1 THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APEAL NO. 152 OF 1995 1. Devidas s/o Kewalrao Nikam, Age: 42 years, Occ: Service, 2. Shri Kewalrao Ruprao Nikam, Age: 70 years, Occ: Service, Nos. 1 & 2 R/oi. Virbhavan Dagadi Building Near Ghasardungi Station Road, Chalisgaon, District Jalgaon. 3. Pralhad Ruprao Nikam, Age: 60 years, Occ: Service, 4. Vasantrao Kewalrao Nikam, Age: 38 years, Occ: Business, Nos. 3 & 4 R/o. Ravindra Niwas, Bhadgaon Road, Mahatma Phule Housing Society, Tq. Chalisgaon, Dist. Jalgaon. ..Appellants Versus 1. Smt. Latabai Ramesh Nikam, Age: 19 years, Occ: Household, R/o. Adawad, through Kashinath Pundlik Deshmukh, At & Post Adawad, Tq. Chopada, Dist.Jalgaon. 2. The Life Insurance Corporation of India, Yogeshem Building, Bombay No. 21. 2 3. The Life Insurance Corporation of India Nashik, Divisional office Jivan Prakash Golf Ground Nashik-2. 4. The Branch Manager, The Life Insurance Corporation of India, Chalisgaon, Dist. Jalgaon. 5. Bipinkumar Devidas Nikam, Age: 8, Occ: Education, through his father Devidas Kewalrao Nikam, R/o. Virbhava Dagadi Building, Near Chalisgaon, Station Road, Chalisgaon, District Jalgaon. ..Respondents Mr. H.M. Salve, Advocate holding for Mr. S.K. Barlota, Advocate for appellants. Mr. L. V. Sangit, Advocate holding for Mr. V.J. Dixit, Sr. Counsel for respondent No. 1. Mr. S.L. Kulkarni, Advocate for respondent Nos. 2 and 3. CORAM : K. K. TATED, J. PRONOUNCED ON: 16/06/2009 ORAL JUDGMENT : 1. Heard learned Counsel appearing on behalf of the appellants and learned Counsel appearing on behalf of respondent No. 1 and learned 3 Counsel appearing on behalf of respondent Nos. 2 and 3. 2. Present first appeal preferred by original defendant Nos. 2, 3, 4 and 5 against the judgment and decree dated 17-11-1994 passed by the 2nd Joint Civil Judge, S.D. Jalgaon in Special Civil Suit No. 61/1988. The appellants herein after are referred to as original defendant Nos. 2, 3, 4 and 5. Respondent No. 1 is the original plaintiff and respondent Nos. 2, 3, and 4 are original defendant Nos. 6, 7 and 8 and respondent No. 5 is the original defendant No. 1. Respondent No. 1 filed Special Civil Suit No. 61/1988 in the Court of 2nd Joint Civil Judge, S.D. Jalgaon for recovery of amount, possession of truck or for its value and injunction. 3. It is the case of respondent No. 1 that being widow of Ramesh, the brother of appellants herein is entitled to the share of H.U.F. property. The trial Court decreed the suit to the extent that the appellants are liable to pay sum of Rs.1,06,779-40 ps. to respondent No. 1 along with interest @ 12% p. a. from the date of suit till its recovery. The other claim of respondent No. 1 is rejected by the trial Court. Learned Counsel appearing on behalf of the appellants - original defendant Nos. 2, 3, 4 and 5 made a statement across the Bar that he is restricting his First Appeal to the extent that original defendant Nos. 3, 4 and 5 are not liable to pay decretal amount as directed by the trial Court. He submitted that the trial Court erred in coming to the conclusion that 4 defendant Nos. 3, 4 and 5 are also liable to pay decretal amount to respondent No. 1. It is the contention of learned Counsel appearing on behalf of the appellants that the trial Court ought to have held that except defendant No. 2, other defendants are not liable to satisfy the decree as passed by the trial Court for payment of Rs. 1,06,779-40 ps. Therefore, it is not necessary to record the entire facts of the present case. 4. Trial Court passed order for payment of Rs. 1,06,779-40 ps. which was collected by original defendant No. 2 in respect of Life Insurance Policy taken out by deceased Ramesh, husband of respondent No. 1. Respondent No. 1 is widow of deceased Ramesh who expired on 11-08-1983. During his life time, he subscribed two L.I.C. policies for sum of Rs. 1,00,000/- and Rs. 50,000/-. Those policies were subscribed by the deceased Ramesh before his marriage and at that time, name of defendant No. 2 was shown as a nominee. It is the contention of learned Counsel appearing on behalf of the appellants that the trial Court erred in coming to the conclusion that the appellant Nos. 2, 3 and 4 are liable to pay a sum of Rs. 1,06,779-40 ps. to respondent No. 1 along with appellant No. 1 - original defendant No. 2. Learned Counsel appearing on behalf of appellants is not disputing the fact that respondent No. 1 is entitled to recover benefit of L.I.C. policies of deceased Ramesh. He submitted that the said amount was collected by appellant No. 1 - original defendant No. 2 as a nominee in the said 5 policy and therefore, he alone is responsible to repay the said amount to respondent No. 1. 5. On the other hand, learned Counsel appearing on behalf of the respondent No. 1 - original plaintiff submitted that appellant No. 1 was shown as nominee in L.I.C. policy. It is his duty to collect the said amount and hand over immediately to respondent No. 1, as a legal heir of deceased Ramesh. He further submitted that in spite of several demands, it remained on the part of appellants to repay the said amount of Insurance policy. It constrained her to file Special Civil Suit No. 61/1988 in the Court of Civil Judge, S.D. Jalgaon along with other prayers. Learned Counsel appearing on behalf of the respondent No. 1 submitted that thought benefit of L.I.C. policy was taken by appellant No. 1, same was used by him for repairs of H.U.F. truck, in the capacity as a Karta. Therefore, learned Counsel appearing on behalf of respondent No. 1 submitted that as amount collected by appellant No. 1 and used same for benefit of H.U.F., all other members of H.U.F. are also liable to reimburse the same. In view of these facts, learned Counsel appearing on behalf of respondent No. 1 submitted that there is no substance in the first appeal and same is liable to be dismissed with costs. 6. Learned Counsel appearing on behalf of respondent Nos. 2,3, and 4 submitted that trial Court passed order on Exhibit-36 on 09-10-1991 6 and directed the plaintiff to delete their names. As per said direction, respondent No. 1 - original plaintiff carried out amendment in original suit and deleted their names. In spite of that, the appellants joined them as party respondents in the present first appeal. Therefore, learned Counsel appearing on behalf of respondent Nos. 2,3 and 4 submitted that the appellants be directed to pay costs for joining them as party respondents in the present first appeal. 7. On the basis of above mentioned submissions, the point for consideration in the present first appeal is "whether the appellant No. 1 - original defendant No. 2 is alone responsible to reimburse sum of Rs. 1,06,779-40 ps. along with interest @ 12% p. a. from the date of suit till its realisation to respondent No. 1." My finding on this point is in the negative. 8. With the assistance of learned Counsel appearing on behalf of both the parties, I have gone through the Record and Proceedings of the trial Court. Learned Counsel appearing on behalf of the appellants submitted that appellant No. 1 - original defendant No. 2 collected the amount of L.I.C. policies from L.I.C. as a nominee. He submitted that as the said amount is collected by appellant No.1, other appellants are not responsible to repay the same jointly and severally to respondent No. 1. He submitted that appellant No. 1 in his deposition at Exhibit-139 admitted that he collected sum of Rs. 1,06,779-40 ps. as a nominee. He 7 further deposed that he spent said amount for the repairs of truck. Learned Counsel appearing on behalf of appellants submitted that as the appellant No. 1 spent said amount on his own for repairing truck and other expenses, other appellants are not responsible to reimburse the said amount to respondent No. 1. In any case, it is not possible to accept the said submissions made by learned Counsel appearing on behalf of the appellants. It is admitted position that appellant No. 1 collected amount from L.I.C. as nominee on behalf of true owner i. e. legal heir of deceased Ramesh. Legal heir of deceased Ramesh is respondent No. 1, who is entitled to the said amount. Learned Counsel appearing on behalf of respondent No. 1 submitted that as per Insurance Act, nominee does not get absolute right to the amount due. He submitted that duty of nominee is to collect the said amount and hand over the same to the true owner i. e. respondent No. 1 in the present case. 9. In his support, he relied on the decision of Apex Court in the matter of Smt. Sarbati Devi vs Smt. Usha Devi, reported in A.I.R. 1984 S. C. 346. Apex Court in this authority held that a mere nomination made under Section 39 does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the Life Insurance Policy on the death of the assured. Learned Counsel appearing on behalf of the respondent No. 1 specifically relied 8 on Para. 12 of the said judgment which reads as under. "12. Moreover there is one other strong circumstance in this case which dissuades us from taking a view contrary to the decisions of all other High Courts and accepting the view expressed by the Delhi High Court in the two recent judgments delivered in the year 1978 and in the year 1982. The Act has been in force from the year 1938 and all along almost all the High Courts in India have taken the view that a mere nomination effected under Section 39 does not deprive the heirs of their rights in the amount payable under a life insurance policy. Yet Parliament has not chosen to make any amendment to the Act. In such a situation unless there are strong and compelling reasons to hold that all these decisions are wholly erroneous, the Court should be slow to take a different view. The reasons given by the Delhi High Court are unconvincing. We, therefore, hold that the judgments of the Delhi High Court in Faula Singh's case (AIR 1978 Delhi 276) (supra) and in Mrs. Uma Sehgal's case (AIR 1982 Delhi 36) (supra) do not lay down the law correctly. They are, therefore, overruled. We approve the views expressed by the other High Courts on the meaning of Section 39 of the Act and holds that a mere nomination made under Section 39 of the Act does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount, on the 9 payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them." 10. Learned Counsel appearing on behalf of respondent No. 1 further pointed out that appellant No. 1 - original defendant No. 2 in his evidence at Exhibit-139 specifically stated that since 1976 he started acting as a Karta of their joint Hindu family. Appellant No. 1 in his deposition at Exhibit-139 in Para. 1 stated that " since the year 1976 I am Karta of our joint Hindu family. Before that, my father was Karta of our joint family. My father is aged about 72. His eye sight is weak. He is unable to walk easily. He does not to go out. He is unable to attend the Court." On the basis of evidence given by appellant No. 1, learned Counsel appearing on behalf of respondent No. 1 submitted that Devidas i. e. appellant No. 1 collected amount from L.I.C. in the capacity as nominee as well as Karta of joint Hindu family. He further pointed out that the appellant No. 1 admitted in his evidence that the said amount was utilised by the appellants for repayment of three overdue instalments and for repairing their H.U.F. truck. Para. 16 of the deposition of appellant No. 1 reads as under. "16. The amount of policy which I have received is the amount belonging to Joint Family. That amount comes to Rs. 1,06,779-40 ps. We have given details about expenditure of this amount is given in para 10 no. 11 of our W.S. Out of that amount, we remitted 3 overdue instalments. It comes to Rs. 93,000/-. One instalment of Rs. 46,000/- and odd and second was Rs. 41,000/- and odd and 5,000/- and odd. Towards this payment there was receipt, but it was misplaced, and, therefore, for that missing receipts we made correspondence with Uajal automotives. Ujwal automotives and the financer Telco. We received letter issued by Tata Engineer and that letter is at Exh. 58. This letter is in respect of payment of Rs. 46,577-82 made by us and towards token of that, this letter Exh. 58 is. Then we paid Rs. 17,000/- as stated above to Shri. Chajjed from whom we have purchased tyres. The remaining amount of Rs. 20,000/- we deposited it in Bank such as Rs. 10,000/- in Bank of Baroda and remaining Rs. 10,000/- with State of Bank of India. Both the banks are from Chalisgaon." 11. It is crystal clear from the deposition of appellant No. 1 that amount which he collected from Insurance Company was spent for the benefit of H.U.F. Therefore, other members of H.U.F. are also liable to reimburse the said amount to respondent No. 1. 12. In the above mentioned facts and circumstances, I hold that there is no substance in the submissions of learned Counsel appearing on behalf of the appellants that except appellant No. 1, other appellants are 11 not liable to reimburse the said amount to respondent No. 1 as per judgment and decree dated 17-11-1994. Therefore, present appeal is dismissed. [ K.K. TATED, J.] sut/JUN09/fa152.95