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 Sept. 1975 passed by the learned 10th 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 learned subordinate Judge, Nadia, against the defendant/appellant for recovery of Rs. 10,000/- inter alia, alleging that one Mohd. Monoruddin S.K. 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 a 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 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 the suit for recovery of the said insured sum of Rs. 10,000/-.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 that Monoruddin gave his age as 47 years at the 5 time of the proposal of his Life Insurance Policy, but subsequent investigation revealed that he was aged about 70 years at that time and that he had been ailing for about a year before his death. So, his death was not due to sudden illness. The assured, therefore, according to the defendants, practised fraud upon the L.I.C. and as such the L.I.C. had no obligation to make payment to the nominee or to any other person the sum assured. .
(3.) 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. .;