ORDER
1. This is a suit for recovery of Rs.44,958/- (Forty-four thousand nine hundred fifty-eight) only being the amount due and payable from 25th January, 1956 till 24th Jan. 1958 by the Hindusthan Cooperative Insurance Society Ltd., a company incorporated under the Indian Company's Act. By virtue of the provisions of the Life Insurance Corporation Act, 1956 (Act No. X 31 of 1956) the assets and liabilities of the said Hindusthan Co-operative Insurance Society Ltd. having been vested in the Life Insurance Corporation of India, the present defendant is said to be liable to pay to'the plaintiff the said sum of money.
2. Plaintiff's case, shortly slated, is that Late Nalini Ranjan Sarkar predecessors-in-interest of the original and substituted plaintiffs was associated with Hindusthan Cooperative Insurance Society Ltd. and in consideration of his devoted and loyal service the said 'society at a meeting of its Board of Directors held in Calcutta on 12th Aug. 1940, resolved, inter alia, as follows:--
(a) That the said Sri Nalini Ranjan Sarkar be paid for the reminder of bis natural life the sum of Rs. 5,000/- (Five thousand) only per month as pension or retiring allowance with effect from 1st January, 1940 free of Income-tax, subject to an undertaking given by him that he shall not work directly or indirectly without the previous permission in writing of the Board for any other Life Insurance Company;
(b) That in the eventuality of the said Sri Nalini Ranjan Sarkar's death before 1st January, 1955 an allowance shall be paid to his dependents in the following manner:
(i) a sum of Rs. 1250/- (One thousand two hundred fifty) only per month to be paid for ten (10) years in case he died before 1st January, 1945;
(ii) a sum of Rs. 1250/- (One thousand two hundred fifty) only per month to be paid for seven (7) years in case he died before the 1st January, 1950;
(iii) a sum of Rs. 1250/- (One thousand two hundred fifty) only per month to be paid for five (5) years in case he died before 1st January, 1955.
(c) The dependents would be nominated by the said Sri Nalini Ranjan Sarkar, the proportion payable to each also to be specified by him during his lifetime,
(d) In the absence of any such nominationor specification of proportions the paymentsare to be made to his legal heirs and in suchproportion to each as the Directors of theSociety may think fit.
3. Said Sri Nalini Ranjan Sarkar diedintestate on 25th January, 1953, living him surviving the plaintiffs as his heirs, 1953. The plaintiffs including their predecessors-in-interest, Late Sri Nalini Ranjan Sarkar are governed by the Dayabhaga School of Hindu Law. Nalini Ranjan Sarkar did not nominate any dependant or specified the proportion payable to such dependants.
4. The said resolution of the Board of Directors of the s aid society was ratified and accepted by the said society.
5. Pursuant to the said ratification and acceptance thereof the said society agreed to pay a sum of Rs. 5,000/- (Five thousand) only per month as pension for the remainder of his natural life with effect from 1st Jan. 1940 until about the month of Sept. 1947, when the said Sri Nalini Ranjan Sarkar agreed to foreoe a sum of Rs.2,000/- (Two thousand) per month out of the said Rs. 5,000/- (Five thousand) only per month payable to him during his natural life.
6. At a meeting of the Board of Directors of the said society held in Calcutta on 17th Sept. 1947, the said Board by a resolution accepted the said reduction of Rs. 2,000/-(Two thousand) only per month resolving and agreeing that other terms and conditions relating to the pension as sanctioned by its resolution dated 12th August 1940, remained the same. The resolution dated 17th Sept. 1947 was accepted and ratified by the said society 'subsequently.'
7. In the premises as aforesaid the plaintiffs became entitled to be paid by the said society and / or by the present defendant a sum of Rs. 1250/- (One thousand two hundred fifty) only per month for 5 (five) years from the date of death of the said Sri Nalini Ranjan Sarkar, viz., for the period from 26th January, 1953 to 24th January 1956, at the rate of Rs. 1250/- (One thousand two hundred fifty) only per month, total amounting to Rs.44,958/- (Forty-four thousand nine hundred fifty-eight) only.
8. In the written statement filed by Hindusthan Co-operative Insurance Society Ltd. on 11th of May, 1956, it was stated that the relevant resolution of the Board of Directors will be referred to for true meaning, scope and effect thereof and save as appearing therefrom the said society did not admit any of the allegations contained in the plaint. Regarding payment of pension at the rate of Rs. 5,000/- (Five thousand) only per month to the said Sri Nalini Ranjan Sarkar, the defendant admits that from 1st January, 1940 till March 1947, the defendant paid at the rate of Rs. 5,000/- (Five thousand) only per month and after March 1947, the defendant paid to him at the rate of Rs. 3,000/- (Three thousand) only per month upto the time of his death.
9. It appears that the said written statement of the defendant society was affirmed and verified as true by the Sri Nihar Kr. Aditya, a principle Officer of the said company stating that he was well acquainted with the facts and circumstances of the case.
10. In their additional written statement filed on 28th Nov. 1988, the substituted defendant, Life Insurance Corporation of India did not challenge the alleged resolution of the Board of Directors of the society dated 12th August, 1940 or dated 17th Sept. 1947 and their subsequent acceptance and ratification as alleged in the plaint. What has been repeatedly stated is that this defendant denies the plaintiffs, including the substituted plaintiffs, being the heirs and legal representatives of'Late Nalini Ranjan Sarkar or have any right or claim against the defendant or any right to enforce any contract entered into between Nalini Ranjan Sarkar and the defendant. It has been stated that the claim in the suit is in any event a personal right which did not survive on the death of Nalini Ranjan Sarkar, the President of the society.
11. Upon pleadings of the parties the following issues are framed:--
(1) Is the suit maintainable in its present form?
(2) Are the plaintiffs the legal heirs and successors of Late Nalini Ranjan Sarkar?
(3) Is the suit bad for non-joinder of necessary parties.?
(4) Is the suit barred by limitation?
(5) Is the purported resolution dated 12th August, 1940, borne out and acted upon?
(6) Does the claim in the suit emanate from a personal right which does not survive after death of Nalini Ranjan Sarkar?
(7) Does the claim in the suit partakes the character of a debt and cannot proceed in view of S. 214 of the Indian Succession-Act?
(8) Are the plaintiffs entitled to recover the sum as prayed for in the plaint?
(9) What relief, if any, are the plaintiffs entitled to?
Decision
Issue No. 1:
It has been submitted on behalf of the defendant that this Court has no jurisdiction to adjudicate upon the questions involved in the suit in view of the provisions of the Life Insurance (Emergency Provisions) Act, 1956, read with Section 41 of the Life Insurance Corporation Act, 1956 and Rule 12-Aframed thereunder.
12. The Life Insurance (Emergency Provisions) Act, 1956 contemplates taking over of all insurance business, declared as controlled business, by the Central Govt. with the commencement of this Act, i.e . I9th day of Jan. 1956. With effect from 1st Sept. 1956 all the assets and liabilities appertaining to controlled business of all insurers vested in the LICI. Section 17 of the Life Insurance Corporation Act, 1956 deals with constitution of Tribunals by the Central Govt. for the purpose of the Act and Rule 12A lays down jurisdiction of a Tribunal inter alia to decide or determine all matters connected with title or of liability of any nature whatsoever in relation to the assets and liabilities pertaining to the controlled business of the insurer transferred to and vested in the Corporation. Under Section 41 of the Life Insurance Corporation Act, no Civil Court has jurisdiction to entertain or adjudicate upon any matter which a tribunal is empowered to decide or determine under the Act.
13. There is no denying that all the assets and liabilities of the Hindusthan Co-operative Insurance Society Ltd. vested in Central Govt. with effect from 19th day of January, 1956, the plaintiff was filed on 24th day on, January, 1956, that means, after promulga-, mation of the Emergency Provisions Act, but the Union of India was not impleaded. It is also crystal clear that what has been claimed by the plaintiff was a liability of the erstwhile society and with the taking over of the management, rights and liabilities of the society such liability became the liability of the Central Govt. and later- on of the Life Insurance Corporation of India. That being so, only the Tribunal created under the Act and not any Civil Court including this Court shall have power to entertain and adjudicate upon the dispute raised by the plaintiffs.
14. In Suresh Ch. Roy v. Life Insurance Corporation of India, reported in 1978 Lab IC NOC 34 (Cal) (Whole text of the judgment has been made available), Mrs. Padma Khastagir, J., sitting singly held that claims for gratuity, pension etc. of an ex-employee of an erstwhile Insurance Company taken over by the Corporation is a liability pertaining to the controlled business and must be decided by the Tribunal. It was held that the words 'any question of any nature whatsoever in relation to liabilities' appearing at Rule 12A are very widewords which would include the question as to whether the liability is in relation to the liability pertaining to the controlled business and within the scope and meaning of Rule 12A. This decision has all the manner of application to the present case and I have no reason to differ from the Learned Judge.
15. Having considered the facts, circumstances and the materials on record. 1 have no hesitation to hold that the amount that the plaintiffs have claimed in the suit, which was originally made against the society and since taking over and coming into being of the. Corporation is made against the Corporation, by substitution, cannot be determined by this Court, which has no jurisdiction to do so. The issue is answered in the negative.
Issues No. 2 and 3:
These two issues are taken up together as they are inter linked.
16. The suit was originally filed byPromod Rajan Sarkar, Pabitra Ranjan Sarkar, Prafulla Ranjan Sarkar and Saroj Ranjart Sarkar, the four brothers of Nalini P.anjan Sarkar who died tssuless and as a widower. In paragraph 2 of the plaint, the plaintiffs have claimed that they were the surviving heirs and successors of Nalini Ranjan Sarkar. In pargraph 1 of the written statement filed by the Original defendant, Hindusthan Co-operative. Insurance Society Ltd. it has been stated that the defendant does not admit that the plaintiffs are the only heirs of Nalini Ranjan Sarkar. PW 1 Sujit Ranjan Sarkar in cross-examination admits that Nalini Ranjan Sarkar had five brothers, excluding himself, and they were Ramani, Promod Pabitra, Prafulla and Saroj. There is no whisper in the plaint how Ramani Ranjan Sarkar is represented in this suit. It appears that a partition suit being No. T.S. 84 of 1956 was instituted in the Second Court of Subordinate Judge at Alipore by Saroj Ranjan Sarkar against defendants No. 4 Santi Ranjan Sarkar, defendant No. 5 Amit Ranjan Sarkar, both sons Of Late Ramani Ranjan Sarkar, minors represented by the guardian mother Sm. Snehalata Sarkar and defendant No. 6 Sm. Snehalata Sarkar and others, in respect of properties left by Late Nalini Ranjan Sarkar. Thus Ramani Ranjan Sarkar and in the event he died before Nalini Ranjan Sarkar breathed his last, his sons and wife are also the heirs of Nalini Ranjan Sarkar along with the plaintiffs. But it appears that in the present suit Ramani Ranjan Sarkar or his sons and wife are not represented in any capacity whatsoever. This witness has further stated in cross-examination that the five brothers of Nalini Ranjan Sarkar left altogether 20 (twenty) heirs and successors including the witness but it appears that altogether 11 (eleven) persons figure as plaintiffs and hence all the heirs of Nalini Ranjan Sarkar are not impleaded. But the plantiffs have claimed as heirs of Nalini Ranjan Sarkar. Hence some necessary parties to the suit are left out. The plaintiffs are not the only heirs and successors of Nalini Ranjan Sarkar and accordingly, the suit is bad for nonjoinder of necessary parties. The issues are answered accordingly against the plaintiffs.
Issue No. 4:
The plaint case is that by virtue of the resolution dated 12th August, 1940, adopted by the Board of Directors of the Hindusthan Co-operative Insurance Society Ltd. the plaintiffs are entitled to be paid @ Rs. 1250/-(One thousand two hundred fifty) only per month for five years as Nalini Ranjan Sarkar died on 25th January, 1953, that is to say before 1st January, 1955, without nominating any dependants or specifying the proportion payable to such dependants. Although they were entitled to the total sum @ Rs. 1250/-(One thousand two hundred fifty) only per month from 26th January, 1953 for a period of five years they, however, instituted this suit for recovery of Rs. 44,958/- (Fortyfour thousand nine hundred fifty-eight) being the amount due and owing by the defendant for three years immediately proceeding the filing of the suit. That being so, there is no question of the suit being barred by limitation. The issue is answered in the negative.
Issue No. 7:
This issue is taken up before the other two issues for sake of convenience. Section 214 of the Indian Succession Act runs as follows:
214 -- Proof of representative title a condition precedent to recovery through the Courts of debt from debtors of deceased persons. -- (1) No Court shall-
(a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, or
(b) proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor adecree or orderfor the payment of his debt, except on the production by the person so claiming, or-
(i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased, or
(ii) a certificate granted under Section 31 or Section 32 of the Administrator-General's Act, 1913, and having the debt mentioned therein, or
(iii) a succession certificate granted underpart x and having the debt specified therein, or
(iv) a certificate granted under the Succession Certificate Act, 1889, or
(v) a certoficate granted under Bombay Regulation No. VIII of 1927 and, if granted after the first day of May, 1889, having the debt specified therein.
(2) The word 'debt' in sub-section (1) includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes.
17. Although excepting on account of rent, revenue, or profits payable in respect of land used for agricultural purpose, all liquidated claims due and owing is a debt for recovery of which no Court would pass a decree unless the person claiming through the deceased creditor produces succession certificate or probate or letters of administration, but then the catena of decisions shows that in very many circumstances Sussession Certificate is not required if the debt is due to the joint family, vide : AIR1957Ori100 (sic). In Sheetal Chandra v. Lakshmi Monee, 63 Cal 15 this Court took the view that this section applies to the case of a person claiming succession to the goods of the deceased and does not apply to the case where the claimant has obtained property not as an heir but by survivorship. It is also already settled that this section is intended to protect the debtor from multiplicity of suits .and so has no application to arrears of rent or mesne profits, or bars a suit for ejectment. In a celebrated Full Bench decision of Calcutta High Court, reported in Banchharam v. Adyanath, (1909) ILR 36 Cal 936, 'the Debt' under the section has been defined as a sum of money which is presently payable or will become payable in future of a present obligation. 'I do not think that the word 'debt* can be restricted to a liquidated sum of money actually due and payable to the deceased at the time of his death. The word must be understood as including not only debts due to the deceased at the time of his death, but also accruing due to his estate or ascertained due to his estate upto the day on which the inclusion of the debt in the certificate is applied for', per Benson J. In Sabju v. Noordin.
18. In the instant case the plaintiffs have not claimed the money through Naljni Ranjan Sarkar. It is ,not that the money alleged to have been due and payable to the plaintiffs, as claimed in the plaint, originally became due and payable to Nalini Ranjan But because Nalini Ranjan Sarkar died, plaintiffs, became entitled to get and accordingly are claiming the said money. It is an independent claim of the plaintiffs, which may be called in modern terminology, a family pension. Although the family pension can be claimed only through the deceased employee but it is an independant claim maintainable by the dependants of the deceased and in no case Section 214 of the Indian Succession Act be a bar against maintainability of such a claim without production of a Succession Certificate.
19. The issue is answered in the negative in favour of the plaintiffs.
Issues Nos. 5, 6 and 8:--
These three issues being interlinked are taken up together.
20. Plaintiffs claim is based on a purported resolution dated 12th August, 1940 adopted in the meeting of the Bqard of Directors of Hindusthan Co-operative Insurance Society Ltd. which is said to have been ratified and accepted by the Society. It is stated that by another resolution dated 17th Sept. 1947 passed by the same Board the amount of pension payable to Nalini Ranjan Sarkar was reduced from Rs. 5,000/- to Rs. 2,000/- at the instance of Nalini Ranjan Sarkar himself. But where are the resolutions? And what are the precise test of the resolutions?
21. At page 9 of the plaint it has been stated categorically that the plaintiffs would rely on copies of the resolutions of the Board Of Directors of Hindusthan Co-operative insurance Society Ltd. passed on 12thAugust, 1940 and 17th Sept. 1947, but not a scrap of paper was annexed to the plaint and has been exhibited.
22. Plaintiffs' only witness PW 1 Sujit Ranjan Sarkar in examination in chief says that he has no personal knowledge about the said resolution. He, however, came to know from his father who was an original plaintiff that the present suit was pending in the Calcutta High Court wherein some remuneration due to Late Mr. Sarkar had been claimed. But the amount claimed in the suit is not a remuneration due to Late Mr. Sarkar, but is said to have been payable to the heirs of Mr. Sarkar after his death almost as a family pension.
23. This witness further says that his father handed him a copy of the resolution which he made over to his lawyer but the alleged copy of the resolution has not been exhibited either.
24. In the written statement filed by the original defendant it was stated that the defendant would refer to the resolution of the Board of Directors of the society for true meaning, scope and effect thereof. Taking this as an admission that the resolution is there the Learned Advocate for the plaintiff asked LICI to produce the said resolutions on the ground that being successor in interest of the office and business of the original defendant, LICI must have preserved minutes of the meeting of the Board of Directors of the society.
25. The defendant LIC has examined one Hira Lal Shil as the only defence witness who became Regional Manager (Legal and Housing Properties and Finance) of LIC, Eastern, Zone, Cal. The witness joined Hindusthan Insurance Co-operative Society Ltd. in 1952 and worked in Hyderabad Unit till 1956 whereafter he was transferred to Calcutta. He affirmed the additional written statement filed by the LICI on 22nd Nov. 1988. He says when hewas asked to affirm the written statement, he tried to locate the alleged resolutions in the Hindusthan Building belonging 'to the erstwhile society but could not find out the resolutions anywhere. He says he was then Assistant Secretary (Legal) of the LICI and instructed Fox and Mondol, the Solicitors and that he himself searched for the Minutes books of the Board of Directors of the erstwhile society from the Officer-in-Charge, but neither could he locate the Minute book personally nor the Officer-in-Charge, A.K. Mukherjee who has since retired, could do so. It is evident that the original resolution is not forthcoming. Even a copy of the same, which the witness says he was handed over by his father is not also exhibited. True, in the written statement the original defendant admitted the resolutions regarding payment of pension at the rate of Rs. 5,000/- (Five thousand) only per month to Nalini Ranjan Sarkar and reduction from Rs. 5,000/- to Rs. 3,000/- only as per request of Mr. Sarkar. But this alone does not lead us to assume that the resolution also reiterated that the society will pay to the heirs and successors of Late Nalini Ranjan Sarkar after his death @ Rs. 1250/- per month for five years in case Sri Sarkar died after 1950 but before 1955. In absence of a scrap of paper pointing towards the existence of the said resolution and particularly in absence of the text of the resolution, it will be completely a wild speculation if we accept plaintiffs case of payment of @ Rs. 1250/- (One thousand two hundred fifty) only for a period of 5 (five) years in the event Nalini Ranjan Sarkar died after 1950, but before 1955. Nalini Ranjan Sarkar died in the year 1953 and had there been such a resolution the plaintiffs would have been entitled to recover the amount they have prayed for. But existence of the resolution being doubtful and in absence of the text of the resolution, there can be no question of-extending the benefit of family pension, as alleged, to the heirs and successors of Nalini Ranjan Sarkar after his death.
26. Upon considering the facts, circumstances and materials on record, I am of the firm opinion that plaintiffs' case crumbles and falls to the ground in absence of the resolutions or any cogent and authentic evidence about existence of such resolutions. The plaintiffs have failed to establish their case and are not entitled to any relief. The issue are answered against the plaintiffs.
27. In the result the suit fails.
28. Therefore, it is ordered that the suit be dismissed on contest, but in the circumstances without cost.
29. Order accordingly.