IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01/12/2009 C O R A M THE HONOURABLE Mr.JUSTICE C. NAGAPPAN Appeal Suit No. 1149 of 2004 Anuradha ... Appellant/Defendant Vs C.R.Amurtha ... Respondent/Plaintiff Appeal file U/S. 96 of CPC against the judgment and decree dated 9.3.2004 made in O.S.No. 6189 of 2001 on the file of the Additional District Judge, Fast Track Court-IV, Chennai. For Appellant ... Mr. B.T.Seshadri For Respondent ... Mr. S.Parthasarathy, Senior Counsel for M/s. Sarvabhauman Associates J U D G E M E N T The defendant has preferred the appeal challenging the judgment and decree dated 9.3.2004 made in O.S.No. 6189 of 2001 on the file of the Court of the Additional District Judge, Fast Track Court-IV, Chennai. 2. The respondent herein filed the suit seeking for a preliminary Decree for division of the plaintiff's half share in the plaint 'A' and 'B' schedule properties by metes and bounds and to pay a sum of Rs.1,19,000/- towards past mesne profits and future mesne profits at the rate of Rs.5/- per sq.ft. till the date of handing over possession of the plaintiff's share in 'A' schedule property and for costs of the suit. Briefly, the case of the plaintiff is that her second son C.R.Vijayakumar expired on 13.9.1998 at Chennai leaving behind his wife Anuradha, the defendant, and his mother Amurtha, the plaintiff, as legal heirs and he had no issues and at the time of death, he possessed of a flat in which the defendant resides and the plots at Pillaipakkam village, Sriperumbudur taluk more fully described in the plaint schedule. According to the plaintiff, she as mother of the deceased, and the defendant as widow of the deceased are entitled to half share each in the estate of Late Vijayakumar. It is further stated by the https://hcservices.ecourts.gov.in/hcservices/ plaintiff that the flat at Chennai, which is in the occupation of the defendant, is about 1400 sq.ft. and the plots at Sriperumbudur are about 9403 sq.ft. and the plaintiff issued notice to the defendant on 23.4.2001 requesting her to choose her convenience about 700 sq.ft. of the property in her enjoyment to enable the plaintiff to take possession of her share and also claimed damages for use and occupation of the portion belonging to the plaintiff and the defendant sent a reply through her Advocate on 2.5.2001 denying the right of the plaintiff to claim partition. 3. The defendant in her written statement has stated that her husband Vijayakumar purchased the undivided interest of the land and got a flat constructed thereon and the flat was intended only for the defendant since they had no children and money for construction of the flat was incurred jointly by the defendant as well as her husband and it is not the exclusive property of the defendant's husband as alleged. It is further stated by the defendant that the plaintiff, who is living with her husband, has expressly disclaimed all right, title and interest in the said flat, which is in the sole occupation of the defendant, and hence, the property mentioned in Schedule 'A', namely, Flat, is not available for partition and it is the exclusive property of the defendant. It is further stated by the defendant that her husband owned plots in Sriperumbudur and as a measure of gesture and goodwill, the defendant told the plaintiff that she can have the plots for herself and leave the flat to the defendant and this is only by way of compromise and not by way of any right in favour of the plaintiff. It is further stated by the defendant that the plaintiff cannot claim to be joint possession of the flat since it is only in the use and occupation of the defendant and the plaintiff is not entitled to any damages for use and occupation. It is further stated by the defendant that her husband had taken out two insurance policies, one for Rs.1,00,000/- and another for Rs.50,000/-, and he had nominated his mother, namely, the plaintiff, as nominee with reference to the amount in the event of his death and the plaintiff, by virtue of said nomination, has collected the entire amounts and appropriated the same to herself and the plaintiff though a nominee is holding the amounts in trust for the legal heirs of the deceased and on that basis, the plaintiff is liable to pay Rs.75,000/- together with interest at the nominal rate of 12% per annum to the defendant and the interest alone would come to Rs.36,000/- and the plaintiff is liable to pay the defendant a sum of Rs.1,15,000/- and the defendant is making a counter claim towards her share in the insurance policies taken by her late husband and pays the court fee for the same. 4. The plaintiff filed a counter statement stating that the flat was constructed and completed in the year 1988 and assessment of property tax completed and paid and the marriage of the defendant with her husband Vijayakumar took place only in the year 1994 and their first night was celebrated only in that flat on 29.4.1994 and that would show that no contribution was made by the defendant for constructing the flat and the plaintiff through her husband paid the https://hcservices.ecourts.gov.in/hcservices/ property tax along with water tax upto March, 2003. It is further stated by the plaintiff that there is no question of any agreement reached between the parties as alleged by the defendant and in the insurance policies Vijayakumar had nominated the plaintiff as nominee and she received the amounts and they are in fixed deposit earning 8.5% interest and Vijayakumar nominated the plaintiff with the sole intention that his mother should have the benefit of Insurance Policies and it cannot be considered as the assets of the deceased. 5. The trial court framed five issues and the plaintiff examined herself P.W.1 and marked Exs.A1 to A9 on her side and the defendant examined herself as D.W.1 and no document was marked on her side. On a consideration of oral and documentary evidence, the trial Court held that the plaintiff is entitled to half share in the suit 'A' and 'B' schedule properties and the plaintiff is not entitled to mesne profits and accordingly, granted preliminary Decree for partition and dismissed the suit with regard to claim of mesne profits and it also dismissed the counter claim of the defendant. Challenging the judgment and decree, the defendant has preferred the present appeal. For the sake of convenience, in this judgment, the parties are referred to as arrayed in the suit. 6. The points for determination in the appeal are - (1) Whether the plaintiff is entitled to half share in the suit 'A' and 'B' schedule properties. (2) Whether the plaintiff is entitled to past and future mesne profits. (3) Whether the defendant is entitled to half share in the amount realised out of the Insurance Polices of Late Vijayakumar. POINT No.1: 7. It is not in dispute that the plaintiff's second son Vijayakumar expired on 13.9.1998 leaving behind his wife Anuradha, the defendant, and his mother Amrutha, the plaintiff, as legal heirs and he had no issues out of the wedlock. It is also not in dispute that 'A' and 'B schedule properties belonged to Late Vijayakumar. 'A' schedule property is a flat measuring 1400 sq.ft. situated in Judge Jambulingam Road, Mylapore, and 'B' schedule property are vacant plots measuring an extent of 9403 sq.ft. situated at Pillaipakkam village, Sriperumbadur Taluk. Though the defendant has claimed in the written statement that she also contributed money jointly with her husband for the construction of the flat, she has not adduced any evidence for the same. On the other hand, the flat was constructed in the year 1988 and the defendant married Vijayakumar only in the year 1994 and there is no possibility of any contribution by the defendant towards the construction of the flat. https://hcservices.ecourts.gov.in/hcservices/ Except the interested oral testimony of the defendant as D.W.1, there is no other evidence substantiating the said contention and the trial Court has rightly rejected the same. The further contention of the defendant is that the plaintiff has expressly disclaimed all right, title and interest in the flat, namely, 'A' schedule property, but, no evidence was let in by the defendant to substantiate the said plea. On the other hand, the plaintiff stoutly denies any such compromise. The trial Court has rightly held that the plaintiff is entitled to partition and possession of half share in 'A' and 'B' schedule properties. The point is answered accordingly. POINT No.2: 8. Mr. S.Parthasarathy, learned senior counsel appearing for the respondent/plaintiff, submits that the plaintiff has sought for past mesne profits and future mesne profits and the trial Court has erroneously held that the plaintiff is not entitled to mesne profits and though the said finding is not appealed against since it is a partition suit, it is always open to the Appellate Court to order for accounting. Per contra, Mr. B.T.Seshadri, learned counsel for appellant/defendant submits that there was a specific prayer made by the plaintiff towards the claim for past and future mesne profits by quantifying the same and the trial Court has categorically held that the claim of mesne profits by the plaintiff cannot be accepted and has dismissed the suit with regard to the claim of mesne profits and that has become final. 9. It is true that the plaintiff has prayed for a sum of Rs.1,19,000/- towards past mesne profits and future mesne profits at the rate of Rs.5/- per sq.ft. till the date of handing over of possession of the plaintiff's share in 'A' schedule property. The trial Court framed Issue No.2 as to whether the plaintiff is entitled for mesne profits as prayed for in the suit. A finding has been rendered on that issue stating that the claim of mesne profits by the plaintiff cannot be accepted and the suit came to be dismissed insofar as the claim of mesne profits is concerned. No appeal has been preferred by the plaintiff against the rejection of the claim towards mesne profits and the finding has been allowed to become final. In any event, the possession cannot be termed as unlawful. Hence, the contention of the learned senior counsel appearing for the respondent is devoid of merit. The point is determined accordingly. POINT No.3: 10. The defendant in the written statement has stated that Late Vijayakumar had taken out two insurance polices, one for Rs.1,00,000/- and another for Rs.50,000/-, and he had nominated the plaintiff, who is the mother, as nominee, and hence, she received the amount from the insurance company and she is holding the amount in trust for the legal heirs of the deceased and the defendant is entitled for half share in the amount. The plaintiff in the counter statement has stated that as regards the insurance polices of Late Vijayakumar, she received the amount as nominee and the said sum https://hcservices.ecourts.gov.in/hcservices/ is in Fixed Deposit earning 8.5% interest. The learned counsel for the appellant submits that, admittedly, the insurance policy stood in the name of Late Vijayakumar and merely the plaintiff has been nominated in the policy, that would not give absolute right in respect of the amounts due under the insurance policies and the trial Court has failed to note that the nominee is holding it for the benefit of the legal heirs and the nominee though one of the heirs is not entitled to the entire amount by virtue of collection and the rejection of the counter claim by the trial Court is erroneous and liable to be set aside. In support of his submission, he relies on the decision of the Supreme Court in SMT. SARBATI DEVI AND ANOTHER v.. SMT. USHA DEVI [AIR 1984 SC 346]. Per contra, the learned senior counsel appearing for the respondent submits that the defendant ought to have paid court fee under Section 37(1) of the Court Fees Act for the counter claim and in any event, the defendant is not entitled to claim 12% interest since the amount itself is invested in a fixed deposit fetching interest at 8.5% per annum. 11. The Supreme Court in the decision, referred to above, has laid down that a mere nomination under Section 39 of the Insurance 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 and on the death of the policy holder, the amount payable under the policy becomes a part of his estate which is governed by the Law of Succession applicable to him and the amount can be claimed by the heirs of the assured in according with the law of succession governing them. Following the ratio laid down, it is clear that on the death of the policy holder, namely, Vijayakumar, the amounts payable under the policies became part of his estate and they are governed by the law of succession and as such, the defendant as a heir of the assured is entitled to half share in the amounts, namely, a sum of Rs.75,000/- and the court fee paid by the defendant on the counter claim is also correct and proper. 12. The defendant has claimed rate of interest at 12% per annum on the counter claim and has quantified the same at Rs.36,000/- and adding the same with the half share amount of Rs.75,000/-, the counter claim is made for a sum of Rs.1,15,000/-. It is seen from the counter statement filed by the plaintiff that she has invested the insurance amounts received, in fixed deposit earning 8.5% interest. In such circumstances, the defendant is entitled to the rate of interest only at 8.5% per annum on her share of Rs.75,000/-. The finding of the trial Court that the defendant is not entitled to the counter claim is erroneous and liable to be set aside and the defendant is entitled to a sum of Rs.75,000/- together with interest at the rate of 8.5% per annum from the date of suit till the date of realisation. The point is answered accordingly. 13. In the result, the appeal is allowed in part and the judgment and decree of the trial Court insofar as the dismissal of the suit with regard to the counter claim are set aside and there shall be a Decree on the counter claim for a sum of Rs.75,000/- https://hcservices.ecourts.gov.in/hcservices/ together with interest at the rate of 8.5% per annum from the date of suit till the date of realisation and in other respect, the appeal stands dismissed. However, there shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar pb To 1. The Additional District Judge, Fast Track Court-IV, Chennai. Copy to The Section Officer, V.R.Section, High Court, Madras. 1 cc to Mr.B.T.Seshadri, Advocate, SR 95297 1 cc to M/s.Sarvabhauman Associates, SR 65300 A.S.No. 1149 of 2004 CK (CO) RH (30.12.09) https://hcservices.ecourts.gov.in/hcservices/