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National Insurance Co. Ltd. Vs. Haridas Basu - Court Judgment

LegalCrystal Citation
SubjectInsurance
CourtKolkata
Decided On
Reported inAIR1927Cal691
AppellantNational Insurance Co. Ltd.
RespondentHaridas Basu
Cases ReferredPromotho Nath Mitter v. Kali Prosanna Choudhury
Excerpt:
- .....dismissed the suit without determining any of the other issues raised in the case. on appeal the learned district judge held that section 136 of the transfer of property act did not apply to the case, and on that finding allowed the appeal and remanded the case to the court of first instance for decision on the merits. it is against this order of decision on remand that the present appeal is directed.2. the main ground on which the learned district judge held that section 136 did not apply to the case was that the provisions of section 2, sub-clause (d) of the transfer of property act acted as a bar against such an application. it is urged that herein the learned district judge committed an error of law, and it was contended by the learned counsel for the appellant that section 2(d).....
Judgment:

Mullick, J.

1. This appeal arises out of a suit for recovery of money due on a policy of life, insurance effected on the life of one Sashi Bhusan Bhatfcacharji with the appellant company. The said policy had been purchased by the plaintiff-respondent at a sale in execution of a decree in the Bolepur Munsiff's Court against the heirs of Sashi Bhusan. The defence inter alia was that the plaintiff being a pleader practising in the Bolepur Court was precluded by Section 136 of the Transfer of Property Act, from buying the Policy of Insurance or enforcing his claim upon it. This defence found favour with the trial Judge, and the trial Judge on that ground dismissed the suit without determining any of the other issues raised in the case. On appeal the learned District Judge held that Section 136 of the Transfer of Property Act did not apply to the case, and on that finding allowed the appeal and remanded the case to the Court of first instance for decision on the merits. It is against this order of decision on remand that the present appeal is directed.

2. The main ground on which the learned District Judge held that Section 136 did not apply to the case was that the provisions of Section 2, Sub-clause (d) of the Transfer of Property Act acted as a bar against such an application. It is urged that herein the learned District Judge committed an error of law, and it was contended by the learned Counsel for the appellant that Section 2(d) has a limited applicability only, and does not apply to the provisions of Section 136; and, in support of this contention, we were referred to a decision of this Court in Promotho Nath Mitter v. Kali Prosanna Choudhury [1901] 28 Cal. 744. The case in I.L.R. 28 Cal. is no authority for the proposition that Section 2, Sub-clause (d), has no application to the provisions of Section 136. It is true that the learned Judges who decided that case made in their judgment, certain observations on the question of the applicability of Section 2(d). But these observations as we read them, do not go beyond meaning that those provisions only in the Transfer of Property Act, that affect a transfer would come within the purview of Section 2(d). Section 136, not only does affect a transfer, but affects it most vitally. It even goes so far as to invalidate it. That being so, we are of opinion that Section 136 is controlled by Section 2, Sub-clause (d) of the Transfer of Property Act, and the provisions of Section 2(d) would save the suit from the operation of Section 136.

3. In this view of the matter the appeal fails and is accordingly dismissed with costs hearing-fee, three gold mohurs.

Panton, J.

4. I agree.


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