1. The respondent's husband disappeared from his home in 1946. He was then in a disordered state of mind. Persons who would have heard of him if he had been alive had not heard of him when the respondent filed Appln. No. 1880 of 1955. To that application, she made certain insurance companies, which held policies on his life, respondents. One of these insurance companies was the ‘National Indian Life Insurance Company. In that company, the respondent's husband had a policy for Rs. 5,000/-. The company's interest has now devolved on the Life Insurance Corporation. This application is made by the Life Insurance Corporation.
2. In Appln. No. 1880 of 1955 the respondent prayed for an order (1) declaring that her husband Venkatarama Aiyar must be presumed to have died on or after 16-3-1953 on the expiry of seven years from the date of disappearance on 16-3-1946 and that she was the sole beneficiary under the insurance policies mentioned in Appln. No. 1880 of 1955, and (2) directing the insurance companies to dispose of her claims under the said policies in accordance with law. Notice was served on the insurance companies.
3. They did not appear. On 8-7-1955, this Court passed an order declaring that the respondent's husband V. Venkatarama Aiyar might then be presumed to have died and directing the insurance companies to pay into this court to the credit of these proceedings the amounts payable under the respective insurance policies. In pursuance of that direction, the National Indian Life Insurance Co., deposited Rs. 5000.
4. After depositing the money, the Insurance company represented that it was entitled to refund of Rs. 1380-12-0. That sum has been retained in court pending investigation of the company's claim. The rest of the money has been paid over to the respondent.
5. The insurance company's claim arises this way. The respondent's husband was employed under the Government of India. He had his insurance premia paid from out of his provident fund. The policy had been assigned by him and the respondent (who was his nominee under the policy) to the Government of India. The Government of India continued to pay the premia accruing due on the policy even after they received report of the respondent's husband's disappearance.
6. That continued until 1948. They discontinued payment from and after 1948. Under the clause in the contract of insurance, the insurance company was entitled to keep the policy alive by paying the required premia. The applicant states — and I accept the statement — that the company, acting in exercise of its powers under that clause, paid insurance premia and kept the policy alive.
7. The sums thus paid, with interest, aggregate to the amount now claimed by the applicant, namely, Rs. 1380-12-0. Under the relevant clause in the contract between the insured and the insurance company, the insurance company was entitled to deduct that sum from the money due on the policy, when it became payable after the death of the insured. Under the terms of that clause, the insurance company's present representative, the Life Insurance Corporation, prays for payment of that sum.
8. The first objection that is raised is that the order passed by this court on 8-7-1955 implied a finding that the insurance company was not entitled to any part of the sum which the company was directed to deposit in court. I am unable to agree. In Appln. No. 1880 of 1955, the prayer of the respondent relating to the insurance companies was that they be directed to dispose of her claim under the said policies in accordance with law.
9. That prayer did not give to any of the insurance companies notice that a claim on their part to retain any part of the insurance amounts would be heard or decided by the court on that application. They were therefore not bound to appear, provided they had no objection to the prayer being granted, that is to say, provided they had no objection to the court directing them to dispose of the respondent's claim in accordance with law.
10. What the court did, on the other hand, was to call on the insurance companies to deposit into court the amounts covered by the policies. The order passed in that form was an order passed without express notice to the companies and without any intimation to them that a claim by any of them to retain any part of the amount payable under the policies would be affected by the order that the court would pass.
11. In order that a judgment or order passed ‘ex parte’ may, on the ground of ‘res judicata’ or on principles analogous to ‘res judicata’, bar the hearing of a question or issue in a subsequent proceeding or at a subsequent stage of the same proceeding, it is necessary that the pleading and the prayer that led to the passing of the judgment or decree should give express notice to the opposite party that the question or issue would or might be decided by the court which deals with the matter.
12. The respondent's application (1880 of 1955) gave the insurance companies no such notice in regard to any claim they might have as regards the amounts covered by the policies. Nor do I think that Balakrishna Aiyar J., in the order which he passed on 8-7-1955, intended to decide adversely to the insurance company any claim on its part to be entitled to deduct a portion of the amount covered by the policy by way of reimbursing itself (the company) the insurance premia paid by it to keep the policy alive.
13. I hold that the applicant's claim to payment of Rs. 1380-12-0 is not barred by ‘res judicata’ or on any principle analogous to res judicata, by the order passed by this court on 8-7-1955.
14. The next objection raised to the applicant's claim is that, since the applicant has not proved that the respondent's husband was alive in or after 1948, the applicant is not entitled to claim the money paid by the applicant to keep the policy alive. It is, of course, true that the insurance company would have been entitled to pay the premia so as to keep the policy alive in the event only of the respondent's husband having been alive during the period covered by such payment of premia by the insurance company.
15. In asking for refund of the premia paid by the company, the applicant, in effect, seeks a finding that the respondent's husband was alive in the years 1948 to 1952 when the company paid the premia so as to keep the policy alive. For such a finding, learned counsel for the applicant calls in aid Jeshanker v. Bai Divali, 22 Bom LR 771 : (AIR 1920 Bom 85 (2) (A). It was held in that case that, where the court presumes death under Section 108 of the Indian Evidence Act the earliest date to which the death could be ascribed is the date when the suit was filed.
16. If that ruling correctly states the law, the date to which the respondent's husband's death could be attributed is the date on which the respondent presented Appln. No. 1880 of 1955 and the applicant's claim is well-founded. But that ruling has been expressly dissented from in Venkateswarlu v. Bapayya, 1957-1 Andh WR 55 : (AIR 1957 Andh Pra 380) (B). The latter ruling accepts and elaborates the views expressed by this court in Veeramma v. Chenna Reddi, ILR 37 Mad 440 : (AIR 1914 Mad 505) (C). I adopt, with respect, the statement of the law made in 1957-1 Andh WR 55 : (AIR 1957 Andh Pra 380) (B). The law is thus stated in that case:
“The presumption under Section 108 of the Evidence Act extends to the fact of death at the expiration of seven years and not to the time of death at any particular period. There is no presumption that death took place at the end of seven years or;at any particular time within that period. The exact time of death is not a matter of presumption at of proof by evidence and the onus of proving that death took place at a particular time within the period of seven years lies on the person who claims a right for the establishment of which that fact is essential.”
17. In that view, the burden lies on the applicant to prove that the respondent's husband died in or after 1952 and that he was alive when the insurance company paid premia to keep the policy alive. There is no evidence that the respondent's husband was live in 1948 or at any particular point of time after he disappeared from his home in 1946.
18. But learned counsel for the applicant contends that, unless the respondent agrees that her husband died after July 1952, her claim to get the insurance amount through court would be barred by time. For payment of a sum payable after proof of death of the insured, Article 86 of the Indian Limitation Act prescribes a period of three years from the date of the death of the deceased. It is necessary to place on a legal basis this court's order under which the respondent has been paid Rs. 3,000 odd out of the money deposited by the insurance company.
19. For that purpose, the following findings of fact are necessary, namely, (1) that the respondent's husband is dead and (2) that he died after July 1952 within three years before the filing of Appln. No. 1880 of 1955. With a view, therefore, to do complete justice between the parties, the Court has necessarily to take the view that the respondent's husband died after July 1952, that the insurance company acted properly in keeping the policy alive, till 1952 and that this court's orders directing the insurance company to deposit the amount into court and directing payment of a part of the money to the respondent are legal and proper.
20. The respondent in her application (1880 of 1955) prayed for a declaration that her husband died on or after. 16-3-1953. The date 16-3-1953 entitled her to an order directing the insurance company to bring the money into court. She cannot reprobate that date with a view to resisting the company's claim to refund of a part of the money. I hold that, in the special circumstances of this case, the respondent's husband must be presumed to have died after July 1952 and that the applicant is entitled to refund of the amount claimed.
21. Learned counsel for the respondent claims that she is entitled to interest from the presumed date of death of her husband till date of the presentation of the petitions. But the money did not become payable till the court gave a finding that the respondent's husband should be presumed to be dead — and interest could not be allowed on money that had not become payable.
22. Learned counsel for the respondent claims that she is entitled to interest from the date of the order of this court directing the insurance company to deposit the money till the actual date of deposit. This court did not make an order for deposit with interest from the date on which that order was made. That order was made in a form for which the insurance company might not have been prepared.
23. The respondent had in her application (No. 1880 of 1955) prayed only for a direction to the insurance companies to dispose of her claims under the policies in accordance with law. The court made a departure in her favour from the prayer in directing the companies to deposit the money in Court. They would have had to take legal advice before depositing the money. I do not think it just or proper to direct the applicant to pay interest from the date of the order till the date of deposit. An order of payment will be made. The cheque will be drawn in favour of the applicant's advocates. The parties will bear their own costs.
V.B.B
24. Application allowed.