby created. For the opposite party in this Court a new point is taken, namely that an application for the succession certificate does not lie because the amount due in the policy is not an ascertained debt. In support of this, we have been referred to the case in Charusila Dasi v. Jyotish Chandra Sarkar AIR 1916 Cal 475. That case however may be distinguished on the fact that the present also is an endowment policy and is payable in the lifetime of the deceased. In the aforesaid case it was remarked that: 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 the Succession Certificate Act.

(2.) The decision in this case was based on certain remarks made by Mookerjee, J. in the Pull Bench case Bancharam Majumdar V/s. Adyanath Bhattacharjee (1909) 36 Cal 936, the remarks being in the nature of obiter. That case also does not help the opposite party. In that case Jenkins, C.J. remarked: I take it to be well established that a debt is a sum of money which is now payable or will become payable in future by reason of a present obligation.

(3.) It seems to us that there is no reason why this description should not be made applicable to a sum of money which is payable on this policy. In any view of the matter, the decision of the lower appellate Court cannot be supported and the petitioner is entitled to succeed. It is suggested for the opposite party that as the petitioner is a childless widow and the opposite party is the next reversioner and so the widow should be made to furnish security as a condition precedent to the grant of a succession certificate. This is a matter which may be considered by the lower Court. The rule is made absolute. The petitioner is entitled to her costs in this rule the hearing fee of which we assessed at two gold mohurs. Patterson, J.