The nomination made by an insurance agent under the proviso to Section 44(2) of the Insurance Act, 1938, as applicable to the LIC, conferred a right on the nominee to receive the renewal commission as the owner thereof, and the nominee was not merely an agent for receiving the money on behalf of the estate of the deceased.

ISMAIL J.

The plaintiff in O.S. No. 2703 of 1969 on the file of the City Civil Court, Madras, is the appellant herein. Most of the facts are not in controversy. One Mr. Srinivasa Rao was an insurance agent who died issueless on June 8, 1966. The second respondent herein is his widow. The appellant and the third and fourth respondents are said to be his brothers, and the fifth respondent is said to be his sister. At the time of his death, his mother, by name, Uma Bai, also survived, but she died on June 29, 1968. The said Srinivasa Rao had married the second respondent herein under the Special Marriages Act, and, accordingly, under section 33(b) of the Indian Succession Act, on the death of the said Srinivasa Rao, the second respondent herein being his widow would be entitled to a half share, and the appellant and respondents Nos. 3 to 5 would be entitled to the remaining half share in the estate of Srinivasa Rao. It is averred in the plaint that after the death of Srinivasa Rao the second respondent took charge of the estate and that despite several requests she had not given the shares due to the appellant and respondents Nos. 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 of India, as per the notification of the Ministry of Finance No. GSR 734 dated. August 23, 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 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 as an heir of the deceased, Srinivasa Rao, to 1/8th share of the renewal commission and for an injunction restraining the first respondent herein from paying to the second respondent herein any amount in excess of her half share in the renewal commission and for directing the first and second respondents to pay to the appellant 1/8th of the commission which the appellant tentatively estimated at Rs. 5, 000. In support of this claim of his, the appellant contended that section 44(2) of the Insurance Act specifically directed payment only to the heirs of the deceased, and he put the first and second respondents to strict proof that the modification was made with the previous approval of the Central Government as contemplated under section 49(1) of the Life Insurance Corporation Act, 1956, and that the same was not inconsistent with the Act, regarding the payment of the amount to the heirs of the deceased agent. It was also stated in paragraph 6 of the plaint that the appellant did not admit the alleged nomination in favour of the second respondent and put the first and second respondents to strict proof of the same. There were different written statements filed by the first respondent and the second respondent. The first respondent solely relied on the notification of the Central Government applying section 44(2) of the Insurance Act, 1938, to the Life Insurance Corporation, as amended by the said notification, contending that in view of that notification the commission was payable only to the second respondent, nominee of the deceased, Srinivasa Rao.In the written statement filed by the second respondent herein, she contended that the suit was not maintainable and that, in view of the notification of the Central Government referred to above, she was entitled to receive the money. She also contended that on June 22, 1966, an agreement was entered into by the appellant, respondents Nos. 3 and 4 and their m