Gill J:

The defendants, by a policy of Insurance No. 7088 dated 6 May 1960 issued by them to one Lim Choo Hock (hereinafter called "the assured") in consideration of premiums paid and to be paid by the assured upon the terms mentioned in the policy, agreed to insure the life of the assured in the sum of ten thousand dollars and upon proof of his death to pay the said sum to his executors, administrators or assigns.

The assured, by a conditional assignment in writing dated 26 May 1960, assigned the said policy to the plaintiff. A copy of the said assignment was filed in the head office of the defendant company as specified in the policy on 28 May 1960.

The assured died on 29 May 1960 while the policy was in force. The plaintiff by letter dated 2 June 1960 duly notified the defendants of the death of the assured and forwarded to them a certificate relating to such death on 9 June 1960. The present action by the plaintiff is to recover the sum of ten thousand dollars payable on the policy, which the defendants have failed to pay.

The defendants' case is that the contract is voidable, and that they are not liable, because the declaration in writing by the assured dated 18 April 1960, which he agreed should form an integral part of the life assurance contract and on the faith of which the policy sued on was issued, contained false statements, misrepresentations and concealment and suppression of the truth. They also contend that the plaintiff cannot claim under the conditional assignment because, the policy being made for the benefit of the wife of the assured and being declared payable in Singapore, the law of Singapore governs the contract under which law the policy created a trust in favour of the wife who never consented to the assignment and is alive and capable of enforcing the trust in her favour. They further say that no valid consideration moved from the plaintiff to the assured.

It was agreed at the trial that the burden of proof was on the defendants and that they had the right to begin. Mr. Marjoribanks opened the case for the defendants and referred to a number of authorities on the question of law. In my opinion the law governing this case is quite clear and if I do not refer to any of the authorities cited by Mr. Marjoribanks I hope I shall not be considered as lacking in Courtesy.

The evidence for the defendants is simple, straightforward and very brief. Goh Kheng Khoo (DW1), the manager of the defendant company's branch in Kuala Lumpur and a duly appointed agent of the company, produced three documents from the company's records relating to the policy sued on. They are the application for assurance (D1), the declaration by the assured (D2) and a copy of Policy No. 7088 issued to the assured (D3). He agreed under crossexamination that the conditional assignment by the assured dated 16 May 1960, of which a copy was shown to him (P4), was registered at the head office of the company in Singapore.

Dr. Lee Tuck Chong (DW2) gave evidence to say that he examined the assured on 18 April 1960 and wrote down the answers given by the assured to the questions set out in the declaration. The assured signed the declaration, after it had been explained to him, in the presence of the witness who also signed it. The witness went on to say that the assured did not tell him that he had previously been treated for tuberculosis. If this fact had been disclosed, he would have asked for an X-ray.

Dr. (Mrs.) Leyden L Velaskuez Cheah (DW3) gave evidence to say that the assured was in Ward No. 3, a TB ward, of the District Hospital, Klang from 18 November 1958 to 24 March 1959 and that at the time of his admission into hospital he was suffering from pulmonary tuberculosis. While he was under treatment he was X-rayed. The X-ray photograph showed that the assured was suffering from extensive bi-lateral pulmonary tuberculosis. The records of the hospital did not show that the assured was at any time spitting or vomiting blood,