- (1.) THIS is the plaintiff's second appeal.
(2.) THE relevant facts are these; The plaintiff filed the suit, against two defendants-respondents. Defendant-respondent No. 1 is the alleged widow of Mahanth Shankeranand Nath deceased and the defendant-respondent No. 2 is the Life Insurance Corporation of India. Two main reliefs were claimed by the plaintiff. (1) A declaration was sought to the effect that the plaintiff was entitled to Rs. 7,000.00 or any other amount due on the two insurance policies in dispute. (2) A permanent injunction was claimed in favour of the plaintiff against the defendant-respondent No. 1 restraining her from realising the amounts due on the said two policies from the defendant- respondent No. 2. According to the plaint allegations there is a Math known as Bawa Sarwanath Math of which Mahanth Mahadeo Nath happened to be the Mahanth Gaddinashin and in that capacity he filed the suit. It was stated that the Mahanth had no personal interest in the income of the Math's properties. Mahanth Shankeranand Nath was the preceding Mahanth of the Math who got himself insured with the Life Insurance Corporation of India under two policies - one dated 28-12-1957 for Rupees 25,000.00 and the other dated 5-8-1960 for Rs. 30,000.00. Certain instalments of premium due under the said two policies were paid by the assured out of the Math's fund and the said policies were taken out for the benefit of the Math and belonged to the Math. Subsequently, Mahanth Shankeranand Nath resigned his Mahantship in 1961 and the plaintiff became the Mahanth of the Math. Mahanth Shankeranand Nath died on 2nd September 1963. On his death the plaintiff claimed the proceeds of the two policies the defendant-respondent No. 2 but the latter stated that the assured had nominated the defendant- respondent No. 1 as the nominee of the two policies and as such she was entitled to the proceeds of the policies unless the court directed to the contrary. It was further alleged in the plaint that the claim of the defendant-respondent No. 1 that she was the wedded wife of the deceased Mahanth Shankeranand Nath was incorrect and she was a mere kept and there was no valid marriage. The defendant- respondent No. 1 contested the suit. She claimed to be the legally wedded wife of the deceased Mahanth Shankeranand Nath. She further claimed that the deceased Mahanth owned personal assets, moveable and immovable and the Math had no concern with the same. It was also asserted that the instalments of premium in respect of said policies were paid out of his personal funds by the assured and not out of Math's fund. The policies were not taken out for the benefit of the Math but were taken out for his own benefit and the benefit of the nominee. After his marriage with the defendant- respondent No. 1 the assured endorsed the policies in favour of the said defendant-respondent No. 1 and nominated her as the person to whom the amount was to be paid in event of the death of the assured. By the will dated 18-7-1963 executed by the deceased Mahanth, she was entitled to proceeds of the said policies. The suit was also said to be bad under the provisions of the Specific Relief Act. The trial court framed eleven issues. No finding, however, was returned on issues Nos. 1 to 6 and 8 in view of the statement made by the counsel on behalf of the parties. These issues raised the question of the validity of the alleged marriage of the deceased Mahanth with the defendant-respondent No. 1. In respect of issues Nos. 9 and 10 it was observed by the trial Court that no arguments were addressed by the contesting defendants. They were therefore, treated as not pressed and decided in the negative. Issue No. 11 was as follows: "To what relief, if any, is the plaintiff entitled ?" Issue No. 7 alone was examined on merits and decided by the trial court. The said issue was as follows: "What was the source from which the moneys were paid by Shankeranand Nath towards the premiums of the policies in dispute ? Its effect ?" The trial Court after examining the evidence adduced by the parties held that it was not proved that the moneys towards the insurance premiums were paid from the Math's funds. It was further held that even if it were accepted that the Math's funds were utilised for making payment towards the insurance premium, still, the defendant-respondent No. 1 was in law entitled to the proceeds of the two policies and not the plaintiff. The plaintiff took out an appeal to the lower appellate Court but did not succeed. The lower appellate Court also endorsed the aforesaid findings recorded by the trial Court. Feeling aggrieved the plaintiff has come up in the instant appeal and in support thereof I have heard Shri V.K. S. Chaudhary, learned counsel for the plaintiff-appellant. In opposition, Shri K.C. Saxena, the learned counsel for the defendant-respondent No. 1 has made his submissions. Shri Chaudhary's first contention is that the Courts below have not correctly interpreted the relevant provisions of the Insurance Act. The trial Court and the lower appellate Court on an interpretation of Section 39 of the Insurance Act held that the nominee was bound to be paid the amount of the policies and the Insurance Company had no choice in the matter. The Lower Appellate Court in its judgment relied upon the following three cases: Kesari Devi v. Dharma Devi. 1962 All LJ 265 = (AIR 1962 All 355); D.M. Mudaliar v. I. I. and B. Corpn., (AIR 1957 Mad 115): M. Brahmamma v. K. Venkataraman Rao, (AIR 1957 Andh Pra 757): Shri Chaudhary's first contention is that under the Insurance Act there is a difference between assignment and nomination. Nomination is only for the purpose of enabling the insurer to get a valid discharge but it creates no title in the nominee whereas the assignment of the policy does create a title in the assignee. Counsel has drawn attention to sub-section (5) of Section 39 of the Insurance Act and contends that the provisions therein clearly prove that the nominee gets no vested right in the policy, otherwise his heirs would be entitled to the proceeds of the insurance policy. It is contended that sub-section (1) and sub- section (6) of Section 39 are injunctions for the benefit of the insurer but a court of law is not bound by the said injunction and it has full right to direct payment of the policy to persons other than the nominee. Reliance has been placed on the following cases: Kesari Devi v. Dharma Devi, (AIR 1962 All 355); Raja Ram v. Mata Prasad, (AIR 1972 All 167) (FB); Sarojini Amma v. Neelkanta, (AIR 1961 Ker 126) (FB); L. I. C. v. United Bank, (AIR 1970 Cal 513); Parbati Kuer v. Sranghar. (AIR 1960 SC 403); Radha Debi v. Controller, Estate Duty, ((1968) 72 Cal WN 696); Sethalakshmi Ammal v. Controller of Estate Duty, (1966) Mad LJ 484.
(3.) THE next contention of the learned counsel for the appellant is that an ascetic cannot have his separate property. If he acquires any it will be of the Math. Whatever property will be found to belong to the Mahanth at the time of his death will devolve not on his a personal heirs but on his disciples. Further, all the offerings made to a Mahanth be along to the Math and not to him personally. For this submission reliance has been placed on the following: (1) Mulla's Hindu Law, 1966 Edn. Section 58 and Section 111. (2) Mitakshara, Section 8, verses (i), (ii), (iii), (iv), (v) and (vi), Colebrook's Translation. Counsel also relied on para. 3 of the Memorandum of Association and on Rules 3, 14, 19, 20, 21 and 23 of the Rules and Regulations of Panchayati Akhara Shri Nirajani Gosais of Naga Sect. It may be stated that the said, documents are sought to be brought on the record in this appeal with the aid of Order 41, Rule 27, Civil Procedure Code. Shri Chaudhary's next contention is that the finding of fact recorded by the two courts below to the effect that the plaintiff failed to prove that the instalments of insurance premium were paid from the Math fund is vitiated in law. He contends that the relevant entries of the cash book of the Math were fully proved to prove the payment from the fund of the Math. Moreover, the payments were made by checques or bank draft and, therefore, there was dispute about the payment. The instalments in question were admittedly received by the insurer and no instalment paid on the said policies after the deceased Mahanth resigned his Mahantship on 28-3-1962. It was next contended that courts below did not properly appreciate the probative value of Ex. B-14 which is the letter dated 2-4-1960 addressed by the deceased Mahanth Shankeranand Nath to the insurer. In this letter the Mahanth wrote that he would make the nomination in respect of the policies after the election of the Mahanth was held. It was alleged in the letter that that was the practice or custom. Similarly, it was contended that the courts below did not properly appreciate the probative value of Ex. 5 which is the reply too the Income-tax Officer. Award, Saharanpur on behalf of the deceased Mahanth with reference to the notice under Section 23 (3) of the Income-tax Act for the assessment year 1959-60 which had been issued by the said officer to the deceased Mahanth. Counsel also drew attention to certain other exhibits on the record, viz., Ex. B-5, B-7, B-8, B-9, B-10, B-11 and B-18 which documents have been filed by the defendant-respondent No. 2 and to Exts. 1, 2 and 3 which are the plaintiff's documents.;