JUDGMENT

1. This is a second appeal against a decree of the learned District Judge of Lucknow. On 18th July 1933, Mt. Sundara Devi, wife of the plaintiff-respondent Asa Ram, got her life insured with the defendant company, namely the Asian Assurance Co. Ltd. She died on 11th September 1934. On her death the plaintiff, to whom the policy had been assigned, applied to the company for the money but the company refused to pay. Thereupon the suit which has given rise to this appeal was brought by the plaintiff for recovery of Rs. 2700 with future interest. Defendant 2 impleaded in the suit is the agent in Luck-now of defendant 1 company. He supported the plaintiff's claim and claimed exemption from costs. The defendant company admitted that Sundara Devi was insured for Rs. 2500 under a policy dated 30th August 1933, but contended that under the terms of the policy in question it became void on account of certain untrue statements made in the declaration of the assured. It was also contended that the assured practised fraud on the company by various statements made by her. Five issues were framed by the trial Court on the pleas raised by defendant 1 but subsequently owing to a statement made by the defendant's pleader, only the following two issues were retained and the others were struck off:

1. Did the policy become void on account of fraud practised by the plaintiff, defendant 2, and the assured ?

2. To what relief and against which of the defendants is the plaintiff entitled ?

2. Finding on issue 1 that no fraud had been proved the learned Civil Judge decreed the plaintiff's suit and on appeal by the defendant company the decree was upheld by the learned District Judge. It appears that on 18th February 1936, the pleader for the defendant company made the following statement:

I rely on the elements of fraud as alleged in para. 15 of my written statement, Clauses (a), (b), (d), (e), (h) and paras. 16 and 18. I give up all other elements alleged before.

3. Paragraph 15 of the written statement referred to in the pleader's statement is as follows:

The policy in suit was obtained from the answering defendant by making to it in form of proposal form D, a declaration and also otherwise the following misrepresentations and by concealing from it many material facts:

(a) That the age of the assured was only 25 years, (b) That the assured consulted a physician six months before the date of her proposal and that too for fever only, (c) That the assured was the married wife of the plaintiff and had been married for seven years, (d) That on no occasion and for no diseases or injuries the assured ever received any medioal advice, (e) That the assured never suffered from any serious disease, (f) That the assured never had any abortions and that she was not pregnant at the time of proposal, (g) That the assured was literate, (h) That the assured had only one sister aged 18 years.

4. It will thus appear that the pleader for the defendant company gave up the pleas contained in Clauses (c), (f) and (g) of para. 15 of the written statement and relied only on Clauses (a), (b), (d), (e) and (h) as constituting fraud. The learned Counsel for the appellant company however relies on para. 14 of the written statement, which is as follows:

According to the terms pf the polioy in suit no liability can attach to the answering defendant and the policy is to become void, if any untrue statement is found to be contained in the declaration (form D) of the assured or in her proposal or if it should appear that any information has been withheld

and argues that the defence contained in this paragraph, which is totally independent of fraud was never given up and that though the learned trial Court held that where according to the terms of the policy the representations, statements and agreements in the application for the policy are made part of the contract, the company is liable only if those representations and statements are true, and though some of the statement