Decided on September 20,1946


Referred Judgements :-



- (1.)THE question in this appeal is whether the effect of an assignment of an insurance policy was to create an estate in the assignee or to leave the money due under the policy as part of the estate of the assured. THE parties to the appeal are the widow of the assured, in whose favour the assignment was made, and a creditor of the assured who obtained a decree against the assured and is now trying to execute it. THE trial Court has held that on the wording of the assignment the effect was to leave the ownership of the policy money as part of the estate of the assured. Against that decision the assured's widow has come in appeal.
(2.)THE assignment is in these words: I, Lakhaji Khodaji, the assured withinnamed, do hereby assign all my right, title and interest in and under the within policy on my life and all moneys and benefits thereby secured to my wife Lakshmi aged about 47 years. Provided, however, that should the said my wife Lakhmi predecease me before the policy matures or should I survive to the end of the endowment period provided for in the policy, I declare that the said policy and all moneys and benefits thereby secured shall revert to me and form part of my estate. THE word "revert" has presumably some significance, and it implies that subject to the conditions given in the proviso the policy money went out of the estate of the assured. But quite apart from the word "revert" the whole tenor of the assignment is to give an immediate interest in the policy to the assured's wife, an interest which takes effect immediately, though of course she would not. herself be able to handle the money until it became actually payable. THE only effect of the conditions is to make the assignment inoperative upon the subsequent happening of either of two contingencies. THE lower Court however has relied upon a decision of this Court in Dinabai v. Bamanshaji (1933) I. L. R. 58 Bom. 513, S. C. 36 Bom. L. R. 608, where the Court held that the effect of the assignment there being considered was to keep the policy money in the estate of the assured so as to make the policy amount attachable in the hands of his widow in whose favour the assignment had been made. It was an endowment policy payable at death or at the age of 55, and the amount of the policy was made payable to the assured's wife provided she survived the assured and, failing her, to the assured, his executors, administrators or assigns. That was a very different kind of assignment from the one with which we are now dealing; the distinction is obvious and need not be stressed.
It is argued on behalf of the decree-holder that the assignment was revocable and as such incapable of creating any present interest in the assignee; and a reference was made to Section 38, Clause (7), of the Indian Insurance Act of 1938. But we do not see how Clause (7) affects in any way the revocability or irrevocability of an assignment. We have no reason to suppose that an assignment in this form is revocable, and Section 39 of the Act provides that such an assignment (which, incidentally, has to be made by endorsement supported by attesting witnesses) shall automatically cancel a mere nomination, which can be made by endorsement without attesting witnesses. The implication clearly is that the assignmeat would not be revocable and that it would create an interest in the assignee which the assignee herself would be able to assign. The same view was taken by the High Court of Madras on an assignment which in substance was in exactly the same terms; see Lakshmikutty v. Nambisan. [1939] Mad. 415

We allow the appeal and direct that execution do proceed on the basis of the policy amount not being part of the estate of the judgment debtor.

(3.)THE appellant must be given her costs of the appeal. .

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