NAVADGI, J. ( 1 ) THIS is defendant's appeal against the judgement and Decree dated 31-8-1977 made by the I Additional Civil Judge, mangalore. The Life Insurance Corporation of India - the Appellant, and smt. B. Kusuma t. Rai the respondent herein were the defendant and the plaintiff respectively in the trial Court. The appellant and the respondent in this appeal, for the sake of convenience, would be referred to in the course of this Judgement as the defendant and the plaintiff respectively. ( 2 ) THE plaintiff filed a suit in O. S. No. 6 of 1975, seeking a decree directing the defendant to pay a sum of Rs. 30,000/- as due under the policy bearing No. S. 39675124, a sum of Rs. 5,385/- towards interest on Rs. 30,000/- from 6-1-1972 to 3-1-1975 at the rate of 6 per cent per annum, and a sum of rs. 15/- towards the cost of registered notice. ( 3 ) THE facts on which the plaintiff founded her reliefs are these : b. S. Thimmappa Rai (Hereinafter referred to as the assured), the husband of the plaintiff, had insured his life for a sum of rs. 30,000/- under policy No. S. 39675124. The assured had nominated the plaintiff as a nominee. The assured died on 6-1-1972 at Father muller's Hospital at Kankanady, Mangalore. The assured, prior to his death, had assigned his policy in favour of the Vijaya Bank limited as security for the amounts borrowed by him. The Vijaya Bank, after the death of the assured, on the strength of the assignment, furnished proof of death and lodged claim with original policy on 8-4-1972 the defendant repudiated the claim on 30-7-1973 on the ground that the policy holder had made deliberate mis-statements and had withheld material information regarding his health at the time of effecting the assurance. The plaintiff paid the amounts due to the vijaya Bank and got the policy re-assigned in her favour. Hence, she was entitled to claim the amounts due under the policy. She made a request to the defendant on 8-10-1973 to pay the amounts due to her under the policy. The defendant neither paid the amounts nor replied. On 10-6-1974, the plaintiff sent a registered notice through her lawyer to the defendant demanding the amounts due under the policy. Hence, she was entitled to claim the amounts due under the policy. She made a request to the defendant on 8-10-1973 to pay the amounts due to her under the policy. The defendant neither paid the amounts nor replied. On 10-6-1974, the plaintiff sent a registered notice through her lawyer to the defendant demanding the amounts due under the policy. The defendant sent a reply dated 11-7-1974 repudiating the claim once again on the same grounds on which it had repudiated the claim on 30-7-1973 when the same had been lodged by the vijaya Bank. The plaintiff alleged that the contentions raised by the defendant for repudiating the claim were neither true nor valid in law. She denied the material allegations made by the defendant in the reply dated 11-7-1974. She averred that the terms, if any, in the policy of contract entitling the defendant to repudiate the claim were unenforceable, invalid and opposed to law and public policy. She stated that the assured, at the time of proposal of the policy, has been examined by a Doctor approved by the defendant and that the defendant after getting a certificate from the Medical Officer and after being satisfied about the state of health of the assured, issued the policy, adding that the repudiation of the claim was unjust and opposed to law. ( 4 ) THE defendant filed written statement, taking very many defences. Among other things, it contended that the proposal and the personal statement made by the assured for taking the Insurance Policy constitute basis for the contract of insurance; that they are the material parts of the contract; that the assured had made false and incorrect statements in the personal statement submitted by him knowing fully well that the statement he was making was false and incorrect; that the assured was under an obligation to disclose all material facts regarding his health so that it could determine whether or not to accept the risk; that the assured had suppressed material facts while making the personal statement; that he had suggested false facts; and that the answers given by the assured to Items Nos. 4,6,8,9 and 10 of the personal statement dated 28-9-1968 were all proved to be false. 4,6,8,9 and 10 of the personal statement dated 28-9-1968 were all proved to be false. It also contended that since during the year 1967, the assured was suffering from bronchial and cardiac Asthma and had in fact died due to such a disease; that the assured had suppressed the fact that he was suffering from cardiac Asthma since prior to the date of making his personal statement and that due to the illness he had been forced to take leave from his official duties and official work. The assured had also been treated for cardiac Asthma prior to his making the personal statement and prior to the issue of the policy. The defendant contended that it was entitled to repudiate the policy. ( 5 ) THE Trial Court, on the basis of the pleadings, framed the following issues for trial:1. Whether the contract of insurance relating to Policy No. S. 39675124 is vitiated by fraud, suppression of material facts and wanting in uberrima fides?2. Whether the defendant is entitled to repudiate the contract of insurance and whether it has duly and rightly repudiated the contract of insurance?3. Whether the personal statements made by the assured on 28-9-1968 are incorrect and false to the knowledge of the Policy holder and as such, the policy issued is not valid and binding on the defendant?4. Whether the defendant had conducted investigation subsequent to the death of the policy holder and the investigation revealed facts which entitled the defendant to repudiate the policy of contract?5. Whether deceased B. S. Thimmappa rai was suffering from bronchial and cardiac asthma during and since 1967 and whether on account of this, he was unable to attend the official duties and office on various occasions?6. Whether the deceased had consulted several doctors on various occasions during the period 1968 till his death?7. Whether the terms of the policy entitled the defendant to repudiate the claim?8. Whether the suit is not maintainable for want of succession certificate from the proper court?9. Whether the defendant is estopped from now proving the state of health of the deceased?10. Whether the plaintiff is the heir of the deceased policy holder?11. Whether there is any subsisting nomination in favour of the plaintiff?12. Whether the suit is not maintainable for want of succession certificate from the proper court?9. Whether the defendant is estopped from now proving the state of health of the deceased?10. Whether the plaintiff is the heir of the deceased policy holder?11. Whether there is any subsisting nomination in favour of the plaintiff?12. Whether the proposal and personal statements form the basis of the Policy and if so, whether there are any incorrect statements therein, and if so, whether the defendant was entitled to repudiate the policy because of the said incorrect statements?13. Whether the plaintiff has no cause of action to file the suit?14. What is the correct amount, if any, due to the plaintiff? ( 6 ) THE defendant opened the case and adduced evidence to prove the material issues. It adduced the evidence of six witnesses and depended upon 82 documents. ( 7 ) AS against this, the plaintiff examined herself and produced 2 documents in support of her claim. ( 8 ) THE Trial Court, on consideration of the evidence, held that the plaintiff was entitled to receive a sum of Rs. 30,000/- as due under the policy taken by the assured, as his nominee, plus a sum of Rs. 958-16 paise towards bonus. It also held that the plaintiff was also entitled to interest on Rs. 30,000/- 958-16 from 1-8-1973 till the date of payment at the rate of 6 percent per annum. It, therefore, granted a decree in favour of the plaintiff ( 9 ) IT is this decree that is challenged before us in this appeal. ( 10 ) WE were taken through the pleadings, the evidence and the Judgment and decree. We have perused the record and proceedings in O. S. No. 6 of 1975. ( 11 ) SRI C. Srinivasa lyengar, learned counsel for the defendant, submitted that the trial Court erred in disbelieving dr. D. K. Nanjundeshwara (D. W-2), Ex. D-2, the Certificate dated 4-9-1972 issued by d. W-2 and Ex. D-3- the letter written by d. W-2 to the defendant on 18-11-1972. Elaborating, he contended that the reasoning adopted by the Trial Court for disbelieving exs. D-2 and D-3 is faulty and unconvincing and that the conclusion reached by the Trial court that D. W-2 had issued Ex. D-2 for the sake of fees was uncharitable. D-3- the letter written by d. W-2 to the defendant on 18-11-1972. Elaborating, he contended that the reasoning adopted by the Trial Court for disbelieving exs. D-2 and D-3 is faulty and unconvincing and that the conclusion reached by the Trial court that D. W-2 had issued Ex. D-2 for the sake of fees was uncharitable. According to him, the whole approach of the Trial Court to the evidence of D. W-2 and the documentary evidence Exs. D-2 and D-3 is incorrect and improper and such a wrong approach landed the Trial Court in reaching unsustainable conclusions with regard to the evidence of D. W-2 and Exs. D-2 and D-3. He contended that the Trial Court was not justified in concluding that the defendant had not proved Exs. D-4, D-5 and D-6 though after holding that the said documents had been produced from proper custody. According to him, there was no objection by the plaintiff for reception of Exs. D-4 to D-6 in evidence when they were tendered in evidence through the deposition of y. Srinivasan (D. W-3 ). According further to him, even if it was assumed that there was no objection by the plaintiff when Exs. D-4 to d-6 were tendered in evidence only for the purpose of marking them, the Trial Court was not correct in holding that the defendant had not proved the contents of Exs. D- 4 to d-6 from the evidence of K. Muthanna Rao (D. W-6 ). It was his submission that the Trial court refused to place reliance on the evidence of D. W-6 on mere conjectures and surmises and not on solid and valid grounds. ( 12 ) THE learned counsel further submitted that the Trial Court erred in holding that even if Exs. D-4 to D-6 were held proved, they would not help the defendant in satisfying the three requirements laid down in the second Part of Section 45 of the Insurance act, 1938 (the Act for short ). He relied upon certain authorities in support of the appeal, to which we would advert a little later. ( 13 ) ON the other hand, Sri B. V. Acharya, learned counsel for the plaintiff, supporting the judgment and Decree under appeal, submitted that no fault can be found with the reasoning adopted by the Trial Court to discard the evidence of D. W-2 and Exs. D-2 and d-3. ( 13 ) ON the other hand, Sri B. V. Acharya, learned counsel for the plaintiff, supporting the judgment and Decree under appeal, submitted that no fault can be found with the reasoning adopted by the Trial Court to discard the evidence of D. W-2 and Exs. D-2 and d-3. It was stated by him that D. W-2, in spite of being told to preserve the record relating to the treatment of the assured, by the defendant, failed to preserve the same and that the trial Court was correct in making a comment on this conduct of D. W-2 and making it as one of the grounds for the disbelief of the sworn words of D. W-2. It was his contention that the Trial Court rightly held that the defendant had failed to prove Exs. D-4 to D- 6 in accordance with the rules known to the law of evidence and that it would not be correct to say that the Trial Court was wrong in rejecting the evidence of D. W-6 on the basis of conjectures and surmises. According to him, D. W-6 was a wholly incompetent witness to prove the hand-writing in Exs. D-4 to d-6 and the signatures appearing in each of them as those of the assured. He strenuously urged that there was an inherent contradiction between Exs. D-4 and D-5 and Ex. D-48, the leave account statements of the assured, showing the particulars of leave taken by him during the years 1964 to 1967 and the Trial court rightly noticing this inherent incongruity demolishing the evidentiary efficacy of exs. D-4 to D-6, held that even if they were held as having been proved, they were not available to the defendant to discharge the burden placed on it under Section 45 of the act. He submitted that even if it is assumed for the sake of arguments that the assured had Asthmatic attacks within two years of 28-9-1968 and that he had taken treatment for cough and cold on 25-9-1968 and 28-9-1968, he could not have known that he was suffering from cardiac Asthma and that it would be too much to expect from the assured to state in his personal statement (Ex. D-59) that he was suffering from Asthma and that he had deliberately suppressed that fact and the fact of he having taken leave within two years of 28-9-1968 for taking treatment for the ailment. The learned counsel submitted very emphatically that the Trial Court after marshalling the facts correctly, approaching the evidence in the proper prospective and applying the relevant law to the facts proved, has rightly decreed the plaintiffs suit. It was his contention that the Trial Court was justified in upholding the claim of the plaintiff and negativing the pleas raised by the defendant. He stated that the Judgment and decree are sound and legal, calling for no interference. ( 14 ) IN view of the aforesaid contentions raised at the Bar, the points that arise for our consideration and determination are these: (1) Whether the defendant has succeeded in establishing the contention that the statement made by the assured in the personal statement (Ex. D-59) was on material matters or suppressed facts which it was material to disclose; that the suppression was fraudulently made by the assured and that the assured knew at the time of making the statement that it was false or that he suppressed facts which it was material to disclose? (2) Whether the defendant was entitled to repudiate the claim under the policy? (3) Whether the Judgment and Decree under appeal are correct, legal and proper? ( 15 ) OUR decisions on the aforesaid points are as under: (1) In the affirmative. (2) In the affirmative. (3) In the negative. ( 16 ) BEFORE proceeding to give our reasons for our decisions, we feel it appropriate to refer to the undisputed facts, facts proved by the evidence, adduced by the plaintiff and defendant without challenge from the other side, the nature and characteristics of the contract of insurance with special reference to life insurance, and the legal position with regard to the conditions to be fulfilled by the insurer to successfully repudiate the claim or liability in respect of a policy given by it, under Section 45 of the act. ( 17 ) THE assured was an employee of the vijaya Bank. He was working in the Ulsoor branch of the Vijaya Bank before he was transferred as Branch Manager to the madikeri branch of the said Bank. ( 17 ) THE assured was an employee of the vijaya Bank. He was working in the Ulsoor branch of the Vijaya Bank before he was transferred as Branch Manager to the madikeri branch of the said Bank. He was working as Branch Manager in the Madikeri branch during the years 1968, 1969 and 1970. ( 18 ) ON 25-9-1968, K. Muthanna Rao, examined as D. W-6, who is in the employment of the defendant since 1961 and who was working as Development Officer at Madikeri between 1961 and 1972, approached the assured with a request to take a Life Insurance policy. On 28-9-1968, the assured prepared a proposal form for insuring his life as per ex. D-58 and signed the printed proposal form at Ex. D- 58 (a ). It was D. W-6, who filled the form putting the questions to the assured and electing answers. The assured went through the contents of Ex. D-58 including the printed declaration and then affixed his signature. Ex. D-59 is the personal statement, also in printed form. It was filled by D. W-6 recording the answers given by the assured in the presence of Dr. Bhashyam, who was then working as District Surgeon, Mercara. The assured before affixing his signature to Ex. D-59, went through the contents and admitted the entries. Ex. D-59 was attested by D. W-6 and Dr. Bhashyam. The Confidential Report of Dr. Bhashyam (Medical Examiner), which is part of Ex. D-59-the second printed sheet, is marked as Ex. P-1. ( 19 ) THE assured was suffering from cardiac Asthma and corpul morale. He was admitted in the Government Headquarters hospital, Madikeri for treatment of the ailment on 9-12-1968 and was discharged on 30-12-1968. He was treated by one dr. G. N. Shirbur, who could not be examined during the trial of the suit as he was in Iran. The documents marked as Exs. D-8 to D-47 would show that the assured had obtained leave on the ground of illness and for the reason that he was suffering from cardiac asthma. The assured was continuously treated for the disease since 9-12-1968 at mercara and other places. He died due to the disease only on 6-1-1972 in the St. Father muller's Hospital at Kankanady, Mangalore. Ex. D-65, the death extract would show that the assured was 50 years at the time of his death. The assured was continuously treated for the disease since 9-12-1968 at mercara and other places. He died due to the disease only on 6-1-1972 in the St. Father muller's Hospital at Kankanady, Mangalore. Ex. D-65, the death extract would show that the assured was 50 years at the time of his death. His date of birth as mentioned in ex. D-58 is 18-3-1921. As on 28-9-1968, the assured was 47 years 6 months and 10 days. ( 20 ) THE assured, during his life time, had obtained a loan from the Vijaya Bank. He had assigned the policy, Ex. D-61, in favour of the Vijaya Bank as a security for the loan. After the death of the assured, the Vijaya bank lodged the claim Ex. D-66 with the death extract Ex. D-65 and the certificate by employer, Ex. D-67, to the defendant. ( 21 ) THE defendant instituted investigation into the claim and B. M. Shetty (D. W-5), who was working as Branch Manager, Mer- cara, from 1972 to 1974, conducted the investigation. During the course of investigation, he collected Exs. D-2 and D-3 from D. W-2 and Exs. D-49 to D-55. He submitted his report as per Ex. D-56. The defendant repudiated the claim on 30-7-1973. ( 22 ) THE plaintiff paid the amounts due to the Vijaya Bank, got the policy re-assigned in her favour and made a request to the defendant on 8-10-1973 to pay the amounts due under the policy to her. There was no response from the defendant either way. The plaintiff sent a notice through her Lawyer to the defendant demanding the amounts due under the policy. The defendant sent a reply on 11-7-1974 repudiating the claim on the grounds on which it had repudiated the claim when putforward by the Vijaya Bank. It was this repudiation that led to the institution of the suit culminating in the decree in favour of the plaintiff challenged in this appeal. ( 23 ) INSURANCE is a contract whereby for a stipulated consideration, one party undertakes to compensate the other for loss as a specified subject by specified perils, the party agreeing to make the compensation is the insurer or under-writer, the other is the insured or assured, the agreed consideration, the premium, the written contract a policy, the events insured against risks or perils and the subject, right or interest to be protected, the insurable interest. ( 24 ) LIFE Insurance is a contract between the holder of a policy and an Insurance Company, whereby the Company agrees in return for premium payments, to pay a specified sum, that is, the face value or the maturity value of the policy to the designated beneficiary upon the death of the insured. It is that kind of insurance in which the risk contemplated is the death of a particular person upon which event, if it occurs within a prescribed term or according to the contract, whenever it occurs, the insurer engages to pay a stipulated sum to the legal representatives of such person or to a third person having an insurable interest in the Life of such person. ( 25 ) THE insurance contracts are uber- rimae fide. They are founded upon utmost good faith. If the other party fails to observe this utmost good faith, the contract may be avoided by the other. Thus, absence of good faith avoids the contract. This is a principle of universal application to all classes and types of insurance contracts. The obligation to deal fairly and honestly is upon both the parties in equal degree. ( 26 ) IN contracts uberrimae fide, the contracting parties are placed under a special duty towards each other, not merely to refrain from active misrepresentation, but to make full disclosure of all material facts within the knowledge. ( 27 ) IT Is well settled that in insurance contracts, the principle of caveat emptor has no place. ( 28 ) IN insurance contracts, the risk undertaken by the insurer is and can only be learnt from the representation made by the intending insured. If there is non-disclosure of a material factor, such a conduct would be fatal to the validity of the contract. It is upon these principles, it is said that there is a legal obligation cast upon the party proposing the insurance to communicate not only every material fact of which he had actual knowledge, but he is also deemed to know every material fact of which he ought, in the ordinary course of business. A complete and bona fide disclosure of all the facts by the assured is a must to make the transaction valid and enforceable. A complete and bona fide disclosure of all the facts by the assured is a must to make the transaction valid and enforceable. ( 29 ) THE legal position as concluded by a long catena of decisions is that the contracts of insurance including the contracts of life insurance are contracts uberrimae fides and every fact of materiality must be disclosed, otherwise, there would be good ground for rescission of the contract. The duty to disclose material facts continues right upto the conclusion of the contract and also implies any material alteration in the character of the risk which may take-place between proposal and acceptance. If there are any mis-statements or suppression of material facts, the policy can be called in question. ( 30 ) A Policy can be called in question within a period of two years from the date on which it was effected on the ground that any statement leading to the issue of the policy was inaccurate or false. ( 31 ) AN insurer seeking to repudiate a policy within two years of its commencement on the ground of mis-statement by the insured, as held by the High Court of Andhra pradesh in LIFE INSURANCE CORPORATION OF INDIA PER ITS divisional MANAGER, hyderabad, Appellant v SHAKUNTALA BAI, Respondent AIR 1975 Andhra pradesh, 68, must prove that he acted fairly by explaining properly the implications of the declarations to be signed by the insured and the amplitude of the question's required to be answered. It has been held that in the absence of such proof, the omission by the insured to refer to a casual indigestion and the name of the Doctor who gave medicine on that occasion, could not render as untruthful the insured's statement that he had not suffered from any illness and had not consulted any medical practitioner within the last five years so as to justify the repudiation of the policy by the insurer. . ( 32 ) THE insurer could avoid a contract of insurance after the expiry of the period of two years mentioned in Section 45 of the Act. ( 33 ) IT would be advantageous to reproduce Section 45 of the Act as amended by the Insurance (Amendment) Act, 1941, (XIII of 1941), Section 31 (8-4-1941 ). The Section reads:"45. . ( 32 ) THE insurer could avoid a contract of insurance after the expiry of the period of two years mentioned in Section 45 of the Act. ( 33 ) IT would be advantageous to reproduce Section 45 of the Act as amended by the Insurance (Amendment) Act, 1941, (XIII of 1941), Section 31 (8-4-1941 ). The Section reads:"45. Policy not to be called in question on ground of mis- statement after two years.-No policy of life insurance effected before the commencement of this Act shall, after the expiry of two years from the date of commencement of this Act and no policy of life insurance effected after the coming into force of this Act shall, after the expiry of two years from the date on which it was effected, be called in question by any insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy-holder and that the policy-holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose : provided that nothing in this section shall prevent the insurer from calling for proof of age at any time if he is entitled to do so, and no policy shall be deemed to be called in question merely because the terms of the policy are adjusted on subsequent proof that the age of the life insured was incorrectly stated in the proposal. " ( 34 ) A reading of the material part of the section, relevant for the present purpose, would show that the insurer can repudiate the policy after a period of two years only if he shows that the statement made in the proposal for insurance or in any report of a medical officer, or referee, or friend of the insured or in any other document leading to the issue of the policy, referred to in the first part of the section, was on a material matter or the insured suppressed the fact which it was material to disclose; that it was fraudulently made by the policy-holder; and that the policy-holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose. A careful reading of Section 45 would indicate that it modifies the common law in so far as the policy is sought to be challenged on account of mis-statement or suppression of facts in any document after the expiry of two years from the date of the act or after the expiry of two years from the date on which it was effected. ( 35 ) THE evident object of Section 45 is to place certain restrictions on common law right of the insurer to repudiate his liability under the policy in certain circumstances. It appears, the object is to make it clear that the standard of good faith required to be further emphasised from the point of view of the insured after the expiry of certain minimum period. Section 45 does not confer any right on the insurer to repudiate a policy which has been in force for less then two years on the ground of falsehood or inaccuracy of a statement irrespective of its materiality and if the insurer wants to repudiate the liability under such a policy, he has to satisfy the requirements of the general Law of Insurance. ( 36 ) THIS section eliminates the distinction created by the doctrine of warranty under the English Common Law. The insurer cannot avoid the consequences of insurance contract by simply showing inaccuracy or falsity of statement. Burden is cast on the insurer to show that the statement was on a material matter, or facts have been suppressed which it was material for the policy-holder to disclose. The insurer cannot avoid the consequences of insurance contract by simply showing inaccuracy or falsity of statement. Burden is cast on the insurer to show that the statement was on a material matter, or facts have been suppressed which it was material for the policy-holder to disclose. It is further to be proved that the statement was fraudulently made by the policy-holder with the knowledge of the falsity of statement or that the suppression was of the material facts which had not been disclosed. In other words, proof of deliberate fraud and not merely of constructive fraud or of mis-statements has to be shown. ( 37 ) IN MITHOOLAL NAYAK, appellant v LIFE INSURANCE corporation, Respondent : AIR 1962 sc 814 , the assured had omitted to refer to the fact of his having undergone treatment for diarrhoea and anaemia by a Doctor. The supreme Court in the said case has laid down the necessary ingredients to be established by an insurer in order to avoid a liability under a policy of insurance, in accordance with the terms of Section 45. ( 38 ) REFERRING to Section 45 of the Act, this is what the Supreme Court has said :"the three conditions for the application of the second part of Section 45 are- (a) the statement must be on a material matter of must suppress facts which it was material to disclose; (b) the suppression must be fraudulently made by the policy-holder; and (c) the policy-holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose. The crucial question before us is whether these three conditions were fulfilled in the present case. We think they were. . . . . . . . " ( 39 ) ON the question of the nature of a material fact, we may refer to JOEL v LAW union and CROWN INSURANCE CO. : (1908)2 K. B. 863. It was a case of contract of insurance. The insurer had sought to avoid it on the ground of non-disclosure of a material fact, to wit, that the assured had consulted a doctor for nervous depression. The Court of appeal (in England), while dealing with the case, held that the answers to that question and others had not, on a true construction of the documents, formed the basis of the contract. The Court of appeal (in England), while dealing with the case, held that the answers to that question and others had not, on a true construction of the documents, formed the basis of the contract. It granted a new trial. ( 40 ) THE passage in the Judgment of fletcher Moulton LJ. , needs to be noticed for the proposition that the knowledge by the assured, that a fact is material or not, would not be of much moment and that the proper test to be applied would be whether a reasonable man would have recognised that it was material to disclose the knowledge in question in order that the insurer would be able to make up his mind whether the proposal ought to be accepted or not. The passage reads:". . . . . . . . THE contract of life insurance is one Uberrimae fide. The insurer is entitled to be put in possession of all material information possessed by the insured. This is authoritatively laid down in the clearest language by Lord blackburn in Brownlie v Campbell (5 a. C. 925, at p. 954) : "in policies of insurance, whether marine insurance or life insurance, there is an understanding that the contract is uberrimae fides (Sic in the report) that, if you know any circumstance at all that may influence the underwriter's opinion as to the risk he is incurring, and consequently as to whether he will take it, or what premium he will charge, if he does take it, you will state what you know. There is an obligation there to disclose what you know, and the concealment of material circumstance known to you, whether you thought it 'material or not, avoids the policy". There is, therefore, something more than an obligation to treat the insurer honestly and frankly, and freely to tell him what the applicant thinks it is material he should know. That duty, no doubt, must be performed, but it does not suffice that the applicant should bona fide have performed it to the best of his understanding. There is, therefore, something more than an obligation to treat the insurer honestly and frankly, and freely to tell him what the applicant thinks it is material he should know. That duty, no doubt, must be performed, but it does not suffice that the applicant should bona fide have performed it to the best of his understanding. There is the further duty that he should do it to the extent that a reasonable man would have done it; and, if he has fallen short of that by reason of his bona fide considering the matter not material, whereas the Jury, as representing what a reasonable man would think, hold that it was material, he has failed in his duty, and the policy is avoided. This further duty is analogous to a duty to do an act which you undertake with reasonable care and skill a failure to do which amounts to negligence, which is not atoned for by any amount of honesty or good intention. The disclosure must be of all you ought to have realised to be material, not of what only which you did in fact realise to be so. " ( 41 ) IN MUTUAL LIFE INSURANCE co. OF NEW YORK v ONTARIO metal PRODUCTS CO. , LTD. : 1925 ac. 344, the liability under insurance policy had been sought to be avoided by the insurer on the ground that the assured had deliberately suppressed the fact of her having been treated by a medical practitioner in answering a question in a proposal for insurance. The Privy Council in answering the question : "what is the test of materiality?", elucidated the legal position thus:". . . It is the insurers who propound the questions stated in the application form, and the materiality or otherwise of a misrepresentation had been truly disclosed, they would, on a fair consideration of the evidence, have influenced a reasonable insurer to decline the risk to have stipulated of or a higher premium. "41. In LIFE INSURANCE corporating OF INDIA, Appellant v canara BANK LTD. , and OTHERS, respondents : 1973 (2) Karnataka Law journal, 117 = AIR 1974 Mys. 51, this is what is said about the materiality of a fact by this Court:"the materiality of a fact depends on surrounding circumstances, and also on the nature of information sought by the insurer. In LIFE INSURANCE corporating OF INDIA, Appellant v canara BANK LTD. , and OTHERS, respondents : 1973 (2) Karnataka Law journal, 117 = AIR 1974 Mys. 51, this is what is said about the materiality of a fact by this Court:"the materiality of a fact depends on surrounding circumstances, and also on the nature of information sought by the insurer. It is not open to an insured to decide for himself as to which fact is material and which is not". Where the assured was hospitalised for over a month, two biopsy examinations were done involving removal of tissues by a minor operation and there was X-ray therapy for a week, any reasonable man would think that there might be something seriously wrong with him, although the assured himself may not have had a clear idea of the disease he might he suffering from. In such a case the questions and personal statements in the proposals of policy assume considerable importance and the assured is expected to answer them truthfully and in good faith. " ( 42 ) THUS, whether a fact is material or not depends upon the circumstances of a particular case. Evidence regarding materiality may not be always necessary. The test to determine materiality is : whether the fact has any bearing on the risk undertaken by the insurer. If the fact has any bearing on the risk, it is a material fact; if not, it is not material. ( 43 ) IN life insurance contract, the risk contemplated is the death of the assured. Therefore, any fact, which tends to suggest that the life insured is likely to fall short of the average duration, would be a material fact. This would be a fact, the knowledge or ignorance of which would materially influence an insurer in making the contract or in estimating the degree and character of the risk or in fixing the rate of premium. ( 44 ) IT can be said that life insurance being a scientific assessment of an average duration of a life, such assessment would not be possible unless the correct data about the life are diligently and faithfully made available to the insurer. But there would be cases where the border line between what is material and what is not material is dim and thin. In such cases, the danger of taking one for the other would be there. But there would be cases where the border line between what is material and what is not material is dim and thin. In such cases, the danger of taking one for the other would be there. To obviate such a danger, one has to be careful in drawing a distinction between what is illness or material change in health and what is ordinary simple disorder. ( 45 ) IN Mithoolal Nayak's case, the supreme Court held that the suppression of the fact of the assured having undergone treatment for diarrhoea and anaemia was fraudulent within the meaning of Section 17 of the Contract Act. The Supreme Court held:". . . . . . . . NO doubt, Mahajan Deolal's son now tries to make light of the illness of his father, but Dr. Lakshmanan's evidence shows clearly enough that in September-October 1943 Mahajan Deolal was suffering from a serious type of anaemia for which he was treated by Dr. Lakshmanan. Mahajan Deolal could not have forgotten in July, 1944 that he was so treated only a few months earlier and further more, Mahajan Deolal must have known that it was material to disclose this fact to the respondent company. In his answers to the questions put to him he not only failed to disclose what it was material for him to disclose, but he made a false statement to the effect that he had not been treated by any Doctor for any such serious ailment as anaemia or shortness of breath or asthma. In other words there was a deliberate suppression fraudulently made by mahajan Deolal. Fraud, according to S. 17 of the Indian Contract Act, 1872 (IX of 1872), means and includes inter alia any of the following acts committed by a party to a contract with intent to deceive another party or to induce him to enter into a contract. " ( 46 ) THE other enunciation made by the supreme Court in Mithoolal Nayak's case is that the Explanation to Section 19 of the contract Act to the effect that a false representation was fraudulent or innocent would be irrelevant if the party, who is to act on it, has not been misled in making the contract, would not be very assistance to the assured in contracts of insurance of the type on hand. ( 47 ) WHEN the material fact related to a disease or ailment, there must be satisfactory proof that the assured was suffering from the ailment, which means there must be proof of a proper diagnosis. There must also be satisfactory proof that the Doctor had communicated to the assured that he was suffering from particular disease or the assured himself knew that he was suffering from that disease. It is needless to state that it is only if such a knowledge is made out that the question of failure to disclose would arise. ( 48 ) COMING to the question relating to the proof of the three conditions for the application of the second part of Section 45 of the Act and the nature of the burden of proof, it has to be observed that all the elements necessary for the application of the second part of Section 45 have to be proved cumulatively. If one or more of them is not proved, the challenge would fail. The burden of proving them all lies on the insurer and the onus probandirests heavily on the insurer. ( 49 ) KEEPING in view the legal position, we now proceed to consider the relevant evidence bearing on the points formulated for our consideration and the correctness of the findings recorded by the Trial Court on the various issues formulated by it, in the light of the submissions made by both the sides. ( 50 ) EX. D-61 is the policy that was effected on 12-11-1968 on the basis of the proposal Ex. D-58 and the personal statement Ex. D-59. The assured an employee in the Vijaya Bank, had obtained a loan, assigning his interest under the policy in favour of his employer as security for repayment of the loan. The endorsement of assignment is dated 8-9-1971. The assignment had been registered. The nominee under Ex. D-61 was the plaintiff. It was payable to her subject to the assignment created in favour of the Vijaya Bank. Ex. P-2, the deed of re-assignment, executed by the vijaya Bank in favour of the plaintiff, has proved the re-assignment. In view of the re-assignment, the Vijaya Bank ceased to have any interest in the policy. The nomination of the plaintiff existed and subsisted. It was on the basis of this nomination that the plaintiff sought to recover the money due under the policy. In view of the re-assignment, the Vijaya Bank ceased to have any interest in the policy. The nomination of the plaintiff existed and subsisted. It was on the basis of this nomination that the plaintiff sought to recover the money due under the policy. ( 51 ) BEING the nominee, the plaintiff was entitled to claim the money due under the policy to the exclusion of other heirs of the assured. Add to that, being the wife, she is undoubtedly the heir. ( 52 ) WHEN plaintiff, as a nominee, was entitled to claim the proceeds of the policy, and when under the terms of the contract (Ex. D-61), the defendant undertook to pay the money that become due on the policy to the nominee of the policy-holder, it could not lie in the mouth of the defendant to contend that it can be held liable to pay the money to the plaintiff on her obtaining a succession certificate from a competent Court. A succession certificate would not be necessary when a nominee is to receive the proceeds of a policy. The plaintiff had a cause of action to institute the suit. As rightly averred in the plaint, the cause of action for the suit arose on 6-1-1972, the date of the demise of the assured, and on 30-7-1973 and 11-7-1974 when the defendant repudiated the claim when the same was putforward by the Vijaya bank and thereafter by the plaintiff. For the aforesaid reasons, we affirm the finding of the Trial Court on Issues Nos. ll, 10, 8 and 13. ( 53 ) IT is undeniable that if the assured was suffering from Cardiac Asthma (and dilation of heart), as stated in Ex. D-2, prior to 28-9-1968 and that if the assured had taken leave for getting treatment for the ailment-Asthma prior to 28-9-1968, the statements made by him in Ex. D-59, pressed into service by the defendant in respect of the said facts, would be statements on a material matter and would amount to suppressing of facts which it was material to disclose for the assured. D-59, pressed into service by the defendant in respect of the said facts, would be statements on a material matter and would amount to suppressing of facts which it was material to disclose for the assured. If really the assured was suffering from Asthma and enlargement of heart prior to 28-9-1968, and had taken leave for treatment of the disease Asthma earlier to 28-9-1968, and if he knew that he was suffering from the disease, to discharge the obligation to deal fairly and honestly and to communicate the material facts relating to the disease Asthma he (assured) was suffering from, the assured should have made a complete and bona fide disclosure about the same. If the assured was in such a circumstance, it was the duty of the assured to disclose the knowledge in question in order that the defendant would be able to make up its mind whether the proposal for the insurance ought to be accepted or not. The circumstance relating to the disease the assured stated to have been aflicted with and the fact of he having taken leave for treatment and of having taken treatment were really circumstances that could have influenced the opinion of the defendant as to the risk it was incurring and consequently as to whether it should take the risk or what premium it would charge. ( 54 ) IF the defendant succeeds in establishing the first requirement for the application of Section 45 of the Act, the question as to whether the statement or the suppression was fraudulently made by the assured with knowledge at the time of exs. D-58 and D-59 and whether the statement was false or that he suppressed the facts which it was material to disclose, would arise for consideration. ( 55 ) THE defendant to discharge the burden placed on it, has relied upon oral as well as documentary evidence. ( 56 ) THE oral evidence consists of the testimony of K. T. Cheluvaraj (D. W-1), dr. D. K. Nanjundeshwara (D. W-2), y. Srinivasan (D. W-3), K. Venkataramanayya (D. W-4),b. M Shetty (D. W-5) and K. Muthanna Rao (D. W-6 ). The documentary evidence consists of Exs. D-1 to d-82. It has mainly relied upon Exs. D-2 and d-3 and Exs. D-4, D-5 and D-6. ( 57 ) DR. B. K. Nanjundeshwara (D. W-2) is the Doctor practising in Medicine at madikeri since 1937. The documentary evidence consists of Exs. D-1 to d-82. It has mainly relied upon Exs. D-2 and d-3 and Exs. D-4, D-5 and D-6. ( 57 ) DR. B. K. Nanjundeshwara (D. W-2) is the Doctor practising in Medicine at madikeri since 1937. He was aged about 64 years and is L. A. M. S (Licentiated in ayurvedic Medicine and Surgery ). He was examined on 15-6-1977 ). D. W-2 testified that he knew the assured (deceased Thimmappa Rai); that the assured used to go to him now and then; and that he had treated the assured. In the course of cross-examination, It was elicited from his mouth that the assured went to him on 25-9-1968 complaining of Asthma. It was further elicited from his mouth that on the dates mentioned in Ex. D-2, sometimes the children of the assured used to go to him and take medicine and sometimes he used to go to the house of the assured to give medicine. He denied the suggestion that he had not at all treated the assured. ( 58 ) B. M. SHETTY (D. W-5), who conducted the investigation regarding the claim, collected Exs. D-2 and D-3 from D. W-2. It is significant to note that the evidence of d. W-5 that he did collect Exs. D-2 and D-3 from D. W-2 has not been challenged. D. W- 2 vouched that he wrote Ex. D-2, after search of the record, on 4-9-1972 on his letter head under his signature. He subscribed on oath to the correctness of Ex. D-2. Ex. D-3 is another letter written by D. W-2 on 18-11-1972 on his letter head under his signature. ( 59 ) A perusal of Ex. D-2 would show that the assured was under treatment of D. W-2 during the years 1968-69 and beginning of 1970 and that he was suffering from cardiac asthma and had dilation of his heart. Ex. D-2 further shows that upto 28-9-1968, the assured had taken treatment from D. W-2. It reads that he had taken treatment on 25-9-1968, 26-9-1968, 27-9-1968 and even on 28-9-1968 as well. ( 60 ) EX. Ex. D-2 further shows that upto 28-9-1968, the assured had taken treatment from D. W-2. It reads that he had taken treatment on 25-9-1968, 26-9-1968, 27-9-1968 and even on 28-9-1968 as well. ( 60 ) EX. D-3 is a letter written by D. W-2 as reply to the letter of the Officer of the defendant dated 11-10-1972 informing that the information he had furnished about the treatment given to the assured was on the basis of his record and that the record has been preserved and would be preserved as desired by the defendant. ( 61 ) THE Trial Court has disbelieved the oral evidence of D. W-2 and has rejected ex. D-2 on the ground that D. W-2, though asked to preserve the record, had not done so; that his evidence was contrary to the contents of Ex. P-1 and that the assertion of d. W- 2, as stated in Ex. D-2, that the assured had taken treatment after 30-12-1968 was improbable. The Trial court has concluded that D. W-2 had issued Ex. D-2 to make money and that, therefore, he was not entitled to credence. ( 62 ) ON careful examination of the oral evidence of D. W-2 and the documentary evidence Exs. D-2 and D-3, we are unable to concur with the view taken by the Trial Court in regard to the said evidence. ( 63 ) INDEED, as stated on oath and in ex. D-3, D. W-2 must have issued Ex. D-2 on the basis of the record maintained by him. As a Medical Practitioner with a long standing in the field, he must have maintained the record with regard to the patients examined and treated by him. Naturally, D. W-5, in the course of his investigation, must have made enquiries as to the Doctor from whom the assured had taken treatment if any, prior to 28-9-1968 and must have, in the course of his investigation, reached D. W-2. He must have obtained Ex. D-2, and the defendant, through its officer, must have made queries as to the basis on which Ex/d-2 has been issued and as a reply to the queries, D. W-2 must have written Ex. D-3. The defendant must have asked D. W-2 to preserve the record contemplating a legal action by the assignee or the plaintiff. The defendant asked D. W-2 to preserve the record during the year 1972. D-3. The defendant must have asked D. W-2 to preserve the record contemplating a legal action by the assignee or the plaintiff. The defendant asked D. W-2 to preserve the record during the year 1972. It summoned D. W-2 to appear before the trial Court to give evidence along with the record. Responding to the summons, D. W-2 appeared before the Court on 15-6-1977 nearly after a lapse of four-and-half years. There is no material placed on record by the plaintiff that after 18-11-1972 at any time till 15-6-1977 there was a request by the defendant to D. W-2 to preserve the record. If D. W-2 destroyed the record relating to the assured or did not take care to preserve it, ensuring its non-misplacement after lapse of considerable time, in the absence of any fresh request by the defendant to preserve the record under the impression that the record was no more required to be preserved, can it be a ground to reject his oral testimony and Exs. D-2 and D-3 as unbelievable? We find it extremely difficult to support the reasoning of the Trial Court to discard the oral evidence of D. W-2 and exs. D-2 and D-3. It would be travelling too much without any premises to hold that ex. D-2 had been issued by D. W-2 without taking information from the record. If there was admission from the mouth of D. W-2 that no record had been opened and maintained in respect of the treatment given to the assured, the reasoning of the Trial Court that ex. D-2 cannot be believed at all could have commended for acceptance. ( 64 ) THE second ground on which the Trial court disbelieved D. W-2 and Exs. D-2 and d-3, on careful examination, does not appear to be a sound ground. Indeed, it is true, ex. D-2 shows that even on the date of the proposal and personal statement (28-9-1968), the assured had taken treatment from D. W-2. It is also borne out from Ex. P-1 and the oral evidence of D. W-6 that the assured was examined by Dr. Bhashyam on that day. It is in the evidence of D. W-6 that after the assured put his signature to the declaration in Ex. It is also borne out from Ex. P-1 and the oral evidence of D. W-6 that the assured was examined by Dr. Bhashyam on that day. It is in the evidence of D. W-6 that after the assured put his signature to the declaration in Ex. D-58, he was taken to the district Surgeon and there, the personal statement was filled up in the presence of the district Surgeon and it was there, the assured put his signature. Ex. D-59 is shown to have been attested by D. W-6 and dr. Bhashyam. The evidence of D. W-6 shows that Dr. Bhasyam was expected to fill Ex. P-1, the part of Ex. D-59, after examining the assured and that Ex. P-1, the Confidential report, was prepared by Dr. Bhashyam, not in the presence of D. W-6. ( 65 ) BE that as it may, that hard fact remains that in respect of the questions to be answered relating to the condition of chest and heart in Columns Nos. 5 and 6 of Ex. P-1, the Doctor did not note any defect in the symmetry of the chest, in the lungs, and in the size, position and impulse of the heart. It was on the basis of the contents of Exp-1 that the Trial Court concluded that the evidence of D. W-2 and Ex. D-2 cannot be believed. Ex. P-1 is the Confidential Report of the Medical Examiner. It shows that the assured was examined on 28-9-1968 at 10-30 a. M. The examination was for the purpose of insurance. If the assured, notwithstanding the examination by Dr. Bhashyam, went to d. W-2 with whom he had taken treatment on the three preceding dates, it cannot be said that the recital in Ex. D-2 that the assured took treatment from D. W-2 on 28-9-1968 cannot be believed. ( 66 ) EX. P-1 was marked as an Exhibit in the course of cross-examination of D. W-6. The plaintiff did not examine Dr. Bhashyam. It appears that at no stage of the trial of the suit, the defendant contended that Ex. P-1 had not been proved as required by law and that, therefore, it should be excluded from consideration. Such a contention was not raised even before us in the appeal. The plaintiff did not examine Dr. Bhashyam. It appears that at no stage of the trial of the suit, the defendant contended that Ex. P-1 had not been proved as required by law and that, therefore, it should be excluded from consideration. Such a contention was not raised even before us in the appeal. ( 67 ) THE document being marked for the plaintiff, that could not be a case of a party producing two sets of evidence,, one contradicting the other or mutually destructive of each other. This would be a case where it would be a mere appreciation of evidence, weighing the credibility and acceptability of the evidence of D. W-2 and ex. D-2 viz-a-viz, Ex. P-1. ( 68 ) IT would be relevant now only to advert to the contention of Sri. B. V. Acharya, the learned counsel for the plaintiff, about the conduct of the defendant in conducting the suit and the duties enjoined on the defendant as a Corporation doing life insurance business in a claim of the kind on hand. ( 69 ) THE life Insurance Corporation, carrying on business of life insurance a nationalised business, owes a great responsibility to the public. On claims being repudiated, if the matter reaches the Court, the Life Insurance Corporation should not contest the suit in the way and in the manner in which an ordinary litigant contests. The contest should be on a higher plane, so as to inspire confidence and leave the impression in the minds of the public that their claims are not resisted on unsound and insecure foundations with frivolous pleas and reckless allegations. ( 70 ) ON the facts and in the circumstances of this case, it is difficult to conclude that the tight projected by the defendant is without any basis or on frivolous pleas and reckless allegations. ( 71 ) THE defendant has placed all the material gathered by D. W-5 who had been entrusted with the investigation into the claim. If it had suppressed Ex. P-1, the contention of Sri B. V. Acharya that the conduct of the defendant in conducting the suit leaves much to be desired, would have been accepted. ( 71 ) THE defendant has placed all the material gathered by D. W-5 who had been entrusted with the investigation into the claim. If it had suppressed Ex. P-1, the contention of Sri B. V. Acharya that the conduct of the defendant in conducting the suit leaves much to be desired, would have been accepted. There was free forthright and full disclosure of all the evidence collected by the defendant and we have not been able to see any attempt on its part to withhold or suppress the material, advantageous to the plaintiff and detrimental to its plea. ( 72 ) WE have already concluded that in this case, it is difficult to hold that the defendant chose to contest the claim without a careful scrutiny of the investigation of facts to support the defence. ( 73 ) INDEED, it is true, the Life Insurance corporation should examine its responsible officers, under whose supervision the policies are effected, and the Doctors on its panel, who certified to the good health of the assured, so that the Court could have the assistance of their evidence while determining the truth. In the case on hand, the defendant examined D. W-6, the person who canvassed the business from the assured and who had played a prominent part in effecting the policy. Though it can be said that the defendant should have examined Dr. Bhashyam, we cannot call it as an omission which cannot be exonerated in view of the fact that the defendant, which commenced the evidence to discharge the burden placed on it, produced Ex. P-1, part of Ex. D- 59, and raised no objection either for marking it as an Exhibit or for reading it in evidence. Even if Dr. Bhashyam had been examined he could have spoken to the record he prepared as per Ex. P-1. Hence, the principle of law that the insurer cannot escape the obligation of examining the Doctors, on whose report the insured's proposal is accepted, may not be available to the plaintiff to ask us to invest the contest with unfairness. Any way, non-examination of Dr. Bhashyam cannot be a circumstance to hold that the defendant has failed to discharge the burden placed on it. Any way, non-examination of Dr. Bhashyam cannot be a circumstance to hold that the defendant has failed to discharge the burden placed on it. ( 74 ) IN A. P. VENKATACHALAM, Appellant v LIFE INSURANCE corporation OF INDIA BY ITS DIVISIONAL manager, COIMBATORE, Respondent : 1986 ACJ 656, the authority depended upon by Sri C. Srinivasa Iyengar, learned counsel for the defendant, the assured had not disclosed at the time of making the proposal and personal statement that she was suffering from hypertension and renal failure and that she had been treated in a hospital. At the time of accepting the proposal, the assured had been examined by the Doctor on the panel of the Corporation. He had declared her life as 'first class! She had later died out of those diseases. On these facts, it was held that the suppression had been made knowingly and fraudulently and the contract of insurance was vitiated. The fact that the assured's life had been declared by the Doctor of the Corporation as first class, it was held, would not be of any help to the claimant. If the defendant fails to prove that prior to 28-9-1968, the assured was suffering from cardiac Asthma and dilation of heart, and had taken treatment after taking leave, ex. P-1 would go in aid of the plaintiff to canvass that the defendant has failed to satisfy the three requirements of the second part of section 45 of the Act. On the other hand, if the defendant succeeds in establishing the facts aforesaid, Ex. P-1, which goes contra to the defence, would not help the plaintiff. ( 75 ) HAVING disposed of the contention, we now proceed to examine whether Ex. P-1 destroys the evidentiary efficacy of the testimony of D. W-2 and the probative value of ex. D-2. ( 76 ) THE medical reports which are submitted by the Medical Examiner, which are considered as confidential reports, will have to be accepted as true, as ordinarily, the presumption is that such reports are submitted only after a thorough and careful examination of the proposers in accordance with the questionnaire, unless it is shown by the Corporation that either the Medical Examiner, who prepared the report, made a false report or that the proposer made a fraudulent suppression of the material facts being aware of the illness from which he was suffering. ( 77 ) THERE is absolutely no material brought on record to discredit the evidence of D. W-2. Even no motive is suggested to him to impeach his credit. It is inconceivable to think that D. W- 2, without treating the assured on the dates mentioned in Ex. D- 2, would have gone in the hands of the defendant as its instrument to prepare false record and to perjure on oath. He might not have examined the assured with the aid of x-ray, might not have taken blood for test and might not have taken ECG. But it is hard to accept the contention that without such tests, D. W- 2 could not have diagnosed the ailments on clinical test examining the assured with the aid of stethoscope. We are unable to see any force in the contention. D. W-2, a Doctor who started practice in 1937, would not have found it difficult to diagnose the ailment the assured was suffering from on clinical test. The evidence has received sufficient strength and support from Ex. D- 2. When the evidence of D. W-2 has emerged unscathed and clearly establishes that the assured was suffering from cardiac Asthma and dialation of heart; that he had taken treatment from him (D. W-2) from 25-9-1968 to 28-9-1968 (both days inclusive); and that when there is nothing on record to jettison the evidence of d. W-2 with the reasonable possibility of the assured making fraudulent suppression of the material facts being aware of the illness from which he was suffering from being not excluded, we feel persuaded to hold that ex. P-1 cannot be preferred to the positive and affirmative evidence of D. W-2, establishing the facts relating to the ailment of the assured and the treatment taken by him (assured) under D. W-2 from 25-9-1968 to 28-9-1968. ( 78 ) THE next reason assigned by the Trial court to disbelieve the evidence of D. W-2 is that the assured having taken treatment in the Government Hospital, Madikeri, as an inpatient from 9-12-1968 to 30-12-68 for cardiac Asthma and heart ailment, could not have gone to D. W-2 thereafter for treatment of the same diseases. We are afraid, there is no substance in the reasoning. Absolutely there is no material to hold that the assured on 30-12-1968 was discharged from the hospital after complete recovery of the ailments. We are afraid, there is no substance in the reasoning. Absolutely there is no material to hold that the assured on 30-12-1968 was discharged from the hospital after complete recovery of the ailments. As a matter of fact, the diseases the assured was suffering from were of such a nature which could not have been cured completely. Be that as it may, the discharge of the assured from the hospital after treatment would not lead to the necessary conclusion that he did not suffer from the same diseases after his discharge. If the assured, on relapse of the diseases for which he had taken treatment earlier, thought it convenient to approach D. W-2 for treatment, from whom he had taken treatment earlier to his admission to the hospital, can it be said that the fact of the admission of the assured in the hospital for treatment and his discharge would improbabilise the evidence of D. W-2 that he treated the assured after 30-12-1968. ( 79 ) THE last reason assigned by the Trial court to disbelieve D. W-2 is wholly erroneous and ex facie infirm. May be, as added by D. W-5 to his report Ex. P-56, the post script, D. W-2 might have demanded fee for issuing the certificate. He could not have granted certificate to the defendant gratis. It appears, the Trial Court went entirely wrong in concluding without any basis or foundation that D. W-2 was a witness ready to issue certificates for the sake of fee. The approach of the Trial Court to the evidence of D. W-2 in this regard is opposed to the well established principles governing the appreciation of evidence. ( 80 ) DISAGREEING with the Trial Court, we hold that D. W-2 is a reliable and believable witness and that Exs. D-2 and D-3 are acceptable. ( 81 ) THE accepted evidence would show that the assured was suffering from cardiac asthma and dilation of heart prior to 28- 9-1968 and that he had taken treatment for the said diseases from D. W-2 on 25-9-1968, 26-9-1968, 27-9-1968 and 28-9-1968. ( 82 ) THE conclusion reached by the Trial court that even if the evidence of D. W-2 was accepted, it would not help the defendant in discharging the burden placed on it, is incorrect. The conclusion, it appears, is based on the incorrect reading of the evidence of D. W-2. ( 82 ) THE conclusion reached by the Trial court that even if the evidence of D. W-2 was accepted, it would not help the defendant in discharging the burden placed on it, is incorrect. The conclusion, it appears, is based on the incorrect reading of the evidence of D. W-2. D. W-2, in the course of cross-examination, stated:". . . . . . . . I did not inform nor do I remember now if I had informed thimmappa Rai that he is suffering from cardiac Asthma and dilation of heart. . . . . . . . "the statement extracted above cannot be read as meaning that D. W-2 did not inform the nature of the diseases to the assured. The trial court has proceeded on the assumption that D. W-2 had not at all made known or informed the assured about the diseases. ( 83 ) EVEN taking a liberal view of the statement of D. W-2 in favour of the plaintiff, the question that still survives for consideration would be whether on 28-9-1968, when the assured made the personal statement, he knew that he was suffering from Cardiac Asthma and heart ailment and that he had taken leave for treatment of the said diseases and had got himself treated. We postpone the answer to this question for the present. ( 84 ) WE now go to the next set of evidence, viz. , the evidence of D. Ws-3 to 6 and exs. D-4, D-5 and D-6. ( 85 ) ACCORDING to the defendant, the assured had taken leave from 24-4 -1967 to 27-4-1967 under leave application (Ex. D-4) dated 24-4-1967 for treatment of Asthma; that he took leave for 4 days in the month of september 1967 from 26-9-1967 to 29-9-1967 under leave application (Ex. D-5) dated 26-9-1967; and that he took leave for one day on 20-8-1968 under the leave application (Ex. D-6) dated 20-8-1968. These documents were produced by D. W-3 along with other documents marked as Exs. D-7 to D-46. They consist of leave applications filed by the assured between 6-12-1968 and 3-1-1972, the discharge certificate medical certificates, fitness certificates, joining reports, etc. D-6) dated 20-8-1968. These documents were produced by D. W-3 along with other documents marked as Exs. D-7 to D-46. They consist of leave applications filed by the assured between 6-12-1968 and 3-1-1972, the discharge certificate medical certificates, fitness certificates, joining reports, etc. We have to observe that though the Trial Court has held these documents would not be relevant, we cannot ignore the fact emerging from this body of documentary evidence duly proved by the defendant that the assured took leave for treatment of Asthma and corpul Moale (congestive cardiac failure); that he took treatment as inpatient for the said diseases after Ex. D-59; and that eventually he died of the same diseases on 6-1-1972 in a hospital. This fact would have a bearing on the decision to be rendered on point No. 1 raised by us. Exs.-D-4, D-5 and d-6 (Ex. D-6 is not very much material, since it shows that the assured applied for leave for one day on 20th August, 1968 due to severe cough and cold) were tendered in evidence when D. W.-3, on being summoned, produced them and were marked as Exs. D-4, d-5 and D-6. The defendant sought to prove the hand-writing and signature of the assured on Exs-D-4, D-5 and D-6 from the evidence of D. W-6. A reading of the judgment would show that after the evidence was closed, a contention was raised on behalf of the plaintiff that the contents of Exs. D-4 to D-6 had not been proved in accordance with law and that; therefore, they should be excluded from consideration. The Trial Court, dealing with this contention, concluded that Exs. D-4, d-5 and D-6 had not been proved by the defendant. ( 86 ) IT is impossible to affirm the conclusion. ( 87 ) EXS. D-4 to D-6 are documentary evidence. Under Section 61 of the Indian evidence Act, the contents of documents may be proved either by primary or by secondary evidence. The defendant got produced the primary evidence to prove the contents of Exs. D-4 to D-6. It has to be noticed that the plaintiff, who commenced her evidence later, did not dispute the genuineness or authenticity of Exs. D-4 to d-6 marked as exhibits in the evidence of d. W-3 and referred to by D. W-6. The mode of proving the contents of documents is dealt with in sections 61 to 66. D-4 to D-6. It has to be noticed that the plaintiff, who commenced her evidence later, did not dispute the genuineness or authenticity of Exs. D-4 to d-6 marked as exhibits in the evidence of d. W-3 and referred to by D. W-6. The mode of proving the contents of documents is dealt with in sections 61 to 66. The mode of proving the genuineness of the document produced as evidence is dealt with in sections 67 to 73 of the Indian Evidence Act. Section 67 refers to documents other than documents required by law to be attested. It says that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. ( 88 ) IN this case, the defendant sought to prove the contents of Exs. D-4 to D-6 by getting the primary evidence produced through the evidence of D. W-6 and by circumstantial evidence. ( 89 ) THE three leave applications, Exs. D-4, d-5 and D-6, were marked as such, as observed earlier, in the evidence of D. W-3. The Supreme Court in SAIT TARAJEE khimchand AND OTHERS, Appellants v YELAMARTI SATYAM AND OTHERS, respondents : AIR 1971 SC 1865 , has laid down that mere marking of a document as an exhibit does not dispense with its proof. There was no objection and indeed, there could not have been any objection by the plaintiff for the admissibility of Exs. D-4 to d-6 in evidence. They were relevant to the controversy under enquiry and, therefore, admissible in evidence. It was contended on behalf of the plaintiff that the mode of proof putforward by the defendant was insufficient and the objection was taken at the trial. D-4 to d-6 in evidence. They were relevant to the controversy under enquiry and, therefore, admissible in evidence. It was contended on behalf of the plaintiff that the mode of proof putforward by the defendant was insufficient and the objection was taken at the trial. The ordinary methods of proving the hand-writing are : (1) by calling as a witness a person who wrote the document or, (2) saw it written, or signed or, (3) who is qualified to express an opinion as to the handwriting by virtue of Section 47; (4) by a comparison of handwriting as provided in Section 73; (5) by the admission of the person against whom the document is tendered; (6) by expert evidence under Section 45; (7) by internal evidence afforded by the contents of the document; and (8) if signature or handwriting is to be proved by circumstantial evidence, the Court should be satisfied that the circumstantial evidence irresistibly leads to the inference that the person in question must have signed or written it. Section 47 of the Evidence Act deals with the question of identification of hand-writing. Hand- writing may be proved by the opinion of any person who is acquainted with the handwriting of the man alleged to have written the document. A person may be acquainted with the handwriting of another person in three ways, viz. , (1) when he has seen that person write; (2) when he has received communication purporting to be written by that person in answer to documents purporting to be written by himself, although neither of them saw each other write; or (3) when in the ordinary cause of business, documents purporting to be written by that person have been habitually submitted to him. ( 90 ) IN this case, D. W-6 went before the trial Court claiming that he was acquainted with the handwriting and signature of the assured, since he had seen the assured writing and signing. ( 91 ) IT is in the evidence of D. W-6 that he knew the assured since 1966; that he was familiar with the handwriting and signature of the assured; that he had an account in the madikeri branch of the Vijaya Bank; that he used to go the office of the assured; and that he had, on several occasions, seen him writing and making signatures. It is also in his evidence that Exs. It is also in his evidence that Exs. D-4 to D-7 are in the hand and bear the signature of the assured. He has also identified the handwriting and signature in Exs. D-9, D-11, D-14, D-16 to D-19, D-23 to D-29, D-31 to D-36, D-39 to D-44 and d-46 as that of the assured. It was this witness in whose presence the assured put his signature on Exs. D-58 and D-59. ( 92 ) IT is by now well settled that when a witness states in his examination chief that he is acquainted with the handwriting of a person, it would be for the other side to show by cross-examination that the witness was really incompetent to testify under Section 47 of the Evidence Act. (Vide the principles laid down in SHYAM PRATAP RAM missir, APPELLANT v BENI NATH dubey AND OTHERS, Respondents : air (29) 1942 Patna 449 ; Pusaram and others Appellants v Manmal and others, respondents : AIR 1952 Rajasthan 102; affirmed by a Division Bench in Special appeal reported in AIR 1955 Rajasthan 186. ( 93 ) LET us see now whether the cross-examination of D. W-6 has brought out any material to show that he is not a competent witness to testify to the handwriting and signature of the assured. ( 94 ) IT is very pertinent to note that the claim of D. W-6 that he was familiar with the handwriting and signature of the assured was not questioned. His claim that he had an account in the Madikeri branch of the Vijaya bank and that he used to go the branch and had, on several occasions, seen the assured writing and making his signatures, was denied in the form of a suggestion that he had no account with the Madikeri branch. The Trial Court chose to disbelieve D. W-6 on the ground that no documentary evidence had been produced to show that D. W-6 had bank accounts and that D. W-6 could not have an occasion to see the assured writing and making his signature. It is rather difficult to accept the reasoning. D. W-6 knew the assured since 1966 and claimed familiarity with the handwriting and signature of the assured. A person may be acquainted with the handwriting of another person when he has seen that person write. The evidence, being not traversed, commends for acceptance. It is rather difficult to accept the reasoning. D. W-6 knew the assured since 1966 and claimed familiarity with the handwriting and signature of the assured. A person may be acquainted with the handwriting of another person when he has seen that person write. The evidence, being not traversed, commends for acceptance. Absence of documentary evidence to prove that D. W-6 had an account in the Madikeri branch cannot detract from accepting the evidence of D. W-6 against whom nothing is alleged and nothing could be alleged. There is nothing to disbelieve the evidence of D. W-6 on the point. The Trial court has proceeded to observe without any basis that even if D. W-6 had bank accounts, he would have been going to the bank to deposit money and to withdraw money and could not have any occasion to see the assured writing down documents and making the signature. For variety of reasons, D. W-6 might have had occasion to visit the branch in addition to operate his own account. Add to that, it is not the case of D. W-6 that he had seen the assured writing and making signatures only on his visits to the branch to operate his account. The Trial Court, without appreciating the evidence of D. W-6 in the proper perspective, held that D. W-6 was not a competent witness to speak to the handwriting and signature of the assured on exs. D-4 to D-6. We find his evidence that he had seen the assured writing on several occasions in view of his acquaintance with the assured since 1966, acceptable. His evidence would prove the contents of exs. D-4 to D-6. ( 95 ) THE fact that the employees of the vijaya Bank in Madikeri branch would have been more competent to depose regarding the handwriting and signature of the assured admits of no exception. But the fact that they were not examined by the defendant could not be a ground to view the evidence of d. W-6 with suspicion or disbelief. ( 96 ) EXS. D-4 to D-6 are the leave applications, produced by D. W-3, the superintendent of the Vijaya Bank, administrative Office, Bangalore. But the fact that they were not examined by the defendant could not be a ground to view the evidence of d. W-6 with suspicion or disbelief. ( 96 ) EXS. D-4 to D-6 are the leave applications, produced by D. W-3, the superintendent of the Vijaya Bank, administrative Office, Bangalore. The Trial court rightly held that the assured, being in the employment of the Vijaya Bank, if were to absent from duty had to apply for leave to the Administrative Office and if he wanted medical leave, had to append the medical certificate. It also rightly held that Exs. D-4 to d-6 had been produced from proper custody. ( 97 ) IN our view, the handwriting and signature of the assured on Exs. D-4 to D-6 can be said to have been proved by circumstantial evidence. The circumstantial evidence is so cogent, satisfactory and consistent that leads to the inference that the assured must have written and signed exs. D-4 to D-6. ( 98 ) A careful reading of Exs. D-4 to D-6 would show that the leave applications were forwarded to the Administrative Office by the Officer empowered to forward such applications and that the applications were processed and ultimately the leave applied for by the assured was sanctioned by the sanctioning Authority, except in respect of ex. D-4, which, it appears, was processed, there is no signature of the Sanctioning authority. ( 99 ) THIS internal evidence afforded by the contents of the documents would prove the contents. The Trial Court has missed this aspect of the matter. Though it referred to the enunciation made by the Supreme Court in SHRI BARU RAM, Appellant v SMT. PRASANNI AND OTHERS,'respondents : AIR 1959 SC 93 , it failed to examine whether the enunciation was applicable to the facts brought on record. In our view, the enunciation :" (10) Mr. Doabia fairly conceded that there was no legal evidence on this point; but his argument was that from the other findings of fact recorded by the High court it would be legitimate to infer that the appellant had made the said signature. In our opinion this contention is wholly untenable. It must be borne in mind that the allegation against the appellant is that he has committed a corrupt practice and a finding against him on the point would involve serious consequences. In our opinion this contention is wholly untenable. It must be borne in mind that the allegation against the appellant is that he has committed a corrupt practice and a finding against him on the point would involve serious consequences. In such a case, it would be difficult to hold that merely from the findings recorded by the high Court it would be legitimate to infer that the appellant had signed the form and had in fact appointed Puran Singh as his polling agent. Mr. Doabia argues that it is not always absolutely necessary to examine an expert or to lead other evidence to prove handwriting. It would be possible and legal, he contends, to prove the handwriting of a person from circumstantial evidence. Section 67 of the indian Evidence Act (1 of 1872) provides inter alia that if a document is alleged to be signed by any person the signature must be proved to be in his handwriting. Sections 45 and 47 of the said Act prescribed the method in which such signature can be proved. Under S. 45, the opinion of the handwriting experts is relevant while under S. 47 the opinion of any person acquainted with the handwriting of the person who is alleged to have signed the document is admissible. The explanation to the section explains when a person can be said to be acquainted with the handwriting of another person. Thus, there can be no doubt as to the manner in which the alleged signature of the appellant could and should have been proved; but even assuming that the signature of the appellant can be legally held to be proved on circumstantial evidence the principle which governs the appreciation of such circumstantial evidence in cases of this kind cannot be ignored. It is only if the court is satisfied that the circumstantial evidence irresistibly leads to the inference that the appellant must have signed the form that the court can legitimately reach such a conclusion. In our opinion, it is impossible to accede to Mr. Doabia's argument that the facts held proved in the high Court inevitably lead to its final conclusion that the appellant had in fact signed the form. In our opinion, it is impossible to accede to Mr. Doabia's argument that the facts held proved in the high Court inevitably lead to its final conclusion that the appellant had in fact signed the form. It is clear that in reaching this conclusion the High Court did not properly appreciate the fact that there was no legal evidence on the point and that the other facts found by it cannot even reasonably support the case for respondent 1. We must accordingly reverse the finding of the High Court and hold that respondent 1 has failed to prove that the appellant had committed a corrupt practice under S. 123 (7) (c) of the act. " (Emphasis supplied) is applicable on all fours to the facts of this case. ( 100 ) THE circumstantial evidence is so strong that it leads to the inevitable inference that Exs. D4 to D-6 are by the assured, bearing his signatures. The conclusion would be logical, legal and legitimate. ( 101 ) IN our view, the Trial Court was not correct in holding that the contents of exs. D-4 to D-6 are shown to be untrue by the evidence adduced by the defendant itself. The evidence to which the Trial Court has made reference is Ex. D-48, the extract of the leave account. Here again, the Trial Court committed an error in concluding that Exs. D-4 to D-6 do not represent the real state of affairs relying on Ex. D-48 without noticing the infirmities appearing in it. Ex. D-48 claims to show the leave availed of by the assured on grounds of health from 1-9-1965 to 30-9-1968. It shows that during the month of September, 1967, the assured had taken leave for 3 days from 26-9-1967 to 28-9-1967. This accords with the contents of Ex. D-5 except in respect of 29-9-1967 date for which the assured had asked for leave. Ex. D-48 shows that in the month of August, 1968, the assured had availed of leave for one day on 20-8-1968. Ex. D-6 agrees with it. The fact that the assured had applied for leave from 26-9-1967 to 29-9-1967 deserves to be accepted in preference to Ex. D-48. A reading of Ex. Ex. D-48 shows that in the month of August, 1968, the assured had availed of leave for one day on 20-8-1968. Ex. D-6 agrees with it. The fact that the assured had applied for leave from 26-9-1967 to 29-9-1967 deserves to be accepted in preference to Ex. D-48. A reading of Ex. D-5 would show that the assured had 4 days casual leave to his credit and that he had availed of the same in anticipation of sanction and the Sanctioning authority granted 4 days casual leave. With the possibility of some mistake in preparing ex. D-48 with reference to the leave taken by the assured in the month of September, 1967, being not excluded, the Trial Court ought not to have made the discrepancy a ground to discard Ex. D-5. ( 102 ) A reading of Ex. D-4 would show that on the date of Ex. D-4, the assured had 12 days casual leave to his credit; that by the time Ex. D-4 came to be processed, the assured had availed of 4 days leave in anticipation of sanction and that the sanctioning Authority made no order granting the leave. It appears, precisely for this reason, Ex. D-48 is silent with regard to the availment of casual leave by the assured in the month of August, 1967. That apart, the reasonable probability of Ex. D-4 not faithfully representing the correct state of affairs is not excluded. K. Venkataramanayya (D. W-4), who testified that Ex. D-48 was prepared in his Office and was certified by him to be correct, had to admit in the cross-examination that Ex. D-48 does not bear his signature. A document like Ex. D-48, which does not bear any stamp of authenticity with the admitted incorrect record it displays with regard to the days of leave taken by the assured in the month of september, 1967 and the reasonable probability of not recording the leave particulars of the assured availed of in the month of August, 1967, cannot outweigh the contents of Exs. D- 4, D-5 and D-6 whose authenticity and genuineness cannot be impeached which stand duly proved. It would be too much to assume that the Vijaya bank would go in the hands of the defendant to fabricate documents to the disadvantage of the estate of its erstwhile employee or his legal representatives. D- 4, D-5 and D-6 whose authenticity and genuineness cannot be impeached which stand duly proved. It would be too much to assume that the Vijaya bank would go in the hands of the defendant to fabricate documents to the disadvantage of the estate of its erstwhile employee or his legal representatives. ( 103 ) WE, therefore, hold that the defendant has duly proved Exs. D-4, D-5, and D-6 and that the proved documents show that the assured had taken 4 days casual leave from 24-4-1967 to 27-4-1967 due to his inability to attend the office on account of sudden attack of Asthma; that being unable to attend the office on account of being afflicted with asthma, the assured had taken leave for 4 days in the month of September, 1967 (from 26-9-1967 to 29-9-1967) and that in the month of August, 1968, he had a day's casual leave on 20-8-1968 because of cough and cold. ( 104 ) IT is clear from the evidence of d. W-6 and Ex. D-59 that the assured stated that he had not consulted any medical practitioner within five years preceding 28-9-1968; that he had not suffered from persistent cough, Asthma, pneumonia, pleurisy, spitting of blood, tuberculosis or any affection of lungs; that he had not remained absent from work on grounds of health during the two years period preceding the date of proposal and personal statement; that he had been in any hospital, asylum, sanitorium for check-up, observation, treatment or an operation and that he had no usual medical attendant by way of answers to question Nos. 4 (d), 6 (b), 8 (a), 9 (b) and 10 respectively of the questionnaire printed in ex. D-59. There is no denial that Exs. D-58 and D-59 were the basis of the contract between the assured and the defendant and, therefore, material parts of the contract. The evidence adduced by the defendant has shown that on material matters, there was statement and that the assured had suppressed the facts which it was material to disclose. ( 105 ) THE question that survives for consideration is : Whether the statement made by the assured on material matters was made by the assured with knowledge at the time of making the statement that it was false? ( 106 ) THE assured was working as a Branch manager in the Vijaya Bank, A literate. ( 105 ) THE question that survives for consideration is : Whether the statement made by the assured on material matters was made by the assured with knowledge at the time of making the statement that it was false? ( 106 ) THE assured was working as a Branch manager in the Vijaya Bank, A literate. He had taken leave for 8 days in the months of august and September, 1967, being unable to attend his duties on account of sudden attack of Asthma and being down with Asthma. He had taken treatment from dr. Nanjundeshwara (D. W-2) from 25-9-1968 to 28-9-1968 for cardiac Asthma and dilation of heart. Cardiac is pertaining to the heart or to esophageal opening of the stomach. Asthma is a term used to mean "difficult breathing". It also denotes 'bronchial'. In view of these facts, it is difficult to hold that he did not know when he made the personal statement as per Ex. D-59 that he was suffering from Asthma and dilation of heart. The answers given by him to the material questions in Ex. D-59, adverted to earlier, were to his knowledge. We find it impossible to hold that the assured had forgotten his absence from work on grounds of Asthma in 1967, and the fact of he having taken treatment from D. W-2 from 25-9-1968 to 28-9-1968. As a matter of fact, he took treatment from D. W-2 even on the date of proposal and personal statement. The medical attendant was D. W-2. When under his own hand he had written leave applications, asking for casual leave on the ground of his inability to attend the office because of Asthma. We find it difficult to accept the contention of the learned counsel for the plaintiff that by giving the negative answers to the various material questions referred to earlier, the assured cannot be said to have made a false statement. The evidence is almost conclusive to show that on 28-9-1968 the assured knew that the answers he was giving to the material questions were false. The evidence has clearly established that he suppressed the facts which it was material to disclose. ( 107 ) THE fraudulent intention in making false statement and in suppressing facts which it was material to disclose is apparent. The evidence has clearly established that he suppressed the facts which it was material to disclose. ( 107 ) THE fraudulent intention in making false statement and in suppressing facts which it was material to disclose is apparent. It would be difficult to invest the proposal for insurance with innocence when the material placed on record by the defendant has shown the falsity of the statement on material matters and concealment of facts that had bearing on the risk to be undertaken under the policy. Fraudulent intention is apparent. The reasoning of the Trial Court that the evidence of D. W-2 and 6 and the documentary evidence Exs. D-2, D-3 and D-4 to D-6 would not establish the requirements of the second part of Section 45 of the Act cannot be upheld. The support drawn from the evidence of D. W-6 by the Trial Court really does not support the plaintiffs case. D. W-6, a layman, though acquainted with the assured since 1966, could not have been able to see the diseases the assured was suffering from by mere external observance. As a matter of fact, if the assured was suffering from cardiac Asthma and dilation of heart, d. W-6, as a responsible officer of the defendant, would not have approached the assured for insurance. ( 108 ) HAVING examined the evidence in the light of the submissions made at the Bar, we are unable to uphold the findings of the Trial court on Issues Nos. 1 to 7, 9 and 12. The findings deserve to be reversed. ( 109 ) BEFORE concluding, one other question that arises in this case, requires to be considered. The policy was effected on 12- 11-1968. The assured died on 6-1-1972. The premia on the policy must have been regularly paid up. But the plaintiff sought no relief as regards this amount either alternatively or otherwise. Assuming that such a relief falls to be considered either in equity or at law, in view of the law laid down by the Supreme Court in Mithoolal Nayak's case, referred to earlier :" (11) This brings us to the last question, namely, whether the appellant is entitled to a refund of the money he had paid to the respondent company. Here again one of the terms of the policy was that all moneys that had been paid in consequence of the policy would belong to the company if the policy was vitiated by reason of a fraudulent suppression of material facts by the insured. We agree with the High Court that where the contract is bad on the ground of fraud, the party who has been guilty of fraud or a person who claims under him cannot ask for a refund of the money paid. It is a well established principle that courts will not entertain an action for money had and received. Where, in order to succeed, the plaintiff has to prove his own fraud. We are further in agreement with the High court that in cases in which there is a stipulation that by reason of a breach of warranty by one of the parties to the contract, the other party shall be discharged from the performance of his part of the contract, neither S. 65 nor S. 64 of the Indian Contract Act has any application. "the plaintiff would not be entitled to any such relief. But the refund of such amount lies within the discretion of the defendant as per the provisions of the Act. Since it is clearly a matter left to the discretion of the defendant, we do not wish to say anything more about it except expressing the hope that the defendant would consider the question of refund of the amount received as premia to the plaintiff in view of the facts and circumstances of the case. ( 110 ) FOR the reasons stated earlier, we record our findings in the affirmative on points Nos. 1 and 2 and in the negative on point No. 3. The appeal is entitled to succeed. It is, therefore, allowed. The judgment and Decree under appeal are set aside. The suit, out of which this appeal has arisen, shall stand dismissed. On the facts and in the circumstances of the case, we direct the plaintiff and the defendant to bear their respective costs both here and in the Court below. Appeal allowed. --- *** --- .