( 1 ) JOHN Dryden (1631-1700) said : To die is landing on some distant shore. Kashmiri Lal Bansal who died on April 3, 1974 in the Holy Family Hospital of hepatic malignancy, metastesis, diabetes and haemachromatosis seems to have landed in this Court. In any case, one of his survivors is proving true what Thomas Mann said: A man s dying is more the survivor s affair than his own.

( 2 ) THE gentleman happened to be insured with the defendant Life Insurance Corporation of India in a sum of Rupees one lac under what is known as Plan and Term 14-20. This policy had actually lapsed in the year 1972 for reason of default in the payment of premium but was revived on March 29, 1973. It is this policy which has now become the bone of contention. Whereas, the widow of Mr. Bansal is laying her claim being a nominee a id widow of the insured, the Life Insurance Corporation of India seeks to wash off its liability on the plea that the claim stands repudiated as Mr. Bansal, at the time of revival of the policy, had suppressed the ailments from which he was suffering. The widow, however, swears to the good health of her late husband. The battle-lines are thus clearly drawn.

( 3 ) THE pleadings led to the framing of the following issues.

"1. Is the suit barred by limitation ? 2. Did Kashmiri Lal Bansal, husband of the plaintiff made misrepresentation and suppression of revival of the Life Insurance Policy in question? If so what its effect ? 3. Are the other legal heirs of Kashmiri Lal Bansal not necessary parties, the plaintiff being nominee of the insurance policy ? 4. Relief. "

( 4 ) THE discerning eye would have noticed that in the introductory paragraph I have made no reference to the plea leading to the framing of above-noted issue No. 1. I owe an explanation. The reason is that during arguments which were reasonably exhaustive, no reference was made to the objection which led to the framing of the above-said issue. Even otherwise, I see nothing to nod my head in approval.

( 5 ) ISSUES No. 2 and 3 did, however, witness lot of fire-work.

( 6 ) HOW should I proceed to deal with the second issue? I think that the best way would be to first grasp the legal requirements and then to weigh the facts on their scale.

( 7 ) I was told, and I think correctly, that the principles emanating from section 45 of the Insurance Act, 1938 would govern this case too. If that be so, let us first have a look at it. Section 45 says:

"45. Policy not to be called in question on ground of mis-statement after two years - No policy of life insurance effected before the commencement of this Act shall after the expiry of two years from the date of commencement of this Act and no policy of life insurance effected after the coming into force of this Act shall, after the expiry of two years from the date on which it was effected, be called in question by an insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policyholder and that the policy-holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose; Provided that nothing in this section shall prevent the insurer from calling for proof of age at any time if he is entitled to do so, and no policy shall be deemed to be called in question merely because the terms of the policy are adjusted on subsequent proof that the age of the life insured was incorrectly slated in the proposal. "

( 8 ) IT is the second part of section 45 which is relevant and it shows that there are three conditions for the application of that part. In Mithoolal v. Life insurance Corporation of India AIR 1962 SC 814, the Supreme Cou