The central legal point established in the judgment is the onus of proof in life assurance claims, the reliability of evidence, and the sufficiency of documentary evidence in establishing alleged untrue statements and fraudulent concealment.

JUDGMENT

Williams, J. - This is a claim for Rs. 5,000 and costs upon a 15 years' endowment policy of life assurance, which the assured, one Noot Behari Das, in consideration of natural love and affection has assigned to his son, the plaintiff, in August 1934.. The policy is dated 16th February 1934, and the assured died on 22nd February 1936. The policy was issued subject to the conditions stated therein, and in accordance with the proposal and declaration made by the assured on 8th January 1934, in which it was provided that the declaration and the statements, answers and representations therein contained and in the report of the Company's medical examiner should be the basis of the contract, and that if any untrue averment should be contained therein, the contract would be void.

2. The defendants resist the claim on the grounds that the proposal contained a number of untrue statements and that it was accepted subject to the further condition that should the proposer's age be proved to have been above 60 years at his next succeeding birthday, the assurance-should be treated as void ab initio, and that it has been so proved. The alleged untrue statements are (a) that the proposer's age would be 54 on his next succeeding birthday, whereas he well knew that he had already attained the age of between 67 and 70 years, (b) that he did not suffer and had never suffered from any disease of the urinary organs, (c) that he had not then and never had any difficulty in passing urine, (d) that he did not then suffer and never had suffered from stricture or from diabetes, and (e) that he had never suffered from any other complaint. Further the defendants say that the proposer made these statements fraudulently, and fraudulently concealed diverse facts materially to be known to them and of which at all material times they were ignorant, namely that he was then suffering from a filarial or some other infection of the scrotum and had so suffered for a considerable period, that he had been constantly afflicted with ulcerine or other sore thereon and had frequently suffered from stricture as also from inconvenience of urine. The onus of proving all these allegations lay upon the defendants.

3. On the question of age, the defendants stipulated in a letter, dated 9th February 1934, that if the age of the proposer were subsequently proved to be above 60 years next birthday, the assurance should be automatically vitiated ab initio. But in accordance with the ninth condition of the policy which provided for proof of birth, the proposer submitted a horoscope, and after this had bean carefully scrutinised by the Company's horoscope-reader, his age was admitted on 16th February 1934, and this admission was endorsed as a special provision on the policy. In the horoscope the date of birth is given as 1st Chaitra 1801 Saka (13th March 1880). The defendants called a number of witnesses both on medical point and on that of age. Considering that they have thought fit to make allegations of fraud against a dead man, this evidence is so meagre and so unconvincing that I am bound to say that in my opinion these charges have been made somewhat recklessly and ought never to have been made.

4. They were unable to call any medical witness who had attended upon the assured and their only medical evidence was that of Dr. Sivapada Bhattacharjee who had attended upon a son of the assured. He stated quite frankly that he had no notes and that he could not swear the dates. Sometimes, when attending the son, he had talked to the assured. He saw him during his last illness in 1936 and he then had symptoms of filaria, thickened skin and an enlarged scrotum, but he could not say definitely that ha had that disease. He never treated him and did not take particular interest in his condition. He had fever and one day there was difficulty in passing urine. The scrotum was about as big as two langra mangoes and it was inflamed and there was an ulcer on it. He thought that he had know