[Cites 7, Cited by 0]
Orissa High Court
Sri Dibakar Sahu vs Krushnapriya Biswal & Others on 27 January, 2026
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A No. 181 of 2024,
In the matter of an appeal under Clause 10 of the Letters
Patent of Patna High Court read with Article 4 of the Orissa
High Court Order, 1948 from order dated 01.02.2024 passed
by the learned Single Judge in W.P.(C) No. 18802 of 2023.
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Sri Dibakar Sahu ... Appellant
-versus-
Krushnapriya Biswal & Others ... Respondents
Advocates Appeared in this case
For Appellant - Mr. Ashwini Ku. Das,
Sr. Advocate along with M/s.
Madhu Bhagat & S. Das,
Advocates
For Respondents - M/s. Ramani Kanta Pattanaik,
B. C. Parija, R. R. Rout & (Ms.)
A. R. Panda & Routray,
Advocates [R-1 & 2]
Mr. Subrata Ku. Mohanty,
Advocate [R-3 to 5]
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CORAM :
MR. JUSTICE DIXIT KRISHNA SHRIPAD
MR. JUSTICE CHITTARANJAN DASH
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Date of Hearing & Judgment : 27.01.2026
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Page 1 of 11
PER KRISHNA S. DIXIT, J.
This Intra-Court Appeal is directed against a learned Single
Judge's order dated 01.02.204 whereby private Respondents'
WP(C) No.18802 of 2023 having been favoured, relief has been
granted to them in the following words:
‚In such view of the matter, this Court directs the Opposite Party
Nos.1 to 3 to disburse the death claim amount in favour of the
Petitioners, if the said amount has not yet been disbursed in favour of
the nominee. Learned Civil Judge (Sr. Dvn.), Dhenkanal is also directed
to dispose of the Execution Case No.07 of 2014 as expeditiously as
possible preferably within a period of three months from the date of
presentation of this order.‛
2. Learned Counsel appearing for the Appellant vehemently
argues that the impugned order is liable to be voided for the
following reasons:
(i) The private Respondents have suppressed the fact of they
having obtained an ex parte decree against the LIC & the Appellant
in Civil Suit No. 356 of 2011, have put the judgment & decree dated
05.04.2014 in enforcement vide Execution Case No. 7 of 2024;
however, they have suppressed the same and thus no relief could
have been granted to them on account of culpable conduct.
(ii) Appellant's son, who is none other than the husband of
private Respondent No.1 and also the father of private Respondent
No.2, had nominated both the Appellant & the Respondent No.1 as
the nominees separately in two different LIC policies; Appellant
has received Rs.9,48,229/-, being the nominee in one policy,
whereas Respondent No.1, being the widow, has received
Rs.5,34,867/-, being the nominee in the other policy. That being the
position, impugned order of the kind could not have been made for
payment of all the policy money to her only.
(iii) Although the Appellant happens to be the sole nominee in
one policy and the 1st Respondent happens to be the sole nominee
in the other, are entitled to retain the maturity value on the death
of policy holder, in view of 2015 Amendment to Section 39 of the
Insurance Act, 1938; this aspect having not been adverted to by the
learned Single Judge, the impugned order is unsustainable.
(iv) Appellant's wife being the mother died subsequent to the
death of policy holder; she being one of the Class-I heirs, is entitled
to 1/3rd share in the insurance amount, 2/3rds collectively going to
private Respondents. This contention, he advances, after telling
that an application is moved seeking recall of the decree.
3. Learned Senior Advocate appearing Respondent Nos.1 & 2
resists the Appeal making submission in justification of the
impugned order and the reasons on which it has been constructed.
He tells the Court that there is no conflict between decree of the
Civil Court & the impugned order and therefore, the contention of
suppression does not hold water; Appellant being the father was
only the nominee, has no title to the insurance money, and that he
holds it in trust for the Respondents; even otherwise he is not a
Class-I heir under the Hindu Succession Act, 1955; what learned
Single Judge has done by passing the impugned order, has brought
about a just result and therefore, interference of this Court is not
warranted.
4. Having heard learned counsel for the parties and having
perused the Appeal papers, we decline indulgence in the matter
with certain observations and for the following reasons:
4.1. AS TO FOUNDATIONAL FACTS:
(i) Appellant happens to be the father of Insurer, namely,
Chakradhar Sahu; Respondent No.1 happens to be the widow of
Insurer; Respondent No.2 happens to be the son of Insurer. We are
told at the Bar that the Insurer has a mentally challenged brother
residing with Appellant. Chakradhar had bought as many as eight
(8) LIC Policies; Appellant was the nominee in respect of six (6) of
them, whereas 1st Respondent was the nominee in respect of the
remaining two (2). Chakradhar passed away on 27.06.2010 leaving
behind the parents, the widow & a son, intestate. It is also admitted
that his mother died subsequently leaving the Appellant as the
widower and a brother (mentally challenged).
(ii) Appellant received in all Rs.9,48,229/- whereas 1st
Respondent received Rs.4,24,815/-. These monies were received
admittedly in the years 2010 & 2011. It is not in dispute before us
that parties being Hindus, mother happens to be a Class-I heir of
the deceased Insurer along with widow & son, i.e., private
Respondents under the Schedule to Section 8 of the Hindu
Succession Act, 1956. Father is not a Class-I heir. Therefore, the
succession to the estate of the deceased Insurer would open
accordingly. After the death of mother, the Appellant, his 2nd son &
the private Respondents could succeed to her estate in equal
proportion.
4.2. AS TO SUPPRESSION OF MATERIAL FACTS:
It is not in dispute that the private Respondents have
obtained an ex parte judgment & decree on 05.04.2014 in C.S. No.
356 of 2011 at the hands of Sr. Civil Judge, Dhenkanal. They have
also put the said decree in Execution Case No.7 of 2024. This has
been withheld from the knowledge of Writ Court, is apparent.
However, the impugned order of the learned Single Judge does not
conflict with the said decree, is also relevant in treating contention
of the kind. At the most, there is duplication of relief and
therefore, no extra advantage is derived by the private
Respondents. In view of that, the plea of supprecio veri does not
come to the aid of Appellant, who happens to be Judgment Debtor.
It could have been ideal, had these facts been pleaded in the Writ
Petition by the private Respondents. This being said, it is open to
prosecute the Recall Application filed by the Appellant before the
learned Civil Judge, who has handed the decree, in accordance
with law. Much deliberation in this regard is not needed.
4.3. AS TO NOMINEE BEING THE BENEFICIARY UNDER
THE INSURANCE ACT, 1938:
(i) Pre-2015 Amendment: As already observed, the Appellant
received certain sums of money under six (6) of the Policies being
the sole nominee and similarly 1st Respondent received a certain
money under the remaining two (2) Policies. This was way back in
the years 2010 & 2011. It has long been settled by the Apex Court
vide Smt. Sarbati Devi v. Smt. Usha Devi, (1984) 1 SCC 424 that a
nominee is like a trustee but not a beneficiary in respect of monies
received under LIC Policy. He holds that money in trust for the
benefit of title holders, which has to be ascertained in accordance
with the personal law applicable to the beneficiaries. Therefore,
what all money is received by the Appellant & the 1st Respondent,
as nominees, will not automatically become a part of their purse.
Such nominees, at times, can also be beneficiaries, cannot be
denied.
(ii) Post-2015 Amendment: The vehement submission of learned
Counsel appearing for the Appellant that after 2015 Amendment to
Section 39 of the Insurance Act, 1938, the nominee becomes the
beneficiary to the proceeds of Insurance Policy, is difficult to
countenance. True it is that pursuant to 190th Report of the Law
Commission of India, the Parliament brought about certain
changes in relation to the status of nominee in an insurance policy.
Section 39 provides for nomination by policy holder. Sub-Sections
(8) (9) & (11) of this Section, which are heavily relied upon by the
Appellant's side, read as under:
‚(8) Subject as aforesaid, where the nominee, or if there are more
nominees than one, a nominee or nominees, to whom sub-section (7)
applies, die after the person whose life is insured but before the amount
secured by the policy is paid, the amount secured by the policy, or so
much of the amount secured by the policy as represents the share of the
nominee or nominees so dying (as the case may be), shall be payable to
the heirs or legal representatives of the nominee or nominees or the
holder of a succession certificate, as the case may be, and they shall be
beneficially entitled to such amount.
(9) Nothing in sub-sections (7) and (8) shall operate to destroy or
impede the right of any creditor to be paid out of the proceeds of any
policy of life insurance.
(11) Where a policyholder dies after the maturity of the policy but the
proceeds and benefit of his policy has not been made to him because of
his death, in such a case, his nominee shall be entitled to the proceeds
and benefit of his policy.‛
(iii) Ordinarily, all substantive amendments are prospective in
operation and procedural are retrospective, unless otherwise
indicated, vide Shyam Sunder v. Ram Kumar, (2001) 8 SCC 24. True
it is that this amendment is retrospective in operation. However,
the retrospectivity is restricted to 26.12.2014. M.N Srinivas and K.
Kannan's Principles of Insurance Law (Eleventh Edition) at page
925 vide footnote 262 reads; ‚Subs. by Act 5 of 2015, Section 45, for
Section 39 w.r.e.f. 26 December 2014<‛. Sub-Section (8) of Section
39 speaks of a circumstance wherein the policy holder dies and
thereafter the nominee passes away without receiving the amount
under the policy. That is not the case here and therefore, this
provision has to stay miles away. Amended Sub-Section (10)
makes modified Sub-Section (7), and newly added Sub-Section (8)
applicable to all policies of Life Insurance that would mature post-
amendment. However, in this case, the policies matured not
because of efflux of maturity period but on account of death of
Insured much before. A life insurance policy matures in the sense
of becoming encashable on the happening of the event, i.e., on the
arrival of maturity date if the assured is alive and at his death, if it
happens earlier. Thus, the risk covered is 'death' which may occur
in any manner before the stipulated date. Of course, the risk can
also be extended or curtailed by the express term of the policy. In
the case at hand, the Insured admittedly died on 27.06.2010, i.e.,
years before the 2015 Amendment was enacted.
4.4. AS TO THE CLAIM OF APPELLANT AS A HEIR OF
POLICY HOLDER'S MOTHER:
(i) All the above being said, there is force in the submission of
learned counsel for the Appellant in an admitted fact situation: The
Insured died on 27.06.2010 and thereafter his mother, i.e., the wife
of Appellant herein passed away. On the death of policy holder,
the insurance amount, which becomes payable under the terms,
would constitute his estate. Mother happens to be one of the Class-
I heirs under Schedule to Section 8 of the Hindu Succession Act,
1956, although father is not. However, on the death of policy
holder, there shall be four sharers, namely, Appellant, deceased
mother who is Appellant's wife, widow of the policy holder, i.e.,
Respondent No.1 & son of policy holder, i.e., Respondent No.2.
Another brother of policy holder, is not a heir.
(ii) All the above aspects have not been dealt with in the
impugned order, is apparent. It does not appear to have been dealt
with in the civil court decree, either. Now, the said decree is put in
execution, when Appellant has moved an application seeking recall
of the decree passed ex parte. Till that application is decided, the
Execution Proceedings have to be kept at a bay, as a matter of
justice. We request the jurisdictional Court to hear & dispose off
the said application at the earliest, after giving an opportunity of
hearing to all the stakeholders. We are not expressing anything on
the merits of that application.
4.5. The vehement submission of learned counsel appearing for
the Appellant that the Court has to sit in the arm chair of law
maker and provide remedy to an aggrieve, whose case does not
strictly fit into the framework of the statute vide casus omissus, is bit
difficult to countenance. Lord Denning in Seaford Court Estates v.
Asher, [1949] 2 KB 481 observed as under:
hen a defect appears, a judge can not simply fold his hands
and blame the draftsman. He must set to work on the
constructive task of finding the intention of Parliament and
then he must supplement the written word so as to give 'force
and life' to the intention of the legislature.... A judge must
not alter the material of which the Act is woven, but he can
and should iron out the creases.‛
In the above circumstances and with the above
observations, this Appeal is disposed off, costs having
been made easy.
Web copy of the judgment to be acted upon by all
concerned.
(Dixit Krishna Shripad)
Judge
(Chittaranjan Dash)
Judge
Orissa High Court, Cuttack
The 27th day of January, 2026/AK Pradhan
Signed by: ANANTA KUMAR PRADHAN
Designation: Senior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA
Date: 29-Jan-2026 17:15:35
