Messrs. S. Venkatasubramania Sarma v. United Planters' Association Of South India

BURN, J.

These are two appeals preferred against the order of the learned Subordinate Judge of Coimbatore passed in E.P.R. No. 349 of 1935 in O.S. No. 261 of 193

4. O.S. 261 was a suit filed by the United Planters Association of South India against a minor, S. Venkatasubramania Sarma, by his guardian. The suit was based upon the allegation that the father of the minor, Sundareswara Sarma, who had been employed as an accountant by the Association, had misappropriated Rs. 7, 500 of the Associations money. A decree was passed in favour of the Association against the separate assets of the deceased Sundareswara Sarma if any in the hands of the minor defendant. The Association got an attachment before judgment of three sums viz., (1) a sum of about Rs. 500 representing the contributions of Sundareswara Sarma to the Associations Provident Fund; (2) an insurance policy for Rs. 1, 000 and (3) an insurance policy for Rs. 4, 000. Both the policies are issued by the Oriental Government Security Life Assurance Company Limited and copies of the policies were filed as Ex. I and II. The learned Subordinate Judge held that the amount of Rs. 500 representing Sundareswara Sarmas contributions to the Provident Fund could not be proceeded against and he came to the same decision with regard to the amount of Rs. 4, 000 due under policy No. 3, 53, 009, but he held that the amount of Rs. 1, 000 covered by policy No. 1, 23, 164 could be proceeded against. The learned Subordinate Judge said in his judgment that it had been fairly conceded on behalf of the defendant that the sum of Rs. 1, 000 could be proceeded against. Mr. Ramaswami Iyengar who appears for the appellant in A.A.O. 16 says that the guardian of the minor defendant did not give the vakil in the lower court any authority to make any such concession. We must take the learned Judges observation as representing the fact that the vakil whether with or without authority did make that concession, but it is not necessary to embark upon a discussion of whether the vakil had authority to make such a concession since we propose to consider that appeal also on its merits. Appeal No. 56 is filed by the Association from the decision of the learned Judge holding that the decree holder was not entitled to proceed against the amount of the policy for Rs. 4, 000 and the amount in the Provident FundWith regard to the amount in the Provident Fund we agree with the learned Subordinate Judge. An attempt was made to argue that the deceased Sundareswara Sarma had been dismissed from the Associations service before he died. The learned Sub-ordinate Judge refused to allow that point to be raised before him. He said that if this were the fact, it ought to have been stated when the decree-holder first sought to attach the property. He says in paragraph 7 that it transpired at the trial that the deceased died while he was still in the service of the Association. This we are told is incorrect, but we note that the judgment in the suit itself begins with a recital that the Association sued to recover a certain sum of money from the son of Sundareswara Sarma, "who was employed under the Association as an accountant from 1927-28 till his death in 1934". We therefore follow the learned Sub-ordinate Judge in declining to allow it to be argued on behalf of the Association that Sundareswara Sarma was dismissed before he died. This being so, we are of opinion that the rules of the Provident Fund are such that Sundareswara Sarmas contributions to the Provident Fund are not liable to be attached to defray his debts any more than the contributions of the Association itself. In fact if it be taken that Sundareswara Sarma died in service, it is not really possible to maintain that his contributions were liable to be attached

The real contest is with regard to the two policies of insurance. We are of opinion that there is no difference between the two. Both of them are liable for the debts of Sundareswara Sarma or neither. The learned Subordinate Judge seems to have been influenced by the concession already referred to when he held that the policy of Rs. 1, 000 could be proceeded against. With regard to the policy for Rs. 4, 000 he has referred to a pamphlet Ex. 3 issued by the Oriental Government Security Life Assurance Company Limited. In that pamphlet the policy in the form Ex. II is advertised as providing the most practical form of protection obtainable for the wife and family of the assured. The policy is called a perfect protection policy. The learned Subordinate Judge after reading the provisions comes to the conclusion that the policy "is more or less on a line with life assurance policies covered by the Married Womens Property Act and that the policy is covered by the ruling in Abhiramavalli Ammal v. The Official Trustee of Madras 1932 (55) Mad 171). Section 6 of the Married Womens Property Act is quite definite. It runs as follows:

"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 to the trust remains, be subject to the control of the husband or to his creditors, or form part of his estate" *

If the amounts of these policies are to be saved for the minor defendant in this case, it must be because they come strictly within the terms of Section 6 of the Married Womens Property Act. It will not do to say, as the learned Sub-ordinate Judge says, that these policies are "more or less on a line with life assurance policies covered by the Married Womens Property Act".

Now it cannot be disputed that on the face of these policies themselves there is no expression that they are for the benefit of the wife or of the wife and children of the insurer. Mr. Ramaswami Iyengar for the appellant in A.A.O. 16 realising this, wishes to contend that the policy does not mean merely the policy as issued by the company but must be taken as including the proposal filled in by the insurer and also if necessary any prospectus issued by the company. He relies upon the decision in Oriental Government Security Life Insurance Co., Ltd. v. Narasimhachari 1902 (25) Mad 183). We are of opinion that this case has no bearing upon Section 6 of the Married Womens Property Act. Although for certain purposes in cases of dispute between the insurer and the insured it may be necessary to look into the proposal or the prospectus or even, as stated in 25 Mad 183, to construe the prospectus as though it were part of the policy, we think the terms of Section 6 of the Married Womens Property Act are clear and unambiguous and that the expression policy of insurance in that section is to be taken in the ordinary meaning of the words. The provision was passed in order to create a trust in favour of wife or wife and children. For this purpose it is enacted that the policy which is to create such a trust must be expressed on the face of it to be for the benefit of the insurers wife or wife and children. This we think is clearly intended as inter alia a measure of protection for persons who might be induced to take an assignment of the policy. It there is an expression on the face of the policy that the policy is for the benefit of the insurers wife or wife and children, the prospective assignee will be put on his guard. This would certainly not be the case if the term policy of insurance were interpreted to mean the proposal as well as the companys prospectus. This view is supported by the decision of VENKATASUBBA RAO J., in Krishnamurthi v. Anjayya 1936 M.W.N. 559. In that case, the amount of the policy was expressed to be payable to the person or person legally entitled thereto. In the present case in the column "To whom payable" in Exhibit II we find the words "The proposers assigns or his proving executors or administrators or other legal representative who shall take out representation from any British Court to his estate or limited to the moneys payable under this policy". There is nothing on the face of either of these policies to indicate that the policies were effected for the benefit of the insurers wife, or wife and children or any of them. Mr. Ramaswami Ayyangar wishes us to admit in evidence copies of the proposals made by the insurer in pursuance of which these policies were issued. We are refusing to admit those copies since we find that the requirements of O.XLI, R. 27 Civil Procedure Code, are not fulfilled. These is no allegation that they were shut out by the lower court and we do not find them necessary in order to enable us to pronounce judgment. We think it is right to say, as VENKATASUBBA RAO, J., said in the case already referred to, that under Section 6 of the Married Womens Property Act,

for a trust to arise it must appear on the face of the document that the policy was effected for the benefit of the wife, or the wife and children, or any of them.

We have been referred to the case decided in Abhiramavalli Ammal v. The Official Trustee of Madras in which MADHAVAN NAIR, J., construed in favour of the wife a life insurance policy in which it appeared that the amount was payable "to the assured or his wife if he predeceases her". Since those words did appear on the face of the policy in that case we do not think that it is necessary to discuss the judgments of MADHAVAN NAIR, J., but we are quite clear that we are not prepared to go even further than he went. It would be necessary to go a great deal further in this case in order to accept the contention of Mr. Ramaswami Ayyangar, because neither of the policies in this case mentions the wife or the children of the insurer.

It follows that A.A.O. 16 of 1936 is dismissed with costs and A.A.O. 56 of 1936 is allowed with regard to the amount of the policy No. 353009 and dismissed with regard to the amount of the Provident Fund. The appellant and the respondent in A.A.O. 56 of 1936 will pay and receive costs proportionate to their success.