Gujarat High Court
Bhagwandas Sendharam Panchal (Heir Of ... vs Heirs Of Deceased Kantilal Keshavlal ... on 29 June, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/SA/49/1987 JUDGMENT DATED: 29/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 49 of 1987
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BHAGWANDAS SENDHARAM PANCHAL (HEIR OF APPELLANT NO.2 ). &
26 other(s)
Versus
HEIRS OF DECEASED KANTILAL KESHAVLAL JANI & 6 other(s)
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Appearance:
for the Appellant(s) No. 2
JENIL M SHAH(7840) for the Appellant(s) No. 1,2.1
MS ARCHANA R ACHARYA(2475) for the Respondent(s) No.
1,1.1,1.2,1.3,2,3,4,5
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 29/06/2022
ORAL JUDGMENT
1. This is a Second Appeal preferred by the original plaintiff being aggrieved and dissatisfied with the judgment and decree passed by the First Page 1 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 Appellate Court and the Trial Court rejecting the suit of the plaintiff.
2. It is the contention of the appellant-plaintiff that the lower Courts have committed serious error of facts and law in holding that the deceased had executed a sale deed at exhibit 34 for legal necessity. According to the appellant the lower Court, ought to have seen that the burden of showing that the sale deed was executed for legal necessity or that it was executed for payment of antecedent debts lay on the defendant and that the defendant has not laid any evidence on the point of existence of legal necessity justifying alienation of ancestral immovable property nor had he laid any evidence to show that exhibit 34 was executed by the Sendharam for the payment of his antecedent debts. It is also contended that though the Court has held that sale price was inadequate, instead of declaring the sale deed as not binding to the plaintiff, hold otherwise against the plaintiff. It is also contended that since there was no evidence on record to show that the ancestral immovable property was sold by the deceased for legal necessity or for antecedent debts, the suit of the plaintiff ought to have been decreed in favour of Page 2 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 the plaintiff. It is also contended that both the Courts below have committed error of facts and law in dismissing the suit and therefore since there is substantial question of law involved regarding the adequacy of the consideration and the issue of legal necessity and or payment towards antecedent debts for execution of sale deed exhibit 34, by deciding the same, appeal may be allowed in favour of the plaintiff and suit be decreed in favour of the plaintiff.
3. The appeal came to be admitted on the following substantial question of law on 03.03.1998:-
"(i) Whether the lower Courts committed an error in holding that the sale deed exhibit 34 was for adequate consideration and for legal necessity of the family?"
4. Heard learned advocate Mr.Jenil Shah for the appellants and learned advocate Mr.Joshi for Ms.Archana Acharya for the respondents at length. Perused the records and proceedings of the Trial Courts and the impugned judgment of both the Courts below and the decisions cited at bar.
5. The plaintiff appellant has filed the suit against the defendants contending that the alleged sale deed entered into between his deceased father Page 3 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 and defendant is not binding to him and it was not for any legal necessity of the family. It was also contended by the plaintiff that the deceased has no right to sold the property individually as the property in question is an ancestral property. It is also contended that he was adapted son of the deceased and therefore he has a right in the ancestral property. According to him, after the death of his father, when he received the notice from the defendant calling upon him, whether he is willing to purchase the suit property from the defendant, he came to know regarding the execution of the sale deed exhibit 34 entered into between his deceased father and the defendant. According to him, the alleged sale deed is not binding to him and the financial condition of his father was sound and there was no need to sell the said property for such a meager amount of just Rs.1500/- for a total land of 13 acres or more. He has submitted that as the defendant was serving as Talati Mantri and has an influence over his father, due to such influence he got executed the alleged sale deed in his favour which is not binding to the plaintiff. He has also submitted that there was no antecedent debt of his father and there was no need for his father to execute such sale deed. On all these grounds, he Page 4 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 has prayed to decree the suit in his favour directing the defendant to hand over the possession of the property and for non- bindingness of the sale deed to him.
6. It appears that the suit has been resisted by filing the statement by the defendant-respondent wherein he has categorically stated that the plaintiff's father has executed the sale deed in his favour and has handed over the possession to him and necessary entries have already been mutated in the revenue records to that effect. He has also stated that the deceased Sendharam had no plough and bullocks and had no other agricultural equipments and was getting lands cultivated on crop share basis through one Narsang Lalji. It is also contended that the deceased has sold the suit land to pay debts of the society and others and it was for necessity of the family. He has also contended that the plaintiff had knowledge regarding the sale much more prior to 01.08.1977, when the mutation entries had taken place and statements of the plaintiff was recorded. He has also contended that as there was stipulation in the sale deed that prior to selling the suit land to others, there was a prior rights available to the seller, he has Page 5 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 informed the plaintiff asking him as to whether he wants to purchase the field or not. According to the defendant, the plaintiff did not want to purchase the suit land. He has stated that after purchasing the land, he has improved the land and the price of the land is above Rs.8,000/- and 9,000/-, he has prayed to dismiss the suit with cost.
7. On the basis of the pleadings, the trial Court has framed various issues which includes the entitlement of the plaintiff as adoptive son and his right as coparceners of the family of deceased Sendharam regarding the sale deed as to whether it was for inadequate consideration and without necessity and on limitation as well as legality of the deed and Court fee and entitlement of the plaintiff as to possession and declaration. On the basis of the pleadings and evidence on record, the Trial Court has held that plaintiff is an adoptive son of deceased Sendharam and he has a right as a coparcener in the property of Sendharam. It is also held that plaintiff has a right to sue and suit is in limitation period and the plaintiff has affixed proper Court fees. However, so far as the suit sale deed being in inadequate consideration and without legal Page 6 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 necessity of the family and declaring it to be illegal came to be answered against the plaintiff and ultimately the suit of the plaintiff came to be dismissed.
8. Against the dismissal of the suit, the plaintiff has preferred Regular Civil Appeal No.81 of 1981 before the District Court, Banakantha, Palanpur. The said appeal came to be dismissed by the impugned judgment and decree dated 29.09.1986 passed by the then Joint District Judge, Palanpur. It appears from the said judgment that the First Appellate Court has also framed the following points for the determination of the appeal.
"(8) The following points arise for my determination:-
1. Whether the plaintiff proves that Sendharam had adopted him; and adoption deed was passed on 26.07.1961?
2. Whether the plaintiff is a co-parcener of the family of deceased Sendharam?
3. Whether the plaintiff proves that the sale-
deed of the suit land is for inadequate consideration and without legal necessity of the family?
Page 7 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022C/SA/49/1987 JUDGMENT DATED: 29/06/2022
4. Whether the plaintiff proves that the sale deed dated 13.10.1969 is without consideration and without power of execution?
5. Whether the lower Court has erred in its Judgment?
6. Whether the plaintiff is entitled to the reliefs claimed?
7. What order?"
9. It appears from the record that after hearing learned advocates for the respective parties and perusing the record and proceedings of the Trial Court, the learned First Appellate Court has decided the point nos.1 and 2 in affirmative whereas point nos.3 to 6 came to be decided as negative and ultimately, the appeal came to be dismissed with no order as to costs.
10. Mr.Jenil Shah, learned advocate for the appellant has vehemently submitted that both the Courts below have committed serious error of facts and law in dismissing the suit and appeal of the plaintiff. He has submitted that when the defendant has raised a defense of execution of sale deed by the deceased for legal necessity, then the burden lies upon the defendant to prove the same. According to Mr.Shah, however, both Page 8 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 the Courts below have shifted the burden on the plaintiff which is not proper. He has submitted that it is for the alienee to prove that sale of the property was for legal necessity. He has submitted that mere notes on the revenue record as to loan obtained by the plaintiff's father, does not mean that the deceased was having antecedent debts and to pay of that debts, the land came to be sold. He has submitted that there is no iota of evidence on record to suggest that the deceased had sold the land in question to the defendant for legal necessity of the family. Mr.Shah has also referred to the oral evidence and has submitted that as per the evidence the plaintiff was paying the installment of the loan and the price of the suit land at the time of filing of the suit was about Rs.6,000/- to 7,000/-. He has submitted that even there is also evidence on record that in the year 1967, the land price was Rs.1,000/- per acre. He has also submitted that as per the evidence of the plaintiff, there was no any debt owe to the Narsang Lalji as stated by the defendant. He has submitted that considering the overall evidence on record, it clearly transpires that there was no legal necessity for the deceased to sell the suit land to the defendant.Page 9 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022
C/SA/49/1987 JUDGMENT DATED: 29/06/2022 10.1. He has also submitted that the defendant was in service in revenue department and he had influence over the deceased and therefore due to that, the alleged sale deed has been executed. He has submitted that there is no evidence produced by the defendant suggesting that there was weak economic condition of the deceased. He has submitted that both the Courts below has taken erroneous approach on the aspect of the legal necessity. He has submitted that therefore in absence of the proof of legal necessity, the sale deed ought to have declared as null and void and the suit of the plaintiff ought to have been decreed. He has prayed to allow the present appeal and to pass decree in favour of the plaintiff as prayed in the suit itself with cost through out. He has relied upon the various decisions which are referred to hereinafter.
11. Learned advocate Mr.Shah has relied upon the decision of the Apex Court in case of Valliammai Achi vs Nagappa Chettiar & Ors reported in AIR 1967 SC 1153 wherein in para 10 and 11 it has been observed as under:-
"10. But even assuming that there was some kind of election by Pallaniappa we Page 10 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 cannot see how the nature of the property left by Pallaniappa's father would change merely because Pallaniappa's father made a will giving the residue absolutely to Pallaniappa and Pallaniappa took out probate of the will. The property being joint family property Pallaniappa's father was not entitled to will it away and his making a will would make no difference to the nature of the property when it came into the hands of Pallaniappa. A father cannot turn joint family property into absolute property of his son by merely making a will, thus depriving sons of the son who might be born thereafter of their right in the joint family property. It is well settled that the share which a co-sharer obtains on partition of ancestral property is ancestral property as regards his male issues. They take an interest in it by birth whether they are in existence at the time of partition or are born subsequently : [see Hindu Law by Mulla, Thirteenth Edition p. 249, para 223 (2) (4)]. If that is so and the character of the ancestral property does not change so far as -sons are concerned even after partition, we fail to see how that character can change merely because the father makes a will by which he gives the residue of the joint family property (after making certain bequests) to the son. A father in a Mitakshara family has a very limited right to make a will and Pallaniappa's father could not make the will disposing of the entire joint family property, though he gave the residue to his son. We are therefore of opinion,that merely because Pallanappa's father made the will and Page 11 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 Pallaniappa probably as a dutiful son took out probate and carried out the wishes of his father, the nature of the property could not change and it will be joint family property in the hands of Pallaniappa so far as his male issues are concerned.
11. Further it is equally well settled that "under the Mitakshara law each son upon his birth takes an interest equal to that of his father in ancestral property, whether it be movable or immovable. It is very important to note that the right which the son takes at his birth in the ancestral property is wholly independent of his father. He does not claim through the father." (see Mulla's Hindu Law, Thirteenth Edition, p. 251, para 224). It follows therefore that the character of the property did not change in this case because of the will of Pallaniappa's father and it would still be joint family property in the hands of Pallaniappa so far as his male issue was concerned. Further as soon as the respondent was adopted he acquired interest in the joint family property in the hands of Pallaniappa and this interest of his was independent of his father Pallaniappa. In such circumstances even if Pallaniappa could be said to have made an election there can be no question of the respondent being bound by that election, for he is not claiming through his father."
11.1. Learned advocate Mr.Shah has also relied upon the observation of the Privy Council in case of Lala Brij Lal V. Mt. Inda Kunwar and Others Page 12 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 reported in A.I.R. 1914 Privy Council, which is as under:-
"The only question for determination on this part of the case is whether the sale by Bhauna of the equity of redemption in respect of the 8 biswas was for legal necessity. The onus of supporting a sale from a Hindu widow is undoubtedly on the purchaser. In the present case the appellant has adduced no evidence to prove legal necessity as would bind the husband's estate."
11.2. Learned advocate Mr.Shah has also relied upon the following observation of the Patna High Court in the case of Biswanath Singh and Another V. Kayestha Trading And Banking Corporation Ltd. And Another reported in A.I.R. 1929 Patna 422 :-
"....that recitals in mortgages of deeds of sale with regard to the existence of legal necessity for an alienation are not of themselves evidence of such necessity without substantiation by evidence aliunde....
.........Now a contract for the cattle market at Sonepur and the opening of an arhat for flour and ghee would certainly be business of a speculative character; and it would be impossible to hold that the family property could be bound by loans taken for any such purposes as these. As to the business, not being a new business, there is nothing to show when it originated or that it had any existence before the loans in suit were taken. ..."
11.3. Learned advocate Mr.Shah has also relied upon Page 13 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 the observation of the Bombay High Court in the case of Naro Gopal Kulkarni and others V. Paragowda Basagowda and Others reported in A.I.R. 1916 BOMBAY 130, wherein it has been observed in head note (a) and (b) as under:-
(a) Hindu Law- Alienation - Father - Antecedent but time barred debt - Alienation is not binding on sons living- Alienee gets father's share on date of alienation - Alienation by joint tenant effects severence.
The alienation of joint family property by a Hindu father to discharge an antecedent time barred debt is not binding on his sons who are in existence at the date of the alienation.
The alienee, however, is entitled to the fathers share in the property and his right is not affected by the birth of sons to the alienor subsequent to the alienation, inasmuch as the alienation by a joint tenant effects as severance of the tenancy as a result of which the alienee, before division by metes and bounds, becomes a tenant-in-common.
(b) Hindu Law- Joint Family- Alienee from coparcener gets right to partition and not possession - Decree allowing son's share unaffected by father's alienation should order possession of whole subject to alienee's right to get father's share partitioned- Partition can be ordered if prayed for.
The alienee only acqu res a right to partition and not to possession before partition. In a suit, therefore by the sons for possession of property imporperly alienated by their father the decree which allows the sons claim, should direct recovery of the whole property, declaring at the same time that the purchaser had acquired the share and interest of the alienor and is entitled to take proceedings to have it ascertained by petition.
Page 14 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022C/SA/49/1987 JUDGMENT DATED: 29/06/2022 11.4. Learned advocate Mr.Shah has also relied upon the judgment of the Apex Court in case of Subodhkumar And others Vs. Bhagwant Namdeorao Mehetre And others reported in (2007) 10 SCC 571, especially para 12, which reads as under:-
"12. In the case of Sunil Kumar and another v. Ram Parkash and others reported in AIR 1988 SC 576, this Court has held that the right to obstruct alienation is different from the right to challenge the alienation. The coparcener has a right to challenge the alienation. However, he has no right to interfere in the act of management of the joint family affairs. In this connection, the following observations in paras 21 to 26 of this Court are relevant to be noted:
"22. In a Hindu family, the karta or manager occupies a unique position. It is not as if anybody could become manager of a joint Hindu family. "As a general rule, the father of a family, if alive, and in his absence the senior member of the family, is alone entitled to manage the joint family property." The manager occupies a position superior to other members. He has greater rights and duties. He must look after the family interest. He is entitled to possession of the entire joint estate. He is also entitled to manage the family properties. In other words, the actual possession and management of the joint family property must vest in him. He may consult the members of the family and if necessary take their consent to his action but he is not answerable to every one of Page 15 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 them.
23. The legal position of karta or manager has been succinctly summarised in the MAYNE'S Hindu Law (12th Ed. Para 318) thus:
318. Manager's Legal position "The position of a karta or manager is sui generis: the relation between him and the other members of the family is not that of principal and agent, or of partners, it is more like that of a trustee and cestui que trust. But the fiduciary relationship does not involve all the duties which are imposed upon trustees.
23. The managing member or karta has not only the power to manage but also power to alienate joint family property. The alienation may be either for family necessity or for the benefit of the estate.
Such alienation would bind the interests of all the undivided members of the family whether they are adults or minors. The oft quoted decision in this aspect, is that of the Privy Council in Hanuman Parshad v. M.T. Babooee (1956) 6 Moo Ind. App.
393. There it was observed at p. 423: (1) "The power of the manager for an infant heir to charge an estate not his own is, under the Hindu law, a limited and qualified power. It can only be exercised rightly in case of need, or for the benefit of the estate." This case was that of a mother, managing as guardian for an infant heir. A father who happens to be the manager of an undivided Hindu family certainly has greater powers to which I will refer a little later. Any other manager however, is not having anything less than those stated in the said case. Therefore, it has been repeatedly held that the principles laid down in Page 16 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 that case apply equally to a father or other coparcener who manages the joint family estate.
Remedies against alienations:
24. Although the power of disposition of joint family property has been conceded to the manager of joint Hindu family for the reasons aforesaid, the law raises no presumption as to the validity of his transactions. His acts could be questioned in the Court of law. The other members of the family have a right to have the transaction declared void, if not justified. When an alienation is challenged as being unjustified or illegal it would be for the alienee to prove that there was legal necessity in fact or that he made proper and bona fide enquiry as to the existence of such necessity. It would be for the alienee to prove that he did all that was reasonable to satisfy himself as to the existence of such necessity. If the alienation is found to be unjustified, then it would be declared void. Such alienations would be void except to the extent of manager's share in Madras, Bombay and Central Provinces. The purchaser could get only the manager's share. But in other provinces, the purchaser would not get even that much. The entire alienation would be void. [Mayne's Hindu Law 11th ed. Para 396].
25. In the light of these principles, I may now examine the correctness of the contentions urged in this appeal. The submissions of Mr. H.N.Salve, as I understand, proceeded firstly on the premise that a coparcener has as much interest as that of karta in the coparcenary property. Second, the right of coparcener in respect of his share in the ancestral property would remain unimpaired, if Page 17 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 the alienation is not for legal necessity or for the benefit of the estate. When these two rights are preserved to a coparcener, why should he not prevent the karta from dissipating the ancestral property by moving the Court? Why should he vainly wait till the purchaser gets title to the property? This appears to be the line of reasoning adopted by the learned Counsel.
26. I do not think that these submissions are sound. It is true that a coparcener takes by birth an interest in the ancestral property, but he is not entitled to separate possession of the coparcenary estate. His rights are not independent of the control of the karta. It would be for the karta to consider the actual pressure on the joint family estate. It would be for him to forsee the danger to be averted. And it would be for him to examine as to how best the joint family estate could be beneficially put into use to subserve the interests of the family. A coparcener cannot interfere in these acts of management. Apart from that, a father-karta in addition to the aforesaid powers of alienation has also the special power to sell or mortgage ancestral property to discharge his antecedent debt which is not tainted with immorality. If there is no such need or benefit, the purchaser takes risk and the right and interest of coparcener will remain unimpaired in the alienated property. No doubt the law confers a right on the coparcener to challenge the alienation made by karta, but that right is not inclusive of the right to obstruct alienation. Nor the right to obstruct alienation could be considered as incidental to the right to challenge the alienation.
These are two distinct rights. One is the right to claim a share in the joint family estate free from Page 18 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 unnecessary and unwanted encumbrance. The other is a right to interfere with the act of management of the joint family affairs. The coparcener cannot claim the latter right and indeed, he is not entitled for it. Therefore, he cannot move the court to grant relief by injunction restraining the karta from alienating the coparcenary property."
11.5. Learned advocate Mr.Shah has also relied upon the judgment of this Court in case of Patel Ramanbhai Mathurbhai Vs. Govindbhai Chhotabhai Patel reported in 2020 (1) G.L.H. 261, especially observations in paras 34, 41, 42, 54, 55 and 56 which are as under:-
"34. There is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the courts below were vitiated by nonconsideration of relevant evidence or by showing erroneous approach to the matter and findings recorded in the court below are perverse. (Vide: Jagdish Singh v. Nathu Singh, AIR 1992 SC 1604; Smt. Prativa Devi (Smt.) v. T.V. Krishnan, (1996) 5 SCC 353; Satya Gupta (Smt.) @ Madhu Gupta v. Brijesh Kumar, (1998) 6 SCC 423;
Ragavendra Kumar v. Firm Prem Machinary & Co., AIR 2000 SC 534; Molar Mal (dead) through Lrs. v. M/s. Kay Iron Works Pvt. Ltd., AIR 2000 SC 1261; Bharatha Matha & Anr. v. R. Vijaya Renganathan & Ors., AIR 2010 SC 2685; and Dinesh Kumar v. Yusuf Ali, (2010) 12 SCC 740).
41. It is one of the fundamental principles of the law of evidence in India that a party on whom burden of proof lies must discharge it by bringing the best Page 19 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 evidence available before the Court and where a party does not do so, the Court will be justified in concluding that it would, if brought, not support the case of the party. There is no presumption that an act was done, of which there is no evidence, and the proof of which is essential to the case raised.
42. The general rule as to the onus of proof and the consequent obligation of beginning is, that the proof of any particular fact lies on the party who alleges it, not on him who denies it, "ei incumbit probatio qui dicit, non qui negat" vide Amir Ali and Woodroffe's Law of Evidence page 603 (Eighth Edition). The reason of the rule is, first that it is but just that he who invokes the aid of the law should be the first to prove his case, and, secondly, that a negative is more difficult to establish than an affirmative. These principles have been clearly laid down in Sections 101 and 103 of the Evidence Act which are as follows:
"101. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove these facts.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
"103. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person."
54. The 'burden of proof' means a party's duty to Page 20 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 prove a disputed assertion or charge. The 'burden of proof' includes both 'burden of persuasion' and the 'burden of production'. The 'burden of persuasion' means the duty imposed on a person to convince the fact finder to view the facts in a way that favours that person. The 'burden of production' is the duty imposed on the person to introduce enough evidence on a issue to have the issue decided by the fact finder, in that person's favour. The party having the 'burden of proof' must introduce some evidence if he wishes to get a certain issue decided in his favour. The 'burden of proof', therefore, denotes the duty of establishing by a fair preponderance of the evidence the truth of the operative facts upon which the issue at hand is made to turn by substantive law (Black's Law Dictionary, 7th Edition).
55 According to Phipson, who is considered to be an authority on the Law of Evidence, the phrase, 'burden of proof', has three meanings, namely, (I) the persuasive burden, the burden of proof as a matter of law and pleading the burden of establishing a case, whether by preponderance of evidence or beyond a reasonable doubt;(ii) the evidential burden, the burden of proof in the sense of adducing evidence; and (iii) the burden of establishing the admissibility of evidence. While persuasive burden i.e. onus probandi never shifts and is always stable, the evidential burden may shift constantly, according as one scale of evidence or other preponderates. Onus probandi rests upon the party, who would fail if no evidence at all is adduced. The general principle of burden of proof that he who invokes the aid of law should be the first to prove his case may be affected by statutory provision, e.g. in a case where the matters within the knowledge of the person against whom a proceeding is initiated, like the proceeding Page 21 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 under the provisions of the 1946 Act, as it will not only be difficult but also impossible for the State, at whose instance reference is made to the Tribunal, to first lead evidence on the question as to whether a person against whom such proceeding is initiated is a foreigner or not.
56 The principles discernible from the above referred decisions may be summarised as under:
[a] The general principles of law that can be gainfully culled out from the judicial pronouncements noted above is that the burden of proof cast under Sections 101 and 102 of the Indian Evidence Act, 1872 is the persuasive burden or the onus probandi. The persuasive burden to prove and establish the case always lies upon the plaintiff and the said burden never shifts upon the defendant. What may, however, shift is the onus to lead evidence in the sense that once the plaintiff side succeeds in prima facie establishing his pleaded case by leading evidence, the onus will then shift upon the defendant side to lead evidence so as to disprove the case. The parties may also have to discharge the burden of establishing the admissibility of the evidence by leading evidence in respect thereof. The initial burden to establish the basic allegations made in the plaint constituting the foundational facts, regardless of whether such assertion is couched in the affirmative or in the negative, would undoubtedly lie upon the plaintiff and the failure to discharge the said burden must lead to the dismissal of the suit."
[b] The burden of proof on the pleadings should not be confused with the burden of adducing evidence.Page 22 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022
C/SA/49/1987 JUDGMENT DATED: 29/06/2022 [c] Pleading is not evidence, far less proof.
[d] The rule that the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it, is not one of the universal applications and there may be exception thereto.
[e] The inference of fraud can be drawn only from the positive materials on record and cannot be based on speculation and surmises. However, the suspicious circumstances, however, strange the co- incidences and however grave the doubts, they alone cannot take place of proof of fraud.
[f] The evidence of fraud must be sufficient to overcome the natural presumption of honesty and fair dealing. It is not to be presumed or inferred lightly.
[g] When the plaintiff comes before the Court with a case of forgery, then he has to prove the forgery in accordance with law. A mere assertion or allegation of forgery is not sufficient to shift the onus on the other side to establish that there is no forgery.
[h] It is always open to the defendant not to lead any evidence where the onus is upon the plaintiff. After having gone into the evidence, he cannot ask the Court not to look at it and act on it. The question of burden of proof at the end of the case when both the parties have tendered evidence is not of any great importance and the Court has to give a decision on a consideration of all the materials.Page 23 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022
C/SA/49/1987 JUDGMENT DATED: 29/06/2022 11.6. Learned advocate Mr.Shah has also relied upon the judgment of the Apex Court in case of Abdul Raheem Vs. Karnataka Electricity Board and Ors reported in 2008 (1) G.L.H. 642, wherein in para 12 and 14 it has been observed as under:-
12. However, there cannot be any doubt whatsoever that consideration of irrelevant fact and non-
consideration of relevant fact would give rise to a substantial question of law. Reversal of a finding of fact arrived at by the First Appellate Court ignoring vital documents may also lead to a substantial question of law.
In Vidhyadhar v. Manikrao and Another [(1999) 3 SCC 573], this Court held:
"23. The findings of fact concurrently recorded by the trial court as also by the lower appellate court could not have been legally upset by the High Court in a second appeal under Section 100 CPC unless it was shown that the findings were perverse, being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion. [See also Iswar Bhai C. Patel alias Bachu Bhai Patel v. Harihar Behera and Another(1999) 3 SCC 457]
14. We may, however, notice a few decisions in regard to the jurisdiction of the High Court under Section 100 of the Code. In Commissioner of Customs (Preventive) v. Vijay Dasharath Patel [(2007) 4 SCC 118], this Court held:
"22. We are not oblivious of the fact that the High Courts jurisdiction in this behalf is limited. What would be substantial question of law, however, Page 24 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 would vary from case to case.
23. Moreover, although, a finding of fact can be interfered with when it is perverse, but, it is also trite that where the courts below have ignored the weight of preponderating circumstances and allowed the judgment to be influenced by inconsequential matters, the High Court would be justified in considering the matter and in coming to its own independent conclusion. (See Madan Lal v. Gopi.)
24. The High Court shall also be entitled to opine that a substantial question of law arises for its consideration when material and relevant facts have been ignored and legal principles have not been applied in appreciating the evidence. Arriving at a decision, upon taking into consideration irrelevant factors, would also give rise to a substantial question of law. It may, however, be different that only on the same set of facts the higher court takes a different view. [See Collector of Customs v. Swastic Woollens (P) Ltd. and Metroark Ltd. v. CCE.]
25. Even in a case where evidence is misread, the High Court would have power to interfere. (See W.B. Electricity Regulatory Commission v. CESC Ltd. and also Commr. of Customs v. Bureau Veritas.)
26. In Dutta Cycle Stores v. Gita Devi Sultania this Court held: (SCC p. 587, para 4) "4. Whether or not rent for the two months in question had been duly paid by the defendants is a question of fact, and with a finding of such fact, this Court does not ordinarily interfere in proceedings under Article 136 of the Constitution, particularly when all the courts below reached the same Page 25 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 conclusion. But where the finding of fact is based on no evidence or opposed to the totality of evidence and contrary to the rational conclusion to which the state of evidence must reasonably lead, then this Court will in the exercise of its discretion intervene to prevent miscarriage of justice."
[See also P. Chandrasekharan and Others v. S. Kanakarajan and Others, (2007) 5 SCC 669].
11.7. Learned advocate Mr.Shah has also relied upon the judgment of the Apex Court in case of Illoth Valappil Ambunhi (D) By Lrs. Versus Kunhambu Karanavan reported in 2019 (14) SCALE 408, observations made in para 14, 21, 26 AND 27 which are as under:-
"14. It is now well settled that perversity in arriving at a factual finding gives rise to a substantial question of law, attracting intervention of the High Court under Section 100 of the CPC.
21. The proposition of law that when the document of transfer by gift records delivery of possession, a presumption of acceptance would arise, in the absence of overt repudiation of the gift, by and/or on behalf of the donee, is unexceptionable. As held by the High Court, when the deed itself said that the possession of the property was given to the donee, the burden of proving, that the said recital was not correct, lay on the party who asserted so. In our view, the law has correctly been appreciated and enunciated by the High Court.
26. The High Court rightly held that the Courts below had proceeded on the wrong assumption that even in spite of the recitals in Exh. A1, being Page 26 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 the deed of gift and the admitted facts of the case, the burden of proof was on the respondents to show that the gift had been accepted. The findings of the Trial Courts and the First Appellate Court were based on a wrong assumption of law regarding the possession of an idol in the eye of law and the relevant recitals in Exh. A1 (deed of gift)
27. The High Court rightly declined to accept the findings of the Courts below that the deed of gift had not been accepted during the lifetime of the donor, in the absence of any evidence of non acceptance of the same. The deed of gift did not provide for reversion of the suit property to the donor in case of failure to pay maintenance to the donor in terms of the deed of gift. The High Court, therefore arrived at the conclusion that Raman was not competent to execute the deed of cancellation or the deed of transfer, as he had ceased to be the owner of the suit property."
12. Learned advocate Mr.Joshi for the respondent has vehemently submitted that there is concurrent finding of the facts by the both Courts regarding the execution of the sale deed in favour of the defendant by the plaintiff deceased father. He has also submitted that both the Courts below have accepted that the sale deed was executed as the deceased was in debt. He has also submitted that as per the plaintiff's version he was adopted in the year 1961 at the age of 13 by the deceased and the sale deed has been executed in the year 1969, thus, at the time of execution of the sale deed he was major. He Page 27 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 has also submitted that as per the evidence on record in the year 1975 the plaintiff had made a communication with the revenue authority for management of various properties of the deceased wherein, he has not mentioned the suit property. According to him, this conduct of the plaintiff suggests that he has full knowledge of the sale transaction entered into by his father in favour of the defendant. He has also submitted that the suit has been filed after 8 years of the execution of the sale deed and there is no explanation regarding such delay. He has submitted that when there is concurrent findings of the facts by both the Courts below, this Court as a Second Appellate Court cannot interfere with the finding of facts of both the Courts below. He has submitted that both the Courts below have properly appreciated the facts and circumstances of the case and has properly rejected the suit of the plaintiff. He has submitted that there is no illegality committed by both the Courts and therefore, the present appeal be dismissed. He has relied upon the following decisions.
12.1. Learned advocate Mr.Joshi for the respondent has also relied upon the judgment of the Apex Court in case of Gangadharan Vs. Janardhana Mallan And Others reported in (1996) 9 SCC 53, especially observations in para 18 & 19 which are as under:-
"18. In view of the findings which, we have already extracted regarding adequacy of sale consideration, substantial portion having gone into the discharge of Page 28 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 antecedent debts and enquiries made by the purchaser regarding legal necessity coupled with the, fact that the alienation was challenged after 12 years from the date of alienation, we find no difficulty in coming to the conclusion that the High Court went wrong in upsetting the judgments of the Trial Court as well as the First Appellate Court. Even though the judgments of the Privy Council and of this Court were brought to the notice of High Court, it unfortunately, failed to give due consideration to the ratio laid down in those cases. The High Court simply observed as follows:
"It may not be possible to lay down any strait-jacketted rule as to what proportion of the consideration should be shown to have been antecedent debt in order to sustain an alienation by a Hindu father."
19. We also do not agree with the contention of the learned Sr. Counsel for the respondents that the High Court was justified in remanding the matter on the question of legal necessity. The purchasers have done their best to prove the legal necessity and substantial portion of the sale consideration went into the discharge of the antecedent debts. The First Appellate Court has given a clear finding on this. Having regard to the long lapse of time when the suit was instituted, challenging the alienation, nothing more could be expected from the purchasers to prove the legal necessity and the application of sale consideration."
12.2. Learned advocate Mr.Joshi for the respondent has also relied upon the judgment in case of Himatlal Maganlal Vs. Rameshchandra Page 29 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 Natverlal and Others reported in AIR 1983 Guj 7, wherein in para 7 it has been observed as under:-
"7. With the above findings neatly recorded by the learned trial Judge, he landed himself into a grave error of law when he tried to examine the case only from the point of legal necessity. The written statement made it clear that the sale- deed, Ex. 74, was required to be executed by the defendant No. 2 in favour of his brother, the defendant No. 1 the appellant herein, because Anandilal claimed Rs. 6,500/- or so from the defendant No. 2 and that debt at any rate was required to be met because it was secured by equitable mortgage. The learned Judge unfortunately forgot this whole aspect when he came to deal with the matter in paragraph 18 and onwards of his judgments. Even if the case was required to be seen from the point of view of legal necessity, this appellant had a dear-cut case. Payment of antecedent debt, if not tainted, is a species of the genus "legal necessity", but for the sake of convenience they are, more often than not referred to separately as two separate causes. Here the principle that would be applicable would be the one pertaining to the pious obligation of a son to account for the father's debt to the extent of his share in the joint family property. The learned Judge unfortunately did not note this principle, glaring in the face in view of the record of the case and more glaring because of his finding Page 30 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 already recorded by me above -as extracted from his judgment. In view of that finding, it was inevitable for the learned Judge to hold that the deed, Ex. 74, was executed by the defendant No. 2 in favour of his brother, the defendant No. 1, to pay his own debt, which debt, according to law, may not fall directly within the term of 'legal necessity' or the term antecedent debt of the family. The principle of pious obligation recognised by the Privy Council and the Supreme Court does not confine itself to the question of legal necessity at all, A son is bound to defray his father's debt except the one which is tainted with illegality or immorality, irrespective of the fact that the father had no genuine necessity to incur that liability. Say for example a father is over- spending after his clothes, after the needs of the family --and it is established in this case that the defendant No. 2 in a sense was extravagant --but nevertheless he cannot be brandished as a man following illegal or immoral path. A son shall be liable to meet with such debt of the father. This clear proposition of law unfortunately escaped the notice of the learned Judge, who totally went off the tangent and, therefore, decreed the plaintiffs suit without any justification whatsoever. The only course left open to me is to allow this appeal by setting aside the trial Court's judgment and consequently dismiss the plaintiffs suit with no order as to costs throughout because the same are not pressed Page 31 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 by Mr. Shelat under instructions of his clients, who was sitting behind his back."
12.3. Learned advocate Mr.Joshi for the respondent has also relied upon the observations made by the Apex Court in case of Keharsingh (Dead) through Legal Representatives And Others Vs. Nachittar Kaur And Others reported in (2018) 14 SCC 445, especially in para 21, 24, 25 & 26 which are as under:-
"21) What is legal necessity was also succinctly said by Mulla in Article 241, which reads as under:
"Article 241
241. What is legal necessity- The following have been held to be family necessities within the meaning of Article 240:
(a) payment of government revenue and of debts which are payable out of the family property;
(b) Maintenance of coparceners and of the members of their families;
(c) Marriage expenses of male coparceners, and of the daughters of coparceners;
(d) Performance of the necessary funeral or family ceremonies;
(e) Costs of necessary litigation in recovering or preserving the estate;
(f) Costs of defending the head of the joint family or any other member against a serious criminal charge;Page 32 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022
C/SA/49/1987 JUDGMENT DATED: 29/06/2022
(g) Payment of debts incurred for family business or other necessary purpose. In the case of a manager other than a father, it is not enough to show merely that the debt is a pre-existing debt;
The above are not the only indices for concluding as to whether the alienation was indeed for legal necessity, nor can the enumeration of criterion for establishing legal necessity be copious or even predictable. It must therefore depend on the facts of each case. When, therefore, property is sold in order to fulfil tax obligations incurred by a family business, such alienation can be classified as constituting legal necessity." (see Hindu Law by Mulla "22nd Edition")"
24) It has come in evidence that firstly, the family owed two debts and secondly, the family also needed money to make improvement in agriculture land belonging to the family. Pritam Singh, being a Karta of the family, had every right to sell the suit land belonging to family to discharge the debt liability and spend some money to make improvement in agriculture land for the maintenance of his family. These facts were also mentioned in the sale deed.
25) In our considered opinion, a case of legal necessity for sale of ancestral property by the Karta (Pritam Singh) was, therefore, made out on facts. In other words, the defendants were able to discharge the burden that lay on them to prove the existence of legal necessity for sale of suit land to defendant Nos. 2 and 3. The defendants thus satisfied the test laid down in Page 33 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 Hindu law as explained by Mulla in Article 254 (2) read with Article 241 (a) and (g) quoted above.
26) Once the factum of existence of legal necessity stood proved, then, in our view, no co-
coparcener (son) has a right to challenge the sale made by the Karta of his family. The plaintiff being a son was one of the co-coparceners along with his father-Pritam Singh. He had no right to challenge such sale in the light of findings of legal necessity being recorded against him. It was more so when the plaintiff failed to prove by any evidence that there was no legal necessity for sale of the suit land or that the evidence adduced by the defendants to prove the factum of existence of legal necessity was either insufficient or irrelevant or no evidence at all.
12.4. Learned advocate Mr.Joshi for the respondent has also relied upon the judgment of the Apex Court in case of Rengan Ambalam And Another Vs. Sheik Dawood And Others reported in (2019) 6 SCC 399. Considering the facts before the Hon'ble Apex Court, it was found that joint family property was mortgaged and later it was sold to the mortgagee by the father to maintain himself at old age and his family and to pay mortgage money and other dues. Considering the evidence on record, it was held that alienation made by the father was for legal necessity and for paying antecedent debts.
Page 34 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022C/SA/49/1987 JUDGMENT DATED: 29/06/2022 12.5. Learned advocate Mr.Joshi for the respondent has also relied upon the judgment of the Apex Court in case of T. Ramalingeswara Rao (Dead) Through Legal Representatives And Another Vs. N. Madhava Rao And Others reported in (2019) 4 SCC 608, in para no.11 to the following observation:-
"11. When the two Courts below have recorded concurrent findings of fact against the plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High Court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be wholly perverse, a case for interference may call for by the High Court in its second appellate jurisdiction."
13. In rejoinder, Mr.Shah for the appellant has submitted that there is no cross objection filed by the respondent regarding the question of delay as the Trial Court has clearly held that he suit is filed within the limitation period. He has submitted that since there is no evidence by the defendant on the delay aspect, the point raised Page 35 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 for delay cannot be considered at this stage. He has submitted that this Court can interfere with the concurrent finding of the facts of both the Courts below if it appears that the lower Courts have not followed the legal principles and has committed error of appreciation of evidence on record. He ha submitted that in the present case also the Courts below have committed error of facts and law therefore this Court should allow this appeal and set aside the impugned judgment of both the Courts and decree may be passed in favour of the plaintiff.
14. Admittedly, this is a Second Appeal under Section 100 of the Code of Civil Procedure. It is now well settled principles in regard to the powers under Section 100 of the Code of Civil Procedure that when Courts below record its concurrent findings of the facts based on appreciation of the facts and evidences, such finding being concurrent in nature are generally not to be disturbed by the High Court. However, when such findings are found to be against any provisions of law or against pleadings or evidence on record or are found to be wholly, perverse, the High Court can interfere in such concurrent findings of the facts and pass Page 36 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 appropriate orders in a given case.
15. It is pertinent to note that during the course of arguments, learned advocate Mr.Shah for the appellant does not press the point of inadequacy of consideration in regard to the sale transaction in question. He has only pressed the points of legal necessity.
16. On perusal of the judgments of the Courts below, it clearly transpires that while dealing with the point of legal necessity of the family, it has been concurrently held by the both the Courts that the execution of the sale deed by the plaintiff's deceased father was for antecedent debts and for legal necessity. In this regard, both the Courts below have referred to the oral and documentary evidence produced in the matter. On perusal of the R & P of the Trial Court, it appears that no oral and documentary evidence are available in the original R & P and only copy of the appeal memo, judgment & decree of the Appellate Court and original plaintiff, judgment and decree of the Trial Court are available in the records. It appears from the R & P that the Trial Court has destroyed the record B, C & D as per the Civil Manual para 490, thus, there is no oral Page 37 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 or documentary evidence available on the file of the Trial Court. Therefore, learned advocates for the parties were requested to supply the copy of the same if they are available with them. Therefore learned advocate for the appellant ha filed paper books which are taken on record. Hence, this appeal is being disposed of in view of the paper book submitted by the learned advocate for the appellant and the paper book submitted by the learned advocate for the other side.
17. It appears from the record that as per the evidence of the plaintiff himself when the sale deed was executed, at that time, there was a bank loan or Rs.3,000/-. Of course, according to the plaintiff, he was paying the yearly installment, however, there is no evidence produced by them to show that he has been paying yearly installment. During his cross- examination on the aspect of debt of his deceased father, he has specifically stated that when his deceased father died, there was a debt of the bank and that debt was not paid by him during the life time but he paid it after the death of his father. He has stated that there is no any receipt thereof. Of course, he has denied that his Page 38 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 father was in need of money and therefore, he has executed a sale deed in favour of the defendant. It also appears from his evidence that he has given statement before the Revenue Authorities on 30.03.1975 at exhibit-33 which was as per his version. He has admitted that on the basis of that statement, the lands which were standing in the name of his deceased father Sendharam was transferred to his name. He has stated that his father Sendharam died in the year 1977. Thus, admittedly, in that statement, he has not referred to the land which has been sold by his father to the defendant. This very fact suggests that he was having knowledge regarding the execution of the sale deed by his father in favour of the defendant regarding the land in question. Had there been any objection by him, he would have definitely taken a stand while giving statement in the year 1975 at exhibit 33 as to the disputed land.
18. Other witnesses examined on behalf of the plaintiff and regarding the question of adoption of the plaintiff by the deceased Sendharam. However, in this Second Appeal, there is no dispute regarding the adoption of the plaintiff by the deceased Sendharam. The only question in Page 39 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 this appeal is regarding as to whether the alleged transaction was for the payment of the debt of the deceased Sendharam. In this respect, on perusal of the judgment of both the Courts below, it clearly transpires that so far as question is alienation of the said land by the deceased in favour of the defendant has been, on the facts and evidence, has been held by both the Courts below that it was for legal necessity. Thus, there is concurrent finding of the facts based on the evidence on record, by both the Courts below, that the sale deed was executed for the legal necessity. This conclusion reached by both the Courts below is in consonance with the facts and law. This Court does not find any cogent reason to interfere with the said conclusion reached by both the Courts below.
19. Therefore, this Court is of the considered opinion that no any error has been committed by the Courts below holding that the sale deed exhibit 34 was for legal necessity of the family. As the point of adequate consideration has been waived by the learned advocate for the appellant, it is not required to decide the said point. However, otherwise also inadequacy of consideration for a sale of the immovable Page 40 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022 C/SA/49/1987 JUDGMENT DATED: 29/06/2022 property is not a ground to set aside the registered sale deed.
20. In view of the aforesaid discussions, I decide the substantial question of law in negative accordingly. Therefore, I pass following final order in the interest of justice:-
ORDER This Second Appeal stand dismissed.
Considering the facts and circumstances of the case, parties are directed to bear the respective costs of this appeal.
Decree be drawn accordingly in this appeal.
Along with the copy of this judgment and decree Records & Proceedings be sent back with the copy of the paper book to the learned Trial Court.
Sd/-
(DR. A. P. THAKER, J) URIL RANA Page 41 of 41 Downloaded on : Wed Jun 29 21:53:22 IST 2022