G.K.Mitter, J. - (1.) This suit is based on a claim against an insurance company for loss of the plaintiff's property caused by erosion of the river Ganges at Dhulian. The defence put forward is that very soon after its acceptance the risk was cancelled under condition No. 10 of the defendant's standard policy of insurance for loss by fire and various other causes.
(2.) The plaintiffs describe themselves as the kartas of a joint Hindu family governed by the Mitakshara School of Hindu law carrying on business under the name and style of Chandmull Lalchand at Anupnagar Bazar, Dhulian in the District of Murshidabad. The cause of action as laid in the plaint is as follows; (a) By two several proposals in writing both, dated 2-6-1950 the plaintiffs made proposals for insurance against loss or damage by fire, Cyclone, flood, change of course of river and/or erosion of river, land slides and subsidence to the extent of the sums of Rs. 51,000/- & 65,000/- on two several sets of houses and property belonging to the plaintiffs in Dhulian Municipality from 3-6-1950 to 3-6-1951. (b) The said proposals were accepted by the defendant. (c) The defendant well knew that the proposals were made on the basis and condition that the policy would not be cancelled or the risk declined during the said period of one year; a representation, promise or assurance was made by the defendant to the plaintiff that the said policy would not be cancelled or the risk declined during the abovementioned period and the plaintiffs acted upon such representation to their detriment. (d) The defendant issued two several cover notes respectively numbered 18848 and 18850 both dated 5-6-1950 and received premia in respect of the two proposals and became bound to issue and deliver a policy or policies for the two sums of Rs. 51,000/-and Rs. 65,000/- respectively. (e) The said two notes in so far as they purported to entitle the insurer to decline the risk were invalid. (f) Towards the end of June 1950 the river began to erode the town of Dhulian after which by a letter dated 6-7-1950 the defendant wrongfully purported to cancel the risk and the said two cover notes under Clause 10 of the conditions of their policy, (g) The standard policy of the defendant was not applicable to the contract between the parties and clause 10 thereof had never been agreed to and was of no effect. (h) The buildings and properties covered by the said two cover notes and policies numbering 444T7 and 44418 were completely washed away in the middle of August 1950. (i) In the premises the defendant was liable to indemnify and make good the loss to the plaintiff to the extent of the said two sums totalling Rs. 1,16,000/-.
(3.) By the written statement filed herein the insurer admitted the making of the proposals and the acceptance thereof but such proposals were alleged to be subject to the terms and conditions of the cover notes issued and to the usual terms and conditions of the defendant's fire policies, condition No. 10 whereof ran as follows: "This insurance may be terminated at any time at the request of the Insured, in which case the Society will retain the customary short period rate for the time the Policy has been in force. This insurance may also at any time be terminated at the option of the Society, on notice to that effect being given to the Insured, in which case the Society shall be liable to repay on demand a rateable proportion of the premium for the unexpired term from the date of cancelment". The defence relied on is that by writing dated 6-7-1950 both the cover notes were cancelled and the risk declined by the defendant and as such the plaintiffs have no cause of action. The defendant further denies having made any representation, promise or assurance as mentioned in the plaint or the plaintiffs having acted thereon or suffered any loss or injury as a result thereof.;