AI Drafter 
TaxTMI 
TaxTMI 
1975 (9) TMI 193
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....ould be entitled to the remaining half share in the estate of Srinivasa Rao. It is adverted in the plaint that after the death of Srinivasa Rao, the second respondent took charge of the estate and that despite several requests she has not given the shares due to the appellant and respondents 3 to 5. The case of the appellant in the plaint was that, with regard to the commission payable on the renewal premiums, he sent a notice to the Life Insurance Corporation the first respondent herein, calling upon it to pay his share of the commission, but the said Corporation sent a reply stating that Section 44 of the Insurance Act, 1938, had been modified by the Central Government and made applicable to the Life Insurance Corporation, as per the notification of the Ministry of Finance, No. GSR 734 dated 23-8-1958, that as per the modified section the nominee of the agent was entitled to receive the commission, that the second respondent herein had been so nominated by the late Srinivasa Rao and that payments were being made to her and would continue to be made to her. It was thereafter that the present suit was instituted for a declaration that the appellant herein was entitled to as an heir....
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....rt has no jurisdiction to try the suit? 2. Is the plaintiff entitled to a share in the renewal Commission? 3. What is the effect of the nomination made by the deceased? 4. Whether the plaintiff has waived his rights? 5. Is the discharge of the second defendant valid under Section 44 of the Insurance Act? 6. Is the plaintiff entitled to the declaration and injunction prayed for? 7. To what relief are the parties entitled? 5. The learned IV Assistant Judge of the City Civil Court, Madras, by his judgment and decree dated 23-3-1970, held that, under the nomination effected by Srinivasa Rao, in accordance with Section 44(2) of the Insurance Act, 1938, as amended by the Government of India Notification referred to above, it was the second respondent who was entitled to receive the money. The trial Court also held that, in any event, under Ex. B-1 dated 22-6-1966, being the Photostat copy of the agreement referred to by the second respondent herein, the other parties to the agreement had given up their rights to claim renewal commission and had given that....
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....al, and did not dispute the existence of the nomination, as contended for by respondents 1 and 2. This inference derives further strength from the fact that there is not even a ground in the memorandum of grounds of appeal filed before this Court in the present appeal, which contains as many as 37 grounds, to the effect that the said statement contained in the judgment of the trial Court was erroneous. On the other hand, ground No. 4 therein would appear to proceed on the basis of the correctness of the nomination of the second respondent herein. The said ground is as follows: "The lower Court should have held that the second defendant, who is the nominee is nothing more than an agent to receive the money which remains as the property of the deceased, forming part of the estate". As I pointed out already, this ground proceeds on the basis that the second respondent herein is the nominee, which must be based on the concession that the nomination was there validly made. In view of his position, and in view of the law laid down by this Court as well as by the Supreme Court that the correctness of such a statement contained in the judgment of the Court cannot b....
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....emium to the insurance agent himself during his lifetime even after the termination of the agreement under which he was entitled to such commission and sub-section (2) provides for the continued payment of such commission to the heirs of the insurance agent on his death for so long as such commission would have been payable had such insurance agent been alive. When the Life Insurance Corporation Act, 1956, was passed, under which the first respondent was constituted, Section 43 of that Act provided for the application of certain provisions of the Insurance Act to the Corporation. Sub-section (1) of Section 43 enumerated certain sections of the Insurance Act which shall apply to the Corporation as they applied to any other insurer, and Sec. 44 is not one of the sections mentioned in Section 43(1). Therefore Section 44 to which I have drawn attention did not apply to the Life Insurance Corporation straightway by virtue of Section 43(1) of the Life Insurance Corporation Act. Section 43(2) conferred power on the Central Government to direct by notification in the Official Gazette that the sections enumerated therein shall apply to the Corporation subject to such conditions and modifica....
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....Narayanaswami, learned counsel for the appellant, relying upon certain decisions of Courts, in particular, the decision of a Bench of this Court in Mohanavelu Mudaliar v. Indian Insurance and Banking Corporation Ltd., Salem, AIR1957Mad115 dealing with the case of a nomination under Section 39 of the Act, for receiving the insured amount, contended that the said decision had held that such a nomination did not have the effect of conferring a beneficial interest on the nominee to the moneys which such nominee was authorised to receive, that the moneys formed part of the estate of the deceased, that the principle laid down in that decision must be applied to the present case also in respect of the nomination to receive the commission the renewal premium, that so applied the second respondent herein did not acquire any beneficial interest in the commission on the renewal premium, that it formed part of the estate of the late Srinivasa Rao and that the second respondent would be entitled only to a half share in the said commission. The question for consideration is whether such a contentions is correct or not. After a careful consideration of the statutory provisions as well as the judg....
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.... the Act. In the first place, the sum assured, with which alone Sec. 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 titl....
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.... stated circumstances. In this case, that right has been taken away by the proviso to Section 44(2) introduced by the Government of India Notification, 1962, in case a nomination had been made as contemplated by the said proviso. It is settled that, according to the ordinary rules of construction, the effect of an excepting or qualifying proviso is to except out of the preceding part of the enactment or to qualify something enacted therein, which but for the proviso would be within it. As I pointed out already the main part of Section 44(2) confers a right on the heirs to receive the commission, and the proviso to that sub-section enables the agent to make a nomination to receive the commission after his death, which would have the effect of taking away that right from the heirs themselves. 12. Here again, Mr. Narayanaswami brought in the analogy of the nomination under Section 39 and contended that, though the second respondent might be entitled to receive the money from the first respondent, she did not have title to the money by virtue of the nomination itself. This argument overlooks the fact that it is Section 44(2) which confers the right on the heirs and that the proviso ....