Seema Hembrom v. Marsilina Hembram

Hembram would be entitled of Rs.89,418/- and Shrishti Tudu through Seema Hembrom would be entitled for a sum of Rs.89,420/- and Muni Tudu would be entitled for Rs.89,418/- and in view of that the succession certificate has been issued.

4. Learned counsel appearing for the appellants submits that the appellant No.1 got married to Late Binod Kumar Tudu on 02.10.2005 in the temple at Padma at Hazaribagh but since he was not a Christian and as such he got himself converted and adopted Christian religion and again got married to the appellant No.1 as per Christian religion after following all the rituals at NELC Church, Banderjori on 13.07.2009. He submits that out of the wedlock one girl child, who is the appellant No.2, was born on 22.07.2008 and thereafter the appellant No.1 and Late Binod Kumar Tudu were leading very peaceful and happy conjugal life and he has not solemnized the second marriage, however, unfortunately he has died in harness on 13.02.2013 leaving behind the appellant No.1 as sole legally wedded widow and a minor daughter i.e. the appellant No.2. He further submits that the appellant No.1 received a notice from the learned Court of the Principal District & Sessions Judge, Godda in connection with Succession Case No.5 of 2015 filed on behalf of the respondents where the respondent No.1 claimed herself to be the wife of Late Binod Kumar Tudu, the respondent No.2 as his son and the --2-- M.A. No. 280 of 2018 respondent No.3 as his adoptive mother with a prayer to issue succession certificate in their favour for payment of amount standing in the name of Late Binod Kumar Tudu. He submits that the appellant No.1 appeared and filed the show cause and the learned Court by order dated

16.03.2017 allowed the Succession Case No.5/2015 holding that the successor of Late Binod Kumar Tudu is Vishal Kumar Tudu through Marsilina Hembram would be entitled of Rs.89,418/- and Shrishti Tudu through Seema Hembrom would be entitled Rs.89,420/- and Muni Tudu would be entitled for Rs.89,418/- also and a direction has been issued to issue succession certificate.

5. Learned counsel appearing for the appellant assailed the impugned order on the ground that so far Muni Tudu is concerned, she was only nominee in the service book and in view of that she cannot be a sole custodian of property of the deceased. He submits that the learned Court has wrongly issued the certificate in favour of Muni Tudu and the amount allowed in favour of Muni Tudu is also required to be distributed among the children only. On this ground, he submits that the impugned order may kindly be modified.

6. Learned counsel appearing for the respondent Nos.1 and 2 submits that the learned Court has rightly passed the order and there is no illegality in the impugned order. She submits that the respondent No.1 is the second wife and respondent No.2 is son arising out of the second marriage. On this ground, she submits that so far the nomination is concerned that is valid and the law with regard to the nomination has been laid down by Hon’ble Supreme Court in the case of Shakti Yezdani and Another versus Jayanand Jayant Salgaonkar and --3-- M.A. No. 280 of 2018 Others reported in (2024) 4 SCC 642, wherein at paragraph No.40, 41 and 59 it has been held as under :-

40. In an illuminating list of precedents, this Court as well as several High Courts have dealt with the concept of ‘nomination’ under legislations like the Government Savings Certificates Act, 1959, the Banking Regulation Act, 1949, the Life Insurance Act, 1939 (quaere Insurance Act, 1938) and the Employees Provident Fund and Miscellaneous Provisions Act, 26 of 42 1952. It would be apposite to refer to what the Court said on nomination, in reference to these legislations: Case Law/Precedent Sarbati Devi & Anr. v. Usha Devi Nozer Gustad Commissariat v. Vidya Lachmandas Khanchandani Vishin N. Khanchandani v. Vidya Lachmandas Khanchandani Ram Chander Talwar v. Devender Kumar Talwar Held Nomination under Section 39 of the Insurance Act Devi12 1938 is subject to the claim of heirs of the assured under the law of succession. Nomination under S. 10(2) of the EPF & Misc. v. Central Bank of India13 Provisions Act 1952 cannot be made in favour of a non-family person. Relied upon Sarbati Devi (supra) to state that the principles therein were applicable to the Employees Provident Funds Act as well and not merely restricted to the Insurance Act. Nominee entitled to receive the sum due on Anr. v. Vidya L. the savings certificate 6(1) of under S. the Khanchandani Govt. Savings Certificate Act 1959, but cannot utilise it. In fact, the nominee may retain the same for those entitled to it under the relevant law of succession. Nomination made under provisions of S. 45ZA v. Devender Kumar Talwar & of the Banking Regulation Act 1949 entitled Ors.15 the nominee to receive the deposit amount on the death of the depositor. --4-- M.A. No. 280 of 2018

41. A consistent view appears to have been taken by the courts, while interpreting the related provisions of nomination under different statutes. It is clear from the referred judgments that the nomination so made would not lead to the nominee attaining absolute title over the subject property for which such nomination was made. In other words, the usual mode of succession is not to be impacted by such nomination. The legal heirs therefore have not been excluded by virtue of nomination.

59. Consistent interpretation is given by courts on the question of nomination, i.e., upon the holder’s death, the nominee would not get an absolute title to the subject matter of nomination, and those would apply to the Companies Act, 1956 (pari materia provisions in Companies Act, 2013) and the Depositories Act, 1996 as well.

7. Relying on the above judgment, she submits that the nominee would not get an absolute title to the subject matter of nomination.

8. In view of above submission of learned counsel appearing for the parties, the Court finds that it is an admitted position that Late Binod Kumar Tudu solemnized two marriage and out two marriage he has been blessed with two children one from each marriage and Muni Tudu was made nominee that is not in dispute. In the case of Vidhyadhari and Others vs. Sukhrana Bai and Others reported in (2008) 2 SCC 238, the Hon’ble Supreme Court has held in paragraph Nos.13 and 14 as under :- “13. This Court in Rameshwari Devi case has held that even if a government servant had contracted second marriage during the subsistence of his first marriage, children born out of such second marriage would still be legitimate though the second marriage itself would be void. The Court, therefore, went on to hold that such children would be entitled to the pension but not the second wife. It was, therefore, bound to be considered by the High Court as to whether Vidhyadhari being the nominee of Sheetaldeen could legitimately file an application for succession certificate and could be granted the same. The law is clear on this issue that a nominee like Vidhyadhari who was claiming the death benefits --5-- M.A. No. 280 of 2018 arising out of the employment can always file an application under Section 372 of the Succession Act as there is nothing in that section to prevent such a nominee from claiming the certificate on the basis of nomination. The High Court should have realised that Vidhyadhari was not only a nominee but also was the mother of four children of Sheetaldeen who were the legal heirs of Sheetaldeen and whose names were also found in Form A which was the declaration of Sheetaldeen during his lifetime. In her application Vidhyadhari candidly pointed out the names of the four children as the legal heirs of Sheetaldeen. No doubt that she herself has claimed to be a legal heir which status she could not claim but besides that she had the status of a nominee of Sheetaldeen. She continued to stay with Sheetaldeen as his wife for long time and was a person of confidence for Sheetaldeen who had nominated her for his provident fund, Life Cover Scheme, pension and amount of life insurance and amount of other dues. Under such circumstances she was always preferable even to the legally wedded wife like Sukhrana Bai who had never stayed with Sheetaldeen as his wife and who had gone to the extent of claiming the succession certificate to the exclusion of legal heirs of Sheetaldeen. In the grant of succession certificate the court has to use its discretion where the rival claims, as in this case, are made for the succession certificate for the properties of the deceased. The High Court should have taken into consideration these crucial circumstances. Merely because Sukhrana Bai was the legally wedded wife that by itself did not entitle her to a succession certificate in comparison to Vidhyadhari who all through had stayed as the wife of Sheetaldeen, had borne his four children and had claimed a succession certificate on behalf of children also. In our opinion, the High Court was not only of the nominee of Sheetaldeen but also to the exclusion of his legitimate legal heirs.”

14. Therefore, though we agree with the High Court that Sukhrana Bai was the only legitimate wife yet, we would chose to grant the certificate in favour of Neutral Citation 2025:JHHC:7594 5 Vidhyadhari who was his nominee and the mother of his four children. However, we must balance the equities as Sukhrana Bai is also one of the legal heirs and besides the four children she would have the equal share in Sheetaldeens estate which would be 1/5th. To balance the equities we would, therefore, chose to grant Succession Certificate to Vidhyadhari but with a rider that she would protect the 1/5th share of Sukhrana Bai in Sheetaldeen --6-- M.A. No. 280 of 2018 s properties and would hand over the same to her. As the nominee she would hold the 1/5th share of Sukhrana Bai in trust and would be responsible to pay the same to Sukhrana Bai. We direct that for this purpose she would give a security in the Trial Court to the satisfaction of the trial court.

9. In the above judgment it has been held that legally wedded wife not automatically entitled to succession certificate to the exclusion of second de facto wife and her children when the deceased had made nomination in favour of the second wife to receive terminal benefits of his employment.

10. Admittedly, in the present case second wife is also respondent herein and one Muni Tudu was nominee and she was the relative of the deceased.

11. In view of the facts, reference can be made to the case of “Smt. Sarabati Devi and Another Vs. Smt. Usha Devi” reported in (1984) 1 SCC 424 wherein paragraph nos. 5, 8 and 10 it has been held as under:- “5. We shall now proceed to analyse the provisions of Section 39 of the Act. The said section provides that a holder of a policy of life insurance on his own life may when effecting the policy or at any time before the policy matures for payment nominate the person or persons to whom the money secured by the policy shall be paid in the event of his death. If the nominee is a minor, the policy-holder may appoint any person to receive the money in the event of his death during the minority of the nominee. That means that if the policy-holder is alive when the policy matures for payment he alone will receive payment of the money due under the policy and not the nominee. Any such nomination may at any time before the policy matures for payment be cancelled or changed, but before such cancellation or change is notified to the insurer if he makes the payment bona fide to the nominee already registered with him, the insurer gets a valid discharge. Such power of cancellation of or effecting a change in the nomination implies that the nominee has no right to the amount during the --7-- M.A. No. 280 of 2018 lifetime of the assured. If the policy is transferred or assigned under Section 38 of the Act, the nomination automatically lapses. If the nominee or where there are nominees more than one all the nominees die before the policy matures for payment the money due under the policy is payable to the heirs or legal representatives or the holder of a succession certificate. It is not necessary to refer to sub-section (7) of Section 39 of the Act here. But the summary of the relevant provisions of Section 39 given above establishes clearly that the policy-holder continues to hold interest in the policy during his lifetime and the nominee acquires no sort of interest in the policy during the lifetime of the policyholder. If that is so, on the death of the policy-holder the amount payable under the policy becomes part of his estate which is governed by the law of succession applicable to him. Such succession may be testamentary or intestate. There is no warrant for the position that Section 39 of the Act operates as a third kind of succession which is styled as a 'statutory testament' in paragraph 16 of the decision of the Delhi High Court in Uma Sehgal case [AIR 1982 Del 36: ILR (1981) 2 Del 315]. If Section 39 of the Act is contrasted with Section 38 of the Act which provides for transfer or assignment of the rights under a policy, the tenuous character of the right of a nominee would become more pronounced. It is difficult to hold that Section 39 of the Act was intended to act as a third mode of succession provided by the statute. The provision in sub-section (6) of Section 39 which says that the amount shall be payable to the nominee or nominees does not mean that the amount shall belong to the nominee or nominees. We have to bear in mind here the special care which law and judicial precedents take in the matter of execution and proof of wills which have the effect of diverting the estate from the ordinary course of intestate succession and that the rigour of the rules governing the testamentary succession is not relaxed even where wills are registered.

8. We have carefully gone through the judgment of the Delhi High Court in Uma Sehgal case [AIR 1982 Del 36: ILR (1981) 2 Del 315]. In this case the High Court of Delhi clearly came to the conclusion that the nominee had no right in the lifetime of the assured to the amount payable under the policy and that his rights would spring up only on the death of the assured. The Delhi High Court having reached that conclusion did not proceed to examine the possibility of an existence of a conflict between the --8-- M.A. No. 280 of 2018 law of succession and the right of the nominee under Section 39 of the Act arising on the death of the assured and in that event which would prevail. We are of the view that the language of Section 39 of the Act is not capable of altering the course of succession under law. The second error committed by the Delhi High Court in this case is the reliance placed by it on the effect of the amendment of Section 60(1)(kb) of the Code of Civil Procedure, 1908 providing that all moneys payable under a policy of insurance on the life of the judgment debtor shall be exempt from attachment by his creditors. The High Court equated a nominee to the heirs and legatees of the assured and proceeded to hold that the nominee succeeded to the estate with all 'plus and minus points'. We find it difficult to treat a nominee as being equivalent to an heir or legatee having regard to the clear provisions of Section 39 of the Act. The exemption of the moneys payable under a life insurance policy under the amended Section 60 of the Code of Civil Procedure instead of 'devaluing' the earlier decisions which upheld the right of a creditor of the estate of the assured to attach the amount payable under the life insurance policy recognises such a right in such creditor which he could have exercised but for the amendment. It is because it was attached the Code of Civil Procedure exempted it from attachment in furtherance of the policy of Parliament in making the amendment. The Delhi High Court has committed another error in appreciating the two decisions of the Madras High Court in Karuppa Gounder v. Palaniammal [AIR 196… nominee under Section 44 will receive the money not as owner but as an agent on behalf of someone else, vide B.M. Mundkur v. Life Insurance Corporation [AIR 1977 Mad 72: 47 Com Cas 19: (1977) 1 MLJ 59: ILR (1975) 3 Mad 336]. Thus, the nominee excludes the legal heirs.

10. It is obvious from the above passage that the above case has no bearing on the meaning of Section 39 of the Act. The fact of nomination was treated in that case as a piece of evidence in support of the finding that the policy was not a joint family asset but the separate property of the coparcener concerned. No right based on the ground that one party was entitled to succeed to the estate of the deceased in preference to the other or along with the other under the provisions of the Hindu Succession Act was asserted in that case. The next error committed by the Delhi High Court is in drawing an analogy between Section 39 and Section 44(2) of the Act thinking that the Madras High Court had done so --9-- M.A. No. 280 of 2018 in B.M. Mundkur case [AIR 1977 Mad 72: 47 Com Cas 19: (1977) 1 MLJ 59: ILR (1975) 3 Mad 336]. In B.M. Mundkur case [AIR 1977 Mad 72: 47 Com Cas 19: (1977) 1 MLJ 59 : ILR (1975) 3 Mad 336] the High Court of Madras instead of drawing an analogy between Section 39 and Section 44(2) of the Act actually contrasts them as can be seen from the following passage: "...There are vital differences between the nomination contemplated under Section 39 of the Act and nomination contemplated under the proviso to Section 44(2) of the Act. In the first place, the sum assured, with which alone Section 39 was concerned, was to be paid in the event of the death of the assured under the terms of the contract entered into between the insurer and the assured and consequently it was the contractual right which remained vested in the insured with reference to which the nomination happened to be made. It should be pointed out that the nomination as well as the liability on the part of the insurer to pay the sum assured become effective simultaneously, namely, at the moment of the death of the assured. So long as he was alive, the money was not payable to him, in the case of a whole life policy, and equally, having regard to the language of Section 39(1) of the Act, the nominee's right to receive the money arose only on the death of the assured. Section 39 itself did not deal with the title to the money assured, which was to be paid by the insurer to the nominee who was bound to give discharge to the insurer. It was in this context that the Court took the view that the title remained with the estate of the deceased and, therefore, with the heirs of the deceased, that the nomination did not in any way affect the title and that it merely clothed the nominee with the right to receive the amount from the insurer. (AIR 1977 Mad 77, para 10- A) “

12. In view of the above judgment, just because of facility of nomination is made that does not defeat the rights of the legal heirs to claim their right in respect of estate of deceased, as the right of the other legal heirs is as per law of succession. Only because the nomination is made in favour of the Muni Tudu that does not mean that the legal heirs of the deceased as per governing law of inheritance will not be entitled for benefits. --10-- M.A. No. 280 of 2018

13. So far case in hand is concerned, the learned Court has also allowed a sum of Rs.89,418/- in favour of the nominee and in this regard reference can be made to the case of Shipra Sengupta versus Mridul Sengupta and Others reported in (2009) 10 SCC 680, wherein at paragraph Nos.17 and 18 it has been held as under :-

17. The controversy involved in the instant case is no longer res integra. The nominee is entitled to receive the same, but the amount so received is to be distributed according to the law of succession. In terms of the factual foundation laid in this case, the deceased died on 8.11.1990 leaving behind his mother and widow as his only heirs and legal representatives entitled to succeed. Therefore, on the day when the right of succession opened, the appellant, his widow became entitled to one half of the amount of the general provident fund, the other half going to the mother and on her death, the other surviving son getting the same.

18. In view of the clear legal position, it is made abundantly clear that the amount in any head can be received by the nominee, but the amount can be claimed by the heirs of the deceased in accordance with law of succession governing them. In other words, nomination does not confer any beneficial interest on the nominee. In the instant case amounts so received are to be distributed according to the Hindu Succession Act, 1956.

14. In this regard further reference may be made which has been further considered by Hon’ble Supreme Court in the case of Rajni Rani versus State of U.P. and Others reported in 2024 SCC OnLine All

15. In view of the above two further judgments of Hon’ble Supreme Court and the Allahabad High Court the role of the nominee is only to receive the same, but the amount so received is to be distributed according to the law of succession and the nominee herein is said to be the relative of deceased. In that view of the matter so far amount of Rs.89,418/ allowed in favour of the nominee appears to be contrary to --11-- M.A. No. 280 of 2018 the law laid down in this regard, as such that part of the order is hereby set aside.

16. The amount of Rs.89,418/- allowed in favour of the nominee shall be further equally distributed between the children of both the wives and that is the contention of learned counsel appearing for the appellants and respondent No.1.

17. This appeal is allowed in part in above terms and disposed of. Sangam/ A.F.R. (Sanjay Kumar Dwivedi, J.) --12-- M.A. No. 280 of 2018