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Married Women Property Act-360 Degree Protection By.Pradeep Patil

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2017<br />

MARRIED WOMEN<br />

PROPERTY ACT- <strong>360</strong><br />

DEGREE PROTECTION<br />

Presented <strong>By</strong>.<strong>Pradeep</strong> <strong>Patil</strong><br />

DISHA ACADEMY INTELECTUAL PROPERTY<br />

E2/21/2017


<strong>Married</strong> <strong>Women</strong> <strong>Property</strong> <strong>Act</strong> –<br />

A <strong>360</strong> degree protection<br />

As you know we are growing, everybody is growing, every sector is growing. Last one decade if you<br />

see the Globle Economy changes.The emerging market like BRICS Brazil,Russia,India,China and<br />

South Africa where all these countries economy has showing positive impact in the GDP.<br />

There may be many reasons for the growth, but when there is growth believe me they are walking<br />

on a fire means they have taken RISK to bring the positive impact in GDP.What do you mean by<br />

RISK- Risk of Investment Strategy Knowing action.<br />

When we are talking about the Indian Economy, I can say ours is the only country in developing<br />

economy investors FIS & Domestic Investors are finding INDIAN ECONOMY is a HEAVEN for their<br />

Investment.<br />

Why I am writing about all these things here is unless you know how we are, and will be makes lot<br />

of difference in your perceptions.<br />

In recent Government Policy of Investment, Taxation, Transperensy etc has made to think and<br />

rethink every Individual about their investment and strategy. Now every individual is cautious about<br />

their investment portfolio<br />

Now they are thinking what was their yesterday is not today but what is Today may not be our<br />

Tomorrow, then what to do? Shall I rely on my investment decision; shall I rely on my Chartered<br />

Accountant?<br />

Kindly read your Chartered Accountant is not a Financial Planner / Advisor<br />

As I interact with lot of investors, I find that some investors, particularly the HNI segment, have this<br />

habit of referring their Chartered Accountants (CA) for every financial decision including investments.<br />

I am not saying that this is completely a wrong practice, but one must also check that, is your<br />

Chartered Accountant so efficient that he can advice you on your investments or financial planning<br />

matters? <strong>By</strong> efficiency I am in no way referring to his qualification, but yes I am referring to his area of<br />

expertise.<br />

I have seen that Chartered Accountant being given god-status in some households. Once I was with<br />

an aged investor and he was looking for tax efficient returns without any exposure to equity as this<br />

was an investment for around 6 months. The investor was into highest slab bracket hence I<br />

recommended him Fixed Maturity Plan from a reputed mutual fund house. But investor insisted that I<br />

should explain the product to his Chartered Accountant. Reluctantly (because of my past<br />

experiences) I agreed. The first question that was asked by the CA was pretty basic- ―is this an openended<br />

product or a close-ended product‖. If an expert ask question like this we all know the fate. He<br />

insisted investor to go for a Bank FD saying that the mutual funds are not safe and banks are. So<br />

invest in a PSU bank. And then he went for the final kill and suggested that since equity market is in<br />

bull phase, you should take 2-3 large cap stocks and sit tight. You will make the same money in one<br />

month that this FMP would give.<br />

Although this chartered Accountant had no vested interest and was working in favour of his client but<br />

his knowledge limitations ruined investor‘s portfolio.<br />

Chartered Accountant (CA) is not a Financial Advisor<br />

Consider these following points before you refer to your Chartered Accountant (CA) for any of your<br />

investments decision or Financial Planning:


CA is an expert in accounting and tax practices. He is not an expert on assets like Equity and<br />

Debt. Also he is not an expert on tracking or researching factors which are must for any investment<br />

decisions you take. These factors can be macro like European Crisis or micro like inflation. He may<br />

have view on these as a spectator but he is in no way qualified to analyze these facts to form an<br />

investment advice.<br />

In case of individual investor, a CAs job ceases after he calculates the amount of tax that<br />

investor needs to pay. Investments to save this tax fall under the purview of your Investment Advisor<br />

or your Financial Planner. He will help you invest a suitable tax saving instrument taking care of your<br />

overall portfolio, asset allocation and other needs.<br />

CA has no role in Financial Planning. He is not equipped to assist you in your goal planning or<br />

risk assessment. Also since he is not an asset expert he cannot help you in assessing your future<br />

finances and portfolio. CAs engaged into advising on investment just does it for the sake of not losing<br />

their clients or for some monetary gains. Beware as his advice will never be comprehensive.<br />

Your Financial Planner is expected to have detail knowledge about economy and individual<br />

assets. He can also deal with tax related matters if you don‘t have too complicated financial life. Also<br />

as he is associated with you since the early stages of investments, he has a broad picture of your<br />

individual requirements. He is aware of your family needs and you get personalization.<br />

It is prudent that you take service of professional who is suited. For all financial planning<br />

related aspects, your Financial Planner is most suited.<br />

Roles of different Financial Professionals<br />

If we look at the roles or the expertise Chartered Accountants are not Financial Planners or even<br />

Financial Advisors.<br />

Chartered Accountants (CA) work in fields of business and finance, including audit, taxation,<br />

financial and general management.<br />

Financial Advisor is a professional who renders financial services including investment advice,<br />

which may include pension planning, advice on life insurance and other insurances such as income<br />

protection insurance, critical illness insurance etc., and advice on mortgages. Financial Planner (FP)<br />

is a practicing professional who helps people deal with various personal financial issues through<br />

proper planning, which includes: cash flow management, education planning, retirement planning,<br />

investment planning, risk management and insurance planning, tax planning, estate planning and<br />

business succession planning (for business owners).<br />

Role of Chartered Accountant:-<br />

1) Taxation - A CA is an expert in the areas of taxation, both personal as well as corporate. He can<br />

help you plan your taxes well. He is well versed with the latest tax laws.<br />

2) Auditing - If you have a business/company, he can perform an audit on the accounts and certify<br />

the same. He is authorized to do so. A FP cannot perform an audit.<br />

3) Accounting - He is brilliant with accounting concepts, making balance sheets, reading the<br />

financials of a company, etc.


Role of Financial Planner<br />

1) Insurance Planning - A Financial Planner can help you with your insurance needs. He would be<br />

able to calculate how much insurance you actually need and what type of insurance plan is the best<br />

for the said purpose.<br />

2) Retirement Planning – A FP can calculate how much of a corpus you would need at the time of<br />

retirement so that it would suffice for the rest of your life. He would also tell you how much you need<br />

to invest monthly from now to achieve this.<br />

3) Investment Planning - He can suggest you a suitable portfolio depending on your risk appetite,<br />

goals, etc. He also has good knowledge on the investment products available and their past returns.<br />

4) Tax Planning - He will not just minimize tax for the year but would help you plan your taxes in<br />

advance. He will suggest you products depending on your tax status.<br />

5) Estate Planning - He will make sure you have an estate plan in place so that any event would<br />

not disturb your future goals.<br />

6) Budgeting and Cash Flow - He will encourage you to prepare a budgeting sheet so that you can<br />

track your income and expenses. He will also check your cash flow from time to time and offer<br />

suggestions accordingly.<br />

7) Financial Planning - He can prepare a financial plan by integrating all the above concepts. He<br />

can also help you track your past and present investments. He would review your portfolio every 6<br />

months - 1 year or whenever there is a major event such as marriage, birth of child, divorce, etc.<br />

Conclusion<br />

The incident narrated is not to prove that CAs do not have any idea on aspects of personal finance.<br />

Not all might be the same. A lot of CAs these days has decent knowledge on aspects of personal<br />

finance.<br />

CA is a great course and it requires a lot of effort for someone to clear this course and take up this<br />

profession. FP on the other hand is a product designed especially for the purpose of solving your<br />

personal finance problems. If you ask me who I would go to if I have a tooth problem, I would say a<br />

dentist rather than a cardiac surgeon just because he is an expert in my area of trouble.<br />

Last but not least hope our above thoughts will bring more light on your present & future investment<br />

decision.<br />

Before we go for any concluding remark on your investment decision let us ascertain your<br />

responsibilities towards your family and your business.<br />

Your business is unique.<br />

Your business needs a business insurance plan that fits your business.<br />

Here we look at the preparations and considerations necessary to properly<br />

Insure your business.<br />

When considering what types of policies your business needs, it can quickly become very confusing<br />

to keep the terms straight.


An easy way around this dilemma is to keep in mind that all business insurance and all policy types<br />

cover<br />

One of four things:<br />

<strong>Property</strong>,<br />

Liability,<br />

People or<br />

Income<br />

<strong>Property</strong>: The property used in your business such as the structure you do business in or the vehicles<br />

used in your business need to be protected.<br />

Liability: No one is perfect, your business may make a mistake and, especially if your business is open to<br />

the public, there is always the chance your business will be held liable for an injury or error.<br />

People: At the heart of every business are its people. You and your officers, managers and employees are<br />

the company's greatest assets and must be protected.<br />

Income: Without income the business does not survive<br />

What is a protected asset?<br />

Asset protection is a type of planning intended to protect one's assets from creditor claims.<br />

Individuals and business entities use asset protection techniques to limit creditors' access to<br />

certain valuable assets, while operating within the bounds of debtor-creditor law.<br />

What is asset preservation?<br />

Asset protection (sometimes also referred to as debtor-creditor law) is a set of legal techniques<br />

and a body of statutory and common law dealing with protecting assets of individuals and business<br />

entities from civil money judgments<br />

What is protection from creditors?<br />

Creditor protection refers to laws that protect both the creditor and borrower in case of payment<br />

defaults. These laws are referred to as creditor protection. Creditor protection protects defaulted<br />

borrowers from creditors.<br />

Most home-based businesses will be sole proprietorships or partnerships. As such, the law sees<br />

you and your business as inseparable. If a liability claim is successfully made against you and your<br />

insurance isn't adequate, then you face losing your personal assets, including your home. Its one<br />

thing to lose money when a business fails — it's quite another to lose your family home because<br />

you failed to insure yourself adequately<br />

Loan defaults, business failures, property attachments and legal complications are common<br />

problems that affect entrepreneurs, senior management professionals, business families, business<br />

owners and other such high and ultra high net worth individuals (HNIs and UHNIs). Such individuals<br />

and entities have begun to realise the importance of creating safety nets to safeguard their personal<br />

wealth. Safety nets offer protection against the fallout of unforeseen business and personal<br />

circumstances. Used the right way, they constitute legal ways of ring-fencing one's business,<br />

personal or family wealth.<br />

Three factors must be considered: Timing, quantum and growth. Timing pertains to the question of<br />

whether the funds will be available when required or only at pre-determined time periods. Quantum<br />

relates to whether the mechanism in question can build a sizable corpus for the family, while growth<br />

refers to growing of wealth and beating the kind of inflation that HNIs experience.


Three safety nets are permissible under Indian law: Public Provident Fund (PPF), the <strong>Married</strong><br />

<strong>Women</strong>'s <strong>Property</strong> <strong>Act</strong> (MWPA) and Private Trusts.<br />

Public Provident Fund<br />

PPF is a non-encumber able asset, that is, it can't be attached under any circumstance, forming an<br />

automatic ring-fence. Easily purchased, it can be set up quickly and is a good choice for those not<br />

concerned about growth or return. Through PPF, the government itself wants to provide a safety net<br />

for the families of those who opt for it. Its main drawback is that access to the invested corpus is<br />

limited.<br />

Returns are compromised, as one cannot invest money in equities when using PPF. Its inability to<br />

help meet lifestyle expenses is another drawback, as only a limited amount can be invested, and it<br />

generates returns at a predefined rate.<br />

<strong>Married</strong> <strong>Women</strong>'s <strong>Property</strong> <strong>Act</strong> (MWPA)<br />

This has become increasingly popular in recent times, due to the efforts of life insurance<br />

companies. It involves purchasing an insurance policy under the <strong>Act</strong>. The aim is to safeguard<br />

married women's property from creditors. In the <strong>Act</strong>, any property belonging to a married woman<br />

stands protected from any income tax or legal liability her husband might have incurred. As with the<br />

PPF, again, the problem is access to the money. Further, the cost of life cover could be an<br />

unnecessary burden.<br />

Private trust<br />

These are still at a relatively nascent stage in India. However, their acceptability as a safety net<br />

solution has been increasing among large business houses and HNI families. Not only do they help<br />

in prudent management of the wealth for kin who aren't investment-savvy but it can also serve to<br />

mitigate the possibility of wealth being eroded if inherited by family members who are either underage<br />

or financially not very responsible.<br />

How does one create a trust and manage it? Initially, the trust needs to be registered as a private<br />

one under the Trusts <strong>Act</strong>, 1964. Once registered, the first thing to focus on is the design.<br />

The second and critical step is the conduct of the trust during its lifetime. For ensuring these steps<br />

are executed in the right manner, one needs a professional who has experience of both designing<br />

trusts and then helping conduct it, in a manner that is true in letter and spirit to the trust deed.<br />

The prime advantage of this safety net is that even if the party that constitutes it is subject to liability,<br />

the funds in the trust cannot be attached. Such trusts also serve as a family investment account.<br />

Usually, the one for whom the trust is created becomes the managing trustee, while his confidantes,<br />

including the spouse and other family members, tend to become the second or third trustees.<br />

Ensure the individual creating the trust is not listed as a beneficiary. If this happens, the trust can no<br />

longer serve as a safety net.<br />

One factor responsible for the popularity of private trusts as a safety net is that assets placed in it<br />

can be managed according to one's long-term financial goals. One can purchase real estate, bonds,<br />

mutual funds, insurance policies and more. In other words, the money in a trust can be invested in a<br />

wide range of customisable options.


Taxation: This is another aspect that needs to be considered when choosing the right safety net.<br />

While PPF remains the most tax-efficient instrument, along with the insurance purchased under the<br />

MWPA, it is inefficient from a returns perspective. While tax liabilities would arise from placing one's<br />

personal wealth in a private trust, the positive aspect is any money coming into the trust from the<br />

settler is not taxable, provided the listed beneficiaries are close relatives. Further, money distributed<br />

by the trust to the beneficiaries is also not taxable. The trust can conduct any kind of investment<br />

activity that an individual can. The taxation of investments placed in the trust is the same as it is for<br />

individuals. Further, there are no tax slabs for trusts, as are applicable to individuals. While a trust<br />

can help plan for one's future generations, it cannot stand in place of a Will, making the latter an<br />

additional requisite for succession planning.<br />

To create a private trust, one will require the services of someone with expertise in three distinct<br />

aspects: Legal, financial, and execution. It is only when all these are taken into consideration that<br />

this safety net will prove effective.<br />

Safety nets are important not only for HNIs; everyone ought to set these up without fail. As long as<br />

the safety net is created with no mala fide intention and no nexus can be proven between the intent<br />

of creating it and any liability arising subsequently, the protected wealth can in no way be attached<br />

or appropriated, making it an excellent option in uncertain times such as these.<br />

CONTINGENCY PLANNING IN SEVEN STEPS<br />

<br />

<br />

<br />

<br />

<br />

<br />

<br />

One option is to buy PPF. Money in PPF account can't be attached<br />

Buy insurance under the MWPA <strong>Act</strong>. It protects property belonging to women from liabilities<br />

that have arisen due to their husbands' actions<br />

To create a private trust, take the help of an expert<br />

Ensure both design and implementation are right<br />

Avoid naming the person who has created the trust as its beneficiary<br />

Invest in a whole host of investment instruments under the trust, thereby allowing the<br />

family's wealth to grow<br />

Avail of all permissible benefits under the trust structure<br />

Build a Wall around Your Assets<br />

Lifetime Trusts Placing your Financial Provision for your family in trust whilst you are still alive can<br />

provide numerous benefits to your family is called MARRIED WOMEN PROPERTY ACT


<strong>Married</strong> <strong>Women</strong> <strong>Property</strong> <strong>Act</strong> – I am sure, not many people have heard about this act. I<br />

was under the impression that lawyers must be aware of <strong>Married</strong> <strong>Women</strong> <strong>Property</strong> <strong>Act</strong> but i was<br />

wrong. Recently, I was discussing a case with one of the lawyer (I am not a lawyer). I shared<br />

reference of <strong>Married</strong> <strong>Women</strong> <strong>Property</strong> <strong>Act</strong> from a personal finance perspective. He was clueless on<br />

the same. Anyways, there can be multiple reasons for the same. Only info available on the web is<br />

related to section 6 of the <strong>Act</strong>. In other words, people know about this act because of section 6. Any<br />

insurance policy under section 6 of <strong>Married</strong> <strong>Women</strong> <strong>Property</strong> <strong>Act</strong> is immune from creditors of male<br />

proposer or court attachment. Legally this policy does not belong to husband and does not form a<br />

part of his estate.<br />

<strong>Married</strong> <strong>Women</strong> <strong>Property</strong> <strong>Act</strong> should be looked beyond section 6 holistically. It was formulated in<br />

1874 i.e. it is 142 years old act. This is one of the most powerful acts that safeguard the interest and<br />

rights of the women. As there is not much awareness, therefore, I thought of writing a post on this<br />

topic.<br />

Let us first discuss what is not covered under <strong>Married</strong> <strong>Women</strong> <strong>Property</strong> <strong>Act</strong>.<br />

1. The provisions of this act are not applicable in the state of Jammu and Kashmir<br />

2. Any property acquired before marriage is not covered under this act. For example, if I acquired a<br />

2BHK flat before marriage. In this case, my wife cannot claim any stake in my property acquired<br />

before marriage. I am free to dispose of according to my will. The reverse is also true. If my wife<br />

acquired any property before marriage then I don‘t have any claim or stake on same by virtue of<br />

marriage<br />

<strong>Married</strong> <strong>Women</strong> <strong>Property</strong> <strong>Act</strong><br />

1. Any debt of the married women before marriage is the liability of the husband. Though<br />

there is no special clause but this act does not provide any kind of protection to the husbands from<br />

such liabilities. For example, if my wife took education loan before marriage then after marriage, the<br />

liability is shared by me. The best part is if women buy a property on a home loan before marriage.<br />

As per the <strong>Married</strong> <strong>Women</strong> <strong>Property</strong> <strong>Act</strong>, the husband will not have any rights to the property as I<br />

shared in exclusions but home loan liability is of husband :). There is no provision to file claims<br />

against such debts.<br />

2. The rules may vary from state to state: The act provides power to state govt to amend<br />

provisions of the act retrospectively or prospectively to include/exclude any race, sect or tribe.<br />

Therefore, it is not necessary that it is applicable to all.<br />

3. Streedhan or Separate <strong>Women</strong> <strong>Property</strong>: The following assets/income/earnings are classified<br />

as a separate property of women on which husband cannot claim any RIGHT. At her own wish or


will, married women can share/part her streedhan but it can be recovered in future as I shared in<br />

next point.<br />

(a) Salary/income/earnings of a woman before or after marriage from employment/ occupation/<br />

business/ trade.<br />

(b) Income/Asset from her literary/artistic/scientific skills.<br />

(c) Any saving, investment, income or earning from above-mentioned salary/income/asset<br />

(d) Any insurance policy purchased before marriage or independently after marriage. The benefits<br />

of such policies are deemed to be a separate property of women.<br />

4. Recovery of Separate <strong>Women</strong> <strong>Property</strong>: Even if the women part away or share her separate<br />

property as explained in point no 3 with husband or in-laws. It can be always recovered through<br />

legal proceedings. An advice for husbands is to keep women property separate only)<br />

5. Policy under section 6 of <strong>Married</strong> <strong>Women</strong> <strong>Property</strong> <strong>Act</strong>: Some of the important points related<br />

to policy affected under section<br />

(a) The beneficiaries of the policy once declared cannot be changed without the consent of<br />

beneficiaries. Some questions are still unanswered that is what will happen in the case of divorce?<br />

(b) As I mentioned policy does not belong to the policyholder, therefore, he cannot avail loan or<br />

assignment of policy is not possible. Also, it is not clear what will happen if the policyholder stops<br />

paying premium i.e. claims of beneficiaries in this regard. Technically, the policy will lapse.<br />

(c) A change in policy is possible only with consent of the beneficiaries<br />

(d) The biggest limitation is that a policy can be covered under MWP <strong>Act</strong> only at the time of buying a<br />

policy. You cannot apply to convert existing policy under MWP <strong>Act</strong>. You can find the option in the<br />

proposal form. The existing policyholders can execute an absolute assignment of the policy in<br />

wife‘s favour.<br />

(e) All the benefits of the policy will go the beneficiaries of the policy. There is a misconception<br />

among policyholder that only death benefits will be passed to beneficiaries. For example, in the<br />

case of money back plan, the regular payout will be credited to the beneficiary account. Also, if the<br />

policy is surrendered then the surrender value will go the beneficiary.<br />

7. Personal Guarantee of <strong>Women</strong>: The provisions of this act are not applicable if the women have<br />

given a personal guarantee of any credit/loan. For example, in a very recent query, a woman was<br />

the guarantor of husband‘s business loan. In this case, she cannot claim immunity under <strong>Married</strong><br />

<strong>Women</strong> <strong>Property</strong> <strong>Act</strong>. In another scenario, if she avails loan and default then the provisions of this<br />

act are not applicable.<br />

Insurance Policy under <strong>Married</strong> <strong>Women</strong> <strong>Property</strong> <strong>Act</strong><br />

I can think of two possible cases under which the insurance policy under <strong>Married</strong> <strong>Women</strong> <strong>Property</strong><br />

<strong>Act</strong> is beneficial<br />

(a) A family under debt or Business Family: There is a misconception that with the death of a<br />

person his debts are gone or waived off. The creditors reserve the right to recover from the assets<br />

or insurance proceeds of the deceased. Though it can be done mostly through court orders.<br />

Therefore, male members of a business family or family under debt may buy a policy under section<br />

6 of <strong>Married</strong> <strong>Women</strong> <strong>Property</strong> <strong>Act</strong> to take care of the financial interest of their wife and children.<br />

(b) <strong>Married</strong> women buy a policy in the name of a child: I came across certain circumstances<br />

under which married women want her assets or proceeds from insurance coverage to be passed


only to her child. In one of the case, the husband was alcoholic. Therefore, the concern of my<br />

reader was that her husband will not take care of the children. She was working and wanted to<br />

safeguard the interests of the children. In this case, insurance policy under section 6 of MWP <strong>Act</strong> is<br />

the only solution.<br />

I tried to cover all the important points. This option may not be useful in all the cases. It can be used<br />

selectively under special or extraordinary circumstances. Though the provisions of the act are good<br />

but always remember that policy under married women proportion act will not belong to the<br />

husband.<br />

Housewives 5 Steps to Financially Secure the Future<br />

According to a rough estimate, India has approx 60yrs of Housewives. The surveys suggest that<br />

there is a very little financial awareness among housewives of the society. Thanks to maledominated<br />

Indian society. In India, financial planning is linked to the breadwinner of the family.<br />

Logically, there is nothing wrong in it from a financial perspective. It‘s a misconception that Financial<br />

Planning is always linked to Investment. To financially secure a future and financial planning are<br />

different from each other. In past, there was a proposal floated to include the contribution of<br />

housewives to the country‘s GDP. According to rough estimates, on average Indian housewives<br />

spend 4.5 Hour per day on household work. As it is unpaid work, therefore, it is not accounted in<br />

GDP.<br />

A similar study was done in the USA. It was found that if this unpaid work is added to GDP then the<br />

country‘s GDP will increase by whooping 26%. In the same study, it was concluded that if unpaid<br />

work of housewives is quantified then it will be worth approx 11,000 USD per month. Though the<br />

study done in the USA might not be relevant in India but perspective is valid and holds true.<br />

The objective of the details shared in the first paragraph is to give you a rough idea that if unpaid<br />

work is quantified then it means some serious money. In other words, housewives are not earning<br />

directly. At the same time, through household work they are indirectly contributing to the finances of<br />

the household. In turn, they are indirectly contributing to the economy of the country :).<br />

The point I am trying to make is that housewives are indirectly contributing to the household<br />

expenses. It is important to financially secure the future of housewives. Here I am not suggesting<br />

investing in their name or buying insurance. The only way we can financially secure their future is by<br />

taking steps to ensure their rights in the case of any unfortunate event. Now you must be<br />

wondering, the nomination of all my investments is in my wife‘s name so what else is pending. This<br />

post is a result of situations faced by housewives in the case of unfortunate events. I thought of<br />

sharing it with my readers. I hope you will find the points mentioned in this post useful.<br />

Housewives – 5 Steps to Financially Secure the Future<br />

1. Insurance: As a thumb rule of insurance, the coverage of breadwinner of the family financially<br />

makes more sense. - In my opinion, Health Insurance is a must for housewives. Depending on the<br />

family history, a critical illness cover can also be bought. From a personal finance perspective, the<br />

decision should be well thought through and should be need based<br />

2. Insurance Policy affected under <strong>Married</strong> <strong>Women</strong>’s <strong>Property</strong> <strong>Act</strong>: I don‘t think so anyone is<br />

aware of it. A husband can buy a life insurance policy affected under <strong>Married</strong> <strong>Women</strong>’s <strong>Property</strong><br />

<strong>Act</strong> to safeguard the financial interests of a wife. An insured person i.e. husband/male proposer has<br />

to fill addendum to Life Insurance Policy. For a sample, it is applicable only if the beneficiary of the<br />

policy is Wife/Son/Daughter. Basically <strong>Married</strong> <strong>Women</strong>‘s <strong>Property</strong> <strong>Act</strong> protects the property of<br />

women against the creditors. It is insulated from all the court orders, income tax department<br />

attachment, guarantees etc. In other words, after signing the MWP addendum, the insurance policy<br />

does not belong to the husband. In the case of death, all the proceeds are passed only to the<br />

beneficiary of the policy. It is very critical and crucial step. All the insurance policies of the husband<br />

should be affected under <strong>Married</strong> <strong>Women</strong>‘s <strong>Property</strong> <strong>Act</strong>. I will discuss it in detail in one of the future<br />

posts.


3. Transparency: According to news reports, Rs 64000 Cr of wealth is lying unclaimed with<br />

insurance companies, banks, post office etc. It is a rough estimate and does not include many small<br />

savings schemes. One of the key reasons can be that legal heirs and beneficiaries are not aware of<br />

these investments. All the financial planning is a waste and useless if the beneficiary or legal heir is<br />

not aware of it. Life is uncertain and we should accept this fact. It is important to maintain<br />

transparency with your spouse in case of financial matters. Though this step is never discussed as<br />

a part of financial planning. In my opinion, it is critical step to financially secure the housewives.<br />

4. The Wife should not be a Co-Borrower of a Loan: Recently, I came across a case in which the<br />

wife is the guarantor of husband‘s business loan. To be honest, it is suicidal in nature. Not many<br />

people are aware that being a co-borrower but not the co-owner also means you are a guarantor.<br />

Banks always say that it just a formality and nothing will happen. They never inform that coborrower<br />

means a guarantor of the home loan. If the wife is working it is understandable. A<br />

housewife being a Loan Guarantor is unimaginable. Just give a thought how she will pay the debt<br />

in case of any unfortunate event. Any loan should be backed by the equivalent amount of insurance<br />

affected under <strong>Married</strong> <strong>Women</strong>‘s <strong>Property</strong> <strong>Act</strong>. Only if the wife is co-owner, she can be co-borrower.<br />

5. Legal Heirs: It‘s a common notion that after husband‘s death all the wealth will be inherited by<br />

wife and children. It is not true always. If the husband dies without WILL then under Succession <strong>Act</strong><br />

the wealth is inherited by class I legal heirs. Legal heirs of a male include wife, children and the<br />

mother. Now the mother is included with intent to protect the rights of women at old age. In multiple<br />

cases, I observed that it becomes a major dispute between mother in law and daughter in law. I am<br />

not favouring any party but in this ball game, the right of the none is protected. It is important to<br />

execute a WILL and keep all the beneficiaries informed.<br />

Through this post, I tried to cover some of the important points to financially secure the future of<br />

housewives..Hope you liked the post.


MARRIED WOMEN’S PROPERTY ACT POLICIES-(MWP ACT)<br />

Section 6 of the married women‘s property act, 1874 deals with insurance where policy of insurance<br />

is taken by husband for the benefit of wife. The relevant extract of said section is as follows:-<br />

― A policy of insurance effected by any married man on his own life, and expressed on the face of<br />

it to be for the benefit of his wife, or of his wife and children, or any of them, shall ensure and be<br />

deemed to a trust for the benefit of his wife, or of his wife and children, or any of them, according<br />

to the interest so expressed, and shall not, so long as any object of the trust remains, be subject<br />

to the control of the husband, or to his creditors, or form part of his estate.‖<br />

It would be evident from the said act that section 6 provides for a simple method by which a<br />

married man can make a provision for settlement of the benefit s in case of his untimely death to his<br />

dependent as within mentioned specified category, without a legal formality of a deed of settlement.<br />

It also operates to give the beneficiaries under such a policy certain statutory privileges by virtue of<br />

which they secure protection than they would get under a voluntary settlement outside the act.<br />

Policy taken under the provisions of MWP act operates as a valid declaration of trust giving the<br />

beneficiary a vested interest in the policy. Such a policy will not be aggregated with the other<br />

property left by the deceased.<br />

Under MWP, there will be 3 separate bodies namely 1) life assured 2) trustees 3)<br />

Beneficiaries. While taking policy under MWP act, any one should ensure following:-<br />

Choosing the correct addendum to the proposal form.<br />

Whether to appoint special trustees as individuals or any institution.<br />

Whether trustees should be appointed two or more. If yes, then which rights should be given to<br />

them? Whether any provision should be made for alternate trustees or not?<br />

Whether any rights for raising the loan under the policy should be given at proposal stage or not?<br />

Who will be the beneficiaries? Whether beneficiaries should be mentioned as a class or by named<br />

beneficiaries?<br />

Whether alternate beneficiaries should be appointed or not?<br />

If beneficiaries are appointed more than one, then whether they will be appointed as joint tenants<br />

or tenants – in –common.<br />

1) PERSONS TO WHOM MWP ACT POLICIES CAN BE ISSUED _<br />

Proposer/ life assured should be male. He should be married man or a widower or a divorced<br />

man. Here what is important that to become eligible for taking this policy male member should have<br />

once married and subsequent to this his wife may have expired or divorced. It is not necessary that<br />

wife should be alive as on taking the policy.<br />

Policy can be issued to all proposers resident in India excluding the residents of Jammu And<br />

Kashmir State.<br />

The proposal is on the proposer‘s own life.<br />

Male married proposers who are Non-resident of India. However, the currency of the policy is<br />

Indian rupees, the place of payment of policy monies mentioned in policy should be in India, and<br />

office issuing the policy should also be in India. Issue of such policy should be subject to exchange<br />

control regulations not only in India but also of the country where the life assured resides.<br />

<strong>Women</strong>, even if married and having her independent income and estate cannot effect a policy on<br />

her own life. And also male member who is unmarried or about to be married through shortly after<br />

issue of the policy cannot take the policy under this act.<br />

2) PLANS UNDER WHICH MWP ACT POLICIES CAN BE ISSUED _<br />

All plans where life assured and proposer are same.<br />

Joint life endowment assurance plans like plan 89 cannot be allowed.<br />

Policies financed through provident fund or DSOP fund cannot be allowed, since these polices will<br />

be required to be assigned to provident fund and DSOP.


Children deferred assurance plans and policies on the life of another cannot be taken under this<br />

act.<br />

All types of annuities plans are allowed provided life assured and proposer are same one.<br />

3) PERSONS WHO CAN BE BENEFICIARIES UNDER THE POLICY :-<br />

The status of a beneficiary is that of a beneficial owner.<br />

The person who can be beneficiaries under MWP act provides are the 1) wife alone,<br />

2) Any one or more children alone or the wife and<br />

3) Any one or more children together. In above definition, the word ‗children‘ means children by<br />

blood only of the proponent. However, if the proposer is Hindu alone, then even adopted children<br />

are also included in the definition of the word of children.<br />

The position in case of non-Muslim ( Mohamed an) proposer is as follows:-<br />

He can appoint beneficiaries in favour of a named wife and / or named children male or female.<br />

He can appoint beneficiaries who should be named parties and must make explicitly clear whether<br />

the beneficiaries are joint tenants or tenants- in – common. The meaning of this is explained<br />

elsewhere.<br />

In providing for several named beneficiaries, he can provide with equal or unequal shares in policy<br />

monies.<br />

He can appoint beneficiaries as wife and /or children as a class. This means after taking the policy<br />

all wives or all children will be deemed to be beneficiaries under the policy. It is not necessary he<br />

should have a child in existence on the date of proposal.<br />

If he has appointed children as a class and not named children, and then it can be a class<br />

Within a class. I.e. in children as a class, it can be only male children or only female<br />

Children.<br />

The effect of creation of such a beneficiaries as a class is that on the occurrence of the event like<br />

maturity or death the benefit amount would go to the person/s answering the description of the class<br />

i.e. names of all members in beneficiary .<br />

If the beneficiary was in favour of children as a class, the benefit amount of claim would go to the<br />

children by one or several wives existing on the date of claim, as the case may be.<br />

If the beneficiary are named as wife as a class, on the occurrence of the claim (maturity or death)<br />

the benefit amount would go to the wives who are answering the description of the class. If the<br />

proposer has more than one legally married wives, all of them will take jointly as wife as a class.<br />

The position in case of Muslim ( Mohamedan) proposer is as follows:-<br />

Under the Mohamedan law, a gift by way of trust subject to any condition cannot be made in<br />

favour of an unborn person.<br />

Similarly no provision can be made for the benefit of wife as a class or children as a class.<br />

Mohamedan proposer cannot provide beneficiaries jointly or survivor or survivor of them i.e. joint<br />

tenancy.<br />

Hence, Mohamedan proposer have to appoint beneficiaries by name only who are living and<br />

existing at the time of proposal and also must mention respective shares of the different<br />

beneficiaries which may be equal or specified unequal shares.<br />

4) CONTINGENT BENEFICIARIES _<br />

Beneficiaries once appointed will have an immediate absolute interest in the policy from the start<br />

of the policy against life assured, trustees and all other persons.<br />

However, if non-muslim proposer/ life assured wants to provide that the beneficiaries interest<br />

should be contingent on the beneficiaries survival and should pass on to another beneficiary<br />

belonging to permissible class of beneficiaries in the event of principal beneficiaries‘ death. Then,<br />

this provision of contingent or alternate beneficiaries is available.<br />

But, this provision of contingent beneficiary is not available for muslim proposer.<br />

Thus, non-muslim proposer can provide that policy should be for benefit of his named wife, if she<br />

should survive him, but that in the event of her prior death, the benefit should pass on to his sons


and /or daughters named and / or unnamed. If proposer desires so, then necessary modification will<br />

be required in the addendum to the proposal.<br />

<strong>By</strong> provision of above contingent liability , if the wife survives the proposer, she would get the<br />

policy monies entirely, but if she expires before death of proposer, then policy money will go to the<br />

survivors or survivor of the named sons or the survivors or survivor of the children, jointly or in equal<br />

shares.<br />

It is also possible for non-muslim proposer to create contingent trust providing that beneficiary‘s<br />

interest should be contingent upon his death and that on his survival the policy should revert back to<br />

him as though no trust was ever existed.<br />

If such contingent trust is created and also appointment of contingent beneficiaries is also created,<br />

then such contingent beneficiary‘s interest will also be created immediately. It cannot be presumed<br />

that creation of trust or beneficiaries is contingent and their existence would step in only in the<br />

contingency of the principal beneficiary‘s death, hence the interest of the contingent trust or<br />

beneficiary will not come into operation.<br />

But it is to be understood that the alternate or contingent beneficiary takes an immediate vested<br />

interest in the trust property from the start of the policy, but such contingent beneficiary would not<br />

get nothing if any benefit is payable under the policy, provided principal or original beneficiary is<br />

alive on that date. In other words, the alternate or contingent beneficiary immediate vested interest<br />

in policy moneys would be destroyed by the principals beneficiary‘s or assureds‘ survival.<br />

When a non-muslim proposer makes an appointment of a contingent beneficiary, our office has to<br />

approve the same or acknowledge on par with the principal beneficiary for all purposes and dealing<br />

under the policy.<br />

5) JOINT TENANCY AND TENANT-IN-COMMON – MEANING FOR BENEFIACIARY _<br />

Where appointment of more than one beneficiary is made under the policy; it may be made either<br />

as ‗Joint tenant‘ or ‗tenants-in –common‘.<br />

In simple term, joint tenancy means where 2 or more beneficiaries have been appointed and their<br />

appointment has been made as ‗ jointly or the survivors or survivor of them‘ and if one or more<br />

beneficiaries were to die , their interest of deceased beneficiary will not pass upon their respective<br />

heirs but the surviving beneficiary would take the property entirely.<br />

On the death of last surviving beneficiary, the entire policy money will be payable to the legal heirs<br />

of such last survivor but not to all legal heirs of all deceased beneficiaries.<br />

Tenants- in –common means where 2 or more beneficiaries have been appointed without any<br />

such qualifying conditions like ‗jointly or the survivors or survivor of them‘ or similar words to that<br />

effect to indicate. In case, if any one or more beneficiaries expire, their respective share/ interest in<br />

policy money will pass to their respective legal heirs and would not pass on to the remaining<br />

surviving beneficiaries.<br />

If the proposer for any reason makes changes in the form of addendum by deleting the words<br />

‗jointly or the survivors or survivor of them‘ or makes such changes, it will be presumed that the<br />

appointment of beneficiaries would be as tenants- in –common. In case of death of one of the<br />

beneficiaries, the interest or share of deceased beneficiary would vest upon his/ her legal heirs and<br />

would not pass on the other surviving beneficiaries.<br />

6) APPOINTMENT OF TRUSTEES, THEIR POWERS AND DUTIES _<br />

The function of the trustee or trustees under MWP act policy is to receive policy money on claim<br />

arising and carry out the objects of the trust. Where the beneficiaries are all majors, the trustees will<br />

pay to the beneficiaries the claim amount received from the LIC unless they have been given<br />

specific directions to the contrary by the person creating the trust. The simple payment of amount<br />

will complete the executing of the trust and the trust will come to an end. Where the beneficiaries<br />

are all minors, the trustees will hold the amount for the benefit of the minors. When trustees<br />

appointed is not alive on claim, payment will be considered to all beneficiaries provided they are<br />

major and competent to contract and are of one mind.<br />

A trust under sec 6 of the said MWP act is a statutory trust and is on par with a contractual trust in<br />

all respect. <strong>By</strong> filling the addendum to proposal form regarding appointment of special trustee by the<br />

life assured itself forms the trust under the policy. If the trust is formed at proposal stage, it does not<br />

attract any stamp duty.


Special trustee may be an individual person. If two or more persons are appointed as special<br />

trustees then trust may like the survivors or survivor of group of trustees.<br />

There is also provision to appoint alternate or contingent trustee who can take over as special<br />

trustee as a result of the death of the principal trustee this alternate trustee is possible where<br />

principal trustee is appointed as person and not as institution.<br />

Proposer may even appoint a corporate special trustee i.e. a bank or an executor and trustee co;<br />

instead of appointing individual as a trustee.<br />

If any special trustee is appointed, then his signature in the addendum as acceptance as trustee<br />

will be required. Otherwise, the appointment would not be complete and the result would be that<br />

there is no appointment of trustee at all.<br />

Where a proposer does not appointment special trustee in the form of addendum to proposal or<br />

where proposer replied the question as the same will be appointed in future date, then at a future<br />

date whenever he desires to appoint special trustee, he have to execute a deed poll appointing a<br />

special trustee/s on a stamp paper . The value of stamp paper will depend on the place of execution<br />

and rates of each state. Specimen of a deed poll of appointment of trustees is as perform no 5244.<br />

After executing the deed poll on requisite stamp paper, the same should be required to be<br />

registered by the branch office where policy is being serviced. Original policy should be endorsed as<br />

per f. no. 5245.<br />

As per Indian trusts act, there is no prohibition for appointment of beneficiaries as trustees under<br />

the policy. The beneficiary is not treated as incapacitate from being trustee for himself and for<br />

others. But as a general rule, he is not a fit person for the office of the trustees because of conflict of<br />

interests of a beneficiary and duties and responsibility of a trustee. However, if proposer still insists<br />

for appointment of beneficiary as trustee, our office should proceed further with.<br />

Life assured cannot be work as trustee, since sec 6 of MWP act provides that policy shall not be<br />

subject to the control of the husband.<br />

Special trustees appointed under MWP act policies would be in the position of trustees generally<br />

and would have all powers and be subject to all the liabilities and duties of trustees as defined under<br />

the Indian trust act. But they cannot act beyond the powers conferred upon by them by way of<br />

addendum to the proposal form.<br />

Where special trustees have not been appointed, the policy money at the time of claim is payable<br />

strictly to the official trustee of the state where the policy is issued. However there is a doubt<br />

whether the office of the official trustee referred to in said sec 6 is the same authority as the present<br />

official trustee appointed under the official trustees act 1913. In view of this, our office pay maturity<br />

claim and death claim directly to beneficiaries if the same are named, major, competent to contract<br />

and are of one mind.<br />

7) CANCELLATION OF APPOINTMENT OF EXISTING TRUSTEE AND / OR APPOINTMENT OF<br />

NEW TRUSTEES _<br />

A trustee once appointed in the addendum to proposal or by way of the deed poll cannot be<br />

removed by the life assured, unless there is a specific power reserved to him therein. This is a<br />

reason why the forms of addendum to proposal contain a clause whereby the proposer can reserve<br />

to himself the right to appoint a new trustee in certain circumstances.<br />

Where revocation of the appointment of existing trustees and appointment of new trustees in their<br />

places is desired , the assured will be required to execute a deed poll of revocation of old trustees<br />

and appointment of new trustees. The deed poll will have to be stamped as per requisite stamp<br />

value of the state. A specimen of the deed poll will be as per f. No 5246. The same will be required<br />

to be registered at branch office. The policy will be required to be endorsed as per specimen<br />

endorsement f. no- 5247.<br />

Each policy under MWP act will be treated as separate unit. Hence, for effecting any cancellation<br />

of existing trustees, separate stamp paper will be required. However, where special trustees and<br />

beneficiaries under all such MWP act polices are identical, we will accept one stamp paper for all<br />

such cancellation or revocation of trustees.<br />

If original trustee have availed any loan under the policy and life assured seeks for cancellation of<br />

existing trustees and appointment of new trustee, then alternate trustee or new trustee may have to<br />

accept the old liability. This is because the liability under the policy which was created by the<br />

principal or existing trustees in the discharge of his duties and as such the alternate or new trustee<br />

would be bound by the action of his predecessor.


It may happen that either in the form of addendum or in the deed poll of appointment of trustees,<br />

the assured may not have delegated any powers to trustees like rising of loan. The assured may<br />

either desire to enlarge the powers of the existing trustees, then same can be given provided that all<br />

beneficiaries are major and competent to contract and are of one mind, the assured can be allowed<br />

to execute a deed poll delegating wider powers to raise loan. For this specimen deed poll f. no 5248<br />

should be used. This deed is to be stamped as per requisite value. The policy document should be<br />

endorsed as per specimen endorsement f. no 5249.<br />

7) SETTLEMENT OF MATURITY / DEATH CLAIM _<br />

Where one or more special trustees has/ have been appointed the claim by maturity or death<br />

would be settled with the special trustees on his/ their completing the requirements and executing<br />

the discharge form irrespective of whether the beneficiaries are major or minor, named or<br />

mentioned as a class or alive or dead and payment for the entire claim amount can be paid in the<br />

name of special trustee/s. it would be up to special trustees to hand over the amount to the<br />

beneficiary/ies in the manner provided for in addendum.<br />

If the special trustees make a request to pay the amount to the beneficiaries directly, our offices<br />

should do the same provided discharge form and note of authority duly completed by special<br />

trustees.<br />

Where special trustees have not been appointed, the policy money at the time of claim is payable<br />

strictly to the official trustee of the state where the policy is issued. However, there is a doubt<br />

whether the office of the official trustee referred to in said sec 6 is the same authority as the present<br />

official trustee appointed under the official trustees act 1913. In view of this, our office pay maturity<br />

claim and death claim directly to beneficiaries if the same are named, major, competent to contract<br />

and are of one mind. In this case, discharge form and note of authority should be completed by all<br />

beneficiaries.<br />

If payment is being made in favour of beneficiaries and there are one or more than one minor<br />

Beneficiaries, or all of them are minor, payment may be made to the natural guardian/s of the<br />

beneficiaries. The discharge form required to be signed by all such natural guardian/s. where<br />

natural guardian is not available to receive payment then payment can be made to legal guardian/s<br />

appointed by court of law.<br />

Where beneficiaries are appointed as a class; payment can be made to the beneficiaries directly<br />

who answer to the description of the class as on the date of claim. It may be clarified that if<br />

beneficiaries are appointed as ‗all sons as class‘. Then only such sons are living on the date of<br />

maturity or death of life assured are entitled to receive the policy money. If anyone from the class<br />

i.e. any one or more sons has/have died, clearly their legal heirs will not have any interest in the<br />

trust.<br />

If the sole beneficiary dies where there is only one such beneficiary or if the beneficiary are<br />

tenants- in –common and if one of them dies, the trust to the extent of the deceased interest vests<br />

upon the heirs of the deceased beneficiaries.<br />

8) ALTERATIONS IN POLICY AND EXERCISE OF OPTIONS UNDER THE POLICY _<br />

Where the alterations are beneficial to the beneficiaries as a whole, the trustees and the assured<br />

may with the consent of the beneficiaries, if they are competent to contract and trustees may apply<br />

for alteration even where the beneficiaries are minor or if they are mentioned as a class.<br />

If trustees have not been appointed, and then alteration of such policy can be allowed with<br />

consent of life assured alone if beneficiaries are minor or they are mentioned as a class. If<br />

beneficiaries are major then life assured and beneficiaries can apply jointly for alteration.<br />

One certificate issued by life assured and trustee (if any) stating that this alteration is for the<br />

benefit of beneficiaries is required.<br />

The right to exercise the options available under the policy will be exercised by the beneficiaries,<br />

trustees at right time.<br />

9) ASSIGNMENT AND NOMINATION _<br />

Since the policy under MWP act is a statutory trust and the life assured has neither any interest<br />

nor any control over it, assignment or nomination by the assured is not permissible.<br />

A nomination by the beneficiary is also not permissible.


The beneficiary if major and competent to contract can transfer his beneficial interest by way of<br />

assignment to any other person by virtue of sec 58 of the Indian trust act, but sub to the law for the<br />

time being in force and extent in and to which he may dispose of such interest.<br />

If such assignment is in favour of the permissible class of beneficiaries under sec 6 of the MWP<br />

act i.e. wife and /or children of the life assured, the policy would still be within ambit of sec 6 of MWP<br />

act.<br />

If on the other hand, if the assignment is in favour of someone else outside the permissible class<br />

of beneficiaries, the policy would lose the identity of being the policy under MWP act. Hence,<br />

assignment is not allowed/ preferable.<br />

On execution of an assignment by beneficiary, neither the trust nor its object comes to an end but<br />

the policy still remains with the trust. The effect of assignment will be transfer of beneficial interest of<br />

one beneficiary to another beneficiary. If the special trustees appointed will hold the policy in trust<br />

for the benefit of the assignee beneficiary instead of for the benefit of the assignor beneficiary.<br />

Form of assignment will be as per f. no 5250.<br />

The special trustees can assign the policy but only by way of a mortgage with the right of<br />

Redemption reserved. The special trustees cannot assign the policy absolutely. The trustees<br />

Cannot nominate anyone to receive the policy money.<br />

11) LOAN UNDER THE POLICY _<br />

If life assured has given the powers to trustees to raise loan from LIC only for the benefit of<br />

beneficiaries by filling the requisite addendum at the time of submitting the proposal, then only loan<br />

can be raised.<br />

The form of addendum may have restrictive clause like ‗provided the beneficiaries are major and<br />

competent to contract and all are of one mind.‘ If this clause is there, then loan can be granted<br />

provided the beneficiaries are major and with consent of all such beneficiaries.<br />

Hence, proper care should be taken while selecting the proper addendum at proposal stage and<br />

office should see the addendum while sanctioning the loan under the policy.<br />

In case of policies where trustees were not originally given any power to raise loan, then at later<br />

date life assured can give wider powers to raise loan under the policy from LIC only by executing a<br />

deed poll.<br />

Life assured can give wider powers to trustees to raise loan from LIC during the minority of the<br />

beneficiaries or even if the beneficiaries are mentioned as a class.<br />

Where loan is admissible and the trustees can raise loan, the loan application and the assignment<br />

in favour of LIC should be signed by the trustees only. The consent of the beneficiaries where<br />

required in terms of addendum should be obtained separately in the form of no objection letter. The<br />

receipt of loan should be signed by the beneficiaries only.<br />

Where trustees have not been appointed and where the beneficiaries have not been mentioned<br />

as a class, but by name as personal designate by life assured and they are all major and competent<br />

to contract, the application for loan and assignment form for loan should be signed by the life<br />

assured and all the beneficiaries. The receipt of loan should be signed all beneficiaries only.<br />

Where policy is foreclosed due to non-payment of loan interest, and balance surrender value is<br />

payable, then discharge form must be signed by trustees and the beneficiaries.<br />

It may happen that the special trustees who in fact obtained loan against the policy and as such<br />

was a signatory to the documents for loan including assignment may have died or his appointment<br />

may have been revoked and some other trustees may have appointed as a trustees in his place. In<br />

such cases after the loan is repaid, reassignment of policy should be in the name of trustees<br />

existing at the time of repayment of loan and not in beneficiaries or the assured or the earlier<br />

trustees.<br />

If loan was granted to the beneficiaries where no special trustees are appointed, the reassignment<br />

on repayment of loan would be in favour of the beneficiaries.<br />

12) SURRENDER OF THE POLICY _<br />

Surrender of the policy would be the four party agreements between LIC, the life assured, the<br />

trustees, and all the beneficiaries who must be major and competent to contract.<br />

Application of surrender of policy, surrender discharge form must be signed by the assured,<br />

beneficiaries, trustees jointly. The surrender value in such case must be paid over to trustees only.


Where named beneficiaries have been appointed and all of them are major and are of one mind,<br />

surrender of the policy may be allowed even though trustees have not been appointed. All the<br />

documents for surrender payment s will be signed by all beneficiaries and life assured. Surrender<br />

amount will be paid to beneficiaries directly.<br />

Where the beneficiaries are mentioned as a class i.e. like all son and daughters, surrender of the<br />

policy is not permissible. However, when the beneficiaries are mentioned as class, we will have to<br />

examine the possibility of any new beneficiaries entering into the class considering the ages of the<br />

life assured and his wife and if there is no possibility of entering any new beneficiary. Office should<br />

take a proper declaration as to who are the existing beneficiaries that there is no possibility of<br />

getting any further issue.<br />

If any of the beneficiaries is minor without any special trustee, surrender of the policy should not<br />

be allowed as minor is incompetent to join the surrender transactions. The natural guardian of minor<br />

beneficiaries is also not allowed to give consent for surrender. If at all surrender of a policy is<br />

desired when the beneficiary is minor, it can be done only with the permission of the competent<br />

court.<br />

Where any beneficiary is minor and special trustee is appointed, in normal course also, surrender<br />

of the policy is not allowed. However, if life assured still insist for surrender of the policy on the<br />

ground that the surrender amount would be beneficial for the minor beneficiary, and then trustee<br />

may be advised to approach to court of law.<br />

13) REVOCATION OR CANCELLATION OF TRUST _<br />

A trust under 6 of MWP act is irrevocable in the sense that life assured alone cannot revoke the<br />

trust under the policy.<br />

Where all beneficiaries are named, major, competent to contract and are of one mind, then with<br />

the consent of all beneficiaries, life assured can revoke the trust.<br />

Where beneficiaries have been appointed as a class, revocation of trust is not permissible. This is<br />

because the possibility of any new member entering into the class of beneficiary at future date<br />

cannot be ruled out.<br />

While revoking the trust under the policy, the consent of alternative/ contingent beneficiaries is<br />

required to be taken. Their signatures on deed poll of release should be obtained<br />

Where a trust under MWP policy is desired to be revoked, all the beneficiaries who are named,<br />

major, competent to contract with life assured are required to execute a deed poll of release as per<br />

f. no 5252. The same is required to be stamped as per required stamp duty prevailing in the state.<br />

This deed poll of release will be endorsed as per endorsement given in f. no 5253.<br />

Where there are more than one MWP act policies and if the beneficiaries and trustees under all<br />

policies are same, one deed poll of release would be sufficient.<br />

If the sole beneficiary dies or if there is more than one beneficiary and one of them dies and if a<br />

request is received for revocation of trust by the heirs of the deceased beneficiary, such a request<br />

may be considered. In such cases, the legal heirs of the deceased beneficiaries shall have to obtain<br />

appropriate legal evidence of title from competent court of law. The question of waiver of legal<br />

evidence of title may be considered as per procedure given in death claims.<br />

14) ISSUE OF DUPLICATE POLICY / LOSS OF POLICY DOCUMENT _<br />

Generally, policy document should be in the custody of the trustees after issue of original policy at<br />

new business level.<br />

Where the policy is lost at hands of trustees, indemnity bond and other requirements should be<br />

completed by special trustees only.<br />

If policy document is not handed over to special trustees by the life assured and if special trustees<br />

also confirm this fact, then duplicate policy may be issued on the strength of an indemnity bond duly<br />

executed by the life assured.<br />

In case where special trustees were not appointed and the beneficiaries are either named or<br />

mentioned as a class, the indemnity bond may be executed by the life assured and by such of the<br />

beneficiaries as are major.


15) DIVORCE OF WIFE AFTER ISSUE OF POLICY _<br />

If the wife is the beneficiary named in the policy document as named one and not as a class by<br />

description as ‗ wife‘ and she is divorced later on, then object of the trust in her favour does not<br />

come to end merely on the ground of divorce.<br />

If an assured at the time of the decree absolute for divorce applied for the court directions that<br />

wife under the policy as beneficiary may be treated as loupon the heirs of the deceased<br />

beneficiary.st all or any part of her beneficial interest in the policy and that her share may be<br />

reverted back to him. If the court pass the order to that effect then and only in such a case the<br />

interest in the policy would pass on to the assured. Otherwise the policy would continue as a trust in<br />

favour of the divorced wife and would not belong to the assured in spite of divorce.<br />

Hence, for entertaining any such request, the divorce decree must be called.<br />

16) DEATH OF BENEFICIARY _<br />

When the beneficiary dies during the currency of the policy; the trust does not come to end.<br />

The object of the trust is not the beneficiary/ ies. The policy, therefore, still remain impressed with<br />

the trust for the benefits of other living beneficiaries or the alternative beneficiaries or if the<br />

deceased were the sole beneficiaries<br />

If the beneficiaries were appointed as joint tenants, on death of the one of the beneficiaries, the<br />

trust will work for the surviving beneficiary/ beneficiaries. (But not for legal heirs of deceased<br />

beneficiaries)<br />

If the beneficiaries have been appointed as tenants – in –common, on death of one of the<br />

beneficiaries, the trust will work for the heirs of the deceased beneficiary jointly with the surviving<br />

beneficiary/ies.<br />

Normally, LIC allows appointment of two or more beneficiaries as joint tenants. Hence, office<br />

should scrutinize the addendum filled at proposal stage thoroughly.<br />

The assured cannot replace a beneficiary in place of the deceased one.<br />

Neither the heirs of such beneficiary can release the policy from neither trust nor can they assign<br />

the beneficial interest in favour of some one or the assured himself.<br />

If the heirs are all major and they are desirous of release the policy from MWP trust, then only<br />

alternative is that someone of such heirs should obtain legal evidence of title from court of law.<br />

Thereafter, he can execute a deed poll of release.<br />

17) CHANGE OF BENEFICIARIES _<br />

It is not open to life assured to make any changes in the trust by deleting any beneficiaries or by<br />

adding any new beneficiaries.<br />

Where a change of beneficiaries is desired by the life assured and if all the beneficiaries provided<br />

they are not mentioned as a class, they are all major and are agreeable to such a change the<br />

procedure.<br />

The draft deed poll of release is given as per F. no- 5252. This deed should be stamped as per<br />

requisite value of stamp duty as applicable to the state. This deed should be signed by all named<br />

beneficiaries, alternate or contingencies beneficiaries. In case a beneficiaries is a minor (applicable<br />

for alternate beneficiaries), no change of beneficiaries is allowed.<br />

Policy document should be endorsed as per f. no 5253.<br />

18) DEATH OF TRUSTTES _<br />

Where an intimation of death of a trustee is received; death certificate in proof of death of trustee<br />

should always be called for.<br />

If the appointment of trustees was jointly or survivors or survivors of them or as one trustee and<br />

an alternative trustee are there, then there is no need to take any action.<br />

The other or alternative trustees will come into operation.<br />

If the trustee was sole trustees has died, the assured may be suggested to have a fresh trustee<br />

appointed.


19) CANCELLATION OF A PREVIOUS POLICY AND CONVERTING THE SAME INTO MWP ACT<br />

POLICY IN LIEU OF FORMER ONE _<br />

It is possible to cancel the existing policy not issued under the provisions of the act and in its place<br />

issue a fresh policy under the MWP act.<br />

Before cancellation of an existing policy and issue of a fresh one in lieu thereof under MWP act,<br />

the assured must be asked to cancel the nomination under the existing policy or if the policy has<br />

been assigned, then reassignment should be asked for. Both cancellation of nomination or<br />

reassignment in favour of life assured should be registered in the books of our office.<br />

However, such request for alteration in policy for cancellation of old policy and issue of new under<br />

MWP act in lieu of old one cannot be entertained indiscriminately or as a routine matter of course.<br />

Such requests may be entertained only on the need for such alterations. One such need may be life<br />

assured may have been bachelor at the time of issue of policy but later on he may get married<br />

within a period of say 3 to 4 years Or policy taken under CDA plan and the life assured get married<br />

within 3 to 4 years from date of vesting. The restriction of period of not more than 3 or 4 years from<br />

date of commencement of policy or a similar period of 3 to 4 years from date of vesting and<br />

genuineness of need for alteration should always be kept in view. However, as per co/mktg/cs/<br />

327/23 dt 11/2/1991, this restriction has been removed and alteration will be allowed where the<br />

genuiness of the proposed alteration is satisfied.<br />

If competent authority allows for alteration then requirements will be<br />

1) A form of request for cancellation of the existing policy and issue of a fresh policy in lieu thereof<br />

Under MWP act duly completed by him, F. no 5256.<br />

2) Payment of usual alteration fee, policy preparation charges and stamp duty for new policy.<br />

3) Standard forms of addendum<br />

4) Endorsement as per f. no 5258 to be placed on new policy.<br />

LIST OF FORMS TO BE USED UNDER MWP ACT POLICIES FORM NO BRIEF DESCRIPTION<br />

OF FORM<br />

Addendum no-1 To be given at proposal One beneficiary and joint trustee Endorsement no 23 On<br />

policy document This endorsement to be used when addendum no – 1 is used.<br />

Addendum no- 1 ATo be given at proposal One beneficiary and one trustee Endorsement no 23- A<br />

On policy document this endorsement to be used when addendum no – 1- A is used.<br />

Addendum no-2 To be given at proposal One beneficiary , trustee and alternate trustee<br />

Endorsement no 24 On policy document This endorsement to be used when addendum no – 2 is<br />

Used.<br />

Addendum no-3 To be given at proposal Two or more beneficiaries and joint trustee Endorsement<br />

no 25 On policy document This endorsement to be used when addendum no – 3 is used.<br />

Addendum no-4 To be given at proposal Two or more beneficiaries, trustee and alternative<br />

trustees Endorsement no 26 On policy document This endorsement to be used when addendum no<br />

– 4 is used.<br />

Addendum no-5 To be given at proposal Two or more beneficiaries with specified shares and joint<br />

trustee Endorsement no 27 On policy document This endorsement to be used when addendum no<br />

– 5 is used.<br />

Addendum no-6 To be given at proposal Two or more beneficiaries with specified shares and<br />

trustee with alternative trustee Endorsement no 28 On policy document This endorsement to be<br />

used when addendum no – 6 is used.<br />

Addendum no-7 To be given at proposal One beneficiary with bank or company as special trustee.<br />

Endorsement no 34 On policy document This endorsement to be used when addendum no –7 is<br />

Used.<br />

Addendum no-8 To be given at proposal Two or more beneficiaries‘ joint or survivor with a bank or<br />

company as trustee. Endorsement no 35 On policy document This endorsement to be used when<br />

addendum no – 8 is used.<br />

Addendum no-9 To be given at proposal Two or more beneficiaries‘ with specified shares and a<br />

bank or company as trustee. Endorsement no 37 On policy document if addendum used is of 7, 8, 9<br />

and state bank of India as trustees Endorsement no 38 on policy document<br />

If addendum used is of 7, 8, 9 and Bank of India as trustees no 40 on policy document<br />

If addendum used is of 7, 8, 9 and Central bank as trustees Endorsement no 59 on policy document<br />

If addendum used is of 7, 8, 9 and Canara bank as trustees Endorsement no 77 on policy document


If addendum used is of 7, 8, 9 and united commercial bank as trustees Endorsement no 78 on<br />

policy document<br />

If addendum used is of 7, 8, 9 and syndicate Bank as trustees<br />

5244 To be given by life assured and beneficiaries Form of deed poll of appointment of special<br />

trustees after issue of policy – trustee may be single, jointly or survivor and alternate trustee.<br />

5245 On policy document Endorsement for F. no 5244 for placing endorsement after appointment of<br />

special trustee.<br />

5246 To be completed by life assured and beneficiaries Form of deed poll of revocation of existing<br />

trustees and appointment of special trustees<br />

5247 On policy document Endorsement for F. no 5246 for revocation of existing trustees and<br />

appointment of special trustees<br />

5248 To be completed by life assured and beneficiaries Form of deed poll for granting of extended<br />

powers to existing trustees to raise loan.<br />

5249 On policy document Form of endorsement for F. no- 5248 for extending powers to existing<br />

trustees to raise loan.<br />

5250 On policy document Form of assignment by existing beneficiary to another beneficiary for<br />

transferring beneficial interest in the trust.<br />

5251 <strong>By</strong> all beneficiaries and life assured Declaration by the life assured and the beneficiaries for<br />

Granting loan under the policy where trustees have not been appointed<br />

5252 <strong>By</strong> all beneficiaries and life assured Deed poll for change in existing beneficiaries<br />

5253 On policy document Endorsement for f. no 5252 to be placed after effecting change in<br />

beneficiary/ies.<br />

5254 <strong>By</strong> life assured and trustees Form of joint letter by the assured and the trustee requesting for<br />

cancellation of the existing policy under MWP and issue of fresh one under MWP for new<br />

beneficiaries.<br />

5255 <strong>By</strong> life assured and trustees Declaration by life assured and the beneficiaries for surrender of<br />

policy where special trustee is not appointed.<br />

5256 <strong>By</strong> life assured Form of request for cancellation of existing ordinary policy and issue of a fresh<br />

one in lieu of old one under MWP act.<br />

5258 On policy document Endorsement to be place for f. no 5256 where ordinary policy is cancelled<br />

and issued under MWP in lieu of old One<br />

5259 On policy document Endorsement to be place for where existing MWP policy is cancelled and<br />

issued under MWP


FACT FINDING THROUGH COURT<br />

Calcutta High Court<br />

Sushma Singh vs Unknown on 14 July, 2014<br />

Author: I. P. Mukerji<br />

ORDER SHEET<br />

A.T.A. No. 1 of 2014<br />

IN THE HIGH COURT AT CALCUTTA<br />

Ordinary Original Civil Jurisdiction<br />

ORIGINAL SIDE<br />

In the matter of:<br />

SUSHMA SINGH<br />

BEFORE:<br />

The Hon'ble JUSTICE I. P. MUKERJI<br />

Date: 14th July, 2014.<br />

For Petitioner : Mr. S.K. Mullick with Mr. Javed K. Sanwarwala, Advs.<br />

This application is made under Section 34 of the Indian Trusts <strong>Act</strong>, 1882 read with Section 6 of The<br />

<strong>Married</strong> <strong>Women</strong>'s <strong>Property</strong> <strong>Act</strong>, 1874.<br />

In this case one, Mr. Sailendra Singh, took out two insurance policies on 15th December, 2001<br />

constituting his wife, the petitioner, Smt. Sushma Singh, as the trustee and their son, Gautam<br />

Singh, as the beneficiary. At the time of making of the policies, Gautam Singh was a minor.<br />

Now the petitioner wants premature surrender of the said two policies and to obtain their surrender<br />

value. She applies under 34 of the Indian Trusts <strong>Act</strong>, 1882 read with Section 6 of The <strong>Married</strong><br />

<strong>Women</strong>'s <strong>Property</strong> <strong>Act</strong>, 1874.<br />

Mr. Mullick, learned Advocate for the petitioner, assures me that although Gautam Singh is still a<br />

minor; the surrender value would be used for his benefit. There would be no adverse claim later<br />

against the surrender value. Mr. Mullick's submission is accepted.<br />

In those circumstances, I direct Life Insurance Corporation of India to make over the surrender<br />

value of the policies being 415363139 and 415363140, if such surrender is possible at this stage, to<br />

the petitioner, in accordance with law by 31st August, 2014.<br />

This application is accordingly disposed of. Certified copy of this order, if applied for, will be supplied<br />

to the parties upon compliance with requisite formalities.<br />

(I.<br />

P. MUKERJI, J.) K. Banerjee A.R. [C.R.]


Damodar K. Shah vs Cit on 10 November, 2000<br />

For the assessment years 1979-80 and 1980-81, at the instance of the assessee, the following<br />

three questions of law based on interpretation of section 64(1)(iv) of the Income Tax <strong>Act</strong>, 1961,<br />

have been referred and all the three questions deserve a common answer :<br />

"(1) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in<br />

holding that there was any transfer directly or indirectly by the assessee to his wife within the<br />

meaning of section 64, Income Tax <strong>Act</strong>, 1961, when the assessee took out a policy of insurance<br />

under section 6 of the <strong>Married</strong> <strong>Women</strong>’s <strong>Property</strong> <strong>Act</strong>, 1874?<br />

(2) If question no. 1 is answered in the affirmative, whether on the facts and in the circumstances of<br />

the case, the Tribunal was justified in law in holding that there was consideration for the said<br />

transfer within the meaning of section 64, Income Tax <strong>Act</strong>, 1961 ?<br />

(3) Whether, on the facts and in the circumstances of the case, the interest earned by the wife of<br />

the assessee on the amount received on maturity of the insurance policy taken by the assessee<br />

under the <strong>Married</strong> <strong>Women</strong>’s <strong>Property</strong> <strong>Act</strong>, 1874 was includible in the income of the assessee<br />

under section 64 of the Income Tax <strong>Act</strong>, 1961?"<br />

Provisions of section 64(1) (IV) of the <strong>Act</strong> read:<br />

"64(1) In computing the total income of any individual, there shall be included all such income as<br />

arises directly or indirectly<br />

(i) x x x x<br />

(ii) x x x x<br />

(iii) x x x x<br />

(iv) subject to the provisions of clause (i) of section 27, to the spouse of such individual from assets<br />

transferred directly or indirectly to the spouse by such individual otherwise than for adequate<br />

consideration or in connection with an agreement to live apart."<br />

3. Now, the facts leading to the reference of the above questions be stated. The assessee had<br />

taken out a policy on his life for the benefit of his wife. It is purported to have been issued under the<br />

provisions of <strong>Married</strong> <strong>Women</strong>’s <strong>Property</strong> <strong>Act</strong>, 1874, the provisions of which, are not directly<br />

relevant for deciding the questions of income-tax liability of the husband on the interest income from<br />

the maturity value of the policy. It may merely be mentioned that the aforesaid <strong>Act</strong> of 1874 was<br />

enacted with an object that insurance policy taken by the husband for the benefit of his wife should<br />

be treated as separate property for the wife and kept protected by exempting it from attachment for<br />

recovery of any dues against the husband.<br />

So far as condition no. (1) Is concerned, it is, according to us, satisfied. The amount of premium<br />

paid by the husband for the benefit of wife to the insurance company under the insurance policy has<br />

to be held to be transfer of cash asset by the husband to the wife. We are not prepared to accept<br />

the submission made on behalf of the assessee that the amounts of premia were paid under the<br />

contract of insurance and to discharge contractual obligations under the insurance policy. What is<br />

to be noted in the opening part as also in clause (IV) of section 64 is that there is use of expressions<br />

directly or indirectly at two places. If the income arises indirectly from the asset transferred by the<br />

assessee indirectly to his spouse, the income is includible in the income of the assessee. The<br />

provision has to be construed in a manner so as to fulfil the object of the <strong>Act</strong> which, as held by the<br />

Supreme Court in Keshavji Morarji (supra) is to tax the income of wife in the hands of the husband,<br />

if the income of the wife arises to her from the asset transferred by the husband. Merely because<br />

the policy of insurance by its terms requires payment of premia by the husband during his lifetime,<br />

does not mean that premia were not cash amounts transferred to the benefit of the wife through the<br />

insurance policy. The provisions of the <strong>Married</strong> <strong>Women</strong>, <strong>Property</strong> <strong>Act</strong>, 1874 to which reference has<br />

been made by the Commissioner (Appeals), are totally irrelevant. The said <strong>Act</strong> is intended only for


the purpose of making the insurance amount as separate property of the wife and to make it exempt<br />

from attachment for recovery of dues against the husband. The amount of policy is the property of<br />

the wife under the said <strong>Act</strong>, but the income derived by way of interest on investment of maturity<br />

amount of the life insurance policy can be held to be income indirectly arising to the husband from<br />

the cash amounts paid as premia by him under the policy for the benefit of the wife. The maturity<br />

value of policy along with interest would be the exclusive property of the wife in accordance with the<br />

<strong>Act</strong> of 1874, but the interest amount is liable to be taxed as income of the husband in his hand<br />

Madras High Court<br />

In Re: <strong>Married</strong> <strong>Women</strong>‘s <strong>Property</strong> ... vs Unknown on 30 April, 1931<br />

Equivalent citations: (1932) 62 MLJ 111<br />

Author: M Nair<br />

JUDGMENT Madhavan Nair, J.<br />

1. This is an application to show cause why the Official Trustee of Madras be not directed as<br />

Trustee of the petitioner herein to recover on her behalf the amount due under Policy No. 6033 of R.<br />

Srinivasa Aiyar, deceased, effected with the United India Life Assurance Company and to pay the<br />

same to the petitioner. The petitioner, Abhiramavalli Animal, is the widow of R. Srinivasa Aiyar who<br />

was the Headmaster of St. Antony's Secondary School, Negapatam. The petition is opposed by his<br />

two brothers. The late Mr. Srinivasa Aiyar insured his life for a sum of Rs. 1,000 with the United<br />

India Life Assurance Company, Madras. The policy so far as is material is as follows:<br />

This policy...witnessed that in consideration of the payment already made to the company...as<br />

stated in the sub-joined schedule...the company doth hereby agree that, upon proof satisfactory to<br />

the directors of the happening of the event or events on which the sum assured is to become<br />

payable as described in the said schedule and of the title of the person or persons who may be<br />

entitled to receive the same, it will pay the sum stated in such schedule as the sum assured, to such<br />

person or persons.<br />

2. The schedule to the policy stated infer alia the following particulars under the following headings:<br />

Name, address and calling of the assured.... R. Srinivasan, Esq., Headmaster.<br />

Sum--<br />

Amount<br />

Assured--<br />

To whom payable.<br />

.... Rupees One Thousand only.<br />

The assured or his wife<br />

Abhiramavalli if he predeceases<br />

her.<br />

3. The petitioner's right to recover the amount is based on Section 6 of the <strong>Married</strong> <strong>Women</strong>'s<br />

<strong>Property</strong> <strong>Act</strong> of 1874 which runs as follows:<br />

A policy of insurance effected by any married man on his own life, and expressed on the face of it to<br />

be for the benefit of his wife or of his wife and children, or any of them, shall ensure and be deemed<br />

to be a trust for the benefit of his wife, or of his wife and children or any of them, according to the<br />

interest so expressed, and shall not, so long as any object of the trust remains, be subject to the.<br />

Control of the husband, or to its creditors, or form part of his estate.<br />

4. This language is in material particulars identical with the language of Section 10 of the English<br />

<strong>Married</strong> <strong>Women</strong>'s <strong>Property</strong> <strong>Act</strong> of 1870. In England the <strong>Act</strong> of 1870 was repealed by the <strong>Married</strong>


<strong>Women</strong>'s <strong>Property</strong> <strong>Act</strong> of 1882. Section 11 of that <strong>Act</strong> corresponding to Section 10 of the previous<br />

<strong>Act</strong> and Section 6 of our <strong>Act</strong> is as follows:<br />

A policy of assurance effected by any man on his own life, and expressed to be for the benefit of his<br />

wife, or of his children or of his wife and children, or any of them, or by any woman on her own life,<br />

and expressed to be for the benefit of her husband or of her children or her husband and children,<br />

or any of them., shall create a trust in favour of the objects therein named, and the moneys payable<br />

under any such policy shall not, so long as any object of the trust remains unperformed, form part of<br />

the estate of the insured, or be subject to his or her debts.<br />

5. It will be observed that in two particulars the terms of Section 11 of the <strong>Act</strong> of 1882 differ from the<br />

terms of Section 10 of the <strong>Act</strong> of 1870. The words "on the face of it" appearing in Section 10 are<br />

omitted in Section 11 of the later <strong>Act</strong> and for the words "shall...be deemed to be a trust" appearing in<br />

Section 10 of the <strong>Act</strong> of 1870 we have the words "shall create a trust in favour of the objects therein<br />

named, etc." in Section 11 of the <strong>Act</strong> of 1882.<br />

6. Relying on Section 6 of the <strong>Married</strong> <strong>Women</strong>'s <strong>Property</strong> <strong>Act</strong> of 1874 it is argued on behalf of the<br />

petitioner that by using the words that the sum is payable to "the assured or his wife Abhiramavalli if<br />

he predeceases her" it is expressed on the face of the policy that it is for the benefit of the wife of<br />

Srinivasa Aiyar if he predeceases her, and so, the policy "shall ensure" and "be deemed to be a<br />

trust for the benefit" of the petitioner within the meaning of that section. On the other hand, the<br />

argument of the respondents is that the words used in the policy are not specific enough to show<br />

that it is expressed on the face of it that it is for the benefit of his wife and that the policy shall<br />

ensure and be deemed to be a trust for her benefit within the meaning of the section. According to<br />

this argument, in order that a policy may be deemed to be a trust in favour of the wife within the<br />

meaning of Section 6 of the <strong>Act</strong>, it must appear on the face of the document in express words that<br />

the insurance was intended by the deceased for the benefit of his wife. I do not think that the<br />

language of Section 6 warrants the contention urged on behalf of the respondents. That section<br />

states that the policy shall on the face of it express that it is too he for the benefit of the wife and if it<br />

is so expressed, then it says the policy shall be deemed to be a trust for the benefit of the wife.<br />

There is nothing in the language of the section to show that the words "for the benefit of his wife" or<br />

other words corresponding to these should appear in the policy to enable us to infer a statutory trust<br />

in favour of the wife within the meaning of the section. If on reading the words used in the policy it<br />

appears that the assured has intended, in the event of his death that the policy should ensure to the<br />

benefit of his wife then I think the policy may be deemed to be a trust for her benefit. I shall now<br />

consider how far the authorities brought to my notice support the respective contentions.<br />

7. The only Indian decision bearing on the point occurs in Sriniivasachariar v. Ranganayaki Ammal<br />

(1926) 1 Ch.D. 48. In that case "R" insured his life in "S" Company and died in 1914. Under the<br />

terms of the policy the amount assured was payable to "R" or to his wife in case of his death earlier.<br />

It was held that the sum insured did not form part of the deceased's estate but that the Widow was<br />

the beneficiary who became entitled to the beneficial interest in that sum on her husband's death.<br />

The exact terms of. the policy making the amount payable to the wife, in the case of the husband's<br />

death do not appear in the judgment, but from the facts stated by the reporter it would appear that<br />

the terms were as general as the terms used in the present policy. This decision supports the<br />

petitioner. Another decision which supports the argument of the petitioner may be found in in, re<br />

Fleetwood's Policy (1926) 1 Ch.D. 48 a decision under the English <strong>Act</strong> of 1882. In that case a<br />

husband took but an insurance policy for £500 on his life and by the terms of the policy the<br />

insurance company agreed to pay that sum to the insured's wife, if she were living at his death, or in<br />

the event of her prior death to pay it to the insured's executors, administrators," and assigns. It was<br />

held that the policy came within Section 11 of the <strong>Married</strong> <strong>Women</strong>'s <strong>Property</strong> <strong>Act</strong>, 1882, and created<br />

a trust in favour of the wife in certain events. Though the words "for the benefit of his wife" did not<br />

appear in the terms of the policy, the learned Judge pointed out that "the policy is, in the terms of<br />

the section, a policy of assurance effected by a man on his own life, and expressed to be for the<br />

benefit of his wife." Using similar language, I. think we may say in this case that the language used<br />

in the policy "to the assured or his wife Abhiramavalli if he predeceases her" shows that it is a policy<br />

of assurance expressed to be for the benefit of his wife though the express words "for the benefit of<br />

his wife" do not appear in the terms of the policy. Mr. Duraiswami Aiyar for the respondents drew my<br />

attention to a series of cases under the English <strong>Act</strong> of 1870, the language of Section 11 of which, as<br />

I have already stated, is identical with that of Section 6 of the present <strong>Act</strong>. These cases are In re


Mellor's Policy (1877) 6 Ch.D. 127, In re Mellor's Policy 7 Ch.D. 200 In re Adam's Policy Trusts<br />

(1883) 23 Ch.D. 525 In re Seyton: Seyton v. Setterthwaite (1887) 34 Ch.D. 511 In re M (1899) 1<br />

Ch.D, 79. and In re Griffiths Policy (1926) 1 Ch.D. 48. In all these cases the terms of the: policy<br />

contained the words "for the benefit of his wife." On the strength of these decisions it is contended<br />

that, unless these words appear on the face of the policy, the policy cannot be deemed to be a trust<br />

within the meaning of Section 6 of the <strong>Act</strong>. I dp not think this conclusion necessarily follows from<br />

these decisions. Of course, if these words appear on the face of the policy, then there can be no<br />

difficulty at all with regard to the solution of the question whether a statutory trust in favour of the<br />

wife has been created or not; but these cases do not say that, unless these words are used, no<br />

statutory trust within the meaning of the section can be inferred. It is well known that in England<br />

documents are drawn up with greater precision than in this country. It is clear that in the cases<br />

referred to the draftsman, to avoid all difficulties of construction, have obviously introduced the very<br />

words of the statute in the documents themselves. If a similar procedure is adopted in India also by<br />

insurance companies in drawing up the terms of the policy in cases where the assured intends to<br />

create a trust in favour of his wife in the event of his death, there will be no scope for arguments like<br />

the one now urged on behalf of the respondents. In Griffiths v. Fleming (1909) 1 K.B.D. 805, a case<br />

strongly relied on by Mr. Duraiswami Aiyar, a husband and his wife effected with an Insurance<br />

Association a policy whereby, in consideration of a premium of which each paid a part, a sum of<br />

money was made payable upon the death of whichever of them should die first to the survivor. The<br />

wife having died, the husband brought an action upon the policy to recover the policy money. Under<br />

the heading "the amount. To whom payable" in the policy it was stated "£ 500 to the survivor of the<br />

grantees." It was argued against the contentions of the husband's counsel by Sir John Simon, K.C.,<br />

that to come within Section 11 of the <strong>Married</strong> <strong>Women</strong>'s <strong>Property</strong> <strong>Act</strong> of 1882 "the insurance must<br />

comply strictly with its terms, and must be expressly for the benefit of one or more of the objects<br />

therein named." This argument found favour with Vaughan Williams, L.J. But Kennedy, L.J., with<br />

whom Far-well, L.J., concurred, did not accept it. This case is more an authority for the petitioner<br />

than one for the respondents. In this connection I may state that having regard to the second point<br />

of difference between the language of Section 11 of the English <strong>Act</strong> of 1882 and the language of<br />

Section 10 of the <strong>Act</strong> of 1870 which I have already pointed out, the argument advanced in the<br />

English case is somewhat plausible; but the language of the Indian <strong>Act</strong> is identical with the<br />

language of the English <strong>Act</strong> of 1870 which in my opinion does not lend any support to the<br />

respondents' arguments.<br />

8. For the above reasons I hold that the terms of the insurance policy in the present case fall within<br />

the language of Section 6 of the <strong>Married</strong> <strong>Women</strong>'s <strong>Property</strong> <strong>Act</strong> of 1874 and so a statutory trust in<br />

favour of the petitioner has been created under the <strong>Act</strong>. She is therefore entitled to claim the money.<br />

Her prayer in the petition is granted with costs which I fix at Rs. 75.


Just by knowing<br />

MWP is not<br />

enough one must<br />

also understand<br />

what is Nomination<br />

and its benefits in<br />

Life Insurance<br />

Contract


We have seen<br />

MWPA<br />

&<br />

Nomination<br />

Now will see<br />

Assignment


Frequently<br />

Ask<br />

Question


1. Question-<br />

Request you to give a legal backing for if and how:<br />

a) a working woman taking a policy can assign it under the MWPA to her children.<br />

b) Whether a woman taking a policy with her husband as the nominee under the MWPA.<br />

Answer-A married woman can buy MWP policy on her name with her children as beneficiaries.<br />

Kindly note that the beneficiaries can be:<br />

1. The wife alone<br />

2. The child/ children alone (both natural and adopted)<br />

3. Wife and Children together or any of them.<br />

2. Question-<br />

Can a unmarried. Person take term insurance under mwp and. nominates his wife as nominee once<br />

he is married?<br />

Answer-No, it is not allowed.<br />

3. Question-<br />

Assume that one has taken a term policy of 1 Cr with wife as the ONLY beneficiary (i.e. 100%).<br />

What will happen<br />

a) If the wife dies before the husband; who is the beneficiary? Husband? Wife’s relatives? Children?<br />

b) If the husband/wife dies together (say, in an accident), who will the be beneficiary?<br />

c) Are there any hurdles if you create a policy under this?<br />

Answer-If you have children, you may add them as beneficiaries in addition to your spouse’s name.<br />

Legal heirs can get the claim amount.<br />

4. Question-<br />

My concern is, for a new policy, I can include my child details. but for existing policy, (which is<br />

nominated as only wife) and under MWP, what are the safe guards one should take, so that there is<br />

no confusions in the event that the beneficiary passes away first.<br />

Answer-f the beneficiary passes away, legal heirs would get the claim amount (if any).<br />

You may also include this in your WILL by mentioning the scenario.<br />

5. Question-<br />

Mr. A has taken MWPA POLICY and had his wife and children as the beneficiary. After few years he<br />

separated from his wife and the children custody are also fully with the wife. At the time of divorce<br />

he has settled the family property with her and the children. Thereafter after a passage of 15 years<br />

the mwpa policy has fallen due. Now the question is can he request LIC to make the payment to<br />

him directly as the beneficiaries are no longer related to him as wife / children.<br />

Answer-As far as I am aware of, if the wife is the beneficiary named in the policy document, the<br />

policy would continue as a trust in favour of the divorced wife and would not belong to the Assured<br />

in spite of divorce.<br />

6. Question-<br />

I have a term insurance plan for Rs 2 crores from LIC. Which was taken 2 years back and my wife is<br />

the nominee in the same. My question to you is I had not taken this policy under MWMP act now if I<br />

have to change the same is it possible.


Answer-Kindly note that assigning of any existing life insurance policy under MWP act is not<br />

possible.<br />

7. Question-<br />

If beneficiary (wife) divorce her husband what is the status of beneficiary? Will she continue the<br />

beneficiary of the policy?<br />

Answer-Yes, she would be the beneficiary.<br />

8. Question-<br />

I had one doubt though, supposing the applicant has another child at a later date, and wants to<br />

include this child as an additional beneficiary, how will this work out because you mentioned that<br />

beneficiaries cannot be changed under this <strong>Act</strong>.<br />

Or would it make sense then to purchase another policy under the <strong>Act</strong>, and include the newborn as<br />

a beneficiary in this new policy?<br />

Answer-Yes, beneficiary (new one) cannot be included in an existing policy. One can include in the<br />

new insurance policy.<br />

9. Question-<br />

I have a query, is there any extra premium to be paid to opt of MWP?<br />

Can we share the death benefits among wife, kids, and parents (% wise)?<br />

Answer-No extra premium is applicable. The benefits of the policy proceeds can be mentioned as<br />

specific percentages to each beneficiary or as equal amounts. Under MWPA, Death benefits can<br />

ONLY be shared among wife and kids (% wise), and not the parents.<br />

10. Question-<br />

If a person opted for MWP and suppose on his sudden demise, can’t his creditors approach his wife<br />

(directly or in the court or in any manner) to get paid out of the proceeds of the Term Insurance<br />

policy.<br />

Answer-No, and then there is no point in assigning the policy under MWP act.<br />

11. Question-<br />

I have taken an online term insurance. I am about to fill the MWPA form. In the form, what should be<br />

done in N0.4 in the form for Trustees, in case I don’t want to have trustees?<br />

2. I am planning to have my wife as Nominee. So in a tough situation, if my wife passes away<br />

before me, who would be the beneficiary after my death? Can anyone get the amount after my<br />

death, or it would go unbenifited to my family.<br />

Answer-Mentioning the names of trustees are not mandatory. You may declare your kids as<br />

beneficiaries too (if you have kids).<br />

12. Question-<br />

I need to know if we can have more than one plan under MWP <strong>Act</strong>. Like can there be one plan for<br />

wife (so that she can sustain herself) and second plan for children (so as to ensure that funds are<br />

available for their studies and marriage etc.).


Answer-Yes, you can assign one or more policies under MWP <strong>Act</strong>.<br />

13. Question-<br />

Let me know how to find if this clause has been added for the existing policies.<br />

Answer-You cannot assign the existing policies under MWPA.<br />

Only at the time of making the application (buying a policy), a separate MWPA form has to be filled<br />

by the proposer for it to be covered under MWP <strong>Act</strong>...<br />

14. Question-<br />

Can we include our parents name in the above said MWP application form if we want to distribute in<br />

some ratio to life partner and parents….<br />

Answer-<br />

Parents cannot be added under MWP <strong>Act</strong>.


QUICK<br />

RECAP<br />

OF MWAP


Lastly everything cannot be dealt in while discussing the our prime issue of protecting our<br />

lives is the foremost option of our Investment, as I observe due to Liberalisation,<br />

Globalisation our economy is flourishing like anything, Plastic money culture, Online<br />

Shopping, Mall culture, Life style, Dreaming of Big Home, Overseas Holiday<br />

Enjoyment, Joining Social Clubs , Using Costly Vehicle etc leads to poor money<br />

management, I have seen many Employee’s, Businessman, Corporate are availing huge<br />

amount of Loan facilities from the available source, But due to down turn in Industry,<br />

Recession in Employment, Money market condition, Devaluation in Currency market,<br />

Cost of Inflation, list is endless due to all these factors our future is unpredictable. To<br />

safe guard our Life one must read our life carefully. So that we can make justification<br />

towards Ur family responsibilities. <strong>By</strong> ensuring them protection of their future is in our<br />

hand, so let us make a sensible investment decision in the days to come<br />

Thanks<br />

Regards<br />

<strong>Pradeep</strong> <strong>Patil</strong><br />

Founder of Disha<br />

Retired Development Officer


You can send your feed back to our Admin team<br />

E-mail id-ptpatil179@gmail.com<br />

Mobile No.09448133179<br />

PROTECTING<br />

YOUR<br />

WEALTH<br />

FOR<br />

GENERATION<br />

NOT<br />

JUST<br />

LIFE<br />

TIME

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