Orissa High Court
Bansidhar Sethi And Others vs Kusuma Dei And Others on 14 August, 2013
Equivalent citations: AIR 2014 (NOC) 393 (ORI.)
Author: M.M. Das
Bench: M.M. Das
ORISSA HIGH COURT: CUTTACK.
R.S.A. NOS. 557 AND 558 OF 2004
From a common judgment and decree dated 5.10.2004 and decree
dated 16.10.2004 respectively by Shri D.Dash, learned Ist Addl.
District Judge, Cuttack in T.A. Nos. 25 and 95 of 2000 reversing
the judgment and decree dated 25.2.2000 and 20.3.2000
respectively passed by Shr M.D. Pradhan, learned Civil Judge
(Junior Division) Ist Court, Cuttack in T.S. No. 147 of 1997.
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In both the cases.
Bansidhar Sethi and others ...... Appellants
-Versus-
Kusuma Dei and others ...... Respondents
For appellants : M/s. B.H.Mohanty, Sr. Advocate,
R.K.Nayak, D.P.Mohanty,
T.K.Mohanty & S.Burma.
For opp. parties: M/s. S.P.Mishra, Sr. Advocate,
S. Mishra, S.Dash, S.K.Mohanty,
S.Mishra, B.S. Panigrahi,
B.Mohapatra, S.S.Khshyap &
S.Nanda.
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Date of judgment: 14.8.2013
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PRESENT :
THE HONOURABLE SHRI JUSTICE M.M. DAS
M. M. DAS, J.Both these appeals arise out of a common judgment dated 5.10.2004 passed by the learned Ist Additional District Judge, Cuttack in Title Appeal Nos. 25 and 95 of 2000 . The learned lower appellate court while dismissing the Title Appeal No. 95 of 2000 preferred by the present appellants and allowing the Title 2 Appeal No. 25 of 2000 filed by the respondents reversed the judgment and decree of the learned Civil Judge (Junior Division passed in T.S. No. 147 of 1997. Both the appeals have been admitted on the following substantial question of law:-
"Whether Hindu Women's Right to Property Act, 1937 empowers a widow to gift her husband's property ?
During course of hearing, it appeared to the Court that a further substantial question of law also arises for determination in these two Second Appeals, i.e. "whether the presumption under Section 90 of the Evidence Act is available to be raised on the certified copy of a document, which has been admitted as secondary evidence ?"
2. The facts leading to both the above appeals are required to be referred to in gist.
One Sulochana Sethi, the predecessor of the present appellants filed the suit bearing T.S. No.147 of 1997 in the court of the learned Civil Judge, (Junior Division), 1st Court, Cuttack impleading the respondents as defendants, seeking declaration of her title over Ac.0.03 decimals of land from the southern part of the suit property, in accordance with the registered gift deed bearing No.5511 dated 04.12.1944 executed in her favour and in the alternative to declare her title over the same by way of adverse possession along with a further prayer for partition of her fifty per cent share. 3
3. The plaintiff's case was that the suit land originally belonged to one Madan Sethi, the father of the plaintiff - Sulochana, who is the common ancestor of all the parties. The said Madan Sethi died prior to 1944 leaving behind two widows, namely, Nima Bewa and Udia Bewa, a married daughter (plaintiff-Sulochana) and a minor son, namely, Babaji Sethi (through Udia). The defendant No.1 is the widow and the defendants 2 to 8 are the sons and daughters of late Babaji Sethi. After the death of Madan Sethi, both his widows gifted away half portion of the suit schedule property from southern part measuring Ac.0.03 decimals with two thatched rooms in favour of the plaintiff by executing and registering a gift deed. Babaji Sethi lived in the northern half of the suit schedule property, who died in 1955 and his legal heirs, the defendants, continued to possess the suit land, which was in possession of late Babaji Sethi. By passage of time, dissension arose in the family, for which the plaintiff approached the local Panchayat for a decision in the matter and there being non- cooperation from the defendants, the plaintiff filed the suit.
4. The case of the defendants in their written statement is that Madan Sethi, the common ancestor died in 1946 and thereafter his two widows also died prior to coming into force of the Hindu Succession Act, 1956. Babaji Sethi died on 20.03.1996 being succeeded by the defendants as his legal heirs. After the death of Madan Sethi in 1946, his only son Babaji Sethi inherited the suit property with life interest of the widows of Madan Sethi therein. At the 4 time of death of Madan Sethi, Babaji Sethi being a minor, the plaintiff and her husband were looking after the affairs of the family and on their request, the widows of Madan permitted them to remain in the suit house. Taking advantage of the minority of Babaji and illiteracy of the widows, the plaintiff and her husband, in the guise of a Power of Attorney, got the gift deed executed on 04.12.1944. The gift deed, being a fraudulent document inasmuch as the widows having no right of alienation as per Hindu Women's Right to Property Act, 1937, it does not confer any title in favour of the plaintiff. On the basis of the void gift deed, the plaintiff recorded her name along with Babaji in respect of the suit property in Hal settlement, but the same was set aside in R.P. Case No.231 of 1993 with a direction to record the names of the defendants in the ROR. The plaintiff's possession over the suit land is not on the basis of the right, but only permissive in nature which cannot ripe into title by way of adverse possession. The suit schedule property also being the homestead land consisting of dwelling house of the defendants, plaintiff has got no right of partition.
5. On the above pleadings, the learned trial court framed as many as ten issues, out of which, issue No.8 relates to the substantial questions of law as framed in the second appeals.
6. The learned trial court by the judgment and decree dated 25.02.2000 and 20.03.2000 respectively, decreed the suit in part. While negativing the claim of title of the plaintiff by other means, it 5 declared the title of the plaintiff by way of adverse possession on the basis of long standing possession. The said judgment was challenged by the plaintiff by filing T.A. No.95 of 2000 and the defendants by filing T.A. No.25 of 2000.
As stated earlier, the learned lower appellate court allowed T.A. No.25 of 2000 and reversed the judgment and decree passed by the learned trial court, while dismissing T.A. No.95 of 2000 filed by the plaintiff.
7. Mr. B.H. Mohanty, learned senior counsel appearing for the appellants contended that during hearing of the appeals, the certified copy of the registered deed of gift dated 04.12.1944, which was marked as 'X' before the learned trial court was marked as Ext.11 as additional evidence. He submitted that the conclusion of the learned lower appellate court that the gift deed marked as Ext.11 cannot be accepted as the presumption under Section 90 of the Evidence Act is not applicable to a certified copy of thirty years old document, is erroneous in law.
Mr. Mohanty further submitted that the gift deed Ext.11, which is of more than 30 years old attracts the presumption under Section 90 of the Evidence Act. In support of his contention, he placed reliance on the decision in the case of Sri Lakhi Baruah and others v. Sri Padma Kanta Kalita and others, A.I.R. 1996 SC 1253 and submitted that the Hon'ble apex Court, in the said judgment has come to the conclusion that in the event, the 6 foundation for marking such a certified copy as a secondary evidence has been led and in the event, the document in question comes from a proper custody, the presumption under Section 90 of the Evidence Act is also available to such a certified copy of the document. He, therefore, submitted that once the gift deed was admitted as additional evidence and marked as Ext.11, the presumption under Section 90 of the Evidence Act is available to be drawn on the said document. The conclusion of the learned lower appellate court, according to Mr. Mohanty, that the said document Ext.11 is a void one, not having been properly proved, is not sustainable. If this is accepted, Mr. Mohanty submitted that Ext.11 remains as a valid document conferring right, title and interest on the plaintiff in respect of the suit property.
8. Mr. S.P. Mishra, learned senior counsel appearing for the respondents, on the contrary, submitted that Ext.11, being a certified copy and not the original document, the presumption under Section 90 of the Evidence Act cannot be drawn in respect of Ext.11, as such a presumption is not available to be drawn, even though the original might have been more than thirty years old. He referred to the decision of this Court in the case of Kirtan Behari Acharya v. State of Orissa and others, 1998 (II) OLR 295. He further submitted that even accepting that Ext.11 has been admitted into the evidence as secondary evidence at the lower appellate stage, the same having been executed by two widows, who are admittedly illiterate and 7 Pardanasini ladies, onus lay on the plaintiff to prove valid execution of the said document, which the plaintiff has failed to discharge. According to Mr. Mishra, as a matter of fact, the plaintiff, in her evidence has categorically admitted that neither she nor her husband had gone to the Sub-Registrar office at the time of the execution and registration of the gift deed and she is unable to say, who scribed the gift deed and who are the witnesses thereto. The plaintiff herself stated to have no knowledge about the contents of the gift deed. Under such circumstances, the plaintiff is not entitled to the benefit of the presumption under section 90 of the Evidence Act.
9. To appreciate the rival contentions made by the learned counsel for the respective parties with regard to drawing of presumption under Section 90 of the Indian Evidence Act, 1872 and with regard to the correctness and genuinity of Ext.11, it would be appropriate to quote section 90 of the said Act, which is as under :-
"90. Presumption as to documents thirty years old.- Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
Explanation - Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable".
10. The principle underlying section 90 of the Act is that if a document of thirty years old or more, is produced from the proper 8 custody and on its face, the same is free from suspicion, the Court may presume that it has been duly executed and attested. The reason for incorporating this section was based on necessity and convenience, as it is some time highly difficult and some time impossible to prove hand writing, signature and execution as well as attestation of old documents after lapse of many years. Such presumption under section 90 of the Act is available only if the two conditions enumerated in the said section are fulfilled or in relation to documents, the execution and attestation of which are not denied, only in such contingencies, the formal proof of such documents is waived for saving the time of the Court in a case. Where the executant or the attesting witness are not alive or available and the genuineness of the said document is disputed and mode of proof as required under section 69 of the Act is also not possible, the Court would be entitled to raise a presumption under section 90 of the Act in relation to its due execution and attestation, if it comes to the conclusion that the document is such that it is likely to have been executed having regard to the natural human conduct and there are no circumstances raising suspicion of the Court.
11. However, in cases, where genuineness of the document is disputed and the executant or attesting witness are alive and available or, if they are dead or not available, but evidence is available for proving the documents in accordance with the mode prescribed under section 69 of the Act, then the Court should not raise 9 presumption under section 90 of the Act and admit the documents into the evidence, but direct the parties to prove the documents by leading evidence. (See Haradhan Mahatha and others v. Dukhu Mahatha, A.I.R. 1993 Patna, 129) It has been also held by this Court as well as the Hon'ble Supreme Court that the presumption under section 90 of the Act is permissive and it is a matter of judicial discretion, where the Court would make the presumption or would call upon the party to offer the other proof.
12. One distinctive feature of the present case is that the document admitted as additional evidence and marked as Ext.11 by the learned lower appellate court is not an original document, but a certified copy of a gift deed. It was authentically laid down by this Court in the case of Kirtan Behari Acharya (supra) that section 90 of the Act is applicable to the original document and not to the certified copy. Even though the certified copy of a document more than thirty years old is admitted into the evidence without objection that would not authorize the Court to raise a presumption of due execution of the original documents or genuineness of the contents thereof or the attestation. This view also has been taken in a series of judgments of the Hon'ble Supreme Court in the cases of Sri Lakhi Baruah and others (Supra), Sital Das v. Sant Ram and others, AIR 1954 SC 606, Harihar Prasad Singh and another v.
Deonarain Prasad and others, AIR 1956 SC 305 and Kalidindi 10 Venkata Subbaraju and others v. Chintalapati Subbaraju and others, AIR 1968 SC 947.
13. As a matter of fact, Privy Counsel in the case of Basant Singh and others v. Brijraj Saran Singh and others, AIR 1935 PC 132 laid down that presumption under section 90 arises in respect of original documents. The copy does not warrant presumption of its execution and attestation.
14. In view of the settled position of law as above, this Court finds that the learned lower appellate court was correct in holding that there is no evidence led on behalf of the plaintiff to show that all the attesting witnesses to the said gift deed are dead, but none of the attesting witnesses have been examined. The learned lower appellate court, with regard to raising a presumption under section 90 of the Evidence Act relying upon the case of Kirtan Bihari Acharya (supra) in paragraph - 12 of the judgment held as follows :-
"12. Now at this stage, the question remains to consider the submission of the learned counsel for the plaintiff that the document being 30 years old, presumption u/s.90 of the Evidence Act as to extent of the execution of the document i.e. signature, attestation etc. It is the settled position of law that the presumption as to documents purporting or proved to be of 30 years old and produced from any custody, which the court in the particular case consider proper, extends to the execution and attestation of the documents though not to its contents, i.e., the Court may presume that the signature and every other part of such document, which purports to be in handwriting of any person, is in that person's handwriting and in case of a document executed or attested, then it is duly executed and attested by the person, by whom it purports to be executed and attested. It has been held in Kirtan Bihari Acharya v. State of Orissa, 1998 (2) OLR 295 that the presumption arising u/s. 90 of Evidence Act is applicable to original documents and not the certified copy thereof. Even if the original documents might have been more than 30 years 11 old, admission of such documents even without objection, would not authorize the court to raise a presumption of due execution of the original documents or genuineness of the contents thereof."
This Court, therefore, finds no error to have been committed by the learned lower appellate court in coming to the above finding.
15. Before delving into the question with regard to the right of a Hindu woman over the property before the Hindu Women's Right to Property Act, 1937 (for short, 'the 1937 Act') came into operation and thereafter, the Hindu Succession Act in 1956, it would be appropriate to refer to the concurrent findings of both the courts below, which are as follows:-
(i) The widows/donors of Madan Sethi had no right to alienate the property in the year 1944, i.e., prior to coming into operation of the Hindu Succession Act, 1956, and
(ii) Madan having died after 1937, both of his widows derive the benefit of the provisions of Hindu Women's Right to Property Act, 1937 in respect of conferring limited interest over the suit property.
16. If we trace out the history with regard to Hindi Women's Right to Property prior to the enactment of the 1937 Act, it would be found that Vijnanevara concluded that the widow is entitled to inherit to her husband's property, if he died separated and not reunited and left no male issue. The text of Mitakshara is "therefore, it is a settled rule that a wedded wife, being 12 chaste, takes the whole estate of a man, who being divided from his co-heirs and not subsequently reunited with them dies leaving no male issue" (Mit. II, 1, 39) (See Rewan Pershad v. Mt. Radha (1846) 4 Moor's Indian Appeal 137, 148 and 152). Prior to the 1937 Act, under Hindu Law governed by Mitakshara School of Law, a Hindu widow was only entitled to maintenance from out of the joint family property of her husband/coparcener.
With regard to the limited powers of disposal of property possessed by a female prior to 1937 Act, according to Hindu Law, restriction was the "Rule" absolute power was the "exception". It would be profitable at this juncture to quote Katyayana, who says that "let the childless widow, preserving unsullied the bed of her lord, and abiding with her venerable protector, enjoy with moderation the property until her death. After her, let the heirs take it. But she has no property therein to the extent of gift, mortgage or sale". The sages declared that the transactions of a woman have no validity, especially the gift, hypothecation or sale of a house or field and such transactions are valid when they are sanctioned by the husband, or on failure of the husband by the son or on failure of the husband and the son, by the King. An analysis of the above proposition clearly goes to show that prior to the 1937 Act, a Hindu widow only had a limited interest over the property of her husband after death of her husband leaving exclusive properties behind, provided, there is no other male heir, i.e., no son born to the husband through the widow. 13
17. Dealing with the case where, as a matter of fact, it was found that the husband died prior to coming into operation of the 1937 Act, this Court, in the case of Sulabha Gouduni and others v. Abhimanyu Gouda and others, AIR 1983 Orissa 71, while considering the effect of section 14 (1) of the Hindu Succession Act, in such situation, referring to section 14 (1) of the Hindu Succession Act, laid down that it is admitted case of the parties that plaintiff no. 1 was receiving maintenance from defendant no.1. It is neither in the pleadings nor in evidence that any property was possessed by the plaintiff no. 1 acquired by her in lieu of maintenance. It was further held that severance of status between two brothers Khetra and Shyam and the joint recording of the names of plaintiff no. 1 and defendant no. 1 do not attract the provisions contained in section 14 (1) of the Hindu Succession Act. The Court further held that, in fact, the case of the plaintiff was not built on the plank of section 14 (1), but as a post-Act widow whose limited ownership ripened into full ownership. In view of the conclusion arrived at by this Court that the widow was a pre-Act widow, the Court felt it unnecessary to refer to the number of authorities cited at the Bar and rejected the claim of the widow.
In a Full Bench decision in the case of Moni Dei v.
Hadibandhu Patra and another, AIR 1955 Orissa, 73, this Court considered the question as to whether section 3 (2) of the 1937 Act will have a retrospective effect. It was held in the said case that the decision of the Court in the Special Bench in the case of Radhi Bewa and another v. Bhagaban Sahu and others, AIR 1951 Orissa, 378 was erroneous and the 14 same has been wrongly decided. Thus, the Full Bench came to the conclusion that the provisions of the Act have no retrospective effect so as to apply to the case of a widow whose husband had died prior to the date of commence of the 1937 Act.
In the case of N. Jayalakshmi Ammal and another v.
R.Gopala Pathar and another, AIR 1995 SC 995, the Hon'ble apex Court expressed its view that the burden of proof is on the plaintiffs, who are successors of the widow to prove that the husband died after coming into force of the 1937 Act and the widow obtained the undivided half right in the property as per the 1937 Act. Finding that this fact has not been proved by the plaintiffs came to the conclusion that the widow was not shown to have inherited the undivided half share of her husband in the property and she was incompetent to convey any interest in the suit property as per Exhibit A.4 in the said case. Accordingly, the Hon'ble apex Court laid down that on the death of the husband, the brother of the husband Srinivasa became entitled to the property by survivorship and he was competent to execute Ext. B.2 to the first defendant, who became entitled to the entirety of the property.
With regard to non-applicability of the 1937 Act to a Pre-Act widow, the Bombay High Court in the case of Jamunabai Bhalchandra Bhoir and others v. Moreshwar Mukund Bhoir, AIR 2009 Bombay 34 held as follows:-
"In this case the husband of Hindu Widow had died prior to coming into force of Act (18 of 1937). u/s. 3 (1), if Hindu dies intestate leaving separate property that separate property shall, devolve upon his widow along with the lineal descendants subject to the provisions of sub-section (3) and 15 under sub-section (2), if a Hindu governed by Mitakshara School of Hindu Law died intestate having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-sec. (3), have in the property the same interest as he himself had. Sub-sec. (3) provides that the interest was to be limited interest known as Hindu Women's estate. Section 4 of that Act declared that nothing in the said Act shall apply to the property of any Hindu dying intestate before the commencement of this Act. Hindu widow could claim share in the property u/s. 3 of this Act if her husband would have died after the commencement of this Act. As stated earlier this Act came into force on 14-3-1937. As husband of widow had died prior to that date, this Act is not applicable to the facts of this case and she could not get any share or interest in the property. Admittedly, under the Shastric Hindu law, widow was not entitled to inherit any right or share in the joint family property or even in the separate property of her husband. She had only right of maintenance from the property. A mere right of maintenance without actual acquisition in any manner is not sufficient to attract S. 14 (1). Hence, her daughter also would not be entitled to share in the property as widow herself had no share in property."
18. In this regard, it may further be noted that the Hon'ble Supreme Court in the case of Controller of Estate Duty, Madras v. Alladi Cuppuswamy, AIR 1977 SC 2069, while dealing with the character of the interest which a Hindu widow gets by way of a statutory provisions contained in the 1937 Act observed that there can be no doubt that prior to the passing of the 1937 Act, the Hindu woman had no right or interest at all in a Hindu coparcenary. She was neither a coparcener nor a member of the coparcenary nor did she have any interest in it, except the right to get maintenance. She also had no right to demand partition of the coparcenary property after the death of her husband. The Hon'ble Supreme Court in the case of Eramma v. Verrupanna and others, AIR 1966 SC 1879 again held on facts of the said case that at the time of death of the appellant's husband, the Hindu Women's Right to Property Act, 1937 had not come into 16 force and so, when the Succession Act came into force, the appellant had no manner of title to the properties. The Hon'ble Supreme Court further held that even though the appellant was in possession of the properties, that fact alone was not sufficient to attract the operation of section 14 of the Hindu Succession Act. In that context, the Hon'ble Supreme Court in the case of Eramma (supra) held:
".......................The object of the section is to extinguish the estate called "limited estate" or "widow's estate" in Hindu law and to make a Hindu woman, who under the old law would have been only a limited owner, a full owner of the property wth all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder. It does not in any way confer a title on the female Hindu when she did not in fact possess any vestige of title. The provisions of section 14(1) cannot be attracted in the case of a Hindu female who is in possession of the property of the last male holder on the date of the commencement of the Act, when she is only a trespasser without any right to the property".
19. This Court has also repeatedly held that a pre-Act widow, whose husband died prior to 1937 had absolutely no right over the coparcenary property and it was only the 1937 Act, which entitled a widow to get a limited interest in equal share along with the son. Before enactment of the said 1937 Act, a widow did not get any interest in the property if the husband left any son, grandson and great- grandson.
20. In Article 35 in Mulla Principles of Hindu Law at page 107 in the 15th Edition, the position of law prior to coming into operation of 1937 Act has been stated as "under the law prior to the Act, the widow of a person governed by the Mitakshara had only a right of maintenance in respect of a coparcenary property in which the husband had interest. In respect of separate property left by her husband, she had only the right of 17 maintenance when the husband had left a son, grandson or great-grandson. She could inherit his separate property only in the absence of these immediate heirs". (See Brajabandhu Misra v. Luhurani Misra, AIR 1996 Orissa 50).
21. In the case of Bhaskar Raut and others v. Rambha Bewa and others, AIR 1974 Orissa, 74, this Court found that there is admission with regard to the share of the widow which if accepted, it would be considered that the widow was a post-Act widow. In that context, it was observed that had she been a pre-Act widow, she would have no interest in the property and the share of her husband would have passed by survivorship to the other coparceners. Thus a pre-Act widow would be only a maintenance holder and will have no right over the coparcener property has been reiterated in the case of Duli Prusty and another v. Ketaki Prusty and another, AIR 1994 Orissa 10.
22. From the discussions made above, no further interpretation is required to be made with regard to the right of a widow whose husband expired prior to the 1937 Act came into operation. It is clear that a pre-Act widow is only a maintenance holder and does not succeed to the joint family property on the death of her husband. In view of section 4 of the 1937 Act, which clearly stipulates that nothing in the said Act shall apply to the property of any Hindu dying intestate before commencement of the Act, a pre-Act widow cannot get the benefit of section 3 of the said Act, even if he survives after 1937. As already discussed, in view of the settled position, even if a pre-Act widow survived till the Hindu Succession Act, 1956 came 18 into operation, she having no right over the coparcener/joint family property, the question of she becoming an absolute owner under section 14 of the Hindu Succession Act, even if it is found that she is in possession over any portion of the coparcenary/joint family property does not arise and she will not be considered to be the absolute owner thereon as she acquired no right over the property on the death of her husband prior to 1937.
23. In the instant case, admittedly, the property exclusively belonged to Madan Sethi the father of the original plaintiff Sulochana. The said Madan Sethi died prior to 1944 leaving behind two widows and a married daughter as well as a minor son. Hence, even though the two widows acquired a right under section 3 of the 1937 Act, such right is a limited right.
24. It is well settled in law that a Hindu widow whose husband died after the 1937 Act came into operation, has a right to succeed to his property under section 3 (1) of the Act along with male issue of the deceased husband if he is governed by the Mitakshara law equally with the male issue. However, the interest over the property of such widow is construed to be a limited interest and it is further well settled law that the widow has no right of disposition of the property except for religious and charitable purposes and other purposes amounting to legal necessity (See Article 181-A and B of Mulla Hindu Law). In the instant case, the gift deed was allegedly executed in 1944 in favour of the plaintiff. Bereft of the fact that the gift deed cannot be accepted into evidence as already held above, even otherwise, the widow of Madan Sethi who was the mother of the 19 plaintiff had no right of alienation by way of gift in respect of the suit property. Further, as it is admitted that the mother of the original plaintiff has gifted away the property and was no more in possession over the property on her own right inasmuch as the co-widow of late Madan Sethi did not survive by the time the Hindu Succession Act came into force, section 14 (1) of the said Act will have no application in the present case.
25. In view of the above conclusions, this Court finds that the learned appellate court was correct in reversing the judgment and decree of the learned trial court by allowing T.A. No. 25 of 2000 preferred by the respondents and dismissing the T.A. No. 95 of 2000 filed by the appellant. Both the substantial questions of law involved in the Second Appeals are accordingly answered and the appeals being devoid of any merit stand dismissed. However, there shall be no order as to the costs.
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M.M. Das, J.
Orissa High Court, Cuttack.
August 14th ,2013/Biswal.
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