Nasim Ali, J.
1. This is an appeal by the defendant in a suit for recovery of money due on a policy dated 29th December 1928 assuring Rs. 1,000 to be paid by the defendant-company to the representative of one Parbati Charan Chakravarty on the expiry of 20 years from the date of the policy or on his prior death. He died on 11th August 1929 in his house at Mahmudpur, P.S. Habiganj, in the district of Sylhet. Before his death he paid premium in accordance with the terms of the policy. The plaintiff, who is the sole heiress of the insured, instituted the present suit in the first Court of the Munsif at Habiganj on 31st August 1932 against the defendant-company for recovery of Rs. 1,000. The defence of the defendant, so far as it is relevant for the purposes of the present appeal, is that the risk under the policy does not attach inasmuch as some of the answers to the questions put by the defendant's medical examiner which formed the basis of the contract were false. The Courts below have overruled the defence and have decreed the suit. Hence this second appeal by the defendant. The only substantial point for determination in this appeal is whether the policy is void on the grounds stated by the defendant in his defence. The relevant portion of the policy is in these terms.:
This policy of Insurance granted by the Light of Asia Insurance Co. Ltd., of Calcutta hereinafter called the Company witnesseth that in consideration of the payment already made to the Company of the first premium or the first instalment thereof as stated in the sub-joined Schedule for the Insurance the particulars of which are stated in the said Schedule and of the subsequent premiums or instalments of premiums if any to be paid as thereby provided the Company doth hereby agree that upon proofs satisfactory to the Directors of the happening of the event or events on which the sum assured is to become payable as mentioned in the said Schedule and of title of the person claiming, they will pay the sum assured to the assured's representative or assignee. Provided always (1): That the proposal for Insurance and declaration and answers to questions mentioned in the Schedule shall be held to form the basis of this contract.....
2. The Schedule shows that the answers which formed the basis of the contract were given by the insured on 5th December 1928. It is however, not stated in the policy that if the answers be false the policy would be void and no risk would attach. Neither is it stated in the policy that the conditions mentioned therein were warranties. In Dawsons v. Bonnia (1922) A C 413, Viscount Cave observed as follows:
The basis of a thing is that upon which it stands, and on the failure of which it falls; and when a document consisting partly of statements of facts and partly of undertakings for the future is made the basis of a contract of insurance, this must (I think) mean that the document is to be the very foundation of the contract, so that if the statements of fact are untrue or the promissory statements are not carried out, the risk does not attach. No doubt the stipulation is more concise in form than those which were contained in the policies which fell to be construed in Anderson v. Fitzgerald (1852) 4 H L C 484 and Thomson v. Weems (1884) 9 A C 671, in each of which cases the policy contained an express provision to the effect that if anything stated in the proposal was untrue, the policy, should be void; but I think that the effect is the same as if those words had been found in the present policy. Indeed, it is remarkable that in Anderson v. Fitzgerald (1852) 4 H L C 484, Lord Cranworth referred to the abovementioned provision, as to the avoidance of the policy, if any, if the statements in the proposal should be untrue, as a provision making those statements the basis of the contract; and in Thomson v. Weems (1884) 9 A C 671, Lord Blackburn said, 'But I think when we look at the terms of the contract, and see that it is expressly said in the policy, as well as in the declaration itself, that the declaration should be the basis of the policy, that it is hardly possible to avoid the conclusion that the truth of the particulars is warranted'. Lord Esher in Hambrough v. Mutual Life Insurance Co. of New York (1895) 72 L T 140 used the word 'basis' in the same sense. Upon the whole, it appears to me both on principle and authority that the meaning and effect of 'basis' clause taken by itself, is that any untrue statement in the proposal, or any breach of its promissory clauses, shall avoid the policy and if that be the contract of the parties, it is fully established by decisions ... that the question of materiality has not to be considered.
3. Again in Condogianis v. Guardian Asssurance Co. Ltd. 1921 P C 195 Lord Shaw observed as follows:
If in point of fact the answer is untrue, the warranty still holds, notwithstanding that the untruth might have arisen inadvertently and without any kind of fraud. Secondly, the materiality of the untruth is not in issue, the parties having settled for themselves by making the fact the basis of the contract, and giving a warranty that as between them their agreement on that subject precluded all enquiry into the issue of materiality.
No.4 Family History
Living | Dead
Total | No. | Ages | Present | No. | Ages | Cause | Descript-| Date | Previous
number |alive| | state of| dead| at | of | ion of | of | health
| | | health | | death| death | illness | death|
Brothers | | | | | | | | |
Nill | | | | | | | | |
Sisters 2| 2 |30 yrs| Good | | | | | |
| |27 yrs| | | | | | |
4. It is therefore clear from the authorities which I have cited above that if some answers are untrue the policy is void irrespective of the question of its materiality. The learned advocate for the appellant contends that the following answers which were declared by the insured to be true and to have been correctly recorded are false.
5. It is an admitted fact that the insured had one brother who died before the declaration. It is also admitted that he had four sisters of whom two were dead at the time when he made the declaration. The Courts below however have held that the word 'nil' under the column 'Total number of brothers' and the number 2 in the column 'Total number of sisters' mean that the insured had no brother living but had two sisters alive at the time. The learned Judge has recorded the following findings in this connexion:
The column Total number is rather ambiguous. It is very probable that when the insured was asked what was the total number of his brothers he replied that it was nil as he had no brother living at the time and in case of sisters also had said that the total number of sisters was 2 for he had then only two sisters alive. The columns 'No. dead, ages at death, and causes of death,' etc., were left altogether blank which would go to show that no question was asked by the doctor to the insured to fill up these columns.
6. The learned Judge says that the answers were given by the insured when he was asked to give the total number of his brothers and sisters. The medical examiner who put the questions was examined by the defendant. In his examination-in-chief he definitely stated that he had put all the questions mentioned in the report correctly. This statement was not challenged in cross-examination by the plaintiff. The questions therefore were correctly put. As regards the answers the insured declared that they are correctly recorded. 'Total number' means the number obtained by adding the number living and the number dead. There is, therefore, no ambiguity in this. The word 'nil' under the heading 'total number' of 'brothers' evidently means that the insured had no brother living or dead. The learned Judge says that the fact that the other columns were left blank would go to show that no question was asked by the doctor to fill up these columns. But if question about the total number of brothers is answered by the word 'nil' the question for filling up the other columns cannot possibly arise. The learned Judge seems to think that by the word 'nil' the insured meant that he had no brother living at the time, for in the case of sisters the total number is recorded as 2 as he had two sisters then living. This is really arguing in a circle. This argument proceeds on an assumption that the reply under the total number of sisters was in answer to a question about the number of sisters alive, which is the very thing to be determined. A separate answer about the number of sisters alive shows that after the insured had stated that the total number of sisters alive and dead was two, the further question about the number of sisters alive naturally arose. When the insured stated that the number alive was also two, the questions under the other headings namely, number dead, ages at death, and causes of death, etc., could not possibly arise.
7. The other columns were left blank because the total number being two and the number alive being two the question about the number of sisters dead and the question of filling up the remaining columns did not arise. It is, therefore, clear that the answers about the number of brothers and sisters in the column 'Total number' did not mean brothers and sisters alive at the time. The answers clearly show that while giving his family history the insured represented to the company that he had no brother and that he had only two sisters both of whom were alive. He concealed the deaths of his brothers and two sisters which were necessary for the purpose of ascertaining the family history. In view of the declaration of the insured that the answers were correctly recorded the onus was heavily upon the plaintiff. The Courts below did not look at the case from a correct point of view. Their judgments show that they did not properly place the onus, and that they have given a meaning to the answers of the insured not justified by their plain language but only on surmises and conjectures. I have, therefore, examined the answers and the evidence in this case in detail and do not find any materials to justify the conclusions of the Courts below. My conclusion, therefore, is that the answers to the questions which formed the basis of the contract were false and that the appellant is not liable under the policy in question. I, therefore, allow the appeal, set aside the judgments and decrees of the Courts below and dismiss the suit. But in view of the facts and circumstances of this case I direct the parties to bear their own costs throughout the litigation. The prayer for leave to appeal is refused.