A contract of insurance is frustrated when an event occurs which makes it impossible or illegal for the parties to perform their obligations under the contract.

CHOUDHARY, J.

1. This appeal by the defendants is directed against the judgment and decree of the Additional Subordinate Judge of Bhagalpur, whereby the suit of the plaintiff has been decreed.

2. The plaintiff, Mr. Lalit Mohan Ghosh, is an advocate ordinarily practising at Bhagalpur. Defendant No. 2 is Allianz Und Stuttgarter Life Insurance Bank Ltd., a German Firm, having had its branch office in India at Delhi. On the 17th July, 1930, the plaintiff got his life insured with defendant No. 2 under Policy No. H-2090 for a sum of Rs. 30,000, the annual premium payable being Rs. 2,212/8/- for 21 years or until his death if it occurred before that period.

On the 18th of June, 1935, the plaintiff took a loan of Rs. 3,700.00 from defendant No. 2 on the security of his insurance policy and on the 20th of June, 1938, he took another loan of Rs. 2,315 from defendant No. 2 on the same security. On the 26th of June, 1939, he again took a loan of Rs. 519 from defendant No. 2 on the security of his insurance policy.

Till the 31st of August, 1939, the plaintiff paid all premiums, and the total sum paid by that date comes to Rs. 21,571/14/-.

On the 3rd of September, 1939, war broke out between the British and the Germans, and the case of the plaintiff is that on the declaration of the said war the contract of insurance became frustrated. On the declaration of war, defendant No. 2 being an enemy firm, the Government of India closed its office. The Government of India, however, purporting to act under rule 113A of the Defence of India Rules, issued a notification, exhibit E(I), dated the 14th of December, 1939, authorising Messrs. A. P. Ferguson and Company, Chartered Accountants of Bombay (Defendant No. 1) to carry on the business of this firm subject to the conditions that defendant No. 1 "shall in the management of the said business, be accountable to the Central Government, and be subject to the superintendence, direction and control of the Central "Government, and shall not effect any new contracts of life insurance."

After defendant No. 1 took charge of the firm, there was some correspondence between the plaintiff and defendant No. 1, and the plaintiff paid his premiums from December, 1939, to November, 1940, amounting to Rs. 1,106/4/-.

On the 19th of September, 1943, the plaintiff wrote to defendant No. 1 that due to the declaration of war the contract had become void and he was entitled to get back the amount paid by him after setting off the dues of defendant No. 2 based on the loans taken by the plaintiff, but as defendant No. 1 denied the claim of the plaintiff, he instituted the present suit for, amongst others, the following reliefs: (1) Accounts from defendant No. 2 on the basis of the plaintiffs policy with profits or compensation on the premiums paid on it and of the loans advanced by defendant No. 2 on the said policy;

(2) appointment of a Commissioner to take such accounts from defendant No. 1 and ascertainment of the amount payable by defendant No. 1 to the plaintiff; and

(3) a decree in favour of the plaintiff against the defendants for the sum ascertained by the Commissioner.

(2A) The defendants contested the suit mainly on the grounds that (1) the Governor-General in Council not being a party to the suit, it was bad for non-joinder of parties, (2) the suit was bad for want of notice under section 80 of the Code of Civil Procedure, (3) the contract was not frustrated and did not become void and (4)1 the claim of the plaintiff was barred by waiver and" acquiescence.

3. The learned Additional Subordinate Judge held against the defendants on all these points. According to his findings, however, the plaintiff was not entitled to get back the amount which he paid subsequent to the declaration of war. He, therefore, passed a preliminary decree in favour of the plaintiff for accounts being drawn up by appointment of a Commissioner. The plaintiff was not given any interest on the amount paid by him.Against that decree the