N.K. Mitra, J.
1. This Second Appeal is at the instance of the defendant/ appellant/Life Insurance Corporation of India (hereinafter referred to as 'L.I.C.'] and has been preferred against the judgment and decree of the lower appellate court dated 13th August, 1976 passed in Money Appeal No. 9 of 1975 reversing those dated 10th September, 1976 passed by the learned lOthe subordinate Judge, Nadia in Money Suit No.8 of 1973.
2. Shorn off all details, the facts of this Second Appeal inter alia, are that the respondent as plaintiff filed Money Suit No.8 of 1973 in the 10th Court of the leanred subordinate judge, Nadla, against the defendant/appellant for recovery of Rs, 10,000 inter alia, alleginig that one Mohd. Monoruddin Sk. took out a Life Insurance Policy worth Rs. 10.000 from the L.I.C. and the age of the assured was approved and accepted before the policy was issued.There was medical examination of the assured before the issuance of the policy and at the time of the policy, the age of the assured was assessed as 47 years. The assured made the plaintiff/respondent as his nominee in respect of the said Life Insurance Policy and the nomination was registered and approved. The first premium of the policy was duly paid and accepted by the L.I.C. Thereafter the assured suddenly fell ill and he died of heart failure due to dehydration from purging and vomiting within 24 hours, on July 6th. 1972. The death was duly informed to the L.I.C. after observing the necessary formalities. The plaintiff who was the nominee of the deceased assured, then preferred a claim to the L.I.C. for the sum insured by the assured, but the L.i.C. repudiated the said claim alleging that the assured had suppressed the fact of his ill health prior to the issuance of the Life Insurance Policy and he had given false information about his age. Accordingly, the plaintiff filed ihe suit for recovery of the said insured sum of Rs. 10.000.
3. The appellants as defendants contested the suit by filing a written statement alleging inter alia, that the suit as framed was not maintainable as the nominee could not file a suit against L.I.C. for the insurance dues. The defendants further alleged the Monoruddin gave his age as 47 years at the time of the proposal of his Life Insurance Policy, but subsequent investigation revealed that he was aged about 70 years at the time and he had been ailing for about a year before his death. So, his death was not dueto sudden illness. The assured, therefore, according to the defendants, practised fraud upon the L.I.C and as such the L.l.C had no obligation to make payment to the nominee or to any other person the sum assured.
4. In the suit, three issues were framed viz. :--
1. Is the suit maintainable in the present form?
2. Is the plaintiff entitled to the decree, as prayed for?
3. To what relief, if any, is the plaintiff entitled?
and all the issues were taken up together for decision.
5. So far as the issue on the mainlainability of the suit was concerned, the learned trail judge, however, after discussing the provisions of section 39 specially section 39(6) of the Insurance Act and also discussing the judgments cited at the bar held the mainlainability point in favour of the plaintiff/respondent observing that the suit as framed was maintainable.
6. However, the trial court observed that fraud was practised upon the Life Insurance Corporation of India in taking out a policy in the name of Monoruddin and such fraud vitiated the ontract and as such, the L.I.C was under no obligation to pay the policy amount. The trial court accordingly, dismissed the suit deciding issues Nos. 2 and 3 against the plaintiff.
7. In appeal, preferred by the plaintiff against such dismissal of suit, the lower appellate court, however, reversed the judgment and decree passed by the trial court and allowed the appeal after discussing the evidence on record at lengih and decreed the suit in favour of the plaintiff. The said Judgment and decree of the lower appellate court are the subject-matters of challenge in the present second appeal.
8. It is submitted by the learned counsel for the appellant infer alia, that even if money is withheld by the L.I.C. a stranger nominee has no right to file a suit, as he does not suffer anything and as such, there is no cause of action in the matter and in support of his contention refers to : [1984]1SCR992 (Sarbati Deui v. Usha Devty. The next submission of the learned counsel lor the appellant is that the falsity of the age declared by the insured was fully proved by his widow's deposition as well as the school leaving certificate issued in favour of the insured's son and where a insurance policy provides a clause of declaration of age and if a wrong declaration is given, it is a breach of the promissory clauses and in support of his said contention refers to the decision reported in 40 CWN 1016 (Light of Asia Ins. v. Karatoya DeuO- The last submission of the learned counsel for the appellant is, that when there was fraudulent suppression of material facts by the insured, inasmuch, as there was deliberate concealment of the actual age of the assured and about his actual state of health also false declaration was made by the insured before the policy was taken in the policy was vitiated by section 17 of the Contract Act, and as such, the person holding assignment of the policy and/or the nominee cannot claim benefit of any contract, as in such case, the assignee cannot stand on better footing than the assured. If the policy was vitiated by suppression of material facts, no obligation to refund of the money insured to the nominee by the Insurance Company accrued. Action for recovery of such money, in such circumstances, could not be entertained and in support of his contention referred to the judgment of theSupreme Court in : AIR1962SC814 (Mithoolal v. Life Insurance Corpn. of India).
9. Mr. Roychoudhury, the learned senior counsel, appearing on behalf of the respondent, however, contends inter alia, that the present second appeal is concluded by findings of fact, and that there was great disparity between the evidence of Saharan Bibi the widow of the assured and Exhibit T viz. the school leaving certificate of the son of the assured and as such, the appellate court rightly rejected the oral as well as documentary evidence adduced by the defendant/appellant in support of its case, since the evidence of the widow as well as Exhibit T viz. school leaving certificate if taken into account, would amount to that the widow was much below the child bearing age when her son was born.
10. In Sarabati Devi's case (supra) the Apex Court has merely said that a nomination made under section 39 of the Insurance Act (Act 4 of 1938) does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the insured. The notification only indicates the hand which is authorised to receive the amount, on the payment of which, the insurer gets a valid discharge of its liability under the policy.
11. The summary of the relevant provisions of section 39 establishes clearly the policy holder continues to hold interest in the policy during his lifetime and the nominee acquires no sort of interest in the policy during the lifetime of the policy holder. If that is so, on the death of the policy holder the amount payable under the policy becomes part of his estate which is governed by the law of succession applicable to him. Such succession may be testamentary or intestate. There is no warrant for the position that section 39 of the Act operates as a third kind of succession which is styled as a 'statutory testament'. The provision in sub-section (6) of section 39 which says that the amount shall be payable to the nominee or nominees, does not mean that the amount shall belong to the nominee or nominees. The language of section 39 is not capable of altering the course of succession under law.
12. In this case, however, the nominee did not claim any right, title or interest in the money of the insured. The suit was also not filed for a declaration of title, but it was merely a suit for a declaration that the nominee is entitled to receive the money, in our view, the suit as framed does not touch the right, title and interest of the heirs of the deceased assured or the eslaie of the assured so far as the insured amount is concerned. As per the above Supreme Court decision in : [1984]1SCR992 (supra) the nominee being the hand to receive the money after the assured's death, merely filed the above money suit for receiving the money and nothing else. Accordingly, we do not find any reason to deviate from the observations made by the courts below on the ground of maintainability of the suit as both the courts below had observed that the suit as framed was maintainable in law. So far as the other judgment cited by the learned counsel for the appellant being Mithoolal Nayak v. Life Insurance Corporation of India, : AIR1962SC814 is concerned, considering the facts and circumstances of this case and the evidence on record, it does not appear that there was fraudulent suppression of any material fact by the assured. The evidence of P.W. 1, a doctor, who was a life insurance doctor and examined the assured before the policy was taken, was candid in stating in his evidence that the assured appeared to be aged about 47 years whenhe had examined him. It does not appear that the assured had suppressed his real age at the lime of making the insurance policy. The third judgment cited on behalf of the appellant viz. Light of Asia Ins. v. Karaloya Devi, 40 CWN 1016 also does not help the appellants in any way as in our view. It does not appear that any untrue statement was made in answer to question formed in the policy of insurance by the assured to avoid the policy and/ or there was any breach of promissory clauses by the assured.
13. Moreover, the lower appellate court after a thorough discussion of the evidence as well as the other materials on record had allowed the appeal setting aside the judgment and decree of the trial court. This is a second appeal, and as such we should not go into evidence until and unless it is found that the judgment appealed against is a perverse one and so far as this second appeal is concerned, we find no perversity or illegality in the findings arrived at by the lower appellate court in the first appeal. That being so we can only hold that this second appeal is concluded by findings of fact and as such we are not inclined to interfere with the judgment and decree of the lower appellate court.
14. Accordingly, the appeal is dismissed without any order as to costs.
D.K. Basil, J.
15. I agree.
16. Appeal dismissed