Venkataramaiah, J.:— This appeal is filed by the 8th defendant in Original suit No. 34 of 1966 on the file of the Civil Judge, Udipi.

2. The facts of the case are as follows:—

There was one Ramachandra Bhagath, who died in the year 1932 leaving behind him, his widow Lakshmi Amma, 8th defendant, and three sons Srinivasa Bhagath (defendant-1), Gopalakrishna Bhagath and Govindaraya Bhagath. Defendant-2 is the son of defendant-1. Gopalakrishna died in the year 1945 leaving behind him his widow plaintiff-1 and son plaintiff-2. Govindaraya died on 28th March, 1966 on account of a motor accident leaving behind him his widow (defendant-3) 2 sons (defendants 5 and 6) and two daughters (defendants 4 and 7). Defendant-9 is the brother of the 3rd defendant. The plaintiffs 1 and 2, the widow and the son of—Gopalakrishna, instituted the above mentioned suit O.S No. 34 of 1966 for partition and separate possession of their share in the joint family properties described in the schedules to the plaint on the footing that all the properties described therein belonged to the joint family. The suit was instituted on 8th December, 1966. It was alleged in the course of the plaint that the family of the plaintiffs and defendants 1 to 7 was a trading family and all the properties, which were standing in the name of either Ramachandra Bhagath or in the names of any of his sons belonged to the joint family. It was further pleaded that Govindaraya acquired certain properties in his name with the and of the family funds and hence, the properties standing in his name were also divisible.

Defendants 3 to 7, the widow and the children of Govindaraya pleaded that except items 1 and 2 and one half in the lease hold right over item No. 5 of the plaint A schedule, all other items were not divisible. They specifically pleaded that certain items, which stood in the name of Govindaraya were his separate properties and defendants 3 to 7 inherited them on his death with regard to certain other items they pleaded that they were non-existent.

Defendant-8, mother of Govindaraya claimed that she was entitled to 1/18th share in the properties which belonged to the joint family and 1/6th share in the properties that belonged to Govindaraya exclusively under the provisions of the Hindu Succession Act, She prayed for partition and separate possession of her share in the properties in the course of her written statement.

3. The trial court found that items 1, 2 and one half of lease-hold rights over item No. 5 in the plaint A schedule alone formed the joint family property, in which the plaintiffs the right of the 8th defendant to 1/8th to 1/18th share in these properties.

4. In so far as items, which were standing in the name of Govindaraya were concerned, it held that they belonged to Govindaraya and on his death they were inherited by his heirs defendants 3 to 8. Some of the items mentioned in the plaint schedules were held to be non-existents. But while passing the decree, the court below declined to allot 1/6th share in all, the items which were declared as the properties belonging to Govindaraya in favour of the 8th defendant. Hence, aggrieved by the decree passed by the court below, the 8th defendant has filed this appeal.

5. We feel it is unnecessary to refer to all the evidence let in by the parties in the suit for purposes of disposal of this appeal, as the dispute in this appeal, is confined to certain specific items. Hence, we shall deal with the evidence relating to those items only in the course of this judgment.

6. Items 3 and 4 of the plaint A schedule have been held to be separate properties of Govindaraya. No reason has been assigned by the court below for not making a decree in favour of the 8th defendant to the extent of 1/6th share in those two items. It is not disputed that the 8th defendant is entitled to 1/6th share in all the assets of Govindaraya. We declare that the 8th defendant is entitled to 1/6th share in those two items of properties.

7. We shall now proceed to consider the case of the 8th defendant in regard to movables left behind by Govindaraya. During his life time Govindaraya had insured his life under four policies, which are marked as Exhibits D-44 to D-47. Under Exhibit D-44 a sum of Rs. 26,000 is payable by the Life Insurance Corporation and under Exhibits D-45, D-46, and D-47, the Corporation is liable to pay Rs. 5,000 Rs. 1,000 and Rs. 1,000 respectively. The defendants 3 to 7 claimed that the amounts payable under Exhibits D-44 and D-45 belonged to the 3rd defendant exclusively as the said policies had been nominated in his favour by Govindaraya during his life time. The court below has made a decree declaring that the 8th defendant was entitled to 1/6th share in the amount covered by Exhibits D-46 and D-47 for Rs. 1,000 each, but however, declined to make a decree in respect of the amounts covered by Exhibits D-44 and D-45 and no reason has been assigned in support of that apart of the decree. It is well settled that a nomination directing that the amounts covered by policies shall be paid to the hands of a nominee under Section 39 of the Insurance Act, does not conter any beneficial interest in the sums payable under the policies on the nominee unless the policy is one, to which married Women's property Act is applicable. Notwithstanding such nomination, it is open to a person who is entitled to claim the estate or a share in the estate of the deceased (assured), to claim his legitimate share or interest in the said sum, for the reason that the amount covered by such a policy would still continue to be a part of the estate of the assured. The above legal position was not controverted by the counsel for defendants 3 to 7 either before the Court below or here. In the circumstances, the court below was in error in refusing to make a decree in favour of the 8th defendant to the extent of her 1/6th share in the two sums of Rs. 26,000 and Rs. 5,000 covered by Exhibits D-44 and D-45. We hereby make a declaration that she is entitled to 1/6th share in the said sums.

8. The next item regarding which there is a dispute between the parties, is a sum of Rs. 2,504.02 standing to the credit of Govindaraya in an account with the Karnataka Bank, Tumkur. The 3rd defendant in the course of her evidence has admitted that the said sum was still available in the said account and that it belonged to Govindaraya. Here again we find that the court below has declined to make a decree in favour of the 8th defendant. There is no impediment for making such a decree. We, therefore, declare that the 8th defendant is entitled to 1/6th share in the said amount.

9. Sri V. Krishnamurthy, the learned counsel for the 8th defendant contended that the court below was wrong in holding that a sum of Rs. 5,600 in deposit with the Karnataka Bank, Sringeri, standing in the name of the 3rd defendant, was not available for partition. The 3rd defendant in the course of her evidence has stated that the said amount belonged to her. Neither the plaintiffs nor the 8th defendant have placed any material before the court to conclude that the said amount belonged to either the joint family of the plaintiffs and the defendants 1 to 8 or to Govindaraya. Our attention was drawn to a stray statement made by the 3rd defendant in the course of her evidence, which reads as follows:—

“The amounts claimed by me in this suit belong to my husband and I as his heir, am entitled to it.”

We have gone through the deposition of the 3rd defendant. When she was asked specifically about this item she stated that it belonged to her. It is no doubt true that in the course of the cross-examination, she has made the statement extracted above. On going through the deposition of the 3rd defendant we feel that the statement extracted above cannot be related to the sum of Rs. 5,600 in deposit with the Karnatak Bank, Sringeri. The 8th defendant, who is the appellant before us, has not entered the witness-box. The second plaintiff, who has been examined as P.W 2 does not say the circumstances under which the said sum came to be deposited in the name of the 3rd defendantdant in the said Bank. In the absence of any material in that behalf, we have to hold that the title to the said sum rests with the person in whose name the amount stands. We, therefore, reject the contention of the 8th defendant with regard to the above sum.

10. The next item in respect of which a claim was made before us on behalf of the 8th defendant relates to the value of the stock-in-trade in the shop which was being run by Govindaraya at Tumkur. It was argued by Sri V. Krishnamurthy that in certain account books maintained by Govindaraya there was an entry showing that a stock of jaggery of the value of Rs. 8,400 was available in the shop at the time of his death and that the 3rd defendant, who must have come into the possession of the moveables of Govindaraya on his death, was liable to render account in that behalf. It is to be remembered that along with the plaint, the plaintiffs made an application for appointment of a commissioner to draw up an inventory of the moveables at the residence of the 3rd defendant, and the commissioner has produced before the court an inventory prepared by him. No attempt was made to get a list of articles available at Tumkur prepared in the same way. Apart from the alleged entry said to have been made by Govindaraya, there is no other evidence to show that the moveables in the shop of Govindaraya at Tumkur, came into the hands of the 3rd defendant. The 3rd defendant is an heir of Govindaraya in the same way in which the 8th defendant is an heir. As long as it is not established by evidence that the 3rd defendant came into the possession of stock-in-trade belonging to Govindaraya, she cannot be directed to render an account with regard to them.

11. One other item with regard to which a claim was preferred in this appeal was the value of the jaggery, which was being transported in the lorry when Govindaraya met with the motor accident. In the course of her pleadings and in her evidence the 3rd defendant stated that the value of the said jaggery was in the order of Rs. 5,6000 and all that amount was paid to the second plaintiff under a receipt, which has been marked as Ex. D-2 in the case. The second plaintiff who has been examined as P.W 2, although was evasive in giving answers at the first instance with regard to the above said item, had to admit in the course of deposition, that he had in fact received a sum of Rs. 5,000. It is no doubt true that he denied having executed Ex. D-2, but admitted his signature on the said document. Be that as it may, he has admitted that he has received a sum of Rs. 5,000 from the 3rd defendant and that statement remains uncontroverted. The 8th defendant has not cross-examined the 2nd plaintiff on the above point. The reason given for paying a sum of Rs. 5,600 to the 2nd plaintiff was that there was a dispute about the remuneration that was payable to him, immediately after the death of Govindaraya, for the services that he had; rendered to Govindaraya during his life time and at a panchayati it was settled that he should be paid the said sum. This fact has been spoken to by the 3rd defendant in the course of her evidence and it stands corroborated by the evidence of D.W 3. There is no reason to disbelieve the case set up by the 3rd defendant. From the above evidence it follows that the said sum is not available for partition. Hence, the claim in that behalf is rejected.

12. The next claim relates to the value of tamarind i.e, Rs. 500. There is no acceptable evidence regarding the above claim. We cannot, therefore, make any decree in respect of the above claim.

13. The last item regarding which this appeal is preferred is a sum of Rs. 25,000 which according to the 8th defendant represented the value of all the moveables including the value of crops harvested from the lands belonging to Govindaraya at or about the time of his death. As already stated, an inventory prepared by the commissioner does not show that Govindaraya had left behind him agricultural produce of the value of Rs. 25,000 at the time of his death. The only items with regard to which the 8th defendant is entitled to a decree, are those mentioned in the inventory prepared by the commissioner. We, therefore, hold that apart from the decree already passed by the court below in this behalf, the 8th defendant is not entitled to claim any other amount, as the value of the agricultural produce.

14. It is stated that the 8th defendant has assigned all her interest in the decree to be passed in this appeal in favour of the 2nd plaintiff and that the 2nd plaintiff is entitled to claim the share to be allotted in favour of the 8th defendant. It is open to the parties to make appropriate prayer before the court below in that regard and if and when such prayer is made, the court below will pass suitable orders thereon after hearing the objections of all the parties concerned.

15. The 8th defendant is entitled to an account with regard to the income which the defendants 3 to 7 may have received from items 3 and 4 of the plaint A schedule with effect from 18th March, 1967 and for payment of 1/6th share of the net income so received by the defendants 3 to 7. The court below shall enquire into the above question under rule 18 of Order 20 of the C.P Code. It will also hold an enquiry in respect of items 1, 2 and one half of the lease-hold right in item No. 5 also and pass appropriate orders in that behalf.

16. At this stage Sri Shivaswamy, the learned counsel for defendants 3 to 7 submitted that there were certain outstanding claims against the estate of Govindaraya and that they had to be satisfied from out of his estate before, the parties are allotted their respective shares and that appropriate directions may be given in that regard. We direct the court below to take into account all the outstanding liabilities against the estate of Govindaraya before passing the final decree.

17. In the result, we direct that the decree passed by the court below shall be modified as follows:—

(i) the 8th defendant is entitled to a 1/6th share in items 3 and 4 of plaint A schedule;

(ii) the 8th defendant is entitled to 1/6th share in Rs. 26,000 and Rs. 5,000 payable under the two Insurance policies Exs. D-44 and D-45;

(iii) the 8th defendant is entitled to a 1/6th share in the sum of Rs. 2,504-02 standing in the name of Govindaraya in his account with the Karnataka Bank, Tumkur.

The 8th defendant is also entitled to an account in respect of the income derived from items 3 and 4 and for payment of her share of net income from 18th March, 1967 till the date of delivery of possession of her share in those two items. The court below before passing the final decree will take into account any outstanding liabilities that may have to be paid out of the estate of Govindaraya.

18. Subject to the above modification, the preliminary decree passed by the court below is confirmed. The parties will bear their own costs in this appeal. The appeal is accordingly disposed of.