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Judgment
Cornish, J.—The appellant in A.S. No. 50 is the Bengal Insurance and Real Property Company, having its head office in Calcutta. It was
sued by the plaintiff, the widow of Sengottiah Goundan, to recover the money due on a life assurance policy between her husband and the
company. The proposal for this policy was made through, the company''s agent at Erode on August 21, 1927. The proposal was accepted by the
company on September 8, 1927. Thereupon a half year''s premium became payable within 5 days from the date of the company''s notice of
acceptance of the proposal. But this premium not having been paid a fresh certificate of health, as required by the company''s notice (Ex. XXIII)
had to be furnished by the assured to the company. This he did on January 22, 1928, and the declaration or certificate is Ex. I. It stated that he
was at the time in good health, and that since his medical examination on August 30,1927, he had not consulted any medical man or suffered from
any illness. The policy was issued on May 5, 1928. In a little over 3 months namely, on August 16, 1928, the assured died of pernicious anaemia.
The plaintiff''s claim to recover the money was resisted by the company on two principal grounds (1). the written statement alleged that the
policy was made void by the fraudulent suppression of a material fact by the assured, viz., his disease, of which he must have been aware at the
time when he made his declaration of good health on January 22, 1928; and (2) that the trial Court of Coimbatore had no jurisdiction over the suit
as no part of the cause of action had arisen within the limits of that Court''s jurisdiction.
There is no evidence that the assured was ill when he made the declaration or that he was suffering then from the ailment which was so soon to
be fatal to him. The doctor who examined him in August 1927 certified the assured as a first class life for insurance. This witness says that he had
never seen a case of pernicious anaemia, but he has read about this ailment and he stated that he saw none of it s symptoms in the assured when he
examined him. The widow of the assured (P. W. No. 2) says that her husband was in good health until about 1-|- months before his death. He was
then advised to go to Bangalore for a change, and he died in Bangalore. The doctor who attended him there has not given evidence. He gave the
certificate that assured was under his treatment for pernicious anaemia and that he died of this disease. This information is expended in a later letter
to the effect that the assured was under his treatment from July 29, till his death. But there is no evidence when this ailment seized the assured.
Reference has been made to standard medical books, from which it appears that pernicious anaemia in an insidious complaint which may run its
course repaidly within a period of 6 to 12 weeks. Upon this state of the facts it is impossible to hold that the defendant company had succeeded in
showing either that the assured knew that he had this disease or, indeed, that he had it in January 1928, when he signed the declaration of his good
health, or even in April when he paid the premium.
The learned Advocate for the appellant briefly'' referred to the question whether the plaintiff''s suit might not be barred by
Article 85 of the Limitation Act, the suit having been brought more than 3 years after the proof of the death of the assured. But he very fairly
conceded that it was difficult to maintain this position in the face of Ex. XII. This document is a clear admission by the company of the claim and is
sufficient to save the bar of time. We are of opinion that the suit is not time-barred.
The main argument turned on the question of jurisdiction. The lower Court held that a part of the cause of action arose within its jurisdiction
inasmuch as the offer of the assured was made at Erode. Undoubtedly the making of an offer may be part of the cause of action in a suit upon a
contract which has resulted from that offer. But the material question is, where was the offer made; for until a proposal is received there is no
complete offer: Appu Thamban v. Foulkes 10 LW 445 : 54 Ind. Cas 260, Mylappa Chettiar v. Aga Mirza AIR 1920 Mad. 177 : 54 Ind. Cas.
550 : 37 MLJ 712 : 25 MLT 504, National Insurance Co., Ltd. v. Seethammal (1933) MWN 937 : 145 Ind. Cas. 998 : 65 MLJ 455 : 38 LW
504 : AIR 1933 Mad. 761 : 6 RM 181. The defendant company''s agent at Erode was only authorized to canvass for proposals for insurance.
This is apparent from the instructions to agents which are printed at the top of the proposal forms with which the agents were supplied. These
instructions inform the agent that he should see that the proponent answers all questions in the form properly in order to avoid correspondence and
consequent delay in finally disposing of the proposal. From this it is clear that the agent had no authority to accept the proposal. All he had to do
was to see that the proposal form was correctly filled up and to send it to the head office in Calcutta for disposal there. Until the proposal reached
the head office, there was no offer. The offer was made in Calcutta. It was accepted in Calcutta: and under the terms of the contract, the policy
money was payable in Calcutta The cause of action arose entirely in Calcutta. We do not think that any particle of a cause of action in Erode can
be extracted from the circumstances that when the half-yearly premium became payable, the company, instead of sending its demand to the
assured, directed its local agent to collect the money from him.
It has been held that in a suit to recover money payable on an insurance policy the cause of action arises at the place where the assured died;
Biswendra Thirtha v. National Insurance Co 41 Ind. Cas. 392 : 41 Ind. Cas. 392 : AIR 1918 Mad. 635. But this will not help the plaintiff; for the
assured died in Bangalore, and Bangalore including the Civil and Military station is foreign territory; In re Hayes 12 M 39. We think that no part of
the cause of action arose within the Coimbatore Sub-Court''s jurisdiction. But even so. Section 21, Civil Procedure Cede, provides that an
Appellate Court shall not allow an objection on the ground of want of jurisdiction of the Court of first instance1, notwithstanding that the objection
has been taken at the earliest opportunity, unless there has been a consequent failure of justice. This means that before an Appellate Court will
interfere on the ground of the lower Court''s want of jurisdiction, the defendant must show that he has been prejudiced by the trial being held within
the particular jurisdiction: The Bengal Provident and Insurance Company Ltd. Vs. Kamini Kumar Choudhury, . The appellant''s learned Advocate
has not suggested that his client has been prejudiced or handicapped by the fact of the trial having taken place in Coimbatore instead of in Calcutta.
These conclusions would suffice to dispose of the appeal had not the plaintiff''s Pleader in the course of his argument in the trial Court, for the
purpose of repelling the claim made by the 2nd defendant to the policy money, raised the question of a trust created in favour of the plaintiff by
operation of Section 6, Married Women''s Property Act. The learned Subordinate Judge pursued this argument at some length in his judgment,
though the topic was not the subject of an issue, and came to the decision that Section 6 had no application.
Section 6 enacts that a policy of insurance effected by a married man on his own life and expressed on the face of it to be for the benefit of his
wife, shall enure and be deemed to be a trust for the benefit of the wife. One looks in vain in Ex. XI, which is described as the policy, and the
schedule attached to it for an expression of the policy being intended for the benefit of the as-sured''s wife. This is to be found in the declaration. If
the declaration is part of the contract of insurance, it will be part of the policy; for a contract of insurance if created by any binding means is a
policy to all intents and purposes; Re The Norwich Equitable Fire Assurance Society (188) 57 LT 241. But Ex. XI states that the declaration is
part of the policy, so there is no doubt that this document is incorporated in and part of the policy. In the declaration it appears that in answer to
question 12 ''''Name of the nominee or nominees who would receive the sum assured,"" the assured had stated; ""Self or wife, Velayammal"". This
shows that the wife was intended to have a benefit from the policy. According to the terms of the policy, the money was payable in the event of the
assured surviving April 11, 1943, or at previous death. Obviously he could not receive payment if he died before the date, but his wife could. It is
true that her right to the benefit depended upon the contingency of her surviving her bus* band if he died before the name date. But the
circumstance that a benefit to the wife is of a contingent character does not prevent it from being within the Married Women''s Property Act; In re
Fleetwood''s Policy (1926) 1 Ch. 48 : 95 LJ Ch. 195 : (1926) WC & I Rep. 1 : 135 LT 374. If there was a trust, as in our judgment there was
for the benefit, of the wife, in the event which happened, it would follow from Section 6 that the Official Trustee of Bengal would be the trustee and
he alone would be competent to sue for the enforcement of the trust: Lakshmi Ammal V. Svn Life Assurance Co. of Canada (1934) MWN 653 :
151 Ind Cas. 112 : 57 M 936 : 39 LW 379 : AIR 1934 Mad. 264 : 66 MLJ 667 :7 RM 87.
But as already observed, the point about the application of Section 6 of the Married Women''s Property Act arose somewhat adventitiously.
The defendant company did not plead it as a defence to the maintainability of the suit by the plaintiff. It ought to have done so, if it had intended to
rely upon it. Order VIII, Rule 2, Civil Procedure Code, requires that the defendant shall raise by his pleading all matters which show that the suit is
not maintainable. The rule follows Order XIX, r- 15 of the English Supreme Court Rules. With reference to this latter rule, it was observed by
Buckley, L.J. in In re Robinson''s Settlement (1912) 1 Ch. 717 : 81 LJ Ch. 393 : 106 LT 443 : 28 TLR 298:
The effect of the rule is, I think, for reasons of practice and justice and convenience to require the party to tell his opponent what he is coming to
the Court to prove. If he does not do that the Court will deal with it in one of two ways. It may say that it is not open to him, that he has not raised
it and will not be allowed to rely it; or it may give him leave to amend by raising it; and protect the other party, if necessary, by letting the case
stand over.
The defendant company could only have relied upon this defence to the maintainability of the suit by obtaining leave to amend its pleadings.
Not having done that the company cannot be allowed, by reason of the accident that the plaintiff''s Pleader argued the question of the applicability
of Section 6 of the Married Women''s Property Act, to have the benefit of a defence which it did not plead. The plaintiff''s learned Advocate has
suggested that the Official Trustee should be made a party. It is not necessary in this case, because all that the trustee would have to do would be
to receive the money from the company and, after deducting his charges, pay it to the beneficiary.
We now turn to A.S. No. 239, the appeal of the 2nd defendant. He is the younger and undivided brother of the essured, and claims that as the
money for the one and only premium paid was furnished from the joint family funds, the policy money must be regarded as an acquisition for the
joint family and he, the surviving co-parcener, is entitled to it. His learned Advocate has argued that the assured being the eldest brother was by
right the manager, and that a manager cannot take money from the family funds for his own aggrandisement. What the position would have been
had the assured been the managing member of this family, it is not necessary to decide. The cases cited Oriental Government Security Life
Assurance, Co., Ltd. v. Vanleddu Ammaraju 35 M 162 : 10 Ind. Cas. 263 : (1911) 1 MWN 276 : 9 MLJ 451 and Srinivasa Iyengar v.
Thiruvengadathan Iyengar 38 M 556 : 23 Ind. Cas. 264 : (1913) MWN 1034 : 15 MLT 307 : (1914) MWN 282 leave the question of a
manager''s power to insure his life paying the premium from the family money, for the benefit of some members only of the joint family in some
uncertainty. But the evidence is that the assured was not the manager. His mother, who has given evidence as D.W. No. 1, has said that she had
been managing the family property since her husband''s death 17 years ago. It is not unlikely that the assured who was only 23 years of age when
he died would have been content to leave his mother in the management. She says that she used to pay money to the assured for his personal
expenses and that she paid him Its. 175 (the amount required for the half-yearly premium) for insuring his life. Her further story that she paid this
money to him in the presence of the company''s agent has been disbelieved by the learned Subordinate Judge, and indeed it is noteworthy that no
question was put in by the defence to the agent to confirm this assertion. She does not pretend that the assured told her that he wanted to insure his
life to make some additional provision for the family. His statement in the declaration shows that he had no such intention. The question then is
whether money paid to a member of a joint family by the manager for his personal use, which he is free to spend as soon as he receives it, must,
because, he chooses to invest it for some purpose which is clearly not intended to be for the benefit of the family, be deemed to be a family
acquisition. A profit made by the member of a joint family from the enjoyment of joint property without detriment to it is his separate self-acquired
property; Maharajah Sir Luchmeswar Singh Bahadur v. Sheih Manowar Hussain 19 IA 48 : 19 C 253 : 6 Bar. 123 (PC). When money is given to
a member of a family by the manager from family funds to be spent by him for his personal use it seems to us that any profit made by him can
hardly be said to be in detriment of the joint property.
But apart from these considerations there is his mother''s own evidence that the assured was borrowing money from other persons and that
after his death she defended four suits by creditors in respect of such loans. She successfully pleaded in those suits that the debts incurred by the
assured were not for the purpose of the family. Now as it appears that the assured was obtaining money for his needs from other sources and as
the evidence does not establish, that the sum of Rs. 175 received from his mother was in fact utilised to pay the premia, we think that, we are
justified in applying the presumption which Sankaran Nair, J., in Balamba v. Krishnayya (1913) MWN 697 : 20 Ind. Cas. 934 : 25 MLJ 63 :14
MLT 363 : 37 M 483 said Would arise where an assured is shown to have money available from private as well as from joint family sources,
namely, that the premia for a policy on his life would be paid from the man''s own money. We accordingly hold that the policy money did not
belong to the joint family and that they have no claim to it. And as there is nothing in the declaration by the assured to show that he intended his
wife to have only the limited estate of a Hindu widow in the policy money she is entitled to it absolutely.
The result is that the appeals are dismissed and the decrees of the lower Court stands. The 1st defendant, the company, will pay the plaintiff
her costs in A.S. No. 50 and 2nd defendant will pay her costs of the appeal in A. 8. No. 239. The plaintiff''s costs in the lower Court including
court-fee will be paid by the 1st defendant. The 2nd defendant will pay his own costs in the lower Court. The plaintiff having sued as a pauper and
succeeded in her suit, we direct her to pay the court-fee to Government.
At the time when judgment was delivered, the plaintiff had not obtained a succession certificate. She has since procured it, and she has filed a
petition for leave to produce it. The petition is allowed.