JUDGMENT
Arnold White, C.J.
1. The first question which has been referred to us is whether the Married Women’s Property Act, 1874 (Act III of 1874) applies to Hindu males.
2. I feel a difficulty in answering this question in the form in which it has been framed. A general answer might possibly cover a case not contemplated in the order of reference, and not argued before us. The argument before us was confined to the question whether, where a Hindu male effected a policy of insurance on his own. life, which expressed on the face of it that it was for the benefit of his wife, or his wife and children, or any of them, Section 6 of the Act applied. This is the question I propose to deal with.
3. Under Section 2 of the Act nothing in the Act applies to a married woman, who at the time of her marriage professed the Hindu religion or whose husband at the time of the marriage professed the Hindu religion.
4. I am of opinion that Sections 4, 5, 7 and 8 do not apply where either of the spouses professed the Hindu religion at the time of the marriage. These sections contain the words ” married women” and therefore Section 2 applies to them in terms. They are intended to confer rights on a married woman which under the law of England, she did not possess, and to remove disabilities imposed on her by the law of England. These enactments, if not. in conflict with, are entirely foreign to, Hindu law. The words,” married women” do not occur in Section 9, but the subject matter of the Section is foreign to Hindu law, and in my opinion this section also does not apply where either of the spouses was, at the time of the marriage, a Hindu.
5. Then as to Section 6. the words ” married women” do not occur in the Section The section no doubt is in the interest of the wife and children bat its primary object is to enable a man to make provision for his wife and children by insuring his life for their benefit, without executing a separate deed of trust. The section enables a Hindu male to do something which but for the section, he would not be able to do. The result may be that a Hindu woman derives a benefit, but I do not feel bound to hold that she is shut out from this benefit by reason of the general enactment that the Act shall not apply to Hindu women. As Sankaran Nair, J points out in the order of reference, Section 10 of the English Act of 1874 was split into two sections in the Indian Act, Sections 5 and 6, which is consistent with an intention to, make Section 6 applicable and Section 5 inapplicable to Hindus.
6. Section 2 only excludes the operation of the Act as regards the married women. There is no exclusion as regards children. If a Hindu male can take the benefit of the section for the purpose of providing for his children but is precluded from taking the benefit of the section in order to make provision for his wife, a curious anomaly arises, and a state of things is brought about which can scarcely have been intended by the legislature.
7. This suggested anomaly was met by the contention that a similar anomaly arose under the language of Section 6 itself, since the words ” or any of them” only apply to children, and that a policy for the benefit of one or more children to the exclusion of the wife, did not come within the terms of the Section The words of the Indian Act are the same as those of S. JO of the English Act of 1874 (except that the English Act says ” be deemed to be a trust for the benefit of his wife and of his children or any of them” whilst the Indian Act says ” be deemed to be a trust for the benefit of his wife, or of his wife and children, or any of them”).
8. These words may be ambiguous, but in Section 11 of the English Act of 1882 we have the words ” for the benefit of his wife or of his children, or of his wife and children, or any of them.” This makes the matter quite clear, and in my opinion this is the sense in which we should construe the words in Section 6 of the Indian Act of 1874. This seems to dispose of the argument that the section itself creates an anomalous distinction between wife and children.
9. There are three possible views, as it seems to me:
(1) That the section does not apply to a policy of insurance, effected by a Hindu male.
(2) That it applies to a policy effected by a Hindu male for the benefit of his children, but not to a policy effected for the benefit of his wife.
(3) That it applies to a policy effected for the benefit of his wife or of his children, or of his wife and children, or any of them.
10. In my opinion the third view is the right one. Section 6 dispenses with the necessity for a separate deed of trust. It does not affect the law of contract or the law of trusts as regards the persons entitled to enforce the contract under the policy. When by virtue of the section a trust is created, the person entitled to enforce the. rights of the beneficiary is the trustee, if a trustee has been appointed, and if no special trustee has been, appointed, the official trustee to whom the money is payable under the 2nd paragraph of the Section
11. Limiting my answer to the first question, to the question whether Section 6 of the Act applies, I would answer it in the affirmative.
12. The second question is ” whether in cases similar to the one before us”, the daughter is not entitled to enforce her claim against the insurance officer or a creditor.” The first point to be considered is, assuming Section 6(in accordance with the view I have already expressed) would apply if the facts brought the case within the section whether this particular policy enures as a trust for the wife and children, or forms part of the estate of the assured.
13. In the case before us the insurance company contracted to pay not the partites for whose benefit the policy purports to have been taken out, but the executors, administrators or assigns of the assured, where as in Oriental Government Security Life Assurance, Limited v. Vanteddu Ammiraju (1911) I.L.R. 35 M. 162 and in the Maybrick case Cleaner v. Mutual Reserve Fund Life Association (1892) I.Q.B. 247 the company contracted to pay the parties for whose benefit the policy purported to be taken out. In the Maybrick case the contract was to pay to the beneficiary.
14. In Oriental Government Security Life Assurance Limited v. Vanteddu Ammiraju (1911) I.L.R. 35 M. 162 the contract was to pay to the trustees who might be appointed under the Married Women’s Property Act and failing trustees to the beneficiaries. There is nothing on the face of the policy in the present case to indicate that it was for the benefit of his wife and children except the words “for the benefit of his wife and children,” which are written in, in ink, in the printed form. There is no evidence as to how, or when these words came to be written. For all we know they have been written in by the assured after the policy had been taken out. I will assume, however, that the words ‘” for the benefit of his wife and children” were part of the policy when the contract was made. How would the matter stand then ? I do not think there would be a trust if the section did not apply. The legal interest in the policy money could not be said to vest in the executors in trust for the wife and children or in the company in trust for the wife and children, because the trust, if any, would, in my opinion, be by reason of the operation of the section, and under the section itself, if no trustee is appointed, the legal interest vests in the Public Trustee. Further, so far as the company are concerned, they are under contractual obligation to pay the executors.
15. If the policy had been in the same terms as the policy in Oriental Government Security Life Assurance, Limited v. Vanteddu Ammiraju (1911) I.L.R. 35 M. 162, and the company had contracted to pay the parties for whose benefit the policy was taken out (and this is the assumption on which the order of reference was made) I think there would have been a trust under the section, but the person entitled to enforce the claim as against the company would have been, not the daughter, the beneficiary, but, if no trustee had been appointed the party in whom, under the section, the legal interest vests, viz., the Public Trustee.
16. As regards the case of Oriental Government Security Life Assurance, Limited v. Vanteddu Ammiraju (1911) I.L.R. 35 M. 162 the question whether a male Hindu could take the benefit of Section 6 of the Married Women’s Property Act does not appear to have been argued. All that the learned judges say upon the point is ” We may point out that the Married Women’s Property Act is not applicable to Hindus.” With all respect to the learned judges I cannot accept this proposition in its entirety. For the reasons I have stated I think a male Hindu can take the benefit of Section 6.
17. If the view taken by the learned judges as to the Married Women’s Property Act was right, I should agree with their conclusion in that case that no cause of action arose to the beneficiaries and that the policy moneys formed part of the estate of the assured, notwithstanding that under the contract the money was payable to the beneficiaries in default of trustees. In the Maybrick case, on the facts, the trust created by the Act ceased to exist. The policy moneys therefore formed part of the estate of the assured and were payable to his executors. In the 35 M. case, in the view taken by the Judges with regard to the Maraied Women’s Property Act, Section 6 did not apply, and no trust, in my opinion was created apart from the Act. The moneys, therefore, as it seems to me, were payable to the executors, since the wife was no party to the contract with the company. The decision of the Privy council in Khwaja Muhammad Khan v. Hussaini Begam (1910) I.L.R.32 A. 410 has been relied upon as an authority in support of the contention that the daughter in the present case can enforce the contract, and in the Privy council case the facts were of a special character, and the agreement on which the plaintiff was held entitled to sue, though not a party thereto, gave her a charge on immoveable property. I do not think the present case, on the facts, comes within the principle of the decision in Khawaja Muhammad Khan v. Hussaini Begam (1910) I.L.R.32 A. 410.
18. There is no doubt a special class of cases of which Weston v. Richardson (1883) 47 L.T. 514 is an example. If a man insures his own life in his daughter’s name, this may amount to a complete gift to the daughter so as to entitle her on her father’s death to sue for the policy moneys. But the daughter can sue in this class of cases because the fact that she is a daughter raises the presumption that there was an advancement to her by way of gift. .
19. In the case before us it seems to me that any presumption that an advancement to a daughter is intended is rebutted by the words ” for the benefit of his wife and children” I do not think we can hold that although there is no gift to the wife under the doctrine of ” advancement,” there is a gift to such of the children as may be daughters.
20. My answer to the second question, therefore is that the daughter is not entitled to enforce her claim as against the insurance office, or as against a creditor.
Sankaran Nair, J.
21. I agree with the Chief Justice that Section 6 of the Act applies to a policy of insurance effected by a Hindu male for the benefit of his wife or his children or of his wife and children or any of them. I adopt the reason given in this judgment.
22. The question whether there was an advancement by way of gift, as held by me in the order of reference, does not arise on the facts of the case. It is pointed out that the insurance office did not agree to pay the money to the daughter.
Tyabji, J
23. I agree with the learned Chief Justice, except that on some of the points mentioned by him I wish to express no opinion.
24. The first question referred to us is ” whether Act III of 1874 applies to any Hindu married males or not.”
25. Section 2 of the Act so far as material is as follows:
Nothing herein contained applies to any married woman, who, at the time of her marriage professed the Hindu, Mahomedan, Buddhist, Sikh or Jaina religion or whose husband at the time of such marriage, professed any of those religions.” This Clause (to which I shall hereinafter refer as the ” saving clause”) provides merely that nothing contained in the Act shall apply to any such married woman as is mentioned in the Clause It is not easy to determine with precision what is meant by ” anything contained in the Act applying to a person,” within the meaning of the saving Clause I wish to express no opinion, in any part of this judgment on the point whether there may be provisions in the Act, alterin g the rights or liabilities of a married woman, which provisions, by reason of their nature, or form, or otherwise cannot be described applying to a married woman within the meaning of the saving clause; in any case, provisions which do not alter the rights or liabilities of a person cannot in my opinion, be said so to apply to that person, Hence it would seem’ to follow that if any provisions contained in the Act affect the rights or liabilities Hindu or otherwise and whether married or not, then those provisions are not prevented from having full effect by reason of the saving clause,–so long at least as those provisions do not come into operation by affecting in the first instance the rights of any such married woman.
If the first question referred to us is meant to raise the point whether any provisions of Act III of 1874 are operative (in spite of the saving clause) in case a Hindu married male effects a policy of insurance–and the referring Judgments contain indications to that effect, the main arguments before us also being based on the same interpretation of the question–then, in my opinion, the answer to the question is that the Act operates at least in so far as it does not purport to affect the rights or liabilities of any such married woman as is referred to in the saving clause; as to whether or not the saving clause prevents the Act from operating in so far as it affects the rights or liabilities of any married woman under a policy of insurance effected by her husband, that question, obviously, does not arise on the facts now before us, because we have to deal with the rights of the daughter of the person effecting the policy of insurance, and not with the rights of his wife, and I express no opinion on the rights of the wife. The point that does arise, is more definitely referred to us under the second question that we are asked to answer, and I will deal with it in answering that question.
26. The second question referred to us is as follows:
Whether, in cases similar to the one before us, the daughter is not entitled to enforce her claim against the insurance office or a creditor.
27. Section 6 of the Act lays down that ” a policy of insurance effected by any married man on his own life, and expressed : on the face of it to be for the benefit of his wife, or of his wife and children, or any of them, shall enure and be deemed to be a trust for the benefit of his wife or of his wife and children, or any of them, according to the interest so expressed, and shall not so long as any object of the trust remains, be subject to the control of the husband, or to his creditors, or form part of his estate.”
28. The second question, as I understand it, is framed for the purpose of having it determined whether these provisions of Section 6 can be said to apply to the first defendant in this case within the terms of the saving clause above referred to. That question, it seems to me, must be determined in the following manner: If, under the facts of this case, the rights or liabilities of the first defendant would become altered on the supposition that those rights or liabilities are governed by Section 6, in that case alone and not otherwise may Section 6 be said to apply to the first defendant; and in that case we should have the further question to determine, whether the first defendant is a married woman within the terms of the saving clause : for, if she is such, then her rights or liabilities are not to be altered by reason of the said section, but must continue to be the same as they would have been had the said section not been enacted.
29. The facts of the case now before us, in so far as this court is concerned, are as follows :–One Venkataratnam (to whom I shall hereafter refer as the ” assured”) insured his life for Rs. 1,000 under each of two policies of insurance [Exhibit I and 1 (a)] which are in identical terms, and are dated the 5th June 1888. The policies commence with a recital that the assured ” hath proposed to effect an insurance for the benefit of his wife and children’ with the insurance company. The latter portion of the insurance policy is not printed, but the arguments addressed to us were on the basis that each of the policies of insurance in question was ” expressed on the face of it to be for the benefit of his (the assured’s) wife, or of his wife and children, or any of them ” within the terms of Section 6, and my judgment is on the same basis. It seems to me to be beyond our province to deal with the question whether the first defendant acquires any interest and, if so, what interest, under the insurance policy. I confine myself to the question whether, assuming that the policy is such as is referred to in Section 6 of the Married Women’s Property Act, the first defendant’s rights and liabilities, if any, are affected by Section 6, notwithstanding the saving clause–leaving it to the Bench who have referred the case to determine the rights of the first defendant on a construction of the policy. The assured died leaving one daughter and two sons (being respectively the first, second and third defendants). The question arose whether, if it be a fact that some portion of the insurance money was payable to the first defendant on the death of the assured, that portion formed part of the estate of the deceased and was thus payable to the creditors of the deceased, or whether it belonged absolutely to the first defendant, and, as such, was not liable to be attached in execution of the debts of the deceased. If Section 6 governs the rights of the parties, then (if the provisions of the policies be as is above mentioned) the legal result will be that the policies ” shall enure and be deemed to be a trust for the benefit of his wife, or of his wife and children, or any of them, according to the interest expressed (in the policies of insurance) and shall not, so long as any object of the trust remains, be subject to the control of the husband (the assured), or to his creditors, or form part of his estate.”. Speaking with reference to the facts of this particular case, if Section 6 governs them, then assuming that the policies in question are of the nature referred to in Section 6, the interest of the first defendant under the policies or the moneys payable to the first defendant by reason of them, will not be capable of being attached in execution of the plaintiff’s decree; otherwise the interest of the first defendant under the policies will form part of the estate of the assured, and be subject to attachment by his creditors.
30. Therefore, it seems to me, that we must hold that the operation of Section 6 would affect the rights or liabilities of the first defendant if it governs the facts of this case; or–to use the expression contained in the saving clause–it would, in that case prima facie apply to the first defendant.
31. Is then the operation of Section 6 on the rights of the first defendant prevented by the saving clause ? I think not. The said clause says that ” nothing in the Act shall apply to a married woman.” In order that the saving clause should have any bearing upon the operation of a provision contained in the Act and affecting any person’s rights or liabilities, it is necessary, not only that that persons rights or liabilities should be affected by that provision of the Act, but it is also necessary that that person should be such a married woman as is referred to in the Clause It seems to me that the first defendant cannot be taken to be included within the description of a ”married woman” within that Clause It is true that the first defendant may, as a matter of fact, be married, but I think that, for the purposes of the question before us, the expression “married woman” cannot refer to any woman other than one who is married to the assured. I express no opinion on the point whether it would refer even to the woman married to the assured. All I hold is that it does not refer to the daughter of the assured, even if she is married: it is obvious that the rights of the first defendant do not arise in any way out of the application of any part of the Act to a married woman, unless the first defendant is herself a married woman within the Act.
32. Hence in answer to the second question referred to us I would say that the daughter’s rights under the insurance policies are affected by Section 6 of the Married Women’s Property Act and that the operation of that section on her rights is not prevented by the saving Clause
33. The second question referred to us apparently involves not only the point with which I have dealt, viz., whether or not Section 6 of the Act operates on the incidents of policy of insurance effected by a Hindu Married man and expressed on the face of it to be for the benefit of this wife, or of his wife and children, or any of them, but it also involves the further point whether, in either alternative, on the construction of the particular policies before us the. first defendant is or is not entitled to enforce her claim against the insurance office or a creditor. This latter point does not seem to me to have been alluded to in the referring Judgments nor in the arguments before us as I understood them. The operative portion of the policies has not as I have already said even been printed. For these reasons I desire, with deference, to express no opinion on the construction to be placed upon them, except in so far as appears from my Judgment.
34. What I have stated above is enough in my opinion for furnishing answers to the question referred to us so far as those questions are really contemplated by the order of reference. If the mode of dealing with the matter which I have adopted is correct, then the allusions to the policy underlying the Act, which were made by the learned Judges who referred the case to us, need not be considered. According to the opinion expressed in those Judgments, it would appear that, if the first defendant, instead of being the daughter of the assured, had been his wife, her rights would equally have been governed by Section 6 of the Married Women’s Property Act, as the operation of that section on the wife’s rights would equally have been unaffected by the saving Clause I am conscious that, if the reasoning in which I have proceeded in this Judgment is correct and the results arrived at on the basis of that reasoning are not to be modified by any other considerations, then the rights of the widow of the assured might have to be held to be different from the rights of his daughter in as much as the rights of the daughter have been determined by me on the basis that Section 6 of the Act governs them, whereas the rights of the widow might have to be determined. on the basis that the effect on them of Section 6 of the Act is excluded by the saving clause, because the reasons which I have referred to as being sufficient to prevent the applicability of the saving clause on the rights of the daughter may have no bearing in a case where the rights of a widow are in question. This result would no doubt be anomalous, but it would be so only if I had expressed the opinion that the Act should be construed solely on the principles adopted in this judgment, even where the rights in question are those of the widow under Section 6, and that there is nothing in the policy of the legislature or otherwise to show that the saving clause was not intended to interfere with the operation of Section 6 upon the rights of even the widow. If a construction can be put upon the Act which would bring about the result of giving to the widow the same rights, as according to my view the daughter has under the Act, it would not necessarily be opposed to the reasoning adopted in this judgment. But I do not feel called upon to express any opinion on that point at present. I allude to it as, in the first place, I wish to guard myself from appearing to lay down that, because I have pursued a particular mode of interpreting this Act in order to arrive at a decision on the questions now before us, that mode of interpreting the Act may not have to be modified by taking into consideration other matters when the question relates to the rights of the widow. I have construed the Act in accordance with the strict meaning of its terms, because I find that it would do violence to the language of the Act to hold that the saving clause prevents the daughter’s rights from being governed by Section 6 of the Act. I do not base any part of my Judgment on the considerations on which my learned brothers rely, viz., the general policy of the legislature, because, for the purposes of the questions now before us, it is unnecessary to rely on those considerations; and I find that, on a strict consideration of the Act the result at which I arrive is the same as would be arrived at on a consideration of what my learned brothers have stated to be the underlying policy of the Act. It is unnecessary to express any opinion on the point whether those considerations would require or permit of the same result being arrived at when the person whose rights are in question is not the daughter but the widow of the assured.
