9911796707
TMI Blog1928 (2) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... sum of ₹ 21 and 11 annas 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 ₹ 500 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. 2. 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 heir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing thereunder. It has further been argued that the Married Women's Property Act of 1874 applies to this case and that there fore it cannot be questioned that there was a trust in favour of the plaintiff and that the latter was entitled to realize the money in question from the Insurance Society. It has also been contended that under the Civil Procedure Code the execution creditors were not entitled to attach the amount of the policy in execution of their decrees. 5. 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 assess 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 Insurance Society. Under the English law if A contracts with B for a benefit to be given to G. although that was the object and purpose of the contract, G may not sue on that contract 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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, but the law on the subject will be found in 7, Halsbury 342, and the illustrative cases collected in 12, English and Empire Digest, p. 44, et. seq. 9. It is said, however, that in India the law is somewhat different and in support of this contention the case of Deb Narain Dutt v. Chuni Lal Ghose [1914] 41 Cal. 137, is referred to. That case was decided after the decision of the Privy Council in the case of Khwaja Mahommad Khan v. Husaini Begum [1910] 32 All. 410. As I read this last case, it was a case of a contract between A and B whereby it was in tended to secure a benefit to C as a cestui que trust and the question arose whether C was entitled to sue in his own right to enforce the trust. Their Lordships of the Judicial Committee held that under the agreement executed by A certain immovable property was specifically charged for the payment of allowance which A bound himself to pay to the plaintiff and that the plaintiff was the only person beneficially entitled under it. The plaintiff was G. Their Lordships observed as follows: First, it is contended on the authority of Tweddle v. Atkinson [1861] 1 B. S. 393 that as the plaintiff was no party to the agreement, she can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hare 163 that the effect of the agreement between M's husband and the testator was to create an obligation in equity upon the surviving partner and in that respect it did not differ from a trust , i.e., that the partnership articles created a trust in favour of the widow. He further held that a trust could not be the less capable of being enforced because it was founded on contract. 11. The point now before us for determination is, in my opinion, covered by authority see Cleaver v. Mutual Reserve Fund Life Association [1892] 1 Q.B. 147. There the money due under a life assurance policy was payable to a wife, if living, otherwise to the legal personal representative of the assured. Lord Esher, M.R., observed as follows: The contract is with the husband and with nobody else. The wife is no party to it. The promise is one which could only take effect upon the husband's death and therefore it must be meant to be enforced then. Apart from any statute the right to sue on a contract would clearly pass to the legal personal representatives of the deceased. It does not seem to me that apart from any statute such a policy would create any trust in favour of the wife. The husba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... definition of promisor and promisee. The decision of Tweddle v. Atkinson [1861] 1 B. S. 393 was a decision at law an I was unaffected by the rules of equity. For this reason the Judicial Committee in Khwaja Muhamad Khan v. Husaini Begum [1910] 32 All. 410 regarded it as inapplicable to the facts of the case before them where the agreement included a specific charge on immovable property. In my judgment it is erroneous on the basis of that case or on the observations of Jenkins, G.J., in Deb Narain Dutt v. Chuni Lal Ghose 41 Calcutta. 137, to suppose that in India persons who are not parties to a contract can be admitted to sue thereon, except where there is an obligation in equity amounting to a trust arising out of the contract. I say nothing as to whether special rules of law may be applicable to communities among whom marriages are contracted for minors by parents and guardians, but, putting aside such cases, I sea no reason to think that the law in India contains a series of exceptions to the principle that a contract can only be sued upon as such by a party thereto. A trust may be founded on a contract and is capable of being enforced by a party to the trust in appropriate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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