(1) This is an appeal by the plaintiff in o. S. No. 74 of 1963 on the file of the court of the subordinate judge, kakinada. The suit was filed for declaration of the plaintiff's right to the plaint a, b and c schedule properties, for partition of the a and c schedule properties into four equal shares and allotment of one share to the plaintiff to divide the b schedule property into four shares and allot to the plaintiff one share. A direction was also sought to direct the 2nd defendant to pay the plaintiff her share in all the amounts collected by the 2nd defendant from the deferidancs with interest,

(2) One avasarala acchanna pantulu, here in after called 'pantulu', was an employee of the 14th defendant - standard vaccum oil company ltd. , now called esso. He died en 29 - 5 - 1960 at kakinsda undivided with his son, the 3rd defendant. The plaintiff and the 3rd defendant are the children of pantulu by his deceased first: wife, pantulu's mother is the 1st defendant and the 2nd defendant is the second wife of pantulu. The 15th defendant is the plaintiff's junior paternal uncle. The 11th defendant is the father of the 2nd defendant and also the son - in - law of the 1st defendant. About the year 1944, pantulu's first wife died leaving a minor daughter, the plaintiff and a son, the 3rd defendant. Shortly thereafter pantulu married the 2nd defendant, who is his sister's daughter. According to the plaint pantulu died possessed of the plaint a,b and c schedule properties. The plaint b schedule properties are the ancestral properties in which pantulu had a half share. The c schedule consisted of movables. Defendants 4 to 8 are the insurance companies wherein pantulu had effected insurance. Defendants. 9 to 13 are impleaded. As they are debtors to to the estate of pantulu. Defsndants 4 to 14 are added to obtain a declaration and for establishment of the plaintiff's right in their presence and enable the plaintiff to recover her share from them.

(3) The 1st defendant, the mother of pantulu, admitted the relationship and prayed that a decree might be passed in her favour for her share. The 2nd defendant, who is the widow of pantulu and the step - mother of the plaintiff and 3rd defendant filed a written statement, she contended inter alia that the plaintiff and defendants i and 3 had no title or interest in items 1 to 6 of the plaint a schedule properties which are insurance policies. Late pantuiu nominated his wife, the 2nd defendant as the person to whom the money should be paid in the event of his death and the 2nd defendant alone is entitled to the amounts under the policies and the policy amounts dc not form part of the estate of pantulu, pantulu died as manager of the 4th defendant company. He was drawing a salary of rs, 300/ - per month. The premium in respect of the insuarence policies was paid out of his salary. During the life time of pantulu, he had a provident fund account in the company. The 2nd defendant wes nominated in respect of the provident fund. The 2nd defendant also is entitled to the death benefit payment and other sums payable by the 14th defendant as she has been designated as a beneficiary. The plaintiff and others, therefore, have no claim to these amounts. It was pleaded that after the death of pantulu in may, 1960, all the movabie properties were divided into three equal shares between the plaintiff and defendants 2 and 3 each getting one share. The written statement elaborately detailed the case of the 2nd defendant regarding the movables and the b schedule properties at the time of the division of the movables, it was agreed by the 1st defendant that she need not be given any share in the movables. The suit is filed at the instance of a. Subba rao. Who is added as 15th defendant,

(4) Defendants 4 to 8 filed a written statement contending that they were not concerned with the disputes between the plaintiff and others. They also pleaded that the 2nd defendant is a nominee in respect of several of the policies, whatever decree would be passed in the suit regarding the insurance policies, these defendants would abide by such decree and they are not liable to costs of the suit.

(5) The debtors, defendants 9 to 13, also filed written statements.

(6) The 14th defendant, esso, filed a written statement. They stated, as per the rules and regulations of the company pantulu executed bonds in detail giving the name of his nominees in respect of the provident fund. Pantulu also named the 2nd defendant as beneficiary in respect of other benefits. This defendant, therefore, had no alternative except to pay the 2nd defendant, who was the nominee in respect of the provident fund and the beneficiary. In respect of the other amounts payable after the death of pantulu, it was stated that after making certain payments to the 2nd defendant, the 14th defendant had still a sum of rs. 4684 - 82 towards provident fund. The company had no objection to pay the said sum to whomsoever the court directs that the amount should be paid. It was prayed that the suit might be dismissed as against the company with costs.

(7) The 15th defendant, who is the brother of pantuld filed an elaborate written statement generally supporting the plaintiffs case and dening the allegations made by the 2nd defendant against him. A rejoinder was filed by the plaintiff. The 2nd defendant also amended her written statement. On the respective contentions of the parties to the suit, the following issues were framed by the trial court: -

1. What are the properties available for partition? 2. Is the settlement of claims pleatied by the 2nd defendant true? 3. Can the 2nd defendant claim exclusive right in the amounts covered by the insurance policies, provident fund and gratuity by virtue of the alleged nomination relied upon her 4. What are the shares to which the plaintiff and defendants i and 3 entitled?

(8) The trial court passed a prellminary decree as detailed in paragraph 33 of its judgment. On behalf of the plaintiff appellant, the following points were argued: -

(1) in respect of the insurance policies which are items 2,3,4 and 6 of a schedule, the lower court should have declared the right of the plaintiff, 1st defendant and 3rd defendant along with the 2nd defendant each getting a onefourth share;

(2) in respect of the provident found, death benefit etc. , the plaintiff, 1st defendant, 2nd defendant and 3rd defendant are each entitled to a one - fourth share ;

(3) the decree passed by the trial court in respect of the c schedule out - standings etc. , is not correct ;

(4) the settlement pleaded by the 2nd defendant and accepted by the lower courc is not correct ; and

(5) there should have been a preliminary decree declaring the right of the plaintiff to a one - fourth share in respect of items 3,4,5,8,9. And 10 of plaint 'b' schedule lands.

Point no. I ; this point concerns four insurance policies which are items 2. 3 ,4, and 6 of a schedule. The total amount under policies is rs. 42, 283 - 52. The plaintiff claims a one fourth share in this amount, the other three going to defendants i to 3. In these four policies evidenced by exs. B - 82 to b - 85, the 2nd defendant, widow of pantulu, is the nominee. The trial court held that pantulu wanted to create a trust in the nama of his second wife, the 2nd defendant, and wanted her to be the exclusive beneficiary of the amounts due under those policies and that it was not intended that the 2nd defendant, who was the nominee under the policies, should be merely a payee to receive the amount on behalf of the legal representatives of pantulu, there is no dispute about items ! and 5 which are also insurance policies evidenced by exs. B. 89 end b, 90 dt. 17 - 12 - 1946 and 13 - 6 - 1944 respectively, as there was no nomination in those policies. These two policies are each for rs. 1,000/ - and the lower court declared the right of the plaintiff and defendants ! to 3 to a one fourth s hare each in these amounts,

(9) The policies evidenced by exs, b - 82 to b - 85, which are items 2,3,4 and 6 of the plaint a schedule were all taken by pantulu between 1950 and 1959, from the defendants 4,5, 6 and 8 which are the insurance companies. By 1950, he had married the 2nd defendant as second wife. He had nominated the 2nd defendant as the person to whom the assured amounts should be paid in the event of his death. The contention on behalfof the appellant is that the heirs of pantulu. Who are the plaintiff and defendants 1 to 3 in this case, is each entitled to a one - fourth share, while the contention on behalf of the 2nd defendant nominee is that she is solely entitled to the amounts under the policies, in ex. B. 82 dated 2 - 4 - 1959. The object of the assurance was stated to be family provision and the name of the nominee is that of the 2nd defendant. In ex. B. 83 dt, 27 - 7 - 1955, the object is mentioned as savings and future provision. The nominee was the 2nd defendant under section 39 of the insurance act, 1938. In ex. B - 85 the nominee is again the 2nd defendant under s. 39 of the insurance act, 1938. The object was again family provision.

(10) Pantulu took the policies which are items i to 6 of the plaint a schedule during the period from 1944 to s959. His first wife died leaving a daughter and son. The plaintiff and the 3rd defendant respectively. In, respect of the policies, exs, b - 89 and 90, there was no nomination made by him he again married the 2nd defendant, who is his sister's daughter. Pantulu was about 32 years of age and the 2nd defendant was about 15 years at the time, in the policies which he had effected after his marriage with the 2nd defendant, he had nominated her (2nd defendant) it is urged by the learned counsel for the respondents that it must be assumed that it was the intention of pantulu in the policies effected after his second marriage to exclusively benefit his second wife in naming her as nominee under the policies. One may'perhap. S assume it to be so, having regard to the facts. But the question is one of law to be decided having regard to s. 39 of the insurance act, 1938. S. 39 (1) of the insurance act provides for the nomination of a policy of life insurance by the holder of a policy on his own life. He may make such a nomination when affecting the policy or at any time before the policy matures for payment. The person or persons nominated shall be paid the mony secured by the policy. The proviso to s 39 (i) of the insurance act states that where any nominee is a minor, it shall be lawful for the policy - holder to appoint in the prescribed manner any person to receive the money secured by the policy in the event of his death during the minority of the nominee. Subs. (2) provides the procedure for the nomination to be effectual. The nomination unless it is incorporated in the text of the policy itself, is to be made by an endorsement on the policy registered by the insured in the records relating to the policy. It enables the policy - holder at any time before the policy matures for payment to cancel or change the endorsement by issuing a notice to the insurer to that effect. Under this sub - section, the policy - holder may also by will effect a cancellation or change of the nomination. But notice even in the case of a will has to be given to the insurer. Sub - s. (3) of s, 39 ol the act, casts an obligation on the insurer to furnish to the policy holder a written acknowledgement of having registered a nomination or a cancellation or change thereof, by charging a fee not exceeding one rupee for registering such cancellation or change. Sub - s. (4) provides that a transfer or assignment of a policy made in accordance with section 38 of the act shall automatically cancel a nomination. Sub - sec. (5) provides for two situations. The first is, where the policy matures for payment during the life time of the person whose life is insured. The second is, where the nominee or nominees die before the policy matures for payment. In the; first situation, the policy amount shall be paid to the policy - holder himself. In the second situation, i. E. , where both the policy - holder and the nominee died before the policy matures for payment, the policy amount shall be paid to the policy - holder's heirs or legal representatives or the holder of a succession certificate as the case may be. Sub - s. (6) provides that where a nominee or any one of the nominees survire the person whose life is insured, the amount secured by the policy shall be payable to such survive; - or survivors. Sub - s. (7) provides that s. 39 of the act shall not apply to any policy of life insurance to which section 6 of the married women's property act, 1874, applies or has at any time applied. The proviso states that if a nomination had been made before or after the commencement of the insurance amendment act. 1946, in favour of the wife of the person who had insured his life or of his wife and children or any of them is expressed as being made under section 39 of the act, s. 6 of the married women's property act of 1874 shall be deemed not to apply or not to have applied to the policy,

(11) In the instant case, the insuranee was effected on the policy - holder's own life. The 2nd defendant was designated as the nominee. The policies had not matured for payment during the lifetime of the policy - holder. The only nominee, the 2nd defendant, had survived the policy - holder. In the three policies covered by exs b. 82, b - 83 and b - 85, the object of the insurance is stated to be "family provision", as on the dates when the insurance was was effected under the policies, the members of the family and on the date of the death of the policy - holder, the members of his family were the second w!fe, the mother, the son and the daughter in one of the policies, there was a column than in case the policy - holder winted the provisions of section 6 of the married - women's property act of 1874 to apply, he should not fill up the column providing for nomination under section 39 of the art. Even so, pantulu had opted to make the 2nd defendant a nominee under section 39 of the act.

(12) The scope of a nomination under section 39 of the act, where the nomination was in terms, such as the present, had come up for consideration before a division bench of the madras high court in d. M. Mudaliiar v. 11 andb. Corpn (i) a. I. R 1975 madras 115, govinda menon and ramaswamy, jj. Had considered the relevant american. English and indian cases on the subject. In that case, one dhanakodi mudaliar had taken out two life insurance policies for rs. 5000/ - each. He nominated his wife under section 39 of the act as the person eutitled to receive the moneys due under the policies in the event of his death and his wife surviving him. The wife survived him, mu - dahar died on 23 - 7 - 1949. He was indeb - ted co a bank and the bank instituted a suit and obtained a decree on 8 - ! 1 - 1948. The two insurance policies were attached before judgment. The wife survived her husband and died on 26 - 7 - 1949. They had two children and they filed a claim petition. In the execution proceedings by the bank it was held that the moneys due under the two policies had become the assets of their mother who was the nominee under the policies and the policy amounts were not liable to satisfy the decree debt of their father, the deceased mudaliar. That claim was allowed and a suit was filed by the bank to set aside the claim order. The suit was decreed setting aside the claim order and hence an appeal was filed by the child - en of mudaliar, ramaswami, j, stated the point for determination as concerning tht. Scope of nomination under section 39 of the insurance act, 1938. In considering the question, the lean ed judge had considered the case of an assignment covered by s. 38 of the act. Heelaboratsly referred to the english, the scottish and tha american law bearing on the subject of assign, mencs and nominations under life insurance policies. After referring to the provisions of sections 38 and 39 of the insurance act, 1938, the learned judgeurnmed up the important difference between nomination and an assignment in paragraph - 32 of the judgment (at page 120). It was stated that an assignment of life policy under section 38 passed to the assignee the right to the insurance money, even though the assignor's interest in the life has ceased before the date of the assignment. Once an assignment is made, is could not be cancelled at the option of the assignor. The assignment creates a vested interest in the assignee but it is subject to the equities overning the assignor because the assignee cannot have a better title than the assignor. With regard to a nomination, unless there is a special clause inserted to make it irrevocable, it did not deprive the policy holder of his rights, previleges, options and benefits under the policy including the right to alter the name of the nominee. The nominee is entitled to receive the policy moneys. There is no statutory trust created; by section 39 in favour of the nominee - it was pointed out that the case of a nomination under section 39 is different from the case of a nomination under section 5 of the provident funds act of 1925 where the nominee has a right to receive money absolutely. The nominee's right being only to receive the money after the death of the assured, the nominee cannot surrender the policy and cannot have it converted to be paid up. A nomination would get automatically cancelled by s subsequent transfer or assignment whereas an assignment followed by a nomination would not be so cancelled. Likewise a will has the effect of abrogating the nomination altogether,wheareas'an assignment cannot be so cancelled by a will. It was also pointed out that in the case of an assignmem, it was not open to a creditor to treat the life policy as being the property of the debtor - assured, in the case of a nomination, the nominee receives the policy amount subject to the same liabilities as in the case of legatees under a disposition by a will. It was pointed out that quite a different situation would arise in case the assured had made a nomination in favour of his wife under section 6 of act iii of 1874. In the case of a nomination under section 39 in favour of the wife, s. 6 of act 111 of 1874 has no application and no trust in favour of the wife is created. In case where s. 6 of act iii of 1874 is attracted i. E. , where the policy on the face of it is expressed to be for the benefit of the wife, a trust is created in favour of the wife. The contents of a proposal in a policy can be taken into account in finding out whether a trust in favour of the wife was created.

(13) A reference was made to krishna lal vs. Fro mi la bala dasi (2) a. I. R. 1928 cal. 518, which was a case of nomination by an assurer where it was held that the nomination was not one under section 6 of act iii of 1874 and the policy money formed part of the assets of the deceased and was liable for his debts. A reference was also made to the decision in rambailav vs. Gangadhar (3) a. I. R. 1956 cal. 275. In that case. It was an endowment insurance policy whereby the policy - holder had nominated his wife and son - in - law as the persons to receive the money under the policy in the event of his prior death. It was held by the calcutta high court that those terms did not make the nominee the owner of the money payable to him under the policy. The nomination merely indlcacated the person who should receive the money should the policy - holder die. What all subsee. (6) of section 39 of th - a insurance act, 1938 provided ws ato confer on the nominee the right to receive the insurance money as between such nominee and the insurance company, but it did not provide for the title or ownership of that money in general.

(14) Ramaswaml, j. , in construing the terms of the nomination, which are apparently the same as in the case before me. Observed that the said terms did not show that the policy was expressed on the face of it to be for the benefit of the wife within the meaning of section 6 of act iii of 1974. The terms of nomination make the nomination slmpliclter under sub - s. (6) of s. 39 of the insurance act. It was observed that under s. 39 of the act. 'jt was open to the policy, holder to elect to come under the operation of sub - s. (6) of s. 39 or create a trust under s. 6 of the married women's property act. It wss therefore, held that the attachment effected by the bank was not illegal and the appeal was dismissed.

(15) Govinda menon, j. Delivered a separate, but concurring judgment. The learned judge pointed out that the dispositions of life insurance policies could be classed under three headsr - (l) assignment, (2) nomination and (3) statutory creation of a trust by reason of the provisions of the married women's property act. So far as the nomination was concerned, the learned judge said that there was not any appreciable difference between the english and the american law on the one hand and that which obtained in our country. According to tht; english law. The payee or the nominee is nothing more than an agent to receive the money which money remains as the property of the assured and at his disposal during his lifetime and on his death forms part of the estate, with the result that the payee or the nominee takes no beneficial interest in it, the learned judge quoted from barwell's law of insurance (1940 edn. P. 440) to the following effect; -

"it is part of the history of life insurance that husbands insuring their own lives often do so with the sincere intention that the policy moneys should be enjoyed by their wives but are seen to have failed in many instances to express that idea in unambiguous language on the face of the instrument or even in the proposal form."

(16) The learned judge then went on to observe that the difficulty arises not on account of the law on the subject which is clear, but only on account of the construction to be placed on the language of the declaration made in the document by the assured. If the construction to be placed upon the declaration is that a trust had been created under the provisions of the married women's property act, the beneficiary would take the assured amount free from all the liabilities of the insured and if it is construed as a mere nomination, the nominee would have no more right than to receive the amount subject to all the liabilities as if the disposition was by means of a testamentary instrument. The learned judge, therefore, agreed with ramaswaml, j, and dismissed the appeal.

(17) I will now refer to a decision of this court reported in m. Brahmamma vs. K. Venkataramana rao (4) air 1957 a. P. 757, chandra reddy. J (as ha then was) incerpreted section 39 of the insurance act and sec. 6 of the married women's property act of 1874. Regarding sec. 39 of the insurance act, the learned judge had observed 'hat 3 reading of the relevant provisions of sec, 39 could only lead to a conclusion that the holder of the policy continued to have interest in the policy notwithstanding the nomination effected in regard to the policy and that it did not divest him of the rights in the policy and he retained disposing power over it. Under sub - sec (2) and sub - sec. (4) of sec. 39 of the insurance act, it was competent for the holder of the policy to bequeath to somebody or to make an assignment of it which automatically cancelled the nomination which implied that a nominee had no vested interest in the policy amount. Considering sub - sec. (5) of section 39 of the act, the learned judge stated that if the policy holder survived the nominee, the money was payable to the holder himself and not to the heirs or the legal representatives of the nominee, which would not be the case if the nominee had acquired any vested interest in the policy the title did not pass to the nominee by reason of the nomination.

(18) Disagreeing with the view of the two courts below that by virtue cf sec. 6 of the married women's property act, the widow of the policy holder was entitled to get the benefit of the nomination and receive the amount free from all liabilities, the learned judge had observed that it was not necessary to consider whether section 6 of the maaried women's property act would apply to nomination under section 39 of the insurance act, 1938, in view of sub - sec. (7) to sec. 39, because it was manifest that section 6 did not apply to a nomination and retrospective operation was given to sec. 39. It is true that the learned judge did not refer to any authorities in his decision, but decided the case construing the relevant provisions. This decision lays down that the nominee under section 39 takes the property subject to all liabilities of the policy holder.

(19) In sarojini amma vs. Neelakanta (5) air 1991 kerala 126 (fb) a full bench of the kerala high court had held placing reliance upon the decisions reported in ramballav vs. Gangaghar (3) supra and d. M. Mudaliar vs. 1,1. And b. Corpn. (i) supra that a nomination by itself had not conferred any right upon the nominee during the life time of the assured and that it only gave a bare right to collect the policy money on his death.

(20) In l. I. C. Vs, united bank (6) air 1970 cal. 513, a division bench of the calcutta court had to examine the precise nature of the interest of a nominee within the meaning of section 39 of the insurance act, 1938. It was observed on a consideration of the entirety of the provisions of sec, 39 that the proposition clearly emerged that the proceeds of the policy did not vest in the nominee, though they are payable to the nominee in the event of the death of the holder of the policy and that the proceeds of the policy did not by virtue of the nomination under sec. 39 alone become part of the nominee's estate, before or after the policy matured. It was also observed that judicial precedents did not support the view chat the nominee has any title to the moneys payable under the policy or that they become part of his estate

(21) Reliance was placed upon the decisions in krishna lal vs. Promlla bala dasi (2) supra, d. M. Mudaliar vs. I. I. And b. Corpn. (i) supra and m. Brahmamma v. K. Venkataramana rao (4) supra and refence was also made to the observations in shanti devi vs. Shri ram lal (7) 1958 allahabad 569 wherein it was held that if the nomination is made only under s. 39 of the insurance act, 1938, it is not an assignment, but merely gave the right to the nominee to receive the assured amount without creating any interest in the nominee. The division bench did not approve of the decision in kesari devi vs. Dharma devi (8) air 1962 allahabad 355 on which considerable reliance was placed before me by the learned counsel for the respondents. I shall refer to this decision later.

(22) In raja ram vs. Mata prasad (9) air 1972 allahabad 167 a full bench of the allahabad high court had to construe sec. 39 of the insurance act, 1938. In that case, one dwaraka prasad had obtained two insurance policies. He nominated two persons, who were his two nephews under the policy. The petitioners before the high court obtained a decree for payment of money against the policy - holder and while the decree was being executed, the policy holder died. The nominees under the insurance policy were sought to be substituted as legal representatives of the deceased judgment debtor. The question was whether the amounts formed part of the estate of dwarka prasad that question according to the learned judges, depended in the first instance on the implications of sections 38 and 39 of the insurance act, 1938 and in the second instance on the language of the nomination, on a survey of the aforesaid two sections, the full bench laid down the following propositions : (1) the policy holder continues to hold interest in the policy till the moment of his death; 2) the nominee under section 39 acquires no interest in the policy in the life time of the policy holder. 3) the benefit secured by the policy forms part of the estate of the deceased policy holder. It was then held that as the policy amount was part of the estate of dwaraka prasad, his creditors could realise their loans from the money paid to the nominee. Reference with approval was made to the decisions in ram ballav vs. Gangadhar (3} supra, d. M, mudaliar vs. I. I. And b. Corpn. (i) supra, m. Brahmamma vs k, venkataramana rao (4) supra and lic vs, united bank (6) supra. It may also be pointed out that reliance upon the decision in kesari devi v. Dharma devl (8) supra to support a contrary view was distinguished on the facts on the ground that it was not necessary for the full bench to deal with the precise problem in the case before the full bench. In conclusion, the full bench opined that the nominations in the two policies did not create a trust in the two nominees and that they a!so did not further create any vested interest in them in the life time of the assured. As the amounts due under the policies were payable to the nominees only in the event of his death, and as the nominees were the legal representatives of the deceased policy - holder, money could be seized by the decree - holder of the policy holder,

(23) In malll del vs. Kanchan prava del (10) air 1973 orissa 83, a single judge of the orissa court had held following the full bench decision of the allahabad high court in raja ram vs. Mats prasad (9) supra that a nomination merely conferred a right on the nominee to receive the amount under the policy after the death of the insured and that the nominee was merely a trustee on behalf of the heirs including himself.

(24) The above decisions referred to by me all support the position contended for by the appellant viz, that the 2nd defendant, the nominee under the four insurance policies, is only a payee under section 39 of the insurance act, 1938 and is not a beneficiary under the married women's property act atid the policy amounts formed part of the estate of the deceased with the incidence of partibility among his heirs. But sri challa sitharamaiah, appearing for the respondent 2nd defendant had strongly contended that the above decisions are all wrongly decided. He argued that if all the provisions of s. 39 are taken together and considered on principle, unhampered by any authorities and construing the same, it has to be held that the nominee gets the entire insurance money under the policies. He contended that in construing sec, 39 of the act, it should not be placed in juxt opposition to the provisions in section 38 which provides for a different situation altogether. He laid great stress on the fact that under sec, 39 (1) of the act, nominee should be paid the policy money. He urged that in the provislo to sec. 39 (i) of the insurance act, 1938 where the nomir. Ee is minor, the words used are that the poiicy holder could appoint ''any person to receive the money" and as in the instant case when the insurance under some of the policies was effected, the 2nd defendant was a minor, some other person could be appointed by the insured to receive the money and that sec, 39 (i) of the act manifests an intention that the money should go to the minor absolutely. I am unable to tee how the use of the word 'receive' in the provlio makes the meaning of the word 'paid' used in the subsection makes a difference. It merely means that if the nominee is a minor and the nominee continues to be a minor on the date when the policy becomes payable on the deith of the assured, somebody duly appointed is to receive the money on behalf of the minor to whom it has to be paid because the insurance policy is a contract and a minor cannot in law give an acquittance to the insurance company by receiving the amount. So. It is that some other person who is appointed with competence to receive the same is mentioned in the proviso.

(25) It was next contended by the learned counse! that sub secs. (2) and (5) read together would show that sub - sec. (5) is an exception to sub - sec. (2) and that under sub - sec. (5) , the assured would not get anything even if he had survived the nominee the effect, according to the learned - counsel, is to make tne nominee become absolutely entitled to the policy moneys. I am not persuaded to agree with the submission. The language of the two sub - sections even if read to gether cannot stand the interpretation sought to be put upon by the learned counsel. Sub - sec. (2) of s. 39 of the act does not have the effect of vesting the property as contended for by the counsel.

(26) It was next urged that it is in evidence that before pantulu married the 2nd defendant, he had effected two insurance polities in favour of his son, 3rd defendant and his daughter, the plaintiff, and it must therefore be taken that the avowed intention of pantulu was to make the 2nd defendant the sole beneficlary under the four policies under consideration, as in each of them he had designated his wife. He had no further intction 10 benefit his son and daughter as he had al'eady effected n insurance on their lives. It may be stated that we do not know the terms of those policies and the amounts for which the policies were taken in favour of the son and the daughter. On the other hand, the object of taking the insurance policies mentioned in the policies would clearly show that it was the intention of pantulu to make provision for the family and future savings. Family does not mean wife alone. Nor could it be said that future savings would go to the wife alone. As observed by govlnda menon, j. In d. M. Mudaliar v. I. I. And b, corpn. (i) supra, we have to look to the declaration made in the proposal or the policy. The declaration made in the policies do not have the effect of making the 2nd defendant an absolute and sole beneficiary under the policies. In fact, in respect of one policy he had the option to make a nomination under section 6 of the married women's property act of 1874. But he chose to nominate the 2nd defendant under section 39 of the act it is useful to recapitulate what is said by barweil in his law of insurance, quoted by me earlier in referring to d. M. Mudaliar vs. I. I. And b. Corpn. (i) supra:

"it is part of the history of life insurance that husbands insuring their own lives often do so with the sincere intention that the policy moneys should be enjoyed by their wives but are seen to have failed in many instances to express that idea in unambiguous language on the face of the instrument or even in the proposal form."

(27) Even granting that the inten - tion of pantulu was to make his wife an absolute beneficiary under the policies, he had failed to express that idea in the language capable of that construction on the face of the policies. That being so, we have to look only to section 39 of the act and abide by the interpretation put upon it by judicial precedents.

(28) The learned counsel for the respondents had placed strong reliance upon the decision in kesari devi vs. Dharma devi (8) supra in that case the assured died. Under the terms of the policy, if the assured died, the company could pay the money to the nominee one mannu lal. This mannu lal died leaving the respondent in the appeal as his legal representative. She applied for money to the insurance company. The insurance company had direcced her to obtain succession certificate in proof of her title. That application for a succession certificate filed by the legal representative of the nomlnee. Was resisted by the widow of the assured. There were therefore two competing claims for the insurance amount, one by the widow of the deceased and the other by the legal represen - rative of the nominee, who died. It was observed by the division bench that under the terms of the policy if the assured had remained alive for a full period of thirty years, it was to be paid to the assured or otherwise to his nominees, administrators, assigns or other representatives. As the assured had died before the full period of thirty years, the court opined that as the assured had nominated one mannu ll, it was to be paid to him. It was only in the absence of a nominee that it was to be paid to executors, administrators, assigns or other representatives. The company could not say that it would not pay the amount to the respondent who is the legal representative of the nominee on the ground that she is neither a nominee nor an executor etc,, of the assured. The reason, according to the learned judges, was that the question as to whom the money is payable is to be determined with reference to the date on which it become payable and as according to the terms of the policy, it became payable on the death of the assured and on that date as there was in existence his nominee, he alone was entitled to receive it. The company must, therefore, pay the money to him and if he had died in the meanwhile, it must be paid to his estate: the widow of the assured did not fulfil the description of a nominee, executor or administrator or assign or other representative in interest of the assured.

(29) The learned judges further opined that there was nothing in section 39 of the insurance act, 1938 to suggest that the nominee receives the money merely as a trustee or an agent of the assured's legal representatives. Their lordships merely referred to sub sec (i) and (6) of s, 39 of the insurance act, 1938 and stated that the obvious meaning of the language of those sub - sections was that the insurance company should pay the money to the nominee and that the nominee was left free to deal with it in any manner he liked. It was also stated by the learned judges that they could not understand how it could be said that the money which became payable on the death of the assured and on account of this death could form part of his state. In that view, they said that it was payable to his nominee and not to one representing the assured's estate, one reason mentioned by the learned judges was that nothing could form part of an estate of a person which could not possibly belong to it immediately proceeding his death. Though their lordships referred to the decisions in d. M. Mudaliar v. I. I. And b. Corpn. (i) supra. M. Brahmamma v. K. Venkata ramana rao (4) supra and shanti devi v. Shrl ram lal (7) supra, they did not purport to point out how those cases were not correctly decided. This decision was dissented from in the decision in l. I. C. V. United bank (6) supra, for the reasons given by the learned judge (at page 518 col. 2) : it was observed by the calcutta high court in the aforesaid decision (lic v. United bank (6) (supra) , that the ratio of kesari devi (8) supra runs counter to the ratio of the decisions of the calcutta high court, madras high court, andhra pradesh high court and of the allahabad high court itself. I respectfully agree with this criticism of the case in kesari devi v. Dharma devi (8) supra. This allahabad decision is the only one brought to my notice which runs counter to several decisions regarding the interpretation of s. 39 of the insurance act. In fact the ratio of the decision in m, brahmamma v. K, venkata ramana rao (4) supra is binding upon me, unless i am persuaded to differ from the said decision, in which case. I must refer the appeal to a division bench. The respondent has failed in her attempt to so persuade me.

(30) As a result of the above discussion, it must follow that a declaration should be given in respect of items 2,3,4 and 6 of plaint'a' schedule which are the insurance policies in which the plaintiff and defendants i to 3 are each entitled to a one fourth share. The finding the court below in this behaif is set a - side.

(31) The next point for consideration conerns the provident fund and the other benefits that have accrued after the death of pantulu by reason of his employment under the 14th defendant.

(32) Item 12 of the plaint 'a' schedule relates to the provident fund, gratuity and bonus or other benefits payable by the 14th defendant to pantulu who was an employee of the company, the 2nd defendant is claiming exclusively these amounts. Regarding the provident fund, pantulu had nominated the 2nd defendant as the primary nominee for the provident fund. Pantulu also executed another bond dated 29 - 3 - 1956 designating the 2nd defendant as the primary beneficiary towards the benefits plan of the company. In the written statement of the 14th defendant, it was stated that there was a payment of rs. 5446 - 67 in respect of these various items to the 2nd defendant, as also another sum of rs 1073 - 46 to the 2nd defendant. It was also stated that a sum of rs. 4684 - 82 was still due towards the provident fund of pantulu. It is not disputed before me that the provisions of the provident funds act of 1925 govern the provident fund of pantulu. The preponderance of judicial opinion is that the provident fund amount received by a nominee vests absolutely in the nominee to the exclusion of any other heir. That is, in other words, where a depositor makes a nomination, after his death, it could not be treated as an asset of the deceased in the hands of the nominee, section 5 of the provident fund act provides that on the death of the subscriber or a depositor of the 'provident fund, the nominee becomes entitled to the exclusion of all other persons to receive the amount. A reading of the provision leaves one in no doubt that on the death of the subscriber the property in the fund vests in the nominee. In this court, the case reported in talupulu vs. Narasamma (11) 1966 - 1 an. W. R. 324: a. I r. 1967 a. P, 10, gopal rao ekbote, j. (as he then was) following in the goodso stanley martin (12) a. I. R. 1939 cal. 642 held that provident fund could not be treated as an asset of the deceased subscriber in the hands of the nominee and that it was property belonging to the nominee. In fact the provision contained !n sec. 5 'notwithstanding anything contained in any law for the time being in force" is of great significance. In mon singh vs. Motl bai (13) a. I. R. 1936 madras 477 it was held that the nominee is a person who is entitled to acquire a title in the money and not a person designated to give a valid acquittance to the holder of the fund. Nor is the nominee merely a person who is to 'eceive the money at the first instance and administer it to the benefit of the defendants or heirs of the deceased etc. In view of the clear provisions of section 5 of the enactment, it is not necessary to pursue the matter further. The 2nd defendant is absolutely entitled to the provident fund of pantulu in the hands of the 14th defendant to the exclusion of the plaintiff and defendants i and 3.

(33) Regarding the other benefits payable by the company, as per the rules contained in ex. B. 88. The 2nd defendant was named the beneficiary. The word used is not nominee but beneficiary to give rise to any controversy as to the consequence of a nomination. The learned counsel for the appellant referred me to the decision in noor mohamed vs. Sardar khatun (14) air 1949 sind. 38 and haridial devi ditta vs, jankl das (15) air 1928 lahore 773 at 774. I cannot follow these decisions, in view of the earlier decisions of the madras high court and a decision of this court in talupulu vs. Narasamma (i) supra. The finding of the lower court in this behalf is therefore confirmed. It is qufte clear that as beneficiary designated in respect of the other benefits accruing on the death of pantulu, the 2nd defendant alone is entitled to those benefits and no other heirs of pantulu are entitled to the same. As the same cannot be impressed with the character of the estate of the deceased which passes on according to law.

(34) The next question for consideration is the one covered by issue no. 2 in the suit. The 2nd defendant had set up a settlement of claims to certain outstandings and movables of the family described in c schedule to the plaint after the death of her husband. It was stated that the 1st defendant had given up her right in all these properties. The plaintiff and defendants i and 3 denied that there was any such settlement. The trial court found that the various admissfons contained in the evidence of p. W. I, d. Ws. I and 2 and the evidence of d. W. 3 and the documents exs. B. 1, b - 2, b - 23 and b - 73 clearly establish that there was a settlement between the plaintiff, 2nd defendant and 3rd defendant regarding the division of the movable properties and that each of them took some of those moveable properties including outstandings and had collected some amounts in pursuance of the said settlement. The trial court, however, found that to this arrangement, the 1st defendant was not a party. It is strongly contended by the learned counsel for the appellant that the plaintiff was not a party to exs. B - 1 and b - 2 and that the 3rd defendant had no right to represent the plaintiff at any such settlement. The 3rd defendant had no reason to act in any way contrary to the interest of the plaintiff who is her own sister. It is quite clear on a perusal of the relevant oral evidence which was read out to me and on a consideration of the documents, exs. B. 1, b - 2 8 - 23 b - 73 that there must have been an arrangement regarding the movables and c schedule jewels between the 2nd defendant and 3rd defendant who also represent the plaintiff. Such an arrangement come to by the members of the family should not be disturbed lightly by the court, the trial court found that so far as items 7,8,9,10 and 11 of the plaint - a schedule which were alleged to be pronota debts due by defendants 9 to 13 to the estate of late panculu, no details of these debts could be given either by the plaintiff or the 3rd defendant who deposed as p. W. I and o. W. I. The lower court referred to the evidence of p. Ws. L to 3 and d. W. I stated that in pursuance of some arrengement between the plaintiff. 3rd defendant and 2nd defendant they had collected some of those amounts for themselves and shared the same. It was found by the trial court that there was no pro of of the existence of these debts, and even if their existence is proved, they would all be time - barred. It was, therefore, held that aone of the parties was entitled to any share in respect of these items of the plaint a schedule. So far as the promissory note debt due from the 9th defendant is concerned, it was found by the lower court that there was a settlement between the 2nd defendant and the plaintiff and the 3rd defendant as could be seen from exs. B. I and b - 2 etc. I am not. Persuaded to disagree with the conclusion of the lower court in this behalf,

(35) So far as items i and 2 of the c schedule, gold jewels, are concerned, the 2nd defendant claimed them as her stridhana property. Her father, d. W. 2, stated that these items were the stridhana property of the 2nd defendant. The plaintiffs claimed a one - fourth share in these two items supported by defendants 1 and 3. In the evidence of the plaintiff and the 3rd defendant, they contended that these two items of properties belonged to their mother who died in 1944. As pertinently pointed out by the lower court if they had belonged to the mother, these items could not have been included in the plaint, as the properties in respect of which a claim for partition is made. If these items remained the family properties, one could have expected them to provide for their division when they settled the matters touching the movables earlier. The lower court accepted the evidence of the father of the 2nd defendant that these jewels were given at the time of he - marriage and that therefore they were stridhana properties. I see no reason to take a different view. It was found that item 3 of the c schedule did not exist. So far as the silverware and other stainless steel items etc. Are concerned, ex,b. 2 indicates that they were all divided, infact the lower court expressed a doubt on the evidence whether some of these other items of c. Schedule did exist as a face. The conclusion of the lower court come to viz; that the plaintiff had failed to prove her case in respect of any of the items described in the plaint c schedule is therefore affirmed.

(36) It was contended that in respect of items 3,4,5,8,9 and 10 of b schedule, a preliminary decree declaring the right of the plaintiff should have been passed. During the course of the arguments, the learned counsel for the plaintiff - appellant had given up herclaim to item 10, it is in evidence that item 3 is the self - acquired property of pantulu. The plaintiff would therefore be entitled to relief in respect of item 3. The lower court, with regard to items 4 and 5, decreed that the 1st defendant had e 1/3rd plus 1/12th share in theses to items and that the plaintiff and defendants 2 and 3 had a i/12th share each and the 15th defendant is entitled to a 1/3rd share.

(37) Regarding items 8 and 9 of b schedule, the lower court had found that there was no evidence. The 2nd defendant had contended that these items are not correctly described, the lower court observed that items 8 and 9 of b schedule are unavailable and that there was no evidence regarding the same. The lower court apparently felt that the properties were not clearly identifiable, the appellant has not convinced me that this conclusion of the lower court is wrong, therefore, it is affirmed.

(38) No other question has been argued before me.

(39) The preliminary decree passed by the court below will, therefore, be modified to the extent of declaring the right of the plaintiff, 1st defendant and 3rd defendant along with the 2nd defendant, etch being entitled to a one - fourth share in items 2,3,4, and 6 of a schedule. The plaintiff, the 1st defendant 2nd defendant and 3rd defendant will each be entitled to a one - fourth share in item 3 of the plaint b schedule and also in items 4 and 5 of the plaint 'b' schedule. In othor respects, the preiimlnary decree passed by the lower court is confirmed. The appeal is accordingly allowed to the extent indicated above.

(40) So far as costs of the trial court are concerned, i direct that costs of the 14th defendant be paid by the plaintiff and 3rd defendant, the costs of defendants 4 to 8 will be paid by the 2nd defendant in this appeal, the parties will bear their own costs.

(41) The appeal having been set down this tuesday the 18th day of february 1975 for being mentioned in pursuance of the letter dt. 12 - 2 - 1975 of the advocate for the appellant, and upon hearing the arguments of mr. C. P. Sara - thy and smt. C. Jayashree sarathy advocates for the appellant, and of mr. Challa sitaramayya. Advocate for the 2nd respondent and mr. Suresh babu for mr. M. S, krishna murty adovcate for the respondents 3 tnd 12 and of m/s a. Krishna murty, and k. Sridhar rao, advocates for the respondents 4 to 8, the court made the following; -

(42) I have directed this matter to be posted for being mentioned by reason of letter written by the learned counsel for 'he appellant. Regarding items 4 and 5 of the plaint 'b' schedule it was conceded befcre me during the course of the arguments that what the lower court had said viz, that there was evidence on record that there were other co - sharers who were entitled to the remaining extents of items 4, and 5, is incorrect. Apparently, i did not make a note of this fact. The result was i confirmed the findings of the lower court, regarding items 4 and 5 of the 'b' schedule and held that no final decree can ba passed in the absence of the other co - sharers. As the actual basis for the conclusion of the court below is wrong and it was agreed before me that it is wrong and as i did not make a note of it, it is but just and proper that i should rectify the mistake that has crept in. I therefore strike off the last 6 sentences on page 40, as also the first three sentences on page 41 of the judgment. As a consequence i modify the operative portion of my judgment. In the sentence in the last paragraph on page 41 reading ''the plaintiff, 1st defendant, 2nd defendant and 3rd defendant will each be entitled to a one - fourth share in item 3 of the plaint 'b' schedule" the words "and also in items 4 and 5 of the plaint 'b' schedule be" added.