Venkatarama Ayyar, J.-

This is an appeal against the judgment of Panchapagesa Sastri, J., granting a decree in favour of the plaintiff in C.S.No.804 of 1948. The defendant, P. Abdul Azeez & Co., is the appellant. Its sole proprietor is one Abdul Azeez. He was doing considerable business in Madras and had large properties and he had been insuring his properties with the respondent the New India Assurance Co., Ltd. The suit was to recover a sum of Rs.37,103-10-0 due from the defendant on account of premia due on various policies issued by the plaintiff to him. The dispute in the suit related only to a sum of Rs.13,233-15-0 claimed on account of fire policies issued for the years 1946 and 1947 to the defendant These policies have been marked as Exhibits P-1, P-15, P-22, P-25, P-35, P-36, P-38 P-39, P-41 and P-45. The defendant contested the suit on the ground that it was a condition precedent to the policy taking effect that premia should be paid thereon and as that had not been done no suit could be maintained to recover them The policies are all of them in the same form, and the relevant clause therein is as follows:

“The company hereby agrees with the assured but subject to the conditions printed on the back which are to be taken as part of this policy, and to such other conditions as are herein expressed that if the property above described, or any part thereof, shall be destroyed or damaged by fire or lightning after payment of the premium and at any time between the first day of March, 1947 and four o’ clock (Standard time in the afternoon of the first day of March, 1948 or before four o’clock (Standard time) in the afternoon of the last day of any subsequent period in respect of which the assured shall pay to the company, and it shall accept the sum required for the renewal of this policy, the company will pay or make good all such loss or damage, to an amount not exceeding in respect of the sum set opposite thereto and not exceeding in the whole the sum abovementioned”.

Now, the facts found are that the defendant had been doing insurance business with the plaintiff for a number of years and that the practice was that the policies were issued at Jus request even before the payment of premia, they being subsequently paid. The policies in question had been issued similarly, without prepayment of premium. After the period for which the insurance was effected was over most of these policies were renewed for the subsequent year. The plaintiff had also been making demands all along for the payment of the premia. In answer to these demands the defendant sent the reply, Exhibit P-6, dated 14th September, 1948. It runs as follows:

“Re. Premium outstanding in respect of Fire, Marine and Accident Policies issued in favour of our firm and in favour of Mr.P. Abdul Azeez and Anwar Azeez.

With reference to your letters, dated the 15th July, 4th and 7th ultimo in regard to the premia due to you as stated therein and also for policies issued by you the entire amount on or before the 30th instant, failing which on or before the end of the first week of October, 1948-positively”.

It is common ground that the letters dated 15th July and 4th and 7th August referred to in Exhibit P-6 contained demands for the payment of premia which are the subject-matter of this suit. The facts above-mentioned clearly show that notwithstanding that premia were not paid before the policies were issued, the parties throughout acted on the footing that there was a concluded contract of insurance subsisting between them. Panchapagesa Sastri, J., who tried the suit held on these facts that the plaintiff must be taken to have waived the payment of the premia and that as all the parties treated the contract, as concluded the claim was maintainable. He accordingly granted a decree. The defendant prefers this appeal and disputes the correctness of that decision.

Mr.P.K. Janakiram, the learned advocate for the appellant, contends that as the prepayment of the premium was a co

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