The matter pertains to a car which was stolen on 24.10.2007. The OP/New India Assurance Company had repudiated the claim on the ground that the Complainant had no insurable interest on the date of loss, as he had already sold vehicle to one Shri Dilprit Singh on 24.7.2007=whether the petitioner Dharambir was the owner of the car in question or whether it was Dilprit Singh. This document not only shows that the vehicle had been sold to Dilprit Singh but also gives the reasons why it has not been registered in the name of the purchaser. We find that the above documents considered by the State Commission, clearly establish that the complainant had sold the vehicle to Dilprit Singh before it was stolen. Therefore, the State Commission was right when it held that the OP/Insurance Company had rightly repudiated the claim.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION PETITION NO. 1227 OF 2012

(Against the order dated 28.11.2011 in First Appeal No.931/2009 of the State Commission, Haryana)

Dharambir,

S/o Sh. Jhangi Ram

R/o H No.89,

Ram Nagar,

Karnal

Haryana                                                                                                                                                                 ……….Petitioner

Versus

New India Assurance Co. Ltd.

Divisional Office

Gagan Building

G T Road,

Karnal

Haryana

Also at

New India Assurance Co. Ltd.,

Regional Office: SCO no.36-37

Sector- 17-A

Chandigarh                                                                                                                                                                     .....Respondent                                                                                             

BEFORE

HON’BLE MR. JUSTICE  J. M. MALIK,

                              PRESIDING MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER

For the Petitioner         :   Ms. Renu Verma, Advocate

For the Respondent     :   Mr. J.P.N. Shahi, Advocate

                                       

PRONOUNCED ON: 01.11.2012.

ORDER

PER MR.VINAY KUMAR, MEMBER

          The revision petitioner Shri Dharambir was the Complainant before the District Forum, Karnal.  The matter pertains to a car which was stolen on 24.10.2007.  The OP/New India Assurance Company had repudiated the claim on the ground that the Complainant had no insurable interest on the date of loss, as he had already sold vehicle to one Shri Dilprit Singh on 24.7.2007.  The District Forum examined Shri Dilprit Singh, who stated that he had borrowed the car from the Complainant Dharambir for journey to Chandigarh and had not purchased it from him.  The District Forum therefore allowed the complaint and directed the insurance Company to indemnify the Complainant.  Appeal of the present respondent/New India Assurance Company was allowed by the Haryana State Consumer Disputes Redressal Commission on reconsideration of the documentary evidence led before the fora below.

2.      Therefore, the main question is whether the petitioner Dharambir was the owner of the car in question or whether it was Dilprit Singh.  The records of the case have been carefully perused by us and the two counsels, Ms. Renu Verma, for the revision petitioner and Mr. J.P.N. Shahi, for the respondent, have been heard.  The main ground of challenge to the impugned order of the State Commission is that the State Commission had failed to consider the statements of the Complainant and Dilprit Singh before the District Forum that they had been misguided by the insurance agent. The revision petition also objects to consideration of certain records by the State Commission on the ground that they were not produce before the District Forum.

3.      However, interestingly one of the grounds of challenge to the impugned order comes very close to admitting that the vehicle had infact been sold to DilpritSingh but its ownership  was not transferred as the whole consideration  had not been paid by the buyer, while the liability of the seller to pay the financier was still continuing.  The relevant ground (H) read as follows:-

“That assuming though not admitting that the car was sold by the complainant to Dilpreet Singh, the Hon’ble State Commission should have considered that as per the alleged annexure A-4 the whole consideration/price of the car has not been paid by Dilpreet Singh and the complainant is still liable to pay to the ICICI Bank; hence the ownership of the car remains with the complainant.”

4.      A perusal of the impugned order shows that the State Commission has relied upon the following documents in arriving at its findings:-

a)   The FIR filed before the Police (Annexure- 6) on 29.10.2007 was filed by Dilprit Singh, as the owner of the vehicle and not by the Complainant. 

b)   In the affidavit of 25.9.2007 (Annexure 5), the Complainant Dharambir s/o Jhangi Ram has categorically stated that:-

“1. I have sold a Hyundai Accent car bearing Registration no.HR05S-2616 model 2006 engine no.307124 and chassis no.156038 to Sh. DilpreetSingh son of Sh. Harvinder Singh R/o H.No.321-R, Model Town Karnal on 24/7/2007.

2. That the deponent has received its payment from the purchaser and balance amount of loan will be paid by the purchaser to the bank/Fi.

3. That after 24/7/2007 the purchaser will be responsible for all kinds of accidents, court case, polie challan bank/FI dues against the said vehicle.

4. That the deponent has not any objection if the said vehicle be transferred in the name of the purchaser after the clearance of loan dues of bank/FI.”

This document not only shows that the vehicle had been sold to Dilprit Singh but also gives the reasons why it has not been registered in the name of the purchaser. Its contents are also in line with Ground H in the revision petition, mentioned earlier in this order.

c)   The Delivery cum-Receipt of the vehicle  (Annexure 4) has been executed 24.7.2007, in a printed form.  It is not only signed by these two persons as the vendor and the vendee but also by two witnesses.

d)     In a letter of 3.12.2007 (Annexure 3), addressed by Dilprit Singh to SDM (Registering Authority, Motor Vehicle Karnal) a request is made to the Registering Authority not to register this vehicle in the name of any other persons as it belongs to him. It is also informed that it was stolen on 24.10.2007 and has not been traced since then.

5.      The revision petitioner has questioned acceptance of the above documents by the State Commission on the ground that they were not produced before the District Forum.  However, from the records we find that these documents were clearly mentioned in the appeal memorandum of the present respondents before the State Commission.  The revision petitioner was not unrepresented and his counsel was heard by the State Commission.  This would mean that the petitioner/Complainant had full opportunity to question the veracity of any of these documents, if he had wished so. We therefore, do not accept the objection now raised by him in the present proceedings.

6.      We find that the above documents considered by the State Commission, clearly establish that the complainant had sold the vehicle to Dilprit Singh before it was stolen. Therefore, the State Commission was right when it held that the OP/Insurance Company had rightly repudiated the claim.

7.      On the question of insurable interest, the following two decisions have been cited by the counsel for the petitioner:-

1.      New India Assurance Co. Ltd. Vs. G.N. Sainani, (1997) 6

          SCC 383.

2.      New India Assurance Co. Ltd. Vs. M/s. T.T. Finance Ltd. & Ors., AIR 2011 Delhi, 121.

The first related to assignment of the policy of insurance of goods under a Marine insurance policy.  Hon’ble Supreme Court held that the assignee of policy of insurance must have an existing insurable interest in the goods till the time of termination of the insurance so as to entitle him to lodge a complaint as a consumer.  The second case arose from loss of an insured vehicle.  The insurance policy was issued in the name of the finance company and the borrower. The High Court of Delhi held that insurable interest clearly existed in favour of the finance company as it had financed purchase of the vehicle under a hire purchase agreement.  The fact that the name of the lonee was also mentioned in the insurance policy, would make no difference as the contract was between insurance company and the finance company.

8.      The facts in both these cases are totally different and therefore, the case of the revision petitioner does not derive any support from either decision.

9.      In conclusion, we find no substance in this revision petition and dismiss the same for want of merit.  The order of Haryana State Consumer DisputesRedressal Commission in FA No.931 of 2009 is accordingly confirmed.     

.……………Sd/-……………

(J. M. MALIK, J.)

PRESIDING MEMBER

……………Sd/-…………….

(VINAY KUMAR)

                                                                                            MEMBER

s./-

the oral sale was not proved and also found that no title passes under the oral sale without there being a registration =It was sought to be contended that when the long possession of the plaintiff is admitted, the Court should have granted an injunction against the defendants. But, however, it is to be noted that the grant of injunction is an equitable relief and the conduct of the plaintiff in seeking such a relief should be fair. When the plaintiff is not admitting her possession as a tenant, setting up a plea of purchase under oral sale and also being in possession without filing a suit for specific performance of the agreement, the plaintiff cannot rely upon the relief of injunction when the contractual term stipulates the registration of the document. = So far as the plea of adverse possession is concerned, it postulates an intention on the part of the enjoyer to treat the property in his possession belonging to some other as his own property. It is well settled that there cannot be any adverse possession for a person against his own property. In this case, the plaintiff claims that the sale has taken place in 1990 and she has become the owner of the property and consequently, her animus is as an owner of the property in her own name and not in enjoyment of the property belonging to some other person as an owner. Therefore, even the plea under Section 53 of the Specific Relief Act is not open since there is no agreement in writing to sell the property. Consequently, there are no merits in the appeal and there are no grounds to admit.

THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO SECOND APPEAL No.15 OF 2012 JUDGMENT:-              The plaintiff in O.S.No.711 of 2008 on the file of the II Additional Junior Civil Judge, Guntur, is the appellant herein. 2.       The suit was filed for confirmation of title and possession and for consequential injunction restraining the defendants from interfering with the possession and enjoyment. 3.       According to the case of the plaintiff, defendants Nos.1 and 2 are her own sisters.  Defendants Nos.1 and 2 purchased the suit schedule property from one G.Tulasamma under the registered sale deed dated 04.08.1971.  The husband of the 1st defendant borrowed a sum of Rs.8,000/- on 14.05.1987 and Rs.8,600/- on 04.08.1988 from the plaintiff  for agricultural purposes and executed promissory notes.  Subsequently, the said debts could not be discharged.  Therefore, the defendants accepted the said borrowing and agreed to sell the property orally as the borrowing was for the family necessity.  The consideration under the promissory notes was adjusted towards the sale consideration to a tune of Rs.25,000/-.  The plaintiff was put in possession of the property on 01.05.1990 and as per the understanding the defendants agreed to register the property as and when called for.  The mutation of the name of the plaintiff was accepted in the revenue records and pattadar pass book was also issued.  The plaintiff also took crop loan from mortgaging schedule property and revenue record discloses the possession and enjoyment of the property by the plaintiff.  Though the cist was being paid, the plaintiff has been in possession and enjoyment in her own right since 1990 and therefore, the suit was filed for confirmation of title.  Though the plaintiff and defendants have agreed to execute a registered sale deed, no registered sale deed was obtained.  The plaintiff is entitled to assert right in the schedule property.  The defendants have been making hectic efforts to deny the right of the plaintiff, and therefore, the suit was filed. 4.       The defendants contended the 2nd defendant was married and living at Visakhapatnam since 1986 and the 1st defendant has been cultivating the lands on her behalf.  The 1st defendant was in custody of the original title deeds.  The property was leased out to the plaintiff for a period of ten years as some monies were borrowed by the husband of the 1st defendant and the Maktha should have appropriated towards the debt.  The original sale deeds were also taken by the plaintiff by putting the 1st defendant in dark and they were not returned.  The plaintiff paid Maktha for some time and did not pay subsequently.  The 2nd defendant separately pleaded that she never sold the property and came to know that the plaintiff obtained pattadar pass book and managed revenue entries and filed an appeal before the revenue authorities and the same is pending.  The debts borrowed by the husband of the 1st defendant do not bind on the 2nd defendant. 5.       On the basis of the above pleadings, evidence was let-in and the trial Court found that the oral sale was not proved and also found that no title passes under the oral sale without there being a registration and consequently, the suit was dismissed.  Aggrieved by the said judgment, A.S.No.421 of 2000 was preferred to the VI Additional District Judge (Fast Track Court), Guntur and he also dismissed the said suit.  Aggrieved by the said judgment, the present appeal is filed. 6.       The learned counsel for the appellant sought to contend that the suit filed by the plaintiff is valid and original sale deed Ex.A.1 was with the plaintiff and borrowing under Exs.A.2 and A.3 was proved and further contended that as the possession of the plaintiff is admitted over the suit schedule property as a tenant, Courts below should have granted the injunction. 7.       Evidently, in order to succeed in the suit, the plaintiff has to prove the factum of oral sale and also the alternative plea of establishing title by adverse possession.  Though generally for a transfer of immovable property, a registered sale deed is required, but in case of persons, who are in possession of the property, oral sale can be accepted after the payment of the entire consideration by the purchaser to the vendor or the possession of the property is made over to the purchaser.  But, however, in order to substantiate the oral sale, it has to be proved that the persons, who have got title to the property, have conveyed the same.  Evidently, according to the case of the plaintiff, the oral sale was done by the husband of the 1stdefendant.  The 2nd defendant is joint owner of the property and there is nothing on record to show that she has also sold the property and received any consideration.  The debts that were said to have been borrowed by the husband of the 1st defendant are for his family benefit, consequently the oral sale that was said to have been entered by the husband of the 1st defendant is not from the real owner of the property and consequently, it cannot be taken into consideration.  Even otherwise if the parties have contemplated under the oral sale that there shall be no further act to be done by any of the parties, the sale is complete.  But, however, in this case, it is the specific plea of the plaintiff that an agreement was arrived at, but subsequently a registered sale deed has to be executed.  Therefore, it is quite clear that the parties intended it to be only a contract and not a concluded sale.  If really the sale is true, the endorsement should have been made on the reverse of the promissory notes Exs.A.2 and A.3 about the alleged sale of the property and discharge of the promissory notes debt.  The absence of such an endorsement clearly shows that the claim of the plaintiff cannot be accepted.  8.       In fact, it is the specific case of the plaintiff that the property was sold by the husband of the 1st defendant and though an authority is pleaded given by the defendants, there is nothing in writing.  Consequently, the sale set up by the plaintiff is not valid.  The Courts below have rightly found that the sale transaction entered by the husband of the 1st defendant will not bind on the 2nd defendant.  Merely the plaintiff got possession of the original document probably from the husband of the 1st defendant, it will not advance her case.  If really the sale is complete and the plaintiff has derived title in the property by virtue of adverse possession, the suit should have been filed for a declaration of title.  It was sought to be contended that when the long possession of the plaintiff is admitted, the Court should have granted an injunction against the defendants.  But, however, it is to be noted that the grant of injunction is an equitable relief and the conduct of the plaintiff in seeking such a relief should be fair. When the plaintiff is not admitting her possession as a tenant, setting up a plea of purchase under oral sale and also being in possession without filing a suit for specific performance of the agreement, the plaintiff cannot rely upon the relief of injunction when the contractual term stipulates the registration of the document. 9.       So far as the plea of adverse possession is concerned, it postulates an intention on the part of the enjoyer to treat the property in his possession belonging to some other as his own property.  It is well settled that there cannot be any adverse possession for a person against his own property.  In this case, the plaintiff claims that the sale has taken place in 1990 and she has become the owner of the property and consequently, her animus is as an owner of the property in her own name and not in enjoyment of the property belonging to some other person as an owner. Therefore, even the plea under Section 53 of the Specific Relief Act is not open since there is no agreement in writing to sell the property. Consequently, there are no merits in the appeal and there are no grounds to admit. 10.     Accordingly, the Second Appeal is dismissed at the stage of admission. No costs.  Miscellaneous Petitions, if any, pending in this appeal shall stand closed.           _______________________________ JUSTICE N.R.L. NAGESWARA RAO Date:24.07.2012 INL

Benami Transactions (Prohibition) Act 1988: s.4 - Benami transaction - Suit filed prior to the Act coming into force to recover the possession of benami property - Held: Would not be hit by the prohibition u/s.4 of the Act. Evidence Act, 1872: s.114 - Presumption of service - In the instant case, notice sent under postal certificate from one house to another house on the same road - Inference can be drawn u/s.114 that such notice must have been duly served in the normal course of business within 5 days. Appellant no.1 purchased the suit house on 26.2.1985 for a consideration of Rs. 40,000. The sale deed was, however, executed in the name of her son- defendant-appellant no.2 and his brother-in-law- respondent no. 2. It was the case of appellant no. 1 that appellant no.2 and respondent no. 2 sold half share of the suit house to respondent no.1 without her consent and knowledge. The said transaction of sale was executed by a registered sale deed dated 13.4.1987 despite the fact that appellant no.1 had sent letter dated 8.4.1987 to respondent no.1 informing him that she was the real owner of the suit house. Appellant no. 1 filed a suit for declaration that she was the real owner in possession of the suit house. She also prayed for a permanent injunction restraining the defendants from alienating any part of the suit house. By amendment, she claimed an alternative relief for a decree of Rs. 40,000 with interest. Appellant no. 2 admitted the claim of appellant no. 1, but respondent no. 2 disputed it and contended that half of the consideration of Rs. 40,000 has been paid by him. He denied that it was a Benami Transaction. Respondent no.1 contended in written statement that even if it is proved to be a Benami Transaction, due to the recent legislation of Benami Transactions (Prohibition) Act 1988, appellant no.2 and respondent no.2 were the owners of the suit property, and that the alienation by respondent no. 2 of his share in the property was effected legally. Appellant No. 1 had produced before the trial court a copy of the notice dated 8.4.1987 alongwith the certificate of posting which she had sent to defendant no. 3, to state that she was the real owner of the suit house. The trial court held that the delivery of the notice was not proved, and therefore, respondent no.1 was a bonafide purchaser for valuable consideration. It also held that the prohibition under Section 4 of the Act to recover the Benami property was applicable to suits, claims or action pending on the date of commencement of the Act. Appellant no.1 had filed the suit on 30.9.1987. The Benami Transactions (Prohibition) Act 1988 came into force on 5.9.1988. Thus, this suit was pending on the date on which the Act came into force and the appellant no longer retained the right to recover the property from the Benami holder. The suit was, therefore, dismissed for being barred by virtue of the provisions of the said Act. The first appellate court held that the suit was not prohibited by the Act and respondent no. 1 could not be held to be a bonafide purchaser without any notice of the rights of appellant no. 1 in the suit property. The first appellate court, therefore, decreed the suit to the effect that appellant no. 1 was the real owner in possession of the house and the sale deed dated 13.4.1987 was null and void. It also granted an injunction against the defendants that they shall not alienate any part of the suit house and will not interfere in her possession of the suit house. The High Court did not give any importance to the notice dated 8.4.1987 being sent under postal certificate, but held that there was nothing on record to prove that respondent no.1 had been served with that notice. The High Court, therefore, found fault with the finding of the first appellate court to the effect that respondent no. 1 was not a bonafide purchaser, and further held that, it amounted to misreading of evidence. The Regular Second Appeal was therefore, allowed and the judgment and decree of the first appellate court was set aside. The appellants filed the instant appeal challenging the order of the High Court. Allowing the appeal, the court HELD: 1.1. As far as the purchase of the suit house by appellant no. 1 from her own money was concerned that finding of the trial court has remained undisturbed all throughout and cannot be re-opened in the instant appeal. Appellant no.1 led cogent evidence before the trial court, and it was held in her favour that she had purchased the suit house that out of her funds. The submission of respondent no. 2 that he had arranged the amount of Rs. 20,000/- through friendly loans was negated by the trial court since there was no supporting evidence at all. There was no reason to disturb that finding. Once the High Court held that appellant no.1 had purchased the suit house out of her funds, it ought to have held that it follows that respondent no. 2 had no right to deal with it or to sell his half share merely because his name was shown as a purchaser alongwith appellant no.2. Consequently, the purchase of the share of respondent no.2 by respondent no. 1 without the consent of appellant no.1 gave him no rights whatsoever. Therefore, the High Court ought to have held that the suit of appellant no.1 for declaration of her ownership was valid and maintainable. The High Court has, therefore, committed a serious error of law in holding that the first appellate court has misread the evidence on record while coming to the conclusion that the suit property was the Benami Property of appellant no.1 and that her suit to enforce the right concerning the same shall not lie. In fact, there was no such misreading of evidence on the part of the first appellate court, and hence there was no occasion for the High Court to frame such a question of law in view of the prevailing judgment in *R. Rajagopal Reddy which was rightly followed by the first appellate court. [Paras 15, 17] [207-F-H; 211-A-C] *R. Rajagopal Reddy v. Padmini Chandrasekharan decided on 31.1.1995 and AIR 1996 SC 238 - relied on. Mithilesh Kumari and Anr. v. Prem Behari Khare AIR 1987 SC 1247 - referred to. 1.2. The appellant's premises was situated on College Road, Pathankot and so also the residence of the first respondent where the notice was sent. Therefore, there was nothing wrong in drawing the inference which was permissible under Section 114 of the Evidence Act that such notice must have been duly served in the normal course of business before 13.4.1987. In the present case it has already been established that the appellant had purchased the property out of her own funds. Therefore, it could certainly be expected that when she came to know about the clandestine sale of her property to respondent no.1, she would send him a notice, which she sent on 8.4.1987. The notice is sent from one house on the College Road to another house on the same road in the city of Pathankot. The agreement of purchase was signed by the respondent no.3 five days thereafter i.e. 13.4.1987. The appellant had produced a copy of the notice along with postal certificate in evidence. There was no allegation that the postal certificate was procured. In the circumstances, it could certainly be presumed that the notice was duly served on respondent No.1 before 13.4.1987. The High Court, therefore, erred in interfering in the finding rendered by the first appellate court that respondent no.1 did receive the notice and, therefore, was not a bona fide purchaser for value without a notice. [Paras 18, 23] [210-F-G; 214-C-F] Harihar Banerji v. Ramshashi Roy AIR 1918 PC 102; Gresham House Estate Co. v. Rossa Grande Gold Mining Co. 1870 Weekly Notes 119; Ganga Ram v. Smt. Phulwati AIR 1970 Allahabad 446; Mst. L.M.S. Ummu Saleema v. B.B. Gujaral & Anr. 1981 (3) SCC 317; M.S. Madhusoodhanan v. Kerala Kaumudi (P) Ltd. and others 2004 (9) SCC 204; VS Krishnan v. Westfort Hi-Tech Hospital Ltd. 2008 (3) SCC 363 - relied on. 2. The suit filed by appellant no.1 is decreed and it is declared that appellant no. 1 is the owner of the suit house. There shall be a permanent injunction restraining the defendants from alienating any part of the suit house and forcibly interfering with the possession of the plaintiff of the house in dispute. In view of the offer given by the appellants to compensate the first respondent, the appellants shall pay him the amount of Rs. 30,000/-, with simple interest at the rate of 10% for the period from 13.4.1987 till the decision of the first appellate court i.e. 22.2.1996, within twelve weeks from today, though it is up to respondent no. 1 to receive the amount. The interest is restricted upto 22.2.1996 for the reason that respondent no.1 ought to have accepted the decision of the first appellate court, particularly in view of the judgment of this Court in *R. Rajagopal Reddy and should not have dragged the appellants to the High Court. [Para 25] [215-B-E] Case Law Reference: AIR 1987 SC 1247 Referred to Para 10 AIR 1996 SC 238 Relied on Para 11 AIR 1918 PC 102 Relied on Para 19 1870 Weekly Notes 119 Relied on Para 19 AIR 1970 All 446 Relied on Para 20 1981 (3) SCC 317 Relied on Para 21 2004 (9) SCC 204 Relied on Para 22 2008 (3) SCC 363 Relied on Para 22 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 846 of 2011. From the Judgment & Order dated 10.09.2009 of the High Court of Punjab & Haryana at Chandigarh in R.S.A. No. 1367 of 1996. Sai Krishna Rajagopal, Hari Shankar K., Vikas Jangra, Bharat S. Kumar for the Appellants. V.K. Monga for the Respondents.

                                                                     REPORTABLE
                      IN THE SUPREME COURT OF INDIA

                      CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NO. 846           OF 2011

     ARISING OUT OF SPECIAL LEAVE PETITION (C) NO. 1305 OF 2010


Samittri Devi and another.                                       ...Appellants
                                     Versus

Sampuran Singh and another                                     ...Respondents




                               JUDGMENT



Gokhale J.

              Leave Granted.


2.            This Appeal by Special Leave raises the question as to whether the

suit of the first appellant for the recovery of her house property filed prior to the

Benami Transactions (Prohibition) Act, 1988 coming into force could be

considered to be prohibited by Section 4 of that Act.


3.            This appeal seeks to challenge the judgment and order passed by a

Learned Judge of the Punjab and Haryana High Court dated 10.9.2009 in Regular

Second Appeal (R.S.A) No. 1367 of 1996 (O & M), whereby the Judge has
                                                                          2

allowed the Second Appeal filed by Respondent No. 1 herein, and set aside the

judgment and order dated 22.2.1996 passed by the Additional District Judge,

Gurdaspur in Civil Appeal No. 203 of 1991 filed by appellant No.1 herein. The

Learned Additional District Judge had allowed the Civil Appeal filed by appellant

No. 1 herein whereby he decreed Civil Suit No. 138 of 1987 filed by appellant

No.1, which suit had been dismissed by the Sub-Judge at Pathankot by his

judgment and order dated 3.10.1991.


4.           Short facts leading to this appeal are as follows:-


             The appellant No.1 herein purchased a house property situated at

Pathankot from Sarvashri Romesh Chand and Chatar Chand sons of Shri Kartar

Singh, vide registered sale deed dated 26.2.1985 for a consideration of

Rs. 40,000/-. This sale deed was, however, executed in the name of her son

namely Shri Kamal Chand (the appellant No.2 herein) and his brother-in-law

Shri Jiwan Kumar (respondent No.2 herein). The appellant no.1 paid the money

by two bank drafts for purchasing the house property which was actually in the

possession of a tenant of the previous owner i.e. Home Guard Department and it

continues to be in their possession.


5.           It is the case of the appellant No.1 that taking advantage of her old

age (presently 93 years), the above referred Kamal Chand and Jiwan Kumar

stealthily removed the sale deed from her possession, and this Jiwan Kumar sold

half share of the suit house to one Sampuran Singh (Respondent No. 1 herein)
                                                                          3

and that too without her knowledge and consent. The sale was executed by a

registered sale deed dated 13.4.1987 despite the fact that appellant No.1 had

sent, in the meanwhile, a letter dated 8.4.1987 to Respondent No. 1 herein

informing him that she was the real owner of the Suit House.


6.            The appellant No. 1 therefore, filed Suit No. 138 of 1987 on

30.9.1987 for a declaration that she was the real owner in possession of the Suit

House shown in red in the site plan attached by letters A B C D part of No.

Khasra 574/1, No. Khawat 262, No. Khatauni 401, as entered in the Jamabandi

for the year 1976-77 situated in village Daulatpur HB No. 331, Pathankot. She

prayed for a permanent injunction also restraining the defendants from

alienating any part of the suit house and forcibly interfering with the possession

of the plaintiff of the suit house. By moving an amendment, she claimed an

alternative relief for a decree of Rs. 40,000/- with interest.    Her son Kamal

Chand was joined as defendant No. 1, his brother-in-law the above referred

Jiwan Kumar as defendant No. 2, and the purchaser Sampuran Singh as

defendant No. 3. They are appellant No.2, respondent No.2 and respondent No.

1 respectively to this appeal.


7.            Defendant No. 1 admitted the entire claim of the appellant, but the

defendant No. 2 disputed it, and contended that half of the consideration of Rs.

40,000/- had been paid by him. He denied that it was a Benami Transaction.

Defendant No. 3 filed his written statement and contended in para 5 thereof that

even if it is proved to be a Benami Transaction, due to the recent legislation of
                                                                            4

Benami Transactions (Prohibition) Act 1988, the defendants Nos. 1 & 2 were the

owners of the Suit property, and that the alienation of his share in the property

by defendant No. 2 in his favour had been effected legally. He contended that

he had purchased the share of the defendant No. 2 by sale deed dated

13.4.1987 for a consideration of Rs. 30,000/-, and that he was a bonafide

purchaser for value, and that the Suit should be dismissed.


8.            The trial court framed the necessary issues including whether the

sale deed dated 26.2.1985 was Benami, and whether the sale deed dated

13.4.1987 was illegal, and also whether defendant No. 3 was a bonafide

purchaser without notice.


9.            The appellant No. 1 laid the evidence amongst others of a clerk

from a branch of State Bank of Patiala at Chaki, Pathankot, who deposed to the

fact that the appellant had made the payment for the sale consideration from her

account. Defendant No. 2 had contended that he had arranged Rs. 20,000/-

from friendly loans to purchase half the share of the Suit House, but he did not

lead any evidence for proving the availability of such funds with him. The Trial

Court therefore, held that it was obvious that the payment was not made by

defendant nos. 1 & 2, but by the plaintiff i.e. the appellant No.1 herein.


10.           The appellant No.1 had produced before the trial court a copy of

the notice dated 8.4.1987 which she had sent to defendant no. 3, to point out to

him that she was the real owner of the suit house. She produced the same
                                                                          5

alongwith the certificate of posting. The sale deed between defendant Nos. 2 &

3 was executed on 13.4.1987. The trial court held that the delivery of the notice

was not proved, and therefore, defendant No. 3 was a bonafide purchaser for

valuable consideration without notice. That apart, at the time when the Suit was

decided on 3.10.1991, the law laid down by this Court in Mithilesh Kumari and

Anr. Vs. Prem Behari Khare [AIR 1987 SC 1247] : [1989 (2) SCC 95]

was governing the field viz. that the provisions of Benami Transactions

(Prohibition) Act 1988 were retroactive. It had been held that the prohibition

under Section 4 of the Act to recover the Benami property was applicable to

suits, claims or action pending on the date of commencement of the Act. The

appellant No.1 had filed her suit on 30.9.1987.        The Benami Transactions

(Prohibition) Act 1988 came into force on 5.9.1988. Thus, this Suit was pending

on the date on which the Act came into force.         The Trial Court, therefore,

followed the judgment in Mithilesh Kumari (supra), and held that the appellant

no longer retained the right to recover the property from the Benami holder.

The suit was, therefore, dismissed for being barred by virtue of the provisions of

the said Act, though without any order as to costs.


11.          The appellant No.1 carried the matter in first appeal to the

Additional District Judge, Gurdaspur.   As we have noted, the trial court had

already held that appellant No. 1 had purchased the suit house by making the

payment from her account. It had, however, declined to decree her suit on two

grounds, firstly due to the prohibition under Section 4 of the Benami
                                                                            6

Transactions (Prohibition) Act 1988 as interpreted in Mithilesh Kumari judgment

(supra), and secondly on the ground that the appellant did not prove the service

of her notice dated 8.4.1987 on respondent No. 1 herein. By the time the first

appeal was being heard, the judgment of the two Judges bench in Mithilesh

Kumari (supra) had been over-ruled by a bench of three Judges of this Court in

R.Rajagopal Reddy Vs. Padmini Chandrasekharan decided on 31.1.1995

and reported in [AIR 1996 SC 238] : [1995 (2) SCC 630]. This Court had

held that Section 4 or for that matter the Act as a whole was not a piece of

declaratory or curative legislation.   It creates substantive rights in favour of

benamidars and destroys substantive rights in favour of the real owners.          It

creates a new offence of entering into such benami transactions.            It had

therefore, been held that when a statutory provision creates a new liability and a

new offence, it would naturally have a prospective operation, and Section 4 will

not apply to pending suits which were already filed and entertained prior to the

Act coming into force. The first appellate Court therefore, held that the suit filed

by appellant No.1 was not prohibited by the said Act. As far as the notice dated

8.4.1987 is concerned, the Court held that there was a presumption under the

law that the letter which was proved to have been posted well in advance must

have reached the addressee. The first appellate court therefore, held that the

notice will have to be presumed to have been served, and yet respondent No. 1

herein got the sale deed executed on 13.4.1987. It was therefore, held that

respondent No. 1 could not be held to be a bonafide purchaser without any

notice of the rights of appellant No.1 in the suit property. The first appellate
                                                                          7

court therefore, decreed the suit filed by appellant No.1 to the effect that she

was the real owner in possession of the house and the sale deed dated

13.4.1987 was null and void.        It also granted an injunction against the

defendants that they shall not alienate any part of the suit house and will not

interfere in her    possession of the suit   house. The Court awarded cost of

Rupees 1,000/-.


12.          Feeling aggrieved by this decision, the first respondent herein filed

a Regular Second Appeal bearing RSA No. 1367 of 1996. The Learned single

Judge of the High Court, who heard the matter, framed the following substantial

question of law - "Whether the Learned Additional District Judge has misread the

evidence on record while coming to the conclusion that the suit property was

benami property of the plaintiff." The Learned Judge did not dispute the fact

that appellant No. 1 had purchased the suit house out of her money, but he

noted that the office of the Home Guard continued in that property.            The

Learned Judge did not give any importance to the notice dated 8.4.1987 being

sent under postal certificate, but held that there was nothing on record to prove

that defendant No.3 had been served with that notice.        The Learned Single

Judge therefore, found fault with the finding of the Additional District Judge to

the effect that defendant No. 3 (Respondent No. 1 herein) was not a bonafide

purchaser, and further held that, it amounted to misreading of evidence. The

Regular Second Appeal was therefore, allowed and the judgment and decree of

the Addl. District Judge was set aside.
                                                                          8

13.          Being aggrieved by the judgment and order passed by the High

Court this Appeal has been filed by the appellant. This time, the son of appellant

No.1, the original defendant No.1 has joined her as appellant No. 2.

Mr. Saikrishna Rajagopal, learned counsel appearing for the appellants pointed

out that the order passed by the High Court does not deal with the law laid down

in the judgment of this Court in R. Rajagopal Reddy case (Supra).              The

Judgment was binding on the Learned Judge, and in view thereof the suit filed

by the appellant No.1 was not hit by the prohibition under Section 4 of the Act.

He also pointed out that the appellants as well as the respondent No. 1 were

staying in the same area i.e. College Road, Pathankot, and therefore, the

Learned Additional District Judge was right in his inference that the notice dated

8.4.1987 must be presumed to have been duly served on respondent No. 1 prior

to 13.4.1987 when respondent No. 3 purchased half share of the suit house. He

submitted that the appellants were ready to return the amount of Rs.30,000/-

with interest to   respondent No. 1 which amount he claims to have paid to

respondent No. 2 to purchase his half share in the property.


14.          As against this submission of the appellant, Mr. V.K. Monga,

learned counsel appearing for respondent No. 1 repeated the same submissions

made in the courts below, namely, that he was a bonafide purchaser without

notice, and that the original defendant No. 2 had purchased half the share of the

suit house from his money, and from him the respondent No.1 had purchased

that share, and therefore, the present appeal should be dismissed.
                                                                            9

15.           We have noted the submission of the rival parties. As far as the

purchase of the suit house by the appellant No. 1 from her own money is

concerned that finding of the trial court has remained undisturbed all throughout

and cannot be re-opened in this appeal. The appellant No.1 led cogent evidence

before the trial court, and it had been held in her favour that it is out of her

funds that she had purchased the suit house. The submission of the original

defendant no. 2 that he had arranged the amount of Rs. 20,000/- through

friendly loans was negated by the trial court since there was no supporting

evidence at all. There is no reason for us to disturb that finding. Once the High

Court held that the appellant had purchased the suit house out of her funds, it

ought to have held that it follows that the defendant No. 2 had no right to deal

with it or to sell his half share merely because his name was shown as a

purchaser alongwith the appellant No. 2.       Consequently the purchase of the

share of the defendant No. 2 by the respondent No. 1 herein without the consent

of the appellant No. 1 gave him no rights whatsoever. Therefore, the High Court

ought to have held that the suit of appellant No. 1 for declaration of her

ownership to be valid and maintainable.


16.       The High Court has clearly erred in ignoring the binding judgment of a

Bench of three Judges of this Court in R. Rajagopal Reddy (supra).          By this

decision, this Court had reversed its earlier judgment in Mithilesh Kumari (supra)

and had held in terms that suits filed prior to the application of the act would not
                                                                               10

be hit by the prohibition under Section 4 of that act. Section 4(1) of the Benami

Transactions (Prohibition) Act 1988 reads as follows:


      "Prohibition of the right to recover property held benami.-
      (1) No suit, claim or action to enforce any right in respect of any
      property held benami against the person in whose name the
      property is held or against any other person shall lie by or on
      behalf of a person claiming to be the real owner of such property."

      While reversing the earlier decision of this Court in Mithilesh Kumari

(supra),   a   bench    of   three   Judges     observed    in   para    11      of

R. Rajagopal Reddy (supra) as follows:-


              "Before we deal with these six considerations which weighed
      with the Division Bench for taking the view that Section 4 will apply
      retrospectively in the sense that it will get telescoped into all
      pending proceedings, howsoever earlier they might have been
      filed, if they were pending at different stages in the hierarchy of
      the proceedings even up to this Court, when Section 4 came into
      operation, it would be apposite to recapitulate the salient feature of
      the Act. As seen earlier, the preamble of the Act itself states that it
      is an Act to prohibit benami transactions and the right to recover
      property held benami, for matters connected therewith or
      incidental thereto. Thus it was enacted to efface the then existing
      right of the real owners of properties held by others benami. Such
      an Act was not given any retrospective effect by the legislature.
      Even when we come to Section 4, it is easy to visualise that sub-
      section (1) of Section 4 states that no suit, claim or action to
      enforce any right in respect of any property held benami against
      the person in whose name the property is held or against any other
      shall lie by or on behalf of a person claiming to be the real owner
      of such property. As per Section 4(1) no such suit shall thenceforth
      lie to recover the possession of the property held benami by the
      defendant. Plaintiff's right to that effect is sought to be taken away
      and any suit to enforce such a right after coming into operation of
      Section 4(1) that is 19-5-1988, shall not lie. The legislature in its
      wisdom has nowhere provided in Section 4(1) that no such suit,
      claim or action pending on the date when Section 4 came into
      force shall not be proceeded with and shall stand abated. On the
      contrary, clear legislative intention is seen from the words "no such
                                                                              11

       claim, suit or action shall lie", meaning thereby no such suit, claim
       or action shall be permitted to be filed or entertained or admitted
       to the portals of any court for seeking such a relief after coming
       into force of Section 4(1)." (Emphasis supplied)

17.          In the impugned judgment, the High Court nowhere refers to the

judgment in R. Rajagopal Reddy's case (supra) although the same was very

much referred to and relied upon by the appellant to counter the contrary

submission of the respondent No. 1. The High Court has therefore, committed a

serious error of law in holding that the Additional District Judge has misread the

evidence on record while coming to the conclusion that the suit property was the

Benami Property of the plaintiff-appellant No.1 herein and that her suit to

enforce the right concerning the same shall not lie. In fact there was no such

misreading of evidence on the part of the first appellate court, and hence there

was no occasion for the High Court to frame such a question of law in view of

the prevailing judgment in R. Rajagopal Reddy which had been rightly followed

by the first appellate court.


18.       The High Court has held that there is nothing on record to suggest that

respondent No.1 herein had, in fact, been served with the notice dated 8.4.1987

and thereby reversed the finding rendered by the first appellate court.          It is

material to note in this behalf that it was canvassed by respondent No.1 before

the first appellate court that a certificate of posting is very easy to procure and it

does not inspire confidence. The Additional District Judge observed that there

was no dispute with this proposition of law, but there was no such averment or

even allegation against appellant No.1 herein, that she had procured the
                                                                                  12

certificate of posting nor was there any such pleading to that effect. It is on this

background that the first appellate court has drawn the inference that the notice

must be deemed to have been served within the period of five days thereafter

i.e. before 13.4.1987, the date on which the respondent No.1 herein entered into

an agreement to purchase the suit property. It is also material to note that the

appellant's premises are situated on College Road, Pathankot and so also the

residence of the first respondent where the notice was sent. Therefore, there

was nothing wrong in drawing the inference which was permissible under Section

114 of the Evidence Act that such notice must have been duly served in the

normal course of business before 13.4.1987.


19.            We may fruitfully refer to a few judgments laying down the

propositions relating to service of notice.      To begin with, we may note two

judgments in the context of the notice to quit, sent to the tenants under Section

106 of the Transfer of Property Act 1882, though both the judgments are

concerning the notices sent by registered post. Firstly, the judgment in the case

of Harihar Banerji Vs. Ramshashi Roy [AIR 1918 PC 102], wherein the

Privy Council quoted with approval the following observations in Gresham

House Estate Co. Vs. Rossa Grande Gold Mining Co. [1870 Weekly

Notes 119] to the following effect:


       "..........if a letter properly directed, containing a notice to quit, is
       proved to have been put into the post office, it is presumed that
       the letter reached its destination at the proper time according to
       the regular course of business of the post office, and was received
       by the person to whom it was addressed. That presumption would
                                                                                  13

       appear to their Lordships to apply with still greater force to letters
       which the sender has taken the precaution to register, and is not
       rebutted but strengthened by the fact that a receipt for the letter is
       produced signed on behalf of the addressee by some person other
       than the addressee himself."

20.        Secondly, we may refer to the judgment of a Full Bench of the Allahabad

High Court in the case of Ganga Ram Vs. Smt. Phulwati [AIR 1970

Allahabad 446], wherein the Court observed in paragraphs 12 and 13 as

follows:


       "12. When a registered article or a registered letter is handed
       over to an accepting or receiving post office, it is the official duty of
       the postal authorities to make delivery of it to the addressee.
       Human experience shows that except in a few exceptional cases
       letters or articles received by the post office are duly, regularly and
       properly taken to the addressee. Consequently as a proposition it
       cannot be disputed that when a letter is delivered to an accepting
       or receiving post office it is reasonably expected that in the normal
       course it would be delivered to the addressee. That is the official
       and the normal function of the post office.

       13.   Help can also be taken from Section 16 of the Indian
       Evidence Act which reads as follows:-

       "When there is a question whether a particular act was done, the
       existence of any course of business, according to which it naturally
       would have been done, is a relevant fact.

       Illustrations:

       (a)    The question is, whether a particular letter was dispatched.
       The facts that it was the ordinary course of business for all letters
       put in a certain place to be carried to the post, and that that
       particular letter was put in that place, are relevant.

       (b)    The question is, whether a particular letter reached A. The
       facts that it was posted in due course, and was not returned
       through the Dead Letter Office, are relevant."
                                                                              14

21.       As far as a notice sent under postal certificate is concerned, in Mst.
L.M.S. Ummu Saleema Vs. B.B. Gujaral & Anr. [1981 (3) SCC 317], a
bench of three judges of this Court on the facts of that case, refused to accept
that the notice sent under a postal certificate by a detenue under the
Conservation of Foreign Exchange and Smuggling Activities Act, 1974, to the
Assistant Collector of Customs, retracting his original statement had been duly
served on the concerned office.   This was because the respondent rebutted the
submission by producing their file to show that such a letter had not been
received in their office in the normal course of business.          However, the
proposition laid down in that case is relevant for our purpose.        This Court
observed in paragraph 6 of that judgment as follows:

      "6. ............The certificate of posting might lead to a presumption
      that a letter addressed to the Assistant Collector of Customs was
      posted on August 14, 1980 and in due course reached the
      addressee. But, that is only a permissible and not an inevitable
      presumption. Neither Section 16 nor Section 114 of the Evidence
      Act compels the court to draw a presumption. The presumption
      may or may not be drawn. On the facts and circumstances of a
      case, the court may refuse to draw the presumption. On the other
      hand the presumption may be drawn initially but on a
      consideration of the evidence the court may hold the presumption
      rebutted and may arrive at the conclusion that no letter was
      received by the addressee or that no letter was ever despatched as
      claimed. After all, there have been cases in the past, though rare,
      where postal certificates and even postal seals have been
      manufactured. In the circumstances of the present case,
      circumstances to which we have already referred, we are satisfied
      that no such letter of retraction was posted as claimed by the
      detenu."

22.    The proposition laid down in this judgment has been followed in two

subsequent cases coming before this Court in the context of Section 53(2) of the

Companies Act 1956 providing for presumption of service of notice of the board

meeting, sent by post. In M.S. Madhusoodhanan vs. Kerala Kaumudi (P)

Ltd. and others [2004 (9) SCC 204], a bench of two Judges of this Court
                                                                           15

referred to the proposition in Mst. L.M.S. Ummu Saleema (supra) in para 117 of

its judgment, and held in the facts of that case, that the notice by postal

certificate could not be presumed to have been effected, since the relations

between the parties were embittered, and the certificate of posting was suspect.

As against that, in a subsequent matter under the same section, in the case of

VS Krishnan Vs. Westfort Hi-Tech Hospital Ltd. [2008 (3) SCC 363],

another bench of two Judges referred to the judgment in M.S. Madhusoodhanan

(supra), and drew the presumption in the facts of that case that the notice sent

under postal certificate had been duly served for the purposes of Section 53(2)

of the Companies Act, 1956, since the postal receipt with post office seal had

been produced to prove the service. Thus, it will all depend on the facts of each

case whether the presumption of service of a notice sent under postal certificate

should be drawn. It is true that as observed by the Privy Council in its above

referred judgment, the presumption would apply with greater force to letters

which are sent by registered post, yet, when facts so justify, such a presumption

is expected to be drawn even in the case of a letter sent under postal certificate.


23.       Having seen the factual and the legal position, we may note that in the

present case it has already been established that the appellant had purchased

the property out of her own funds. Therefore, it could certainly be expected that

when she came to know about the clandestine sale of her property to

respondent No.1, she would send him a notice, which she sent on 8.4.1987. As

noted earlier, the notice is sent from one house on the College Road to another
                                                                           16

house on the same road in the city of Pathankot. The agreement of purchase is

signed by the defendant No.3 five days thereafter i.e. 13.4.1987. The appellant

had produced a copy of the notice along with postal certificate in evidence.

There was no allegation that the postal certificate was procured.           In the

circumstances, it could certainly be presumed that the notice was duly served on

respondent No.1 before 13.4.1987.         The High Court, therefore, erred in

interfering in the finding rendered by the Additional District Judge that

respondent No.1 did receive the notice and, therefore, was not a bona fide

purchaser for value without a notice.


24.          The judgment of the High Court, therefore, deserves to be set

aside.   The appellants through their counsel have, however, in all fairness

offered to compensate the first respondent herein by paying him the amount of

Rs. 30,000/- with appropriate interest. The first respondent did not evince any

interest in this suggestion. Yet, the end of justice will be met, if this amount of

Rs. 30,000/- is returned by the appellants to him as offered by them with simple

interest at the rate of 10%.


25.          In the circumstances this appeal is allowed.      The Judgment and

order dated 10.2.2009 passed by the High court in R.S.A No. 1367 of 1996 and

that of the Sub-Judge, Pathankot in Civil Suit No. 138 of 1987 dated 3.10.1991

are set aside. The judgment and order dated 22.2.1996 passed by Addl. District.

Judge, Gurdaspur in Civil Appeal No. 203 of 1991 is confirmed. The suit filed by

the appellant No.1 bearing Civil Suit No. 138 of 1987 is decreed and it is declared
                                                                                                 17

that the appellant No. 1 is the owner of the suit house.                     There shall be a

permanent injunction restraining the defendants from alienating any part of the

suit house and forcibly interfering into the possession of the plaintiff of the house

in dispute.     In view of the offer given by the appellants to compensate the first

respondent, the appellants shall pay him the amount of Rs. 30,000/-(Rupees

thirty thousand only), with simple interest at the rate of 10% for the period from

13.4.1987 till the decision of the first appellate court i.e. 22.2.1996, within twelve

weeks from today, though it is up to the respondent No. 1 to receive the

amount. The interest is restricted upto 22.2.1996 for the reason that respondent

No.1 ought to have accepted the decision of the First Appellate Court,

particularly in view of the judgment of this Court in R. Rajagopal Reddy (supra),

and should not have dragged the appellants to the High Court in Second appeal.


26.           The first respondent will pay a cost of Rs. 10,000/- to the 1 st appellant

for this appeal.


                                                    ........................................J.
                                                    ( Dalveer Bhandari )


                                                    .........................................J.
                                                    ( H.L. Gokhale )

New Delhi
Dated: January 21, 2011

Evidence Act, 1872-ss. 58 and 145-Document without signature-Admitted by executor-Document has bearing effect on limitation-Not considered by High Court-Hence matter remitted back for reconsideration- Code of Civil Procedure, 1908-Order. 41 r. 31. Pleadings-Necessity of-On jurisdictional facts-Held: A jurisdictional fact need not necessarily be pleaded. Respondent Nos. 1 and 2 (plaintiffs) filed a suit against the appellants (defendant Nos. 2, 3 and 5 to 7) and respondent No. 3 (defendant No. 1) claiming 2/3rd share in the property described in Schedule A to the plaint and 4/9th share in the property described in Schedule B to the plaint and seeking direction to defendants 1 to 3 to render fair and proper accounts, in respect of the poultry business which was being run in Schedule B property, from the year 1968 and for future profits thereon. Plaintiffs claimed the properties as members of Hindu undivided family. Defendant No. 1 - respondent No. 3 was the 'Karta' of the family. It was alleged by the plaintiffs that their father (defendant No. 1 - respondent No. 3) had made investments for the poultry business started by the appellant Nos. 1 and 2. Arrangement was entered into between the parties that profits of the said business was to be shared by their grandfather on one hand and their father and appellant No. 1 on the other hand equally after giving due credit to the expenditure and interest to investments. Land was purchased in the name of the grandfather and appellant No. 1 from the money advanced. Poultry business was started on that. With the profits from the poultry business a tube manufacturing plant was installed. On death of their grandfather they inherited 2/3rd undivided interest in the two business. Defendant No. 1 (father of the plaintiffs) supported their case. Appellants (defendant Nos. 2 and 3) denied the allegations in the suit. They also took the plea that the suit was barred by limitation. Defendant Nos. 2 and 3 pleaded that the busineses were exclusively theirs. They had started the same after taking loan from Bank. They filed Exhibit B-8 showing that the accounts had been settled by and between the parties on 30.05.1979. They averred that even if allegations of the plaintiffs were correct, they were entitled to only 1/2 share in the land. Defendant No. 1 had admitted its execution by him. Trial Court by a preliminary decree directed partition of the schedule properties and rendering proper accounts in respect of 1968 onwards. High Court dismissed the appeal. It did not take into consideration Exbt B.8 on the ground that the same did not bear anyone's signature. In appeal to this Court, appellants contended that High Court in having failed to take into consideration the effect to Exhibit B-8 committed serious error; that even though no averment was made with regard to this document in the Written Statement, but in view of the fact that defendant No. 1 admitted the execution thereof, the same should have been taken into consideration and that there was nothing to show as to how High Court came to a conclusion that plaintiffs and defendant No. 1 had 2/3rd share in the business venture. Citation: 2007 AIR 2380,2007(7 )SCR201 ,2007(10 )SCC296 ,2007(8 )SCALE191 ,2007(8 )JT167Partly allowing the appeal and remitting the matter to High Court, the Court HELD: 1. In the fact situation of this case, particularly when the limitation issue required determination, Ex. B-8, should have received serious consideration at the hands of the courts below. [Para 26] [211-C, D] 2. The reasoning of the High Court in regard to Ex. B-8 cannot be accepted. Plaintiffs (Respondent Nos. 1 and 2) were claiming the property as members of the Hindu undivided family. Admittedly, the interest of the Hindu undivided family was being looked after by grand father of the plaintiffs and after his death by defendant No.1 (Respondent No.3). Correspondences were exchanged by and between Appellant Nos. 1 and 2 only with the grandfather and defendant No.1 (Respondent No.3). Yet again admittedly, defendant No.1 (Respondent No.3) was the manager of the Hindu undivided family. His dealing with the appellant in regard to the affairs of the business will have a direct bearing in the matter of determination of the issues raised before this court. [Para 21] [209-G, H; 210-A, B] 3. An admission made by a party can be used against him. When such admission is made by a Karta of the Hindu undivided family, who is managing the family property as well as family business affairs, the same would be a relevant fact. When a claim was made by the plaintiffs for rendition of accounts in the lis, issuance of a document purported to have been authored by one of the parties was required to be taken into consideration. In terms of Section 58 of the Indian Evidence Act, 1872, a thing admitted need not be proved. [Paras 22 and 23] [210-B, C, D] Shreedhan Govind Kamerkar v. Yesahwant Govind Kamerkar and ANOTHER, [2006] 14 SCALE 174, referred to. 4. It is also a trite law that when in cross-examination a witness accepts the correctness of a document, the same would be relevant. A pleading in regard to existence of a document may be necessary for advancing the case of a party, but when a witness admits a document to be in his own handwriting without anything more, the effect thereof may have to be considered having regard to the provisions contained in Section 145 of the Indian Evidence Act in terms whereof the only requirement would be that his attention is drawn before a writing can be proved. These relevant facts have not been considered by the High Court. The High Court merely proceeded on the basis that Ex.B-8 did not contain anybody's signature. If defendant No.1 accepted the contents of the said document, which, according to him were noted by him from the books of accounts, authenticity thereof is not in question, and, thus, even in absence of books of accounts, relevant pages whereof were found to have been torn, the High Court ought to have taken the same into consideration as well as the admission on the part of defendant No.1 and the effect thereof. Such an admission could be taken into consideration both for the purpose of arriving at a finding in regard to the fact as to whether a full and final settlement of accounts had been arrived at, which was a relevant fact as also for determining the question of limitation. [Para 24] [210-D-G] 5. There is no document in writing to prove partnership. Accounts had not been demanded by the plaintiffs or the defendant no.3 for a long time. Even an oral partnership had not been proved. What was the subject matter of the partnership had also not been considered by the High Court. A share in a joint venture, in absence of any document in writing, must be determined having regard to the conduct of the parties. The High Court proceeded on the basis that the plaintiffs and defendant no.1 had 1/2 share in the property in terms of Section 45 of the Transfer of Property Act. If the said immovable property formed assets of the joint venture, the same would be an indicia to determine the shares held by the parties thereto. Ordinarily, the extent of an involvement made shall be the criteria for determining the share of the co-entrepreneurs. In absence of terms and conditions of the joint venture having not been reduced to writing, conduct of the parties how they dealt with affairs of the business would be relevant. [Para 25] [210-H; 211-A, B, C] 6. If the contents of Ex. B-8 were accepted, it was not for the High Court to consider the consequences flowing therefrom, and, thus, but the fact whether the figure(s) contained therein could be verified from the books of account might not be very relevant. Whether, it would be in consonance with the pleadings of appellants was again of not much significance if it can be used for demolishing the case of plaintiffs and defendant No.1. If the figures contained in Ex. B-8 were accepted, it was for defendant No.1 to explain the same and not for appellants. The High Court thus committed a manifest error in not taking into consideration the contents of Ex. B-8 in its proper perspective. [Para 27] [211-E, F, G] 7. In terms of Section 3 of the Limitation Act, it is for the court to determine the question as to whether the suit is barred by limitation or not irrespective of the fact that as to whether such a plea has been raised by the parties. Such a jurisdictional fact need not, thus, be pleaded. [Para 27] 8. It was for the High Court to frame appropriate points for its determination in the light of the submissions made on behalf of appellants in terms of Order 41 Rule 31 CPC. Thus, apart from Issues regarding settlement of accounts under Exbt. B-8 and limitation, other points which for its consideration including the extent of the share of plaintiffs and defendant No.1 were required to be specifically gone into particularly in view of the fact that such a contention had been considered by the Trial Judge. Issue regarding Exbt. B-8 and limitation. therefore, require fresh consideration at the hands of the High Court. It may also be necessary for the High Court to consider the applicability of the relevant articles of the Limitation Act. [Paras 28, 29 and 30] [212-H; 213-A, B] A. Subba Rao for the Appellant. T.L.V. Viswanatha Iyer, Sr .Adv., P.S. Narasimha, Sridhar Polaraju, D. Julius Riamei, Avijeet Kr. Lala, Dr. K.P. Kaylash Nath Pillai and P.V. Dinesh for the Respondents.

http://JUDIS.NIC.IN  SUPREME COURT OF INDIA Page 1 of 6
CASE NO.:
Appeal (civil)  7318 of 2000
PETITIONER:
Gannmani Anasuya & Ors
RESPONDENT:
Parvatini Amarendra Chowdhary & Ors
DATE OF JUDGMENT: 17/05/2007
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
S.B. SINHA , J :
1.      This appeal is directed against a judgment and decree dated
29.10.1999 passed by a Division Bench of the High Court of Judicature at
Andhra Pradesh at Hyderabad whereby and whereunder an appeal preferred
by Appellants herein, who were Defendant Nos. 2, 3 and 5 to 7 in the suit,
from a judgment and decree dated 23.04.1993 in O.S. No. 55 of 1985 passed
by the Subordinate Judge, Ramchandrapuram, was dismissed.
2.      Plaintiffs (Respondent Nos. 1 and 2 herein) filed a suit purported to be
one for partition claiming 2/3rd  share in the property described in Schedule
’A’ appended to the plaint, claiming 4/9th  share in the property described in
Schedule ’B’ appended thereto, as also for a decree directing the Defendants
1 to 3 to render fair and proper accounts in respect of the poultry business
which was being run in the Schedule ’B’ property from the year 1968
onwards as also for future profits thereupon.
3.      Plaintiffs are sons of Defendant No.1  (Respondent No.3 herein).  One
Narasimha Murthy was the father of Defendant No.1.  Appellants herein
admittedly are related to the respondents.  Appellant No. 1 is niece of late
Narasimha Murthy.  Her parents died when she was very young and
unmarried.  She was brought up by the said Narasimha Murthy and married
to Appellant No.2 herein.  Appellant Nos. 1 and 2 allegedly were close to the
said Narasimha Murthy. At the time of marriage, Appellant No. 2 was a
student of Veterinary Science at Madras.  After securing B.V. Sc. Degree, he
got an appointment in the veterinary department and later on became a
B.D.O., and subsequently a Project Officer in the Urban Community
Development of the Hyderabad Municipal Corporation.  They allegedly
approached Defendant No. 1 and late Narasimha Murthy to invest money in
poultry business at Hyderabad; pursuant whereto investments were made.
Allegedly, an arrangement was entered into by and between the parties that
profits of the said business can be shared by late Narasimha Murthy, on the
one hand, and Defendant No. 1 and Defendant No.2, on the other, equally
after giving due credit to the expenditure and interest to investments made @
15% p.a.  7 acres and 14 guntas of land was purchased with the moneys
advanced by late Narasimha Murthy and  Defendant No.1 at Attapur near
Hyderabad in the name of late Narasimha Murthy and the Defendant No.2.
Poultry business was, thus, started.
4.      Narasimha Murthy died in the year 1971.  With the profits from the
said business going up, a tube manufacturing plant was also installed.
According to the plaintiffs on the death of the said Narasimha Murthy, they
inherited 2/3rd undivided interest of the said poultry and tubes manufacturing
business and Appellant No.2 had the remaining 1/3rd share.  The joint family
and Respondent No.3 herein had no interest in the said business concern.
5.      Allegedly, a notice dated 27.08.1985 was served asking the appellants http://JUDIS.NIC.IN  SUPREME COURT OF INDIA Page 2 of 6
herein to render accounts in respect of the said businesses, but no reply
thereto was given.  A suit was thereafter filed on 12.09.1985.  The father of
the Plaintiffs-Respondents Nos.1 and 2, namely, Respondent No.3 herein in
his written statement for all intent and purport supported the case of the
plaintiffs alleging that there had been no settlement of accounts in respect of
the said businesses and after the death of Narasimha Murthy, he was entitled
to the share to which his father was entitled to from the said business.  It was
alleged that further amounts were also advanced after the death of his father
by way of advance as well as interest accrued on principal amounts
advanced.  It was further alleged that the infrastructures and the buildings
referred to in Schedule ’B’ appended to the plaint including the residential
house bearing D. No. 7/26 were constructed with the profit earned from the
business.  It was, therefore, contended that they were entitled to 2/3rd share
in the business besides the amounts advanced together with interest at the
rate of 15% p.a. and also to a half share in the properties described in
Schedule ’B’ appended to the plaint together with income thereof.
6.      With his written statement, Defendant No.1 filed a document as an
annexure thereof showing that a sum of Rs.1,55,535.00 had been advanced
during the period 23.08.1968 to 29.05.1971.
7.      In her written statement, Defendant No. 3 (Appellant No. 2 herein)
accepted that during the life time of late Narasimha Murthy, Defendant No.
1 partitioned the joint family properties under a registered deed of partition
of the year 1961.  But according to him, only landed properties were
partitioned keeping the family house and vacant sites  at Pulagurtha joint.
The allegation to the effect that Appellants herein approached the Defendant
No.1 and late Narasimha Murthy for investment of money in the poultry
business or that they invested any amount on the premise that the profits
arising out of the said business can be shared by late Narasimha Murthy and
Defendant No. 1 and the Defendant No.2  equally after giving due credit to
the expenditure and interest to investments made at 15% p.a.  was denied.
The other allegations made in the plaint were also disputed.  A plea  that the
suit was barred by limitation was also taken.
8.      There is no document to show that any partnership came into being by
and between the parties and/or their predecessors in interest.
9.      It is, however, not in dispute that after the suit was filed, an Advocate
Commissioner was appointed for making an inventory of the poultry farm.
It was stated that late Narasimha Murthy merely advanced a sum of Rs.
5,000/- and as a good gesture of goodwill, his name was included as one of
the vendees along with Defendant No. 2 in the purchase of the property by
reason of the said deed of sale  dated 02.12.1970. According to Appellants,
Narasimha Murthy had never shown any interest in the said property as a
result whereof the business became exclusively theirs and the same was
accepted by late Narasimha Murthy.  Even if the said allegations are correct,
Narasimha Murthy would only have = share in the land covered by the said
sale deed.
10.     M/s Anasuya Poultry Farm or M/s Anasuya Plastics were the business
concerns started by the Defendant No.2 (Appellant No. 1 herein) with her
own money and late Narasimha Murthy or Respondent No.3 had no interest
therein.  It was furthermore  contended that for carrying out the poultry
business, a shed had been constructed by Defendant No.2 by obtaining loans
from the State Bank of India and neither Narasimha Murthy nor the
Defendant No.1 even objected thereto.  The business, therefore, was a
proprietary concern of the Appellant No.1 herein.  Although separate written
statements were filed by the Defendant No.4 and Defendant Nos. 5 to 7, it
may not be necessary to consider the same.  Defendant No. 4 in her written
statement relinquished her share.
11.     A large number of issues were framed by the learned Trial Judge.  The
learned Trial Judge by reason of his judgment dated 23.04.1993 passed a
preliminary decree directing partition of the properties described in Schedule http://JUDIS.NIC.IN  SUPREME COURT OF INDIA Page 3 of 6
’A’ appended to the plaint into three equal shares by metes and bounds  and
allotted  two shares to the plaintiffs and furthermore directed partition of the
properties described in Schedule ’B’ appended to the plaint into nine equal
shares by metes and bounds and allotted four shares  to the plaintiffs.
Appellant Nos. 1 and 2 herein as also Respondent No. 3 herein were also
directed to render fair and proper accounts in respect of poultry business
from 1968 onwards.
12.     Appellants herein (Defendant Nos. 2, 3, 5 to 7) preferred an appeal
thereagainst before the High Court, which has been dismissed by reason of
the impugned judgment.
13.     The High Court having regard to the contentions raised by parties
formulated the following questions for its consideration :
1.      Whether the poultry business carried on by the
        appellants is a joint venture?
2.      Whether there was a settlement of account under
        Ex. B8?
3.      Whether the respondents are entitled to the share
        of defendant No. 47?; and
4.      Whether the suit is barred by limitation."
14.     Mr. A. Subba Rao, the learned counsel appearing on behalf of the
appellants, would submit that the learned Trial Judge as also the High Court
committed a serious error insofar as they failed to take into consideration the
effect of Ex.B-8, which categorically goes to show that the accounts had
been settled by and between the parties on 30.05.1979.  The learned counsel
urged that it may be true that no averment was made in the written statement
in regard to the said document, but in view of the fact that Defendant No. 1
(Respondent No. 3 herein) having admitted the execution thereof, the same
should have been taken into consideration for the purpose of determining the
issue of limitation, if not for other purposes.
15.     The learned counsel would submit that the High Court has also not
bestowed any consideration in respect of the execution of deed of
partnership dated 06.03.1978 entered into by and between the appellants
with her daughter wherein Defendant No.1 (Respondent No.3) is a witness.
16.     In any event, the learned counsel argued,  there is nothing on record to
show as to how the High Court came to a conclusion that the plaintiffs and
Defendant No.1 had 2/3rd share in the business venture.  The learned counsel
submitted that the fact that Defendant No.1 (Respondent No.3) was himself
an Engineering Graduate, there was absolutely no reason as to why he had
not asked for an account annually and having regard to the fact that the
partnership was allegedly entered into in the year 1978, the suit was ex facie
barred by limitation.
17.     Mr. T.L.V. Viswanatha Iyer, the learned counsel appearing on behalf
of the plaintiffs (Respondent Nos. 1 and 2), on the other hand, submitted that
although the question in regard to the extent of share had been raised before
the learned Trial Judge, the same was not done before the High Court and,
thus, the same should not be permitted to be raised before us. According to
the learned counsSel as the appellants herein were not in a position to make
any investment and a total sum of Rs.1,55,535/- was advanced by Defendant
No.1, towards the joint venture, a suit for rendition of accounts was
maintainable. The judgment of the trial court, according to the learned
counsel, was unassailable, in regard to the question of limitation.  The
learned counsel would contend that Ex.B-8 upon which reliance has been
placed, does not contain any signature of any party nor any amount has been
paid pursuant thereto in full and final settlement of the accounts wherefor http://JUDIS.NIC.IN  SUPREME COURT OF INDIA Page 4 of 6
the same was drawn up.  It was pointed out that Defendant No. 1 was only a
manager of the Hindu undivided family and the business concerns were
being run the appellants herein.  In view of the fact that profits were being
reinvested into the partnership business, it is idle to contend that the
accounts were settled particularly when the business was found to be a
running one by the learned Trial Judge.  Even the notice issued by the
plaintiffs, it was pointed out,  had  not been replied by the defendants.  The
learned counsel would contend that Article 5 of the Limitation Act, 1963
would not be applicable in a case of this nature as the same refers to a
dissolution of partnership and as in this case, the provisions of the Indian
Partnership Act, 1932 are not attracted, only Article 113 thereof  would
apply.
18.     Dr. K.P. Kaylash Nath Pillai, the learned counsel appearing on behalf
of  Defendant No. 1 (Respondent No.3), would submit that the question as to
whether the business was a joint venture or not being a question of fact, this
Court should not exercise its discretionary jurisdiction under Article 136 of
the Constitution of India.  
19.     So far as issue No. 1 is concerned, we are satisfied that the business
was a joint venture and not the sole proprietary concern of the Appellant No.
1, as urged by Mr. Subba  Rao.
20.     We may furthermore notice that a concession was made before the
High Court that so far as the immovable property is concerned, having
regard to the provisions contained in Section 45 of the Transfer of Property
Act, 1894, Narasimha Murthy had = share therein.  It is, thus, not necessary
for us to go into the said question as correctness or otherwise of the said
concession is not in question before us.  
       
21.     However, it is difficult for us to accept the reasonings of the High
Court in regard to Ex. B-8.  Plaintiffs (Respondent Nos. 1 and 2) were
claiming the property as members of the Hindu undivided family.
Admittedly, the interest of the Hindu undivided family was being looked
after by Narasimha Murthy and after his death by Defendant No.1
(Respondent No.3). Correspondences were exchanged by and between
Appellant Nos. 1 and 2 only with Narasimha Murthy and Defendant No. 1
(Respondent No.3).  Yet again admittedly, Defendant No. 1 (Respondent
No.3) was the manager of the Hindu undivided family.  His dealing with the
appellant in regard to the affairs of the business will have a direct bearing  in
the matter of determination of the issues raised before us.
22.     An admission  made by a party can be used against him.  When such
admission is made by a Karta of the Hindu undivided family, who is
managing the family property as well as family business affairs, the same
would be a relevant fact.  When a claim was made by the plaintiffs for
rendition of accounts in the lis, issuance of a document purported to have
been authored by one of the parties, in our opinion, was required to be taken
into consideration.
23.     In terms of Section 58 of the Indian Evidence Act, 1872, a thing
admitted need not be proved. [See Shreedhar Govind Kamerkar v.
Yesahwant Govind  Kamerkar & Anr. \026 2006 (14) SCALE 174]
24.     It is also a trite law that when in cross-examination a witness accepts
the correctness of a document, the same would be  relevant.  A pleading in
regard to existence of a document may be necessary for advancing the case
of a party, but when a witness admits a document to be in his own
handwriting without anything more, the effect thereof may have to be
considered having regard to the provisions contained in Section 145 of the
Indian Evidence Act in terms whereof the only requirement would be that
his attention is drawn before a writing can be proved.  These relevant facts
have not been considered by the High Court. The High Court merely
proceeded on the basis that Ex. B-8 did not contain anybody’s signature.  If
the Defendant No. 1 accepted the contents of the said document, which,
according to him, were noted by him from the books of accounts, http://JUDIS.NIC.IN  SUPREME COURT OF INDIA Page 5 of 6
authenticity thereof is not in question, and, thus, even in  absence of books
of accounts, relevant pages whereof were found to have been torn,  the High
Court ought to have taken the same into consideration as well as the
admission on the part of the Defendant No. 1 and the effect thereof.  Such an
admission could be taken into consideration both for the purpose of arriving
at a finding in regard to the fact as to whether a full and final settlement of
accounts had been arrived at, which was a relevant fact as also for
determining the question of limitation.
25.     There is no document in writing to prove partnership.  Accounts had
not been demanded by the plaintiffs or the defendant no. 3 for a long time.  
Even an oral partnership had not been proved.  What was the subject-matter
of the partnership had also not been considered by the High Court.  A share
in a joint venture, in absence of any document in writing, must be
determined having regard to the conduct of the parties.  The High Court
proceeded on the basis that the plaintiffs and defendant No.1 had = share in
the property in terms of Section 45 of the Transfer of Property Act.  If the
said immovable property formed assets of the joint venture, the same would
be an indicia  to determine the shares held by the parties thereto.  Ordinarily,
the extent of an involvement made shall be the criteria for determining the
share of the co-entrepreneurs.  In absence of terms and conditions of the
joint venture having not been reduced to writing, conduct  of the parties how
they dealt with affairs of the business would be relevant.  
26.     The High Court does not say that the concession made by the learned
counsel appearing on behalf of Appellants was incorrect.  In a situation of
this nature, particularly when the limitation issue required determination, Ex.
B-8, in our opinion, should have received serious consideration at the hands
of the courts below.
27.      In terms of Section 3 of the Limitation Act, it is for the court to
determine the question as to whether the suit is barred by limitation or not
irrespective of the fact that as to whether such a plea  has been raised by the
parties.  Such a jurisdictional fact need not, thus, be pleaded.  In any event,
the said evidence was admissible for the purpose of contradicting a witness,
which being a relevant fact should have been considered in its proper
perspective.  If the contents of Ex. B-8 were accepted, it was not for the
High Court to consider the consequences flowing therefrom, and, thus, but
the fact whether the figure(s) contained therein could be verified from the
books of account might not be very relevant.  Whether, it would be in
consonance with the pleadings of  Appellants was again of not much
significance if it can be used for demolishing the case of  Plaintiffs and
Defendant No.1  If the figures contained in Ex. B-8 were accepted, it was for
Defendant No. 1 to explain the same and not for Appellants.  The High
Court, in our opinion, thus, committed a manifest error in not taking into
consideration the contents of Ex. B-8 in its proper perspective.
28.     At the cost of repetition, we may state that the effect of the said
document at least should have received serious consideration at the hands of
the High Court.  We cannot accept the contention of Mr. Iyer that such a
question had not been raised.  From the impugned judgment of the High
Court, it appears that the said such question had specifically been raised. The
High Court noticed the arguments of the learned Advocate in the following
terms :
"\005Therefore, they have no objection for giving the half
share in the property in spire of 1st respondent expressing
his intention to relinquish his right in the half share of
landed property admeasuring Ac. 7-14 guntas in Atapur
covered by Ex. B-15.  After the settlement of accounts
under Ex. B-8 the appellants obtained loans from various
banks for the purpose of reviving the poultry business
and also setting up of business in plastics.  In all the loan
transactions, the 1st respondent signed the loan
documents as a guarantor.  If really he is interested in the
business, he would have been one of the principal debtors http://JUDIS.NIC.IN  SUPREME COURT OF INDIA Page 6 of 6
and not a guarantor.  That indicates that the respondents
have no interest in the poultry business carried on by the
1st appellant.  Further the 1st respondent got himself
examined on commission as he does not want to face the
Court since his case is false.
        As regards the share of the 4th defendant who is the
daughter of late Narasimha Murthy is concerned, the
respondents are not entitled to her share as relinquishment
of her share in the property is not evidenced by any
document except Ex.B9 which is not a registered
document.  Therefore, the respondents cannot claim the
share of the 4th respondent.  Since neither late Narasimha
Murthy nor respondent No. 1 obstructed the 1st appellant
from carrying on the business in the half share of Ac.7.14
guntas of land, the appellants are not liable to account for
profits earned by them by their own labour.  If really the
case of the respondents is that the poultry business carried
on by the appellants is not the exclusive business of the 1st
appellant, at the time of Ex. B8 they would have demanded
for accounting of the profits.  As regards the building
constructed in the site, it is constructed with the money
belonging to the 1st appellant and therefore, the
respondents are not entitled for a share in the said building.
At the most the value of the site on which the building is
constructed may be awarded to the member of the joint
family on which the corners constructs a building.  The
suit for accounts is barred by limitation as the business was
closed in 1973.  At the most the respondents are entitled
for profits 3 years prior to the filing of the suit\005"
29.     It was for the High Court to frame appropriate points for its
determination in the light of the submissions made on behalf of Appellants
in terms of Order 41 Rule 31 of the Code of Civil Procedure.  The High
Court failed to address itself on the said issue.  Thus, apart from Issues Nos.
2 and 4, other points which for its consideration including the extent of the
share of Plaintiffs and Defendant No. 1 were required to be specifically gone
into particularly in view of the fact that such a contention had been
considered by the learned Trial Judge.  Issue Nos. 2 and 4, in our opinion,
therefore, require fresh consideration at the hands of the High Court.
30.     For the aforementioned purpose, it may also be necessary for the High
Court to consider the applicability of the relevant articles of the Limitation
Act.  We, therefore, are of the opinion that the impugned judgment to the
extent aforementioned cannot be sustained.  It is set aside accordingly in part
and the matter is remitted to the High Court for consideration of the matter
afresh on the said issues, inter alia, in the light of the observations made
hereinbefore.  The High Court shall also formulate appropriate points for its
consideration in terms of Order 41 Rule 31 of the Code of Civil Procedure
and proceed to hear the appeal on merits on the relevant issues apart from
Issue Nos.2 and 4.  This appeal is allowed to the aforementioned extent.  In
the peculiar facts and circumstances of the case, there shall be no order as to
costs.