KRISHNA LAL SADHU Vs. PRAMILA BALA DASSI

JUDGEMENT

(1.) In this case the main contention that has been urged on behalf of the two defendants, who are appellants before us, is that the monies payable under a Policy of Insurance, being Policy No. 4667, issued by the Hindusthan Co-operative Insurance Society, Limited, did not form part of the assets of the estate of one Behari Lal Sircar deceased and that his widow, Pramila Bala Dassi, had no rights therein. In order to understand the precise significance of this contention, it is necessary to set out the facts giving rise to the litigation out of which the present appeal has arisen. It appears that one Behari Lal Sircar insured his life on the 29th March, 1910, for a sum of Rs. 500. The material words of the Policy with which we are concerned are as follows: "The Society hereby guarantees to insure that if the insured pays to the Society at their office in Calcutta on the fifth day of March, nineteen hundred and ten and each succeeding year up to and including the year of his death the sum of rupees twenty-one and annas eleven only or in lieu of any such annual premium the full number of instalments thereof as may be agreed upon (of which agreement the receipt granted by the Society shall be full and sufficient evidence) then upon proof to the satisfaction of the Office Committee of the Society of the death of the insured and the title to the Policy, the Society will pay to Srimati Pramila Bala Dassi, wife of the insured (hereinafter called the nominee) at the Head Office of the Society in Calcutta or at the permanent residence of the nominee whichever may be preferred the sum of rupees five hundred only together with such additional sum or sums by way of profits as, according to the Society's Regulations, may accrue and become payable in respect of the Policy, after deducting therefrom (1) the balance of the premium, if any, payable in respect of the year of the insured's death and (2) also other sum or sums, if any, due from him to the Society." The assured paid all the premiums due on the Policy till his death which took place some time in 1324 B.S. He died leaving him surviving the plaintiff, Pramila Bala Dassi, his widow and three sons. The sons were his heirs under the Hindu Law. On the death of the assured, the plaintiff claimed the amount of the said Policy and it appears that the Insurance Society were about to make payment to the plaintiff. The defendants Nos. 1 and 2 who had obtained a decree against the sons of the deceased and the defendant No. 3. who had also obtained another decree against them attached the amount payable under the Policy in execution of their two decrees. The plaintiff, thereupon, preferred a claim under the provisions of the Civil P. C., but her claim was disallowed and the money due under the Policy was rateably distributed among the three execution creditors. Thereafter the present suit was brought by the plaintiff for declaration of her title to the amount payable under the said Policy and for recovery of the money from the creditors.

(2.) In the Court of first instance the plaintiff's suit was contested only on behalf of defendants Nos. 1 and 2 and it was held that the money due under the Policy became the property of the plaintiff, on the death of the deceased, and did not form part of the assets of the estate left by him. The decree of the first Court ran as follows: "Plaintiff to get a decree for the sum of Rs. 173-0-9 with proportionate costs for plaint and Pleader's fees, whole cost of the suit necessitated by the contest from defendants Nos. 1 and 2; and Rs. 326-15-3 with proportionate costs for the plaint and Pleader's fee from defendant No. 3". The lower Appellate Court affirmed the decree of the first Court. The defendant No. 3 does not challenge the decree of the lower Appellate Court and, as stated above, the defendants Nos 1 and 2 are the appellants before us. On their behalf it is contended that having regard to the authorities viz, the cases of Jiban Krishna Mullik V/s. Nirupama Gupta 96 Ind. Cas. 846 : 53 C. 922 : 30 C.W.N. 812 : A.I.R. 1926 Cal. 1009, Shankar V/s. Umabai 19 Ind. Cas 733 : 37 B. 471 : 15 Bom. L.R. 320 and Ishani Dasi V/s. Gopal Chandra Dey 25 Ind. Cas. 236 : 20. C.L.J. 44 : 18 C.W.N. 1335, it ought to be held that, having regard to the words used in the Policy, there was no trust created in favour of the plaintiff and that she was not entitled to realise the money in question from the Insurance Society and that the said money formed part of the assets of the estate of the deceased. On the other hand, it has been contended on behalf of the plaintiff-respondent that she was beneficially interested in the said Policy and that she atone was entitled to enforce the claim arising thereunder. It has further been argued that the Married Woman's Property Act of 1874 applies to this case and that, therefore, it cannot be questioned there was a trust in favour of the plaintiff and that the latter was entitled to realise the money in question from the Insurance Society. It has also been contended that under the Code of Civil Procedure the execution creditors were not entitled to attach the amount of the Policy in execution of their decree.

(3.) The question depends on whether the plaintiff was entitled to enforce her claim against the Insurance Society. If she was, then there could be no question that the money due under the Policy belonged to her and did not form part of the assets of the estate of the deceased. The plaintiff was, no doubt, the nominee of the deceased; but she was no party to the contract between the deceased and the Insurance Society. Under the English Law, if A contracts with B for a benefit to be given to C, although that was the object and purpose of the contract, C may not sue on that contrast unless in certain excepted cases. The excepted cases are these: Where you can read on the whole of the deed or contract that the contracting party really was a trustee for a third person, then the third person may sue. An illustrative case of this description is the case of Fletcher V/s. Fletcher (1844) 4 Hare 67 : 14 L.J. Ch. 66 : 8 Jur. 1040 : 67 E.R. 564 : 67 R.R. 6. In that case a man covenanted with the trustee or a person whose name was introduced as trustee that after his death, ?80,000 of his property should be handed to that trustee in trust for the natural children of the covenanting party. It was held by Wigram, V.C., that, looking at the whole scope and purpose of the deed, it amounted to a declaration of trust by the covenanting party for his natural children and that the latter had a perfect right to sue to enforce the trust, although it wa3 a voluntary trust. The second exception is the case of children under a marriage settlement, where persons in contemplation of marriage make a settlement by way of contract only for the benefit of, amongst others, the children of the marriage. In English Law, the children of the marriage are said to be within the marriage consideration; everybody who is considered to be within the immediate purpose and intent of a marriage settlement is treated as a person from whom consideration moves to the contracting party and, therefore, the children of the marriage are treated as if they themselves, although, of course, they are not then in existence, had given valuable consideration for the contract in the marriage settlement. This last second exception is referred to by Cotton, L.J., in the case of Andrews V/s. Andrews (1880) 15 Ch. D. 228 : 49 L.J. Ch. 756 : 43 L.T. 135 : 28 W.R. 930 where His Lordship observed as follows: "As a rule, the Court will not enforce a contract as distinguished from a trust at the instance of persons not parties to the contract: Colyear V/s. Countess of Mulgrave (1836) 2 Keen 81 : 5 L.J. Ch 335 : 48 E.R. 559 : 44 R.R. 191. The Court would probably enforce a contract in a marriage settlement at the instance of the children of the marriage, but this is an exception from the general rule in favour of those who are specially the objects of the settlement". In the case of Orr V/s. Union Bank of Scotland (1852) 1 Macq. 513 : 2 C.L.R. 1566 it was held that the mere payment of money by A to B, who is not C's agent with a direction to pay it to C, is revocable and confers no right of action upon C [see Moore V/s. Bushell (1857) 27 L.J. Ex. 3 : 114 R.R. 984]; and for the application of the same doctrine in equity: see Hill V/s. Royds (1869) 8 Eq. 290 : 38 L.J. Ch. 538 : 20 L.T. 812. It is unnecessary for me to multiply cases but the law on the subject will be found in Halsbury's Laws of England, Vol. 7, page 342, and the illustrative cases collected in English and Empire Digest, Vol. 12, page 44 et seq.