1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 08.11.2023

PRONOUNCED ON : 29.11.2023

CORAM:

THE HON'BLE MR.JUSTICE G.ARUL MURUGAN

AS.No.925 of 2010
and MP.No.1 of 2010

1.K.Malarkodi
2.Minor K.Govardhani
3.Minor K.Raman
4.Minor K.Lakshmanan
(Minors 2 to 4 represented by
their mother and next friend
K.Malarkodi) .... Appellants

vs.
1.Vanitha
2.Kavitha
3.Vijaya Anand
4.Durai Rajan
5.The Branch Manager,
LFC of India, Ranipet. ... Respondents

PRAYER: Appeal is filed under Section 96 of the Civil Procedure

Code, against the judgment and decree dated 29.06.2010 by the learned
Additional District Judge (Fast Track Court), Ranipet and made in O.S.
No.3 of 2009.

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For Appellants : Mr.A.Rajendra Kumar

For R1 to R4 : Mr.T.P.Prabakaran, Advocate
For R5 : No Appearance

JUDGMENT

This Appeal is filed challenging the judgment and decree dated

29.06.2010 in OS.No.3 of 2009 by the Additional District Court, Fast

Track Court, Ranipet decreeing the suit in favour of the plaintiffs

granting 1/8 share each or 4/8 share together in respect of items 1, 2 and

4 of the suit properties and dismissing the suit as against the item 3 of the

suit property.

2. For the sake of convenience, the parties are referred to as per

their rankings before the Trial Court.

3. The Plaintiffs are the sons and daughters born through first

wife of their father Kannan. Plaintiffs father divorced his first wife

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Alamelu and married the first defendant Malarkodi. The defendants 2 to

4 are the children born through the first defendant.

4. It is the case of the plaintiff that their father was working as the

Office Assistant in the Office of the fifth defendant / LIC and died in

harness, leaving behind the Plaintiffs and the defendants 1 to 4 as his

legal heirs.

5. After the death of their father Plaintiffs and Defendants 1 to 4

are entitled to succeed both the death benefits payable from the 5th

defendant and also the immovable properties owned by late Kannan. The

Plaintiffs and the defendants, jointly are in possession of all the

immovable properties. It is the further case of the Plaintiffs that the 1st

defendant, suppressing the presence of the plaintiffs, made a claim and

received the entire death benefits of Rs.14,01,657/-. Since the 5th

defendant has paid the entire amount to the 1st defendant despite the

objections of the plaintiffs, the 5th defendant has been impleaded in the

suit.

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6. According to the plaintiffs, the immovable properties

mentioned in items 1 and 2 of the suit are the absolute properties of said

Kannan. In addition, the 1st defendant has also purchased the house

property mentioned in Item 3 of the suit schedule. Thus, according to the

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plaintiffs, they are entitled to a 4/8th share in all four items of the suit

properties.

7. The plaintiffs issued a legal notice dated 21.02.2008, calling

upon the defendant for an amicable partition by dividing the schedule

property into eight equal shares and allotting 1/4th share to defendants 1

to 4. After receiving the notice, the defendants 1 to 4 replied on

04.03.2008, admitting the plaintiff's share in the suit properties and

sought time for partition. However, defendants 1 to 4 remained silent

after issuing the reply notice, and therefore the plaintiffs were compelled

to file suit for partition and seek separate possession of their share in the

suit properties.

8. The defendants 2 to 4 are minors represented by the first

defendant's mother. The first defendant has filed a written statement

opposing the relief. According to the first defendant, her husband

Kannan legally divorced his wife Alamelu long ago. At that time, the

first wife demanded and got permanent alimony for her and her children

and she promised that she will not make any other claims in the future.

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The 1st defendant claims that even after Kannan married her and they had

3 children, still the plaintiffs were taken care of and sufficiently provided

for. According to the first defendant, deceased Kannan nominated her as

nominee in the 5th respondent office to receive the terminal benefits that

could be paid to them. As per the the nomination, the 5 th defendant has

paid the entire death benefits of deceased Kannan to her, as per the

nomination.

9. In view of the nomination made by the deceased Kannan in

favour of the first defendant, the plaintiffs are not entitled to make any

claim in so far as the item 4 of the suit property is concerned. In respect

of the item 3 of the suit property, the same does not belong to first

defendant nor the deceased Kannan. Therefore, the claim as against Item

3 and 4 are not sustainable.

10. In respect of item no.2 of the suit property, it is her case that

the property absolutely belonged to deceased Kannan and that during his

life time he voluntarily executed a registered the Will dated 09.07.2003,

bequeathing item 2 of the suit property, which is the house, in favour of

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the first defendant. As per the will the first defendant became the

absolute owner of the second item of the suit property. In view of the

same, the plaintiffs cannot make any legal claim over the same.

11. Further according to the first defendant, since defendants 2 to

4 are minors, no claim can be made in respect of item 1 of the suit

property for partition as those are lands. The 5th defendant/LIC has filed a

written statement stating that according to the office records, the first

defendant named Malarkodi is the wife of late Kannan. He was

appointed to LIC on 18.08.1993 and during the time of appointment, he

did not mention anything about his first wife or about the plaintiffs.

12. Therefore according to the nomination executed by the

deceased employee late Kannan, the first defendant is the only nominee.

The plaintiffs, who are legal heirs of the deceased Kannan's divorced

wife, did not make any objections or claimed the death benefits.

Therefore after deducting the housing loan of Rs.87,717.94, from out of

the total amount of Rs.14,01,657/-, a sum of Rs.13,13,939.69/- has been

paid in entirety to the first defendant.

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13. Considering the pleadings of the parties, the Trial Court

framed the following issues:

Re-cast Issues

(a) Is the Will dated July 09, 2003, which D1 pleaded in respect of

the property in item(2) enforceable against the plaintiffs on fact and law?

(b) Have the plaintiff made out a case for declaring 4/8 share for

them in the plaint-schedule properties. That's item Nos.(1) to (4).

(c) What's this court's decree on the suit? What are its terms?

14. In the Trial, the fourth plaintiff examined himself as PW.1 and

marked documents Ex.A1 to Ex.A6. The first defendant examined

herself as DW.1 and marked 9 documents Ex.B1 to Ex.B9, The attestors

in the will in Ex.B1 were examined as DW.2 and DW.3.

15. After considering the evidences, the Trial Court, by judgment

and decree dated 29.06.2010, decreed the suit, granting 4/8th share in

favour of the plaintiffs in respect of Item 1, 2 and 4 of the suit properties

and dismissed the suit in respect of item 3.

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16. Before the Trial Court, the plaintiffs themselves have given up

the claim in respect of Item 3 of the suit properties and further defendants

1 to 4 have conceded to the share of the plaintiff in Item 1 of the suit

property. Therefore, the issue before the Trial Court was in respect of

Item 2 and Item 4 of the suit property. The Trial Court disbelieved the

Will executed in Ex.B1 in favour of the first defendant on the ground that

there are suspicious circumstances and the first defendant failed to prove

the execution of the Will. In respect of Item 4 of the suit property, the

Trial Court has come to the conclusion that even though the nomination

has been made by the deceased in favour of the first defendant, the first

defendant is entitled to receive the benefits only on behalf of the legal

heirs, and the nomination cannot retain the entire benefits for herself. In

other words, the first defendant as the nominee only holds the Trust for

the benefit of all the legal heirs and the same shall be distributed to all of

them. The further defense raised by the first defendant is that the entire

money received from the fifth defendant as the death benefits of the

deceased Kannan was spent towards medical expenses through

borrowings from 3rd parties were rejected by the Trial Court. It is

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observed that even according to the first defendant, the deceased being

the employee of the fifth defendant is entitled to claim the medical

benefits and only due to the same, the original bills were not able to be

filed in Court. Aggrieved by the Judgment and decree of the Trial Court,

defendants 1 to 4 are on appeal.

17. The learned counsel for the appellant argued that in respect of

Item 1 of the suit property, even before the Trial Court, they conceded

for partition to allot shares in favour of the plaintiffs and in respect of

claim for Item 3 of the suit property, neither the 1st defendant nor the

deceased Kannan is the owner and it belongs to some third party. And a

such the counsel for the appellant restricted his arguments only in respect

of item 2 and 4 of the suit property.

18. According to the learned counsel for the appellant, as far as

Item 2 of the suit property is concerned, it is absolute property of the

deceased Kannan. While he was in sound state of mind, he executed a

registered Will dated 09.07.2003 Ex.B.1, bequeathing the entire Item 2 of

the suit property to the first defendant. Testator died in the year 2011,

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and after his death, as per the Will the first defendant became the

absolute owner of Item 2 of the suit property.

19. According to the learned counsel for the appellants, the Will

has been proved by examining attesting witnesses. Once the execution of

the Will stands proved, Item 2 of the suit property is no longer available

for partition, as the 1st defendant became the owner.

20. According to the appellant's counsel, mere participation of

beneficiary while executing the document is not a suspicious

circumstances. Further mere disinheriting other legal heirs cannot be

suspicious circumstances to disbelieve the will. Trial Court has given

much importance to minor discrepancies in the evidence of the witnesses.

21. In support of his arguments, the learned counsel for the

appellant relied on the judgment of the Hon'ble Supreme Court reported

in Mageshkumar (Dead) By Lrs. Vs. Vinod Kumnar and Others

reported in 2012 (4) SCC 387 for the proposition that active participation

of the beneficiary will not amount to suspicious circumstances.

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22. Per contra, the learned counsel for the respondents 1 to 4

submitted that Kannan died intestate, leaving behind the plaintiffs as the

legal heirs and they are entitled for the share in item 1, 2 and 4 of the suit

property. The learned counsel further submitted that in respect of Item

2 of the suit property, the Will in favour of the first defendant in Ex.B.1,

is not true and it was not executed by the deceased while in sound state

of mind.

23. According to the respondent counsel, DW.1 evidence is totally

contradictory to signature of the testator in all pages. He further states

that regarding attestation of the Will DW.3 Balaraman and DW.2

Gajendran, have given totally contradictory statements. DW.2 Gajendran,

in his evidence claims that the Will was already prepared and after he

signed in the Will DW.3 Balaraman signed. Whereas, DW.3 Balaraman

claims that only after he came the Will was prepared and he first signed

as the witness before DW.2. The learned counsel for the respondent

further argued that the evidence given by DW.1, 2 and 3 regarding the

signing of the Will by the testator deceased Kannan are not clear and

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raises suspicious circumstances and their evidence is untrustworthy to

believe. The Trial Court has rightly disbelieved the evidences and

rejected the Will in Ex.B.2, in respect of Item 2 of the suit property. The

learned counsel for the respondents submits that the first defendant

cannot claim the entire death benefits as a nominee. The first defendant

can only hold the trust for receiving the benefits and benefits received

from the 5th defendant has to be properly distributed among the legal

heirs.

24. The learned counsel for the respondents submits that the

deceased Kannan died in an accident and even in the claim before the

Motor Accident Claims Tribunal, the plaintiffs were also made as parties

along with the defendants, and the award was passed in favour of

plaintiffs and defendants. According to the counsel for the respondents,

taking into account all the above aspects, the Trial Court has decreed the

suit in respect of Item Nos.1, 2 and 4 of the suit property granting 4/8th

share to the plaintiff and submits that since it is a well considered

judgment, the appeal may be dismissed.

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25. Heard Mr. A. Rajendra Kumar, counsel for the appellants and

Mr. T.P. Prabhakaran, counsel for the respondents 1 to 4 and perused the

entire documents and evidences on record.

26. After hearing the parties, the following points arises for

consideration by this Court in the above appeal.

(1) Whether the Will Exhibit Ex.B.1 is proved as required under

law?

(2) Whether the will Exhibit B1 is surrounded with suspicious

circumstances?. If so whether propounder has dispelled the suspicious

circumstances?

(3) Whether the 1st defendant is entitled to retain the entire

service benefits received by her as a nominee from the 5th defendant

without distributing it to the other legal heirs.

(4) Whether the plaintiffs are entitled to partition of 1 to 4 items of

suit property as prayed?

Point Nos.1 & 2:

27. The relationship of the parties is not in dispute. Both the

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plaintiffs and the defendants 1 to 4 admit that deceased Kannan had a

first wife Alamelu and the plaintiffs 1 to 4 were born to Kannan through

the first wife. The deceased Kannan married the first defendant

Malarkodi, and defendants 2 to 4 were born through the second wife

Malarkodi. It is the admitted case of both sides that first defendant

married Kannan after the divorce of his wife Alamelu.

28. The first defendant resists the claim in respect of Item 2 of the

suit property based on the registered will dated 09.07.2003 in Ex.B.1. It

is her stand that her husband executed will in sound state of mind

bequeathing entire second item to the first defendant. Now it has to be

analyzed whether Exhibit B1 has been proved in a manner known to law

or whether it is attached with any suspicious circumstances.

29. Ex. B.1 is the registered Will. Mere registration of the

document alone cannot be taken as proof that the Will is proved. In other

words despite the Will being registered it is on the propounder to lead

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cogent evidence and dispel the suspicious circumstances and prove the

execution of the Will, to satisfy the conscience of the Court to accept the

Will. For proving the execution, the propounder of the Will, first

defendant has given evidence as DW.1 and examined both the attesting

witnesses as DW2 and DW3.

30. On analyzing the oral evidence, it is seen that D.W.1 in her

evidence categorically states that the Will was prepared on 09.07.2003

and the testator himself dictated the Will to one Parthasarathy. The Will

was typed and kept ready and thereafter both the witnesses arrived.

31. D.W.1 in her cross examination has deposed that DW.3

Balaraman works in the BSNL office and during the lunch break, he

came from the office and after executing the Will, he immediately left to

his office. It is her further evidence that D.W.3, first came and signed the

Will as a witness and thereafter D.W.2 Gajendran came and signed the

will. They both witnessed the execution of the Will. Further in her cross

examination, DW.1 submitted that the testator signed only the first page

of the Will, and then she corrected her statement and stated that the

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testator signed all the pages.

32. DW.2 Gajendran in his chief examination stated that the Will

was prepared in his presence and he saw the testator signing the Will and

thereafter he also signed it, and then DW.3 attested the Will. But, during

cross examination, DW.2 state that the Will was prepared, signed and

kept ready when he came to the office. If, the Will was already prepared,

signed, and kept ready, then there was no occasion for him to witness the

testator's signing the Will. Therefore DW.2 witnessing the testator

signing the Will is highly doubtful.

33. Further, DW.3 Balaraman has given evidence stating that he

was on leave for office for the whole day and was very much available in

the place and saw the Will being prepared and the testator signing the

Will. He deposed that only when DW.2 Gajendran arrived they started

preparing the Will. Thereafter Gajendran DW.2 signed in the Will and

thereafter he signed. Further DW.3 stated that deceased Kannan entered

the registrar office and signed the Will. Thereafter he corrected his

statement and stated that he also signed when it was attested.

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34. The relevant portion of evidences of D.W.1, D.W.2 and Dw3

are extracted hereunder for easy reference.

Evidence of DW.1:

jhth capiy vd; fzth; vOjpaNghJ> ehDk;

$lapUe;Njd;. Jhth capiy gjpT nra;j
fhyj;jpy; ehd; cldpUe;Njd;. Nkw;go capypy;
1tJ gf;fj;jpy; kl;Lk; vd; fzth; ifnaOj;J
Nghl;L rhh;gjpthsh;> mYtyfj;jpy;
nfhLj;Jtpl;lhh;. rhl;rp kPz;Lk; vy;yh gf;fj;jpYk;
ifnaOj;J Nghl;ljhf nrhy;fpwhh;. rhl;rpahf
gyuhkd; vd;gth; KjypYk;. fN[e;jpud; vd;gth;
,uz;lhtjhfTk; ifnaOj;J Nghl;lhh;fs;. vd;
fztNu rhl;rpfis mioj;J te;jhh;. rhl;rp
gyuhkd; gp.v];.; vd;. vy;ypy; Ntiy ghh;f;fpwhh;.
mtUila rhg;ghL Neuj;jpy; rhl;rpf;fhf vd;
fzth; mioj;J te;jhh;. yd;r; ilkpy; rhl;rp
gyuhkd; thyh[htpYs;s jd; tPlb ; ypUe;J te;J
rhl;rp ifnaOj;J nghl;Ltpl;L MgpRf;F
Ngha;tpl;lhh;. rhl;rp fN[e;jpud; mtUila tPl;by;
,Ue;jhh;. vd; fzth; mioj;J te;jhh;. capiy
ilg; gz;zp itj;jg; gpwFjhd; rhl;rpfs; gyuhkd;
fN[e;jpud; MfpNahiu mth; mtuJ tPl;bypUe;J
mioj;J te;jhh;.

Evidence of DW.2:

ehd; Nghtjw;F Kd;Ng rhl;rp [hdfpuhkd; gyuhkd;

vd;gth;fs; ,Ue;jhh;fs;. kyh; nfhbAk;
$lapUe;jhh;. ehd; NghFk;NghJ> capy; vOjp
ifnaOj;J Nghl;L nubahf itj;jpUe;jhh;fs;.
mjd; gpwF ehd; nrd;W rhl;rp ifnahg;gk;
Nghl;Nld;. vdf;F gpwF gyuhkd; rhl;rp
ifnahg;gk; Nghl;lhh;.

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Evidence of DW.3

09.07.03y; capy; gjpag;gl;lJ. ehd; md;W yPt;

Nghl;L ,Ue;Njd;. ehd; NtW fhuzj;jpw;fhf yPt;
Nghl;L ,Ue;Njd;. capypy; rhl;rpg; Nghl md;iwa
jpdk; fz;zd; vd;id $g;gpl;lhh;. 09.07.03y; xU
ehs; kl;Lk; jhd; yPt; Nghl;L ,Ue;Njd;. ehd; te;j
gpwF fN[e;jpud; vd;gth; te;jhh;. [hdfpuhkd;
te;jhh;. kyh;f;nfhb mq;F ,Ue;jhh;fs;. vdf;F
gpd;dhy; jhd; fN[e;jpud; te;jhh;. ehd; te;jg;
gpwFjhd; capy; jahhpf;f Muk;gpj;jhh;fs;. fz;zd;
nrhy;y nrhy;y utpr;re;jpud; ilg; nra;jhh;. jkpo;
jl;lr;rpy; ilg; nra;jhh;fs;. Kjypy; rhl;rp
ifnaOj;J fN[e;jpud; Nghl;lhh;. GpwF ehd;
ifnaOj;J Nghl;Nld;. fz;zd; rhh;gjpthsh;
mYtyfj;jpw;F cs;Ns Ngha; ifnaOj;J Nghl;lhh;.
rhl;rp kPz;Lk; fz;zd; ntspNa ,Ue;Jk;>
ifnaOj;Jg; Nghl;lhh; vd;fpwhh;.

35. A perusal of the above evidence of DW1, DW2 and DW3

shows that they are completely contradictory to each other. The evidence

in respect of the preparation of the Will, the testator's signing of the Will

and the attestation of the Will after witnessing the same raises several

doubts about the nature of the execution of the Will. The propounder of

the Will, DW1 beneficiary not only participated in the preparation of the

Will but also participated in registration. Evidence of DW2 and DW3 on

careful analysis makes it clear that attestation of document has not been

proved in the manner known to law. Section 63 of the Indian Succession

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Act reads as follows,

63. Execution of unprivileged Wills. —Every testator, not

being a soldier employed in an expedition or engaged in
actual warfare, 12 [or an airman so employed or engaged,]
or a mariner at sea, shall execute his Will according to the
following rules:—

(a) The testator shall sign or shall affix his mark to the Will,
or it shall be signed by some other person in his presence and
by his direction.
(b) The signature or mark of the testator, or the signature of
the person signing for him, shall be so placed that it shall
appear that it was intended thereby to give effect to the
writing as a Will.
(c) The Will shall be attested by two or more witnesses, each
of whom has seen the testator sign or affix his mark to the
Will or has seen some other person sign the Will, in the
presence and by the direction of the testator, or has received
from the testator a personal acknowledgement of his
signature or mark, or the signature of such other person; and
each of the witnesses shall sign the Will in the presence of the
testator, but it shall not be necessary that more than one
witness be present at the same time, and no particular form of
attestation shall be necessary.

36. Perusal of the above provision makes it clear that attestation as

required under Section 63(c) of the Indian Succession Act, is a distinct

act. Unless attestation and execution of will is proved, will cannot be

admitted in evidence. By analyzing the evidence of DW1 to DW3,

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irresistible conclusion could be arrived at that execution and attestation

of will has not been established.

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37. Further in the present case, it is admitted that the first

defendant is the second wife of the deceased Kannan testator and that she

actively participated in the preparation and execution of the Will.

Secondly all the sons and daughters of the deceased Kannan numbering

7, including the minor dependents, defendants 2 to 4 and the plaintiffs 1

to 4 have been completely excluded in the will, particularly when the 1st

defendant is the sole beneficiary as per the Will. Further there was no

reason assigned in the will even to exclude the minor children and that

itself is a suspicious circumstance, which has not been dispelled by the

propounder of the will.

38. In view of the aforementioned suspicious circumstances

surrounding the Will, attestation and execution having not been

established by evidence and further propounder has not dispelled the

suspicious circumstances by satisfying the conscience of the Court, this

Court is not in a position to accept the Will as proved and rejects it for

the afore said reasons. Therefore Point No.1 & 2, are answered against

the appellants and as a result, Item-2 of the suit property is available for

partition and both the parties are entitled to their share.

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Point No.3:

39. The 1st defendant has resisted the claim of the plaintiffs in

respect to the death benefits of the deceased paid by the 5th defendant, on

the ground that since she is the sole nominee nominated by the deceased

to receive the benefits from the office of the 5th defendant, she is entitled

to retain the entire benefits and the plaintiffs are barred from making any

claim, The 1st defendant has raised a inter se dispute between the

nominee and the legal heirs.

40. At this juncture, it will be useful to refer the decision of the

Hon'ble Supreme Court in Sarabati Devi & Another Vs. Usha Devi,

reported in AIR 1984 (SC) 346, whether the Court had the occasion to

consider the question whether the nominee appointed under Section 39 of

the Life Insurance Act, 1938 gets absolute right to amount due under life

insurance policy on death of assured, wherein the Hon'ble Supreme Court

has held as follows:

“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

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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 Fauja Singh's case and in Mrs. Uma Sehgal's
case 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 hold 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
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.”

41. Again in Vishin N.Khandchandani Vs. Vidya Lachmandas

Khanchandani, reported in 2000 (6) SCC 724, the question whether the

nominee specified in the National Savings Certificate, on the death of its

holder, becomes entitled to the sum due under the certificate to the

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exclusion of all other persons ? Or whether the amount of the certificate

can be retained by him for the benefit of the legal heirs of the deceased?

came up for consideration before the Hon'ble Supreme Court and it was

held as under:

“13. In the light of what has been noticed

hereinabove, it is apparent that though language and
phraseology of Section 6 of the Act is different than the
one used in Section 39 of the Insurance Act, yet, the
effect of both the provisions is the same. The Act only
makes the provisions regarding avoiding delay and
expense in making the payment of the amount of the
national savings certificates, to the nominee of holder,
which has been considered to be beneficial both for the
holder as also for the post office. Any amount paid to the
nominee after valid deductions or becomes the estate of
the deceased. Such an estate devolves upon all persons
who are entitled to succession under law, custom or
testament of the deceased holder. In other words, the law
laid down by this Court in Sarbati Devi's case holds field
and is equally applicable to the nominee becoming
entitled to the payment of the amount on account of
national savings certificates received by him under
Section 6 read with Section 7 of the Act who in turn is
liable to return the amount to those, in whose favour law
creates beneficial interest, subject to the provisions of
sub-section (2) of Section 8 of the Act.”

42. Further in the decision in Vidyaa Hari Iyer Vs.

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M/s.Sundaram Finance Limited, reported in CDJ 2020 MHC 4925, a

learned Single Judge of this Court, by following the ratio laid down in

Sarabati Devi's case (cited supra) and Vishin N.Khandchandani's

case (cited supra), has observed as follows:

“17. As far as Section 45ZA of the Banking

Regulation Act is concerned, the above section indicate
that the amount shall be paid to the nominee. It is also
to be noted that Section 45ZD makes it clear that when
there is an Order or a certificate or other authority
from a Court obtained relating to such article is
produced before the bank, the bank shall take due note
of such decree, Order, certificate or other authority.
Therefore, it cannot be said that even after the
succession certificate is granted by the competent Court
is produced before the bank, they cannot ignore the
same merely on the basis of Section 45ZA of the
Banking Regulations Act. Even though 45ZA contained
non obstante clause, the Apex Court in Vishin N.
Khanchandani Vs. Vidya Lachamandas Khanchandani
reported in 2000 (6) SCC 724 in para 11 has
categorically held that though the overriding effect of
non obstante clause to attract the applicability of the
phrase, the whole of the section, the scheme of the Act
and the objects and reasons for which such an
enactment is made have to kept in mind, as the nominee
has to be treated as a trustee and he is entitled to
receive the amount only and he has to pay the amount to
the persons who are entitled under law of succession.
Therefore, when the succession certificate already
granted, the object of the Indian Succession Act has to
be given importance. Accordingly, the contention that
only the nominee alone as per section 45ZA of the
Banking Regulations Act is entitled to receive the money

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even after succession certificate is granted, cannot be

countenanced...
The Hon'ble Supreme Court in Sarabati Devi's case
(cited supra) held that nomination only indicated the
hand which is authorized to receive the amount, on the
payment of which the insurer get a valid discharge of its
liability under the policy and the amount, however, can
be claimed by the heirs of the assured in accordance
with the Law of Succession governing them. The
decision of this Court in Vidyaa Hari Iyer's case cited
supra emphasis the dictum that the nominee has to be
treated as a trustee and he is entitled to receive the
amount only and he has to pay the amount to the
persons who are entitled under Law of Succession.
43. From the above decisions, the legal position that emerge is that

nominee is only entitled to receive the benefits and give a valid discharge

to the payee and the nominee only receive the benefits and holds the

same as trustee and the same has be distributed equally to the persons

entitled as per succession.

44. Coming to case on hand, there is no dispute about relationship

between the parties and it is admitted by both the parties that the

plaintiffs 1 to 4 and the defendant 1 to 4 are the Class-I legal heirs of the

deceased Kannan. The 1st defendant only resists the claim of the

plaintiffs on the ground that since she is the nominee, she is entitled to

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retain the entire death benefits received from the 5th defendant. Further

it is her case that the benefits received from the 5th defendant has been

spent for the treatment and medical expenses incurred by the deceased

and has filed documents in Ex.B.8 and Ex.B.9.

45. Before considering the documents filed in Ex.B.8 and Ex.B.9 it

will be more appropriate to consider the reply notice issued by the

defendant’s 1 to 4 in Ex.B.3, where the 1st defendant has taken a

categorical stand in respect to the claim of the plaintiffs as regards the

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death benefit is concerned. Paragraph 7 and 9 are extracted hereunder for

easy reference,

“7. That my client being nominee of

Mr.P.P.Kannan has obtained total Rs.13,32.391/- lakhs
after deductions as terminal benefits from L.I.C., of
India and not Rs.14,01,657/- as stated by your clients.
Since Mr.P.P.Kannan left behind 8 Legal heirs and the
share of each legal heir is Rs.1,66,548/-. As such my
client is liable to make the payment of Rs.6,66,192/- as
total share of all 4 of your clients.

9. That my clients states that she always treat

the other legal heirs are her sons and daughters and
she is ready to pay your clients shares amount to
Rs.6,66,192/-. However my clients are not holding any
amount at present. She offer to sell the property
mentioned in No.2 of the schedule of property of your
notice and the sale proceeds can be divided into 8
equal shares and my client will be paying the above
said Rs.6,66,192/- from her share of sale proceeds. My
client will also try to get a genuine Buyer and you may
also instruct your client to search for Buyers”.

46. When the reply notice in Ex.B.3 is after the document

submitted by the 1st defendant in Ex.B.8 and Ex.B9, where the 1st

defendant has admitted and conceded to the claim of the plaintiffs and

has stated that they are entitled to 1/4th share each amounting to

Rs.1,65,000/-, and the 1st defendant will return the same to the plaintiffs,

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the defense raised by the 1st defendant that as a nominee she is entitled

to retain the amount received from the 5th defendant cannot be sustained.

In view of the categorical admission of the 1st defendant that the

plaintiffs are entitled to a sum of Rs,6,66,192/- in respect of the share.

When defendants 1 to 4 admitted share in the benefits to the plaintiffs at

earlier point of time in the reply statement, only inference now arise is

that Ex.B8 and Ex.B9 are only after though and cannot be relied on. If

really Ex.B8 and Ex.B9 were available, there was no reason as to why

the same was not disclosed in the reply notice. Further when this Court

pointed out the above admission to the respondents counsel during

arguments, the learned counsel for the respondents submitted that in

view of the reply notice, he is confining his arguments only in respect of

item 2 of the suit property and conceded to the item 4 of the suit

property.

47. In such circumstances, it can be safely concluded that the 1st

defendant as a nominee is entitled to receive the death benefits from the

5th defendant and hold it only a trustee on behalf of all the legal heirs of

the deceased and is duty bound to distribute the amount received, to all

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the legal heirs as per the Law of Succession. As it is admitted that the

plaintiffs 1 to 4 and defendants 1 to 4 are the class-I legal heirs of the

deceased, the plaintiffs are entitled to 1/4th share each in item 4 of the suit

property and the point is answered against the 1st defendant and in favor

of the plaintiffs.

Point No.4:

48. The defendants 1 to 4 have themselves conceded for partition

in the first item of the suit property. As far as item 3 the suit has been

dismissed. Therefore in view of the findings given in Point 1 to 3, the

properties in item 1, 2 and 4 are available for partition. As deceased

Kannan died intestate, Section 8 of the Hindu Succession is applicable

and the plaintiffs 1 to 4 and the defendants 1 to 4 being the class-I legal

heirs are entitled to 1/8th share each out of items 1, 2 and 4 of the suit

property. Accordingly all the points are answered.

49. In view of the same, this Court does not find any infirmity or

otherwise to interfere in the judgment and decree of the Trial Court. As

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such the appeal is dismissed confirming the judgment and decree of the

Trial Court. Considering the relationship between the parties, there is

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no order as to costs. Consequently, connected Miscellaneous Petition is

closed.

29.11.2023

drl

Index : Yes / No

Speaking / Non-speaking
Neutral Citation : Yes / No

To

1. The Additional District Judge,

(Fast Track Court), Ranipet

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G.ARUL MURUGAN.J.,

drl

AS.No.925 of 2010
and MP.No.1 of 2010

29.11.2023.

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