JUDGMENT S.S. Dhavan, J. - This is a plaintiff's second appeal from the decree of the Additional Civil Judge, Agra reversing that of the first Additional Munsif, Agra and dismissing his suit for the recovery of a sum of Rs. 2,0001- under a life insurance policy. 2. One Prabhu Lal (to be called the insured) who was the brother of the plaintiff appellant L. Lokman Dass ensured his life with the Hindustan Mutual Insurance Co. Ltd. (to be called the company), the defendant-respondent, for a sum of Rs. 2,0001/-. The insured was to pay a premium of Rs. 44151/- half yearly, on the 5th January and 5th July of each year. The policy contained a cash surrender value clause and also automatic extension clause. The first provided that the policy would acquire a surrender value as soon as three full annual premiums had been paid and the company guaranteed that the surrender value would be according to the number of annual premiums paid excluding the first year. The second provided in effect that when the policy acquired a surrender value it would be kept in force in case of non-payment of premium for a period as long as the surrender value could cover, the, unpaid premiums with 71% compound interest per annum. The insured regularly paid the premiums till the end of 1947, but omitted to pay the one which became due on 5th January, 1948. The company served on him a notice devising him that his policy had lapsed but could be revived on payment of over-due premiums with interest and submission of a declaration of good health. Thereupon the insured paid the premium with interest on 10th March, 1948 but sent no declaration. On 6th April, 1948 he died. There is a dispute about the cause of death. The plaintiff alleged that the insured died a natural death, while the company contended that he died of tuberculosis after his death the plaintiff-appellant, Lokman Dass, claimed the insurance money as the assign of the insured. The company re. jetted this claim on the ground that the policy had lapsed due to non-payment of premium and was never revived because the insured had not submitted a declaration of good health with his last remittance. Thereupon Lokman Dass filed the present suit. The company re. jetted this claim on the ground that the policy had lapsed due to non-payment of premium and was never revived because the insured had not submitted a declaration of good health with his last remittance. Thereupon Lokman Dass filed the present suit. He contended that the policy could not have lapsed as it was protected by the cash surrender value and automatic clauses. 3. The company resisted the suit and denied all liabilities. They admitted that in 1948 the policy had acquired a surrender value and was eligible for the benefit of the automatic extension clause, but contended that the cash surrender value of this policy in January, 1948 was less than Rs. 4451/- and, therefore, it was not protected by the automatic extension clause. They pleaded that this was a case of a lapsed policy due to non-payment of premium and the policy could have been revived only by the payment of premium plus interest and a submission of a declaration of good health. They admitted that the first condition was complied with but contended that this alone could not revive the policy without the submission of a declaration of a good-health, and as this declaration was never sent to the company the policy had not been revived on the date of the death of the insured. 4. The vital question before the trial court was whether the policy had lapsed on account of non-payment of premiums. This in turn depended upon whether the cash surrender value of the policy in January, 1948 was greater than Rs. 44151/- which was the premium due. If it was, the policy was automatically protected against lapse; if not it had lapsed. The plaintiff contended that according to the rules of the company prevailing in 1944 the surrender value was not less than 30% of the full year's premium or premium paid in the case of policies other than for whole life (this is a policy for other than whole life). The company admitted that this was the rate at which the surrender value was calculated in 1944 but contended that it was applicable only to policies issued after December, 1944. According to them the surrender value policies issued before this date was 15. These respective rates were published in the prospectus of the company dated December 19, 1944 and December 19, 1939. According to them the surrender value policies issued before this date was 15. These respective rates were published in the prospectus of the company dated December 19, 1944 and December 19, 1939. The prospectus of 1944 contained the following paragraph at the end: "This cancels all previous issues but old policies are to be governed by the Prospectus then in force subject to the provisions of the insurance Act, 1938 and amended upto date." 5. The company alleged that the last prospectus before 1944 was issued in 1939 which fixed the surrender value of fixed period policies at 15%, and this rate remained effective till December, 1944 when the new prospectus was issued. The company also pleaded in the alternative that the entire contract of insurance was vitiated by fraud because the insured at the time of the agreement was suffering from tuberculosis but concealed this fact from the company. 6. The trial court held that the company had failed to prove any fraud and the insurance policy was valid and in force. It also held that the surrender value of the policy was 25%, in accordance with the rates fixed by the Company in 1944 and, therefore, greater than the amount of premium which was not paid in January, 1948. Accordingly it held that the policy had not lapsed and was still effective in March, 1948 when the insured died and the company was liable to pay the insurance money to the assignee. It decreed the suit. 7. On appeal the learned Civil Judge affirmed the finding of the trial court that the company had failed to prove any fraud. But it disagreed with the trial court on the question of the surrender value of the. policy in January, 1948 and held that this value was to be calculated at the rate of 15% which was published in the prospectus of 1939. As at this rate the surrender value was admittedly less than the Premium not paid in January, 1948, he held that the policy had lapsed and not been revived because of the failure of the insured to submit a declaration of good-health. He allowed the appeal and dismissed the suit of the plaintiff who has come here in second appeal. 8. I have heard Mr. S. N. Agarwal for the appellant and Mr. He allowed the appeal and dismissed the suit of the plaintiff who has come here in second appeal. 8. I have heard Mr. S. N. Agarwal for the appellant and Mr. S. D. Agarwal for the respondent, I have also perused the judgments of both the courts below and the oral and documentary evidence including the insurance policy. In my opinion the decision of the lower appellate court is erroneous. The sole question in controversy is whether the rate of surrender value of the policy in January, 1948 when the last premium was not paid was 25 per cent as claimed by the appellant or 15 per cent as contended by the respondent. For determining this question the Court must first examine the contract between the parties the terms of which were put in writing. I refer to the insurance policy, If the contract itself determines the terms as regards the rate of surrender value, any oral evidence to vary these terms is in-admissible. The policy, Ext. 2 lays down the conditions. The 3rd paragraph of these conditions relates to the cash surrender value of the policy. It provides: "Policies will acquire surrender value as soon as three full annual premiums have been paid and the company then guarantees that the surrender value shall be according to the number of annual premiums paid excluding the first year's and all extra premium that may have been paid on account of any personal or family history and occupation in the case of policies under the whole life and other classes respectively. 9. The rest of this clause is not relevant for the purposes of present controversy. 10. This condition entitled the insured to the benefit of the cash surrender value of a policy after he had paid three years whole premiums. It is common ground That these premiums were paid and the policy acquired the cash surrender value% after the first year. 11. But the rate at which the cash surrender value was to be calculated is not specified in this class. Therefore, extraneous evidence was admissible. It is common ground That these premiums were paid and the policy acquired the cash surrender value% after the first year. 11. But the rate at which the cash surrender value was to be calculated is not specified in this class. Therefore, extraneous evidence was admissible. The plaintiff relied on the prospectus of the company issued in 1944 which provides: "Policies will acquire a surrender value as soon as three full annual premiums have been paid and the company then guarantees that the surrender value shall not be less than 25% and 30 p.c. of the full years premium paid excluding the first year's, in the case of Policies under the whole life and other classes, respectively." 11. It is common ground that the rate at which the cash surrender value of the insurance policy was calculated in 1948 was 25 per cent. The plaintiff therefore proved that when the question of the cash surrender value of this policy arose the company had fixed the rates at 25 per cent. But the latter relied on a note at the end of the prospectus which runs thus: "This cancels all previous issues but old Policies are to be governed by the Prospectus then in force subject to the provisions of the insurance Act, 1938 and amended upto date." 12. Relying on this note the company contend that as regards the insurance policy in dispute the cash surrender value of the policy in dispute was not to be calculated at 25 per cent but at 15% as fixed by the policy prospectus issued in 1939, I think the onus to prove that in the year 1948 the effective rate was not the one which applied in that year but one which had been fixed in a past year was on the company. Mr. S. D. Agarwal contended that the insured must be deemed to have had notice of the contents of the prospectus including the note that past policies were not governed by it. I cannot accept this argument as stated in such broad terms. The question whether a party to a contract had notice of any particular condition of the contract does not arise if the contract is reduced to writing and the document itself contains to the conditions. I cannot accept this argument as stated in such broad terms. The question whether a party to a contract had notice of any particular condition of the contract does not arise if the contract is reduced to writing and the document itself contains to the conditions. But if any condition Is not included in the agreement but only in another document to which merely refers, the onus to prove that it was a part of the agreement and the other party had notice of it is on the party which want to avail of the conditions. In the present case the agreement between the parties does not even refer to condition. The insurance policy stated that the insured was to have the benefit of the cash surrender value but is silent about the rate at which this value was to be calculated. It make no reference to the prospectus and does not say that the rate was to be calculated as specified in the prospectus which was effective in the year of the issue of the policy. Therefore the onus was on the company to prove that the insured had notice that the rate of cash surrender value of the policy was to be calculated not at the race which prevailed in the material year 1948 but some other year which was specified in the prospectus of 1939. I have to see whether the company has discharged this burden. 13. The sole witness on this point for the company was Satish Chandra Gupta who said that he was acting Director. He gave evidence in 1951. At that time his age was 22 years, according to himself. The insured died in 1948, Sri Gupta admitted that he was not the director at that time. His age in 1948 was 19 years and in 1944 15 years, it was this witness who tried to prove that the company issued the prospectus in 1939 which fixed the rate of cash surrender value of the policy at 15 per cent, and that no other prospectus was issued till December, 1944. His age in 1948 was 19 years and in 1944 15 years, it was this witness who tried to prove that the company issued the prospectus in 1939 which fixed the rate of cash surrender value of the policy at 15 per cent, and that no other prospectus was issued till December, 1944. Thus the sole evidence produced by the company that the rate of the cash surrender policy was 15 per cent, was the testimony of a person who had no connection with the company in the year 1939 or the year 1944 or the year 1948 and whose age in 1939 when the prospectus relied upon by the company was issued was 10 years. As Gupta admitted in cross examination that he had no knowledge of the company's affairs in 1948 and earlier it is obvious he repeated before the Court what he had been told by others and his entire testimony was hearsay and inadmissible. Therefore the company did not discharge the burden of proving that the rate of calculating the cash surrender value of the policy was not the one prevailing in 1948 but some other date, nor did it discharge the burden of proving that the insured had notice of this earlier rate. 14. For these reasons, I think that the view of the lower appellate court is wrong and that of the trial court right. I must make it clear that this appeal is being decided on the sole question that the company has failed to prove that the rate of calculating the surrender value of the policy in dispute was 15 per cent. 15. I allow this appeal, set aside the decree of the lower appellate court and restore that of the trial court with costs throughout. Appeal allowed.