The main legal point established in the judgment is that under S.135A of the Transfer of Property Act, 1882, an insurer of a marine insurance policy is not entitled to maintain a suit in its own name without an assignment of the policy rights.

1. The plaintiff in O.S. No. 67 of 1958 of the Munsiff's Court of Cochin, the Asiatic Government Security Fire and General Assurance Company Limited, is the appellant in this second appeal. It was the respondent in A.S. No. 131 of 1959 of the Sub Court of Cochin, the successful appeal filed by the respondent before us, the Scindia Steam Navigation Company Limited.

2. The Travancore-Cochin Prawn Curers' Co-operative Marketing Society Limited shipped a consignment of five hundred bags of prawns from Cochin to Rangoon by S. S. Jalatapi, a vessel belonging to the respondent. The goods shipped were insured with the appellant against the risk, among other things, of damage caused by "Rain &/or Fresh &/or Sea &/or River Water" (Ext. P. 1).

3. Twenty-eight bags out of the shipment of five hundred bags were damaged by contact with fresh water and the appellant settled the claim in respect of the said damage by the payment of a sum of Rs. 3,282/-. The suit is to recover that sum from the respondent.

4. There has been no assignment of the rights under the policy in favour of the appellant; and the first question for determination is whether the appellant is entitled to maintain a suit in its own name in the absence of such an assignment. The answer to the question depends on the true scope and effect of S.135A of the Transfer of Property Act, 1882.

5. S.135A was inserted into the Transfer of Property Act, 1882, by the Transfer of Property (Amendment) Act, 1944. Before the amendment the assignment of rights under both marine and fire insurance policies was governed by S.135. What the amendment did was to take marine insurance policies out of S.135 and provide for them in the new S.135A.

6. The Bill that became the Transfer of Property (Amendment) Act, 1944, was L.A. Bill No. 9 of 1944. The statement of Objects and Reasons appended to that Bill - Gazette of India, Part V, dated the 19th February 1944 - dealt with the reason for the amendment as follows:

"The rules and principles governing a marine insurance policy being materially different from those governing a fire insurance policy, it is very unsatisfactory to accord the same treatment in the matter of assignment of both categories of policies. To take but one instance, a fire insurance policy is not assignable after loss, but the nature of a marine insurance contract is such as to require that marine insurance policies should be assignable even after loss. In the United Kingdom, assignability of marine insurance policies after loss is placed beyond doubt by S.50 of the Marine Insurance Act. But in the absence of a similar provision here, it is doubtful if Courts in British India would hold that they are so assignable".

7. S.135A consists of four sub-sections. They read as follows:

"(1) Where a policy of marine insurance has been assigned so as to pass the beneficial interest therein, the assignee of the policy is entitled to sue thereon in his own name; and the defendant is entitled to make any defence arising out of the contract which he would have been entitled to make if the action had been brought in the name of the person by or on behalf of whom the policy was effected.

(2) Where the insurer pays for a total loss, either of the whole, or, in the case of goods, of any apportionable part, of the subject-matter insured, he thereupon becomes entitled to take over the interest of the insured person in whatever may remain of the subject-matter so paid for, and he is thereby subrogated to all the rights and remedies of the insured person in and in respect of that subject-matter as from the time of the casualty causing the loss.

(3) Where the insurer pays for a partial loss, he acquires no title to the subject-matter insured, or such part of it as may remain, but he is thereupon subrogated to all rights and remedies of the insured person as from the time of the casualty causing the loss in so far as the insured person has been indemnified by such payment for the loss.

(4) Nothing in cla