D. V SHYLENDRA KUMAR, J. ( 1 ) THIS writ petition is presented against the Life Insurance Corporation of india challenging the action on the part of the respondent Corporation in repudiating the contract between one Appasaheb M. Gayakwad who died on 28-8-1998 and the corporation in respect of the Life Insurance policy No. 632317283 which the said person had taken out during his lifetime for a sum of Rs. 5. 00. 000/- ( 2 ) PETITIONER is the brother of the insured and also a person who is nominated in the policy. It appears that the wife and children of the deceased were nominated initially and later the nomination had been changed in favour of the petitioner, the brother of the deceased and to the exclusion of the wife and children. ( 3 ) AS per the directions of this Court on 22-2-2002 the wife and children were added as petitioners 2 to 5 to this petition. Petitioners are aggrieved by the repudiation of the contract and non-settlement of the amount due under the policy and have questioned the legality and correctness of the same. ( 4 ) THIS writ petition has a history in the sense that the 1st petitioner had approached this Court earlier by filing Writ Petition No. 11225/2000 complaining that the respondent corporation is passive, that it is not performing its obligation under the contract by settling the amount on the nominee notwithstanding the fact that the insured had died as on 28-8-1998 and in spite of several requests and demands the respondent had not settled the amount under the policy. ( 5 ) THAT writ petition came to be disposed of by this Court as per order dated 12th june. 2000 Annexure A to this writ petition directing the respondent Corporation to take a decision on the claim that had been put forth by the petitioner under the policy referred to above which had been taken out by the late Appasaheb M. Gayakwad. ( 6 ) IT is subsequent to such directions that the respondent Corporation as per their communication dated 8-8-2000 copy at annexure Q indicated that the Corporation is repudiating all its liabilities under the policy on account of the Insured having withheld material information regarding his health at the time of seeking insurance with the Corporation. ( 6 ) IT is subsequent to such directions that the respondent Corporation as per their communication dated 8-8-2000 copy at annexure Q indicated that the Corporation is repudiating all its liabilities under the policy on account of the Insured having withheld material information regarding his health at the time of seeking insurance with the Corporation. The communication of repudiation inter alia pointed out that the declarant had not truly and correctly answered several questions as under :" 11 (a) During the last five years did you consult a Medical Practitioner for any ailment requiring treatment for more than a week? (B) Have you ever been admitted to any hospital or nursing home for general checkup, observation, treatment or operation? (C) Are you suffering from or have you ever suffered from diabetes, Tuberculosis, high blood pressure, Cancer, Epilepsy, Hernia, hydrocele. Leprosy or any other disease?d) What has been your usual state of health?" ( 7 ) IT was pointed out that the answers given by the declarant to all the questions were false and the Corporation is in a position to show that 2 months before the insured proposed the policy he was suffering from AIDS for which he had consulted, and even if it was for blood test, not disclosing this factual information in the proposal/ personal statement, had given cause to the corporation to repudiate the contract. The corporation claims that it has repudiated all its liabilities under the policy and that it is not inclined to make any payment under the policy and whatever the amount that had been paid by way of premium also belongs to the Corporation. Petitioner was also informed that if the decision was not acceptable a representation may be made to the 1st respondent within 30 days from the date of receipt of the communication. However petitioner has come up to this Court by filing this writ petition. ( 8 ) ON issue of notice to the respondent corporation. Corporation has entered appearance and filed its statement of objections. Writ petition is contested. However petitioner has come up to this Court by filing this writ petition. ( 8 ) ON issue of notice to the respondent corporation. Corporation has entered appearance and filed its statement of objections. Writ petition is contested. It is primarily asserted that the writ petition of this nature is not tenable, that the petitioner is trying to enforce the terms of the contract by filing a writ petition, that the Corporation has taken a conscious dession to repudiate its liability under the policy after having conducted preliminary investigation in this regard and the locus of the 1st petitioner was disputed for the purpose of getting any relief and also the policy amount that the Corporation had substantial material before it to indicate the Insured was an hiv positive patient, that he had consulted the National AIDS Research Institute at Pune prior to furnishing the declaration form and had withheld this information which the insured was required to furnish; that the National aids Research Institute is a highly specialised research Institute and visiting of such institute by the declarant prior to the filing of the declaration and the information in the declaration was very relevant and a material information which was required to be given in the declaration but was in fact suppressed, that suppression of such material information prevented the Corporation from investigating further into the matter even for issue of policy itself, that the clinching material such as a certificate or statement by the Research Institute itself that the insured had undergone treatment at the Institute before the policy was taken was not forthcoming as the said Institute had declined to part information which according to the Institute amounts to disclosing confidential information about a client/patient under any circumstances; that in the circumstances petitioners did not deserve any relief in the present writ petition and writ petitions deserve to be dismissed. ( 9 ) A few facts and dates which culminated in the filing of the above writ petition are that the insured had proposed two forms one dated 21-10-1995 and another dated 29-10-1996 for the amount of Rs. 5,00,000/- while the 1st proposal did not fructify into a contract by issue of any policy, the subsequent proposal dated 29-10-1996 did conclude into a contract and the Life Insurance corporation of India issued the policy dated 28-11-1996. The insured died on 28-9-1998. 5,00,000/- while the 1st proposal did not fructify into a contract by issue of any policy, the subsequent proposal dated 29-10-1996 did conclude into a contract and the Life Insurance corporation of India issued the policy dated 28-11-1996. The insured died on 28-9-1998. ( 10 ) I have heard Sri Anant Mandgi, learned Counsel for the petitioners and Sri r. Rajagopalan, learned Counsel for the respondent-Corporation. ( 11 ) SUBMISSION of Sri Anant Mandgi, learned Counsel for the petitioners is that the respondent has not acted in a bona fide manner in repudiating the contract, that the policy which had been taken in the year 1996 was sought to be repudiated in terms of the communication dated 8-8-2000 almost 4 years after issue, that it was not open to the respondent-Corporation to repudiate the policy beyond the period of two years from the date of its issue, that the respondent-Corporation cannot deny the benefit to the nominee/persons entitled to under the policy on the death of the insured and as such communication under Annexure Q dated 8-8-2000 should be quashed and the corporation directed to make payment of the amount under the policy expeditiously. ( 12 ) IT is also the submission of learned counsel for the petitioners that on the available material it cannot be said that the petitioner had deliberately suppressed any material fact nor can it be said that the petitioner had given false declaration by giving inaccurate or wrong information to his knowledge and as such the Corporation is not justified in repudiating the contract. Learned Counsel has in this regard relied upon the decision of the Supreme Court in the case of Life Insurance Corporation of india v. Asha Goel (Smt.) reported in (2001) 2 SCC 160 : ( AIR 2001 SC 549 ). Learned counsel submits that it is open to the writ court to examine the action of the respondent-Corporation in repudiating the policy and it is not necessary that the beneficiary of the policy should always be driven to the plight of approaching the civil Court for enforcement of the benefit under the policy. Learned Counsel submits that on the principles enunciated in this decision this Court not only can examine the legality of the communication at Annexure Q but also can issue suitable direction if so warranted. Learned Counsel submits that on the principles enunciated in this decision this Court not only can examine the legality of the communication at Annexure Q but also can issue suitable direction if so warranted. ( 13 ) COUNTERING this submission Sri R. Rajagopalan, learned Counsel for the respondent-Corporation vehemently submitted that in the first instance writ petition of this nature should not be entertained particularly when the Corporation has fully justified its bona fides in repudiating the contract. It is the submission of learned Counsel that in all cases where death occurs even within 3 years from the date of issue of the policy, a detailed investigation is a must to ascertain the reason for the death and the background and also as to the correctness or otherwise of the information furnished in the declaration. Sri Rajagopalan has drawn specific attention of the Court to the answer given by the insured in Clauses 11l (b) and 11 (1) In the declaration and has submitted that the answers given by the insured to these questions was not only incorrect but was within the knowledge of the declarant that he has given false information. Learned Counsel submits that this aspect is very clear not only from the material that the petitioner himself has placed before the court but also from the response that he had received from the Research Institute at pune. Learned Counsel while drawing my attention to Annexure R 5 dated 22-8-2000 annexed to the statement of objections addressed to the Senior Divisional Manager of the Corporation from Dr. R. S. Paranjape, officer-in-charge indicating that the Institute is not in a position to accede to the request for sending copies of the latest blood report as it is a matter conflicting with their principles of confidentiality and that the requisite information can be provided if there is a direction by this Court in the writ petition that had been filed, submits that such reply in itself is indicative of the fact that the Insured was suffering from serious ail-merit even at the time when he was referred to the Institute for further investigations. Learned Counsel has also drawn my attention to the communication dated 18th September. 2000 and the accompanying letter received from the Joint Director, Ministry of health and Family Welfare, New Delhi addressed to Dr. Learned Counsel has also drawn my attention to the communication dated 18th September. 2000 and the accompanying letter received from the Joint Director, Ministry of health and Family Welfare, New Delhi addressed to Dr. R. S. Paranjape in the context of revealing information about one of the patient and as the person in fact died subsequently it may not be of any consequence to know as to whether he died due to AIDs or otherwise. It is the submission of sri R. Rajagopalan, that on a conjoint reading of these communications it is very obvious that the insured had not only consulted the Research Institute at Pune but had undergone tests and advised for treatment and ultimately he died of HIV, that this information the insured has suppressed and therefore the Corporation is fully justified in repudiating the contract. ( 14 ) THE communications which have been referred to above and on which reliance has been placed on behalf of the Corporation are communications which are in fact subsequent to the repudiation itself which was on 8-8-2000. The submission on behalf of the Corporation is obviously to buttress its conclusion to repudiate the contract by placing reliance on such material, gathered subsequent to the repudiation itself. ( 15 ) EVEN if it is established that the insured did in fact die of AIDs on 28-9-1998 it does not necessarily follow that the person was very much aware that he was suffering from such ailment when he furnished declaration on 29-10-1996. It does not unequivocally follow that the person had such knowledge on the day when he furnished the declaration. It may or may not be that he was aware when he had consulted the research Institute at Pune but that again does not necessarily lead or follow that the person himself was aware that he was being directed to get aid or consultation for suspected AIDs or HIV. ( 16 ) SRI Rajagopalan learned counsel for the respondent-Corporation also submits that the Corporation can very well establish this aspect even now, that this Court normally does not permit letting in of evidence on disputed facts and it is for this reason that the Corporation has not chosen to place before this Court further corroborating material to substantiate its version that the insured in fact died of HIV+ve. ( 17 ) THE real issue in a writ petition of this nature is as to whether any interference is warranted in the context of the decision taken by the Corporation to repudiate its liability under the policy; if the repudiation is a bona fide repudiation in the circumstances, whether prima facie such a decision Warrants the interference of this court in the exercise of jurisdiction and if so what further directions? It is no doubt true that this Court will not normally interfere with such matters particularly in the exercise of jurisdiction under Art. 226 of the constitution but the parties will be relegated to establish their rights before the Civil Court and to seek relief, if there are disputed facts warranting examination of evidence to be placed by the parties. ( 18 ) IN a matter of this nature what is required to be established by the Corporation on whom burden is quite heavy particularly as the Corporation is relying upon the later clause of Section 45 of the Insurance act to repudiate the contract which reads as under :"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 an 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 is suppressed facts which it was material to disclose. "is as to whether it can reasonably inferred that the Corporation has acted in a bona fide manner in repudiating the contract on an examination of the material available with the Corporation when it took the decision. "is as to whether it can reasonably inferred that the Corporation has acted in a bona fide manner in repudiating the contract on an examination of the material available with the Corporation when it took the decision. ( 19 ) THE assertion of Sri Rajagopalan, learned Counsel for the respondent-Corporation is that as the suppression is of the material fact the Corporation is entitled to go back on the policy even after a period of 2 years from the date of its issue in terms of the later provision of Section 45. ( 20 ) RESPONDENT-CORPORATION is. actually accusing the insured of committing fraud and indulging in material suppression. The law in this regard is that the person who asserts that person has to prove it. The material that the Corporation has now placed before the Court does not clearly clinch this aspect in favour of the Corporation. It is no doubt true that the Corporation has some doubt but it does not lead to the irresistible conclusion that there was a fraud on the part of the insured or that he has deliberately suppressed a material fact. On a reading of Communication at Annexure q and the other related communications it gives the impression that the Corporation had concluded that the person died of HIV and therefore they are fully justified in repudiating the contract and in fact such formation of the opinion is for the basis for repudiation. Unfortunately though the factual position is that the insured person died of hiv AIDs as on 28-9-1998 but it does not necessarily lead to any other factual inference that the person was aware of this position as on 29-10-1996 when he filed the declaration. What is required to be established by the Corporation is that the declaration furnished by the insured is one which is factually incorrect to the knowledge of the declarant and for the purpose of misleading the Corporation in the sense of obtaining a policy in contemplation of death or with the knowledge that the person is running a risk against his life. On the material placed by the Corporation this inference does not necessarily follow at all. On the material placed by the Corporation this inference does not necessarily follow at all. The repudiation to be sustained on applying the principles laid down by the Supreme Court in Asha Goel's case ( AIR 2001 SC 549 ) referred to above should be one which can clearly and squarely falls within the later provisions of s. 45 that there was suppression etc. , and a mere inaccuracy or falsity in respect of some recitals or items in the proposal is not sufficient. The burden of proof is on the insurer to establish these circumstances and unless the insurer is able to do so there is no question of the policy being avoided on ground of misstatement of facts. Further for attracting the second part of S. 45 the three conditions namely (a) the statement must be on a material matter or suppress facts which it was material to disclose (b) the suppression 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, have not been clearly made out in this case. However i should Inter a caveat in this regard. There are several circumstances indicating that the policy might have been taken with some knowledge of things to come. A policy for a large amount was taken namely for a sum of Rs. 5 lakhs where as the insured had disclosed that his income is from agricultural farm; that the nomination which was in favour of the wife and children was later got changed in favour of the brother of the insured; that the insured had undergone tests and certain treatment prior to the taking out of the policy all give room for suspicion. It is not that this fact by itself can affect the validity of the policy one way or the other but such circumstances warrant closer scrutiny of the fact. This is not an aspect which can be gone into further by this Court in the present proceedings. It is not that this fact by itself can affect the validity of the policy one way or the other but such circumstances warrant closer scrutiny of the fact. This is not an aspect which can be gone into further by this Court in the present proceedings. ( 21 ) THE Justification for repudiating the contract as indicated in the statement of objections filed on behalf of the respondent-Corporation is that the policy-holder had actively conceded certain facts that even it is acknowledged which he was required to reveal at the time of tiling of declaration and as such the contract is vitiated by an act of fraud on the part of the insured and voidable at the Instance of the Corporation. ( 22 ) IT is no doubt true that if the averments of the respondent-Corporation is to be accepted at its face value it cannot be said that the Corporation is repudiating the contract either arbitrarily or without any justification. However it is also a well-established principle that the onus of making good any allegation of fraud is on the person pleading fraud and that too by cogent evidence. On the material placed before this court It is not possible for this Court to give a finding of fraud having been committed by the insured. It may be possible for the respondent-Corporation to make good its plea by cogent evidence but the question is who has to suffer till such a determination is made. I am of the view that as between the petitioner and the respondent-Corporation it should not be to the detriment of the petitioners pending such determination. It is under such circumstances that the Corporation is being directed to make payment in terms of the policy tentatively and is being given an opportunity to make good its plea of fraud by filing a suit for declaration that the contract is one voidable because of practice of fraud on the part of the insured. ( 23 ) THE amount due on the policy and payable to the petitioners shall be deposited in a nationalised bank at Harugeri, raiba Taluk in a term deposit for a period of 3 years. ( 23 ) THE amount due on the policy and payable to the petitioners shall be deposited in a nationalised bank at Harugeri, raiba Taluk in a term deposit for a period of 3 years. The amount shall be subject to the out-come of the suit to be instituted by the Corporation if they so desire and the amount shall not be released to the petitioners if the Corporation should institute such a suit within a period of one year from the date of receipt of a copy of this order. If the Corporation should not file any such suit within a period of one year the Bank may release the amount in favour of petitioners 2 to 5 even prematurely if so requested by the petitioners after the period of one year. ( 24 ) LEARNED Counsel for the petitioners has also filed a memo indicating that the first petitioner, brother of the deceased will not putforth any claim in respect of the benefit under the policy; that the writ petition had been presented for the benefits of other petitioners, the wife and the children of the deceased and that the first petitioner will not make any claim for any part of the amount under the policy. The stand taken by the first petitioner which is also consistent with the legal provisions. The memo filed by the learned Counsel for the petitioners is received on record. ( 25 ) WRIT Petitions stand disposed of accordingly. ( 26 ) IN the circumstances parties to bear their own costs. Order accordingly. --- *** --- .