Judgments:Mack, J. - This is a Letters Patent Appeal admitted by a learned Bench of this Court against C.M.A.No.522 of 1952, against an order by Basheer Ahmed Sayeed, J., dismissing an appeal against an order of the learned City Civil Judge, Madras refusing to stay O.S.No.405 of 1952 under section 34 of the Arbitration Act (X of 1940).

The facts are shortly these. Appellant and defendant in the suit is the South India Co-operative Insurance Society Ltd., Madras. The suit was filed by the plaintiff-respondent as a nominee of an insurance policy taken out with this society by his late brother, Mr.Viyyanna, an advocate who died on 10th April, 1949. The policy was a “double endowment policy” No.2190 dated 9th April, 1935, under which a sum of Rs.1,000 was payable if the assured died within a period of fifteen years from the date of the policy. An enhanced sum of Rs.2,000 would become payable if he survived this period. The policy matured on 8th April, 1950 and the last premium was payable on 9th January, 1950. The society claimed that it was liable to pay, only Rs.1,000 less arrears of premium for three months. Plaintiff on various grounds sought to recover Rs.2,000, or in the alternative, refund of the excess of premia paid over and above the sum of Rs.1,000. One of the grounds set out in the plaint was that this double endowment policy was of the nature of a wagering contract.

The City Civil Judge dismissed an application by the defendant-society under section 34 of the Arbitration Act for stay pending a resolution of the dispute by the Registrar of Co-operative Societies under the Madras Co-operative Societies Act, holding that the present dispute was one which did not touch the business of the Society, within the meaning of section 51 of the Act, and furtheremore, that as there were complicated questions of law involved in this claim he would be inclined to exercise his discretion, presumably under section 34 of Arbitration Act, and retain the suit for disposal in the City Civil Court. In appeal Basheer Ahmed Sayeed, J., held in our opinion, quite rightly, that this dispute was one which touched the business of the Society. But as we understand his judgment, he found great difficulty in bringing this dispute within the scope of section 51(1), in view of the Explanation to the section. He agreed with the difficulties found by the learned City Civil Judge in the Explanation, which led also to take this dispute out of the category of those touching the business of the Society.

It is necessary, in order to consider the difficulties attributed to this Explanation, to set out the relevant portions of section 51(1) of the Act:< /p>

Section 51(1):

“If any dispute touching the business of a registered society, other (than a dispute regarding disciplinary action taken by the society or its committee against a paid servant of the society) arises-

(a) among members, past members and persons claiming through members, past members and deceased members, or

(b) between a member, past member or person claiming through a member, past member or deceased member and the society, its committee or any officer, agent or servant of the society, or

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(d) between the society and any other registered society, such dispute shall be referred to the Registrar for decision.”

Explanation:

“A claim by a registered society for any debt or demand due to it from a member, past member or the nominee, heir or legal representative of a deceased member, whether such debt or demand be admitted or not, is a dispute touching the business of the society within the meaning of this sub-section.”

As we read the judgment of Basheer Ahmed Sayeed, J., he would not have found the slightest difficulty in bringing this dispute within the scope of section 51(1) and holding that it shall be referred to the Registrar for decision but for the Explanation.

In our opinion there can be no doubt, in the first place, that this claim by the nominee of an insured person against this co-operative i

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