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TMI Blog1962 (9) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... the policy of insurance and sought to recover the entirety of this amount. 2. Defendants 1 and 2 contended that the first plaintiff was responsible for getting Kalianna murdered so that she is disqualified from succeeding to Kalianna. In respect of the B Schedule properties, it was claimed that they also belonged to the joint family and were not the separate properties of Kalianna and the second defendant. It was denied by them that any of the properties mentioned in Schedule C was with them. With regard to the insurance amount, the contention was that the premia for the insurance were paid from out of the joint family funds so that that item of property should also be regarded as joint family property. It was further alleged there were no outstandings due to the family as claimed by the plaintiff. On the other hand, there were debts binding upon the joint family to the extent of ₹ 10800. 3. One of the reliefs sought by the plaintiffs in the suit was that a deed of gift executed by the first defendant in favour of his daughter , the third defendant, is a sham and nominal document and that it should be disregarded for the purpose of ascertaining the share due to the pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not proved to be the nominee under the policy so that she was not exclusively entitled to the amount. Objection has also been taken to the disallowance by the Trial Court of mesne profits from the date of the suit and to the disallowance of costs. 7. The questions that fall for determination in the present appeal are : 1. Whether the gift deed in favour of the third defendant is a transaction which can be supported under the Hindu law? 2. What are the outstandings and debts of the family? 3. Whether the view taken by the learned Subordinate Judge with regard to the insurance policy amount and his conclusion that it represents a property which is divisible between the plaintiffs and the fifth defendant is, in the circumstances of the case, correct? and lastly, 4. Whether the disallowance of mesne profits and costs is justified? It is not denied that the deed of gift was executed on 12-5-1957. Under this document, the first defendant purported to make over to his daughter the whole of item 1 of the Schedule A, an extent of 2 acres 14 cents of punja lands, and 1 acre, 84 1/2 cents out of item 3, also punja lands, making a total of roughly 4 acres. The learned Subordinate Judge h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vable property of her husband to net daughter on the occasion of the performance of certain ceremonies or when the daughter leaves her parental home for that of her husband. In that decision, the gift was not made at the time of the marriage but subsequent thereto. The learned Judges observe : But it is difficult to see why the moral obligation does not sustain the gift because it was not made to the daughter at the time of the marriage but only sometime later. Accordingly, such a gift was upheld. In a decision of the Supreme Court in Kamla Devi v. Bachulal Gupta, [1957]1SCR452 , a gift of immovable property to the daughter made two years after the marriage by her mother, who was a Hindu widow, came to be considered. Their Lordships laid down that the right of a Hindu widow to make a gift is governed by the Hindu Law and it is open to her to make an effective gift in favour of her daughter subsequent to the marriage if the conditions laid down by the Hindu law are fulfilled. It is unnecessary to extract any portion from the judgment of the Supreme Court, as the principle that the father is competent to make a gift of a reasonable portion even of immovable property of the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s available at present. We are really unable to follow the precise nature of the objection. In the plaint, as item 5, in Schedule A, were set out certain money dealings. The first defendant, as D. W. 1, admitted the mortgage transaction of ₹ 3000 and the loan of ₹ 1000 advanced to one Marappan. In the course of the evidence, he stated that this mortgage loan hart ripened into a decree. That was the reason why the learned Subordinate Judge decreed the 2/9th share of this ₹ 4000 found 10 be assets belonging to the joint family in the hands of the first defendant. As far as we are able to see, the decree is fully in conformity both with the claim made in the plaint and the facts established during the course of the trial. It is of interest to note that in the written statement of defendants 1 and 2, beyond stating that the money dealings, mentioned in Schedule A, are incorrect, no further details were furnished. We see no reason to disturb the finding of the lower Court on this head. 10. The next point taken by the appellants is that the learned Subordinate Judge erred in not accepting the evidence with regard to the debts of the family which the defendants cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceipt of considerable income from its agricultural and garden lands. It was also in conflict With the position that the first defendant found it possible to lend money out at interest. The learned Subordinate Judge had the advantage of hearing the witnesses and we are not satisfied that having regard to the surrounding circumstances, the conclusion reached by the learned Subordinate Judge that these debts were not established is in any way erroneous. 11. The last item relates to the insurance policy amount. In this regard, while the defendants contend that the amount due under the policy should be treated as joint family property, as the insurance premia were paid out of the joint family funds, the first plaintiff in the memorandum of cross-objections claims to be solely entitled to this amount by virtue of a nomination effected by the deceased Katianna in her favour. Two questions are accordingly involved, firstly, whether this amount represents a joint family asset for the reasons advanced by the defendants and secondly, whether, by virtue of the alleged nomination, the first plaintiff is exclusively entitled to the amount, the Trial Court having taken the view that the fifth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the funds which he might have received from the joint family, it does not follow that the joint family insured the life of the member or paid the premia in relation thereto. It is undeniable that a member of a coparcenary may with the moneys which he might receive from the coparcenary effect an insurance upon his own life for the benefit of the members of his immediate family. His intention to do so and to keep the property as his separate property would be manifested if he makes a nomination in favour of his wife or children, as the case may be. It would therefore appear that no general proposition can be advanced in the matter of the insurance policy of a member of a coparcenary and that each case must be dealt with in accordance with the circumstances surrounding it. 13. In the present case, it seems to us that the insurance amount cannot be regarded as a joint family asset. The plaintiffs urged in the plaint that Katianna Gounder nominated the first plaintiff as the person entitled to receive the said amount. The first plaintiff was unable to produce the policy, it being her contention that she was driven out of her husband's house and was unable to recover this amount. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AIR 1952 Mad 103, decided by one of us, wherein the nature of the interest taken by a widow under the Hindu Women's Rights to Property Act, XVII of 1937, came in for examination, it was pointed out therein that Section 3(2) of the Act had the effect of conferring upon the widow the same interest as the deceased coparcener had; and that the continued existence of the deceased coparcener as a legal persona in the body of his wife was fictionally postulated. The interest of the coparcener being a fluctuating one, no higher right was conferred on the widow; and her right to a share had to be determined as on the date of her suit to partition and not on the date of the death of her husband. Inferentially, it followed, that the joint family continued to exist despite the death of the coparcener and the right of the widow was subject to the increase or decrease, in the same manner as if she were a member of the coparcenary. On behalf of the defendants, it is urged that the principle should govern the present case and that the plaintiffs can only ask for a share in the properties remaining after the gift. We are unable to accept this contention in view of the special provisions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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