1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE19h DAY OF APRIL, 2017 R PRESENT THE HON’BLE MR.JUSTICE B.S.PATIL AND THE HON’BLE MR.JUSTICE K. SOMASHEKAR RFA. No.4131/2012 BETWEEN:
1. Smt. Neelawwa, W/o. Lalappa Kuri, Age:
68. years, Occ: Household, R/o. Vakkalatana Oni, Saunditti-591 802 District: Belgaum.
2. Fakirawwa, D/o. Lalappa Kuri, Age:
48. years, Occ: Household, R/o. Vakkalatana Oni, Saundatti-591 802, District: Belgaum.
3. Shri. Neelappa, S/o. Lalappa Kuri, Age:
45. years, Occ: Agriculture, R/o. Vakkalatana Oni, Saundatti-591 802 District: Belgaum.
4. Smt. Yallawwa, W/o. Fakirappa Holi, 2 Age:
41. years, Occ: Household, R/o. Ramapur Site, Saundatti-591 802, District: Belgaum.
5. Shri. Basappa, S/o. Lalappa Kuri, Age:
35. years, Occ: Agriculture, R/o. Ramapur site, Saundatti-591 802, District: Belgaum.
6. Shri. Mailareppa, S/o. Lalappa Kuri, Age:
33. years, Occ: Agriculture, R/o. Ramapur Site, Saundatti-591 802, District: Belgaum.
7. Smt. Shantawwa, W/o. Dyamanna Kambli, Age:
31. years, Occ: Household, R/o. Navaloor, Taluk: Dharwad, District: Belgaum. (By Shri. M.G. Naganuri, Advocate) AND:
1. Shri. Muttanna, S/o. Neelappa Kuri, Age: Major, Occ: Student, R/o. Vakkalatana Oni, Saunditti-591 802, District: Belgaum. Amended VCO Dt. 16.01.2017.
2. Shri. Fakirappa, S/o. Sangappa Jaggali, .. Appellants 3 Age:
38. years, Occ: Agriculture, R/o. Pattadakal Oni, Saundatti-591 802, District: Belgaum. … Respondents (By Smt. Hemalekha, K.S Advocate for R1 Respondent No.2 served. This RFA filed under Section-96 of the Code of Civil Procedure read with Order XLI, Rule-1 of CPC1908 against the Judgment and decree dated 20.07.2012 passed in OS. No.14/2009 on the file of the Senior Civil Judge, Saundatti, dismissing the suit filed for declaration and permanent injunction. This appeal coming on for hearing, this day, B.S.PATIL J.
delivered the following: JUDGMENT
Appellants in this appeal were the plaintiffs in O.S. No.14/2009. They filed the suit seeking declaration that they, along with defendant No.1 were the absolute owners of the suit schedule properties. Further, a declaration was sought with regard to the registered Will dated 15.03.2008, said to have been executed by deceased Fakirawwa Kuri in favour of Muttanna Kuri, defendant No.1, represented by his guardian Fakirappa Jaggali, as 4 null and void. Other consequential reliefs were also sought in the suit. After full pledged trial, the Court below has dismissed the suit. Aggrieved by the same, present Regular First Appeal is filed under Section-96 read with Order-XLI, Rule-1 of the Civil Procedure Code, 1908 (for brevity, referred to as ‘the CPC’).
2. For the purpose of convenience, the parties in this appeal are referred as per their rank in the original suit.
3. The facts involved in the case are: One Fakirappa Kuri, the propositus died leaving behind him his two sons and a daughter namely, Lalappa F. Kuri, Yallappa F. Kuri and Smt. Nagawwa. Nagawwa died issueless. Out of the two sons, the second son Yallappa F. Kuri also died without issues and he left behind his wife Smt. Fakirawwa, the testatrix who executed a registered Will dated 15.03.2008 in favour of Muttanna S/o. Neelappa Kuri, the 1st defendant, who is 5 none other than the son of plaintiff No.3 (Neelappa Kuri & Sattewwa). Said Sattewwa was the sister of testatrix Fakirawwa. It was the case of the plaintiffs that all the plaintiffs are the successors in interest of Lalappa F. Kuri born to Lalappa F. Kuri from his wedlock with Neelawwa, the plaintiff No.1. Plaintiffs 2 to 7 are the children of Lalappa and Neelawwa. For the sake of convenience, the genealogy of the parties, as shown in the plaint is extracted hereunder: Fakirappa Kuri (died) Lalappa F. Kuri Yallappa F. Kuri (died on 28.12.02) Nagawwa (Dead) Neelawwa (wife) (Plff-1) Fakirawwa (wife) (died on 27.03.2008) Fakirawwa Neelappa Yallavva Basappa Mailareppa Shantawwa (P-2) (P-7) (P-4) (P-3) (P5) (P-6) Sattewwa (Wife) Muttanna (Deft-1) 6 4. For the purpose of present appeal, it is necessary to emphasize that the relationship inter se between the Testatrix Fakirawwa-plaintiff No.3, Neelappa, his wife Sattewwa and their son Muttanna, the 1st defendant and as also Fakirappa the 2nd defendant who has been shown as minor guardian of Muttanna in the Will become important.
5. It is the case of the plaintiff that the Will set up by the 1st defendant is a concocted one. It is also their case that disposition in the Will is unnatural, inasmuch as, the property was sought to be bequeathed in favour of the 2nd defendant who is not connected to the family of Yallappa F. Kuri and his wife Fakirawwa. It is in this background, declaratory relief that the Will executed on 15.03.2008 was null and void was also sought.
6. The 1st defendant, who was a minor has filed his written statement represented by his mother Smt. 7 Satyawwa, wife of Neelappa Kuri, wherein the plaint averments regarding the Will being concocted one and created by defendant No.2 in collusion with his henchmen have been denied. It is the specific case of the defendants that the suit schedule properties were the family properties consisting of the propositus Fakirappa Kuri, his two sons, namely, Lalappa F. Kuri, Yallappa F. Kuri and after the death of the original propositus Fakirappa Kuri, his two sons got divided ‘A’ schedule properties i.e., agricultural lands equally, as per Apsata Vatani, in which, Lalappa (1st son) got half share i.e., 8 acres 31 guntas, two houses and the backyard. Whereas, his second son Yallappa got half share namely, 8 acres 32 guntas, one house and one open site and that for the last 28 years, said Lalappa and Yallappa were enjoying their respective shares separately. It is further asserted in the written statement that since 28 years, both Lalappa and Yallappa were residing separately. After the death of Lalappa, plaintiffs came in possession and enjoyment of half share 8 allotted to Lalappa. Whereas, Fakirawwa, the widow of Yallappa came in possession of half share of Yallappa, upon his death. It is her further case that during the lifetime, of Fakirawwa, she performed the marriage of Plaintiff No.3 Neelappa Kuri, by taking Satyawwa, daughter of Fakirawwa’s brother as his wife.
7. Plaintiff No.3 (Neelappa) had three daughters and a son. The son is none other than defendant No.1 (Muttanna). It is the further case of the defendant that, as plaintiff No.3 started harassing his wife Sattewwa and also Fakirawwa (testatrix) and plaintiff No.3 was addicted to vices and used to abuse his wife Satyawwa and as also Fakirawwa, late Fakirawwa had refused to transfer her share in favour of plaintiff No.3. Wife of plaintiff No.3, Satyawwa and her four children including defendant No.1 were residing in the house of deceased Fakirawwa Kuri and it was Fakirawwa Kuri who looked after the welfare of the minor children and also Satyawwa. Fakirawwa was 9 also taken care by Satyawwa and her children. Therefore, out of her love and affection, late Fakirawwa Kuri executed a Will in favour of defendant No.1 on 15.03.2008, which was duly registered in the office of the Sub-Registrar, Saundatti. It was further contended in the written statement that Fakirappa Jaggali was appointed in the Will as minor guardian by deceased Fakirawwa, as per the consent given by Smt. Satyawwa, the natural mother of defendant No.1. The said Fakirappa Jaggali did not have any adverse interest against defendant No.1. The defendants further emphatically contended that the impression gathered by the plaintiffs that the properties of late Fakirawwa had been bequeathed in favour of guardian Fakirappa Jaggali was misconceived, inasmuch as, the properties under the Will were bequeathed in favour of minor defendant No.1 and not in favour of Fakirappa Jaggali who was only a guardian of minor defendant No.1. It is necessary to notice at this stage that 10 said Fakirappa Jaggali is none other than the sister’s son of deceased Fakirawwa (testatrix).
8. Based on the above pleadings of the parties, the trial Court framed the following issues: i) ii) Whether the Plaintiffs prove the genealogy furnished by them?. Whether the Plaintiffs prove that they are the absolute owners of suit schedule property along with first defendant?. iii) Whether the Plaintiffs prove that they are in possession of suit schedule property as on the date of suit?. iv) Whether the plaintiffs prove the interference by the second defendant with their possession and enjoyment of suit schedule property?. v) Whether the defendants prove to execution of Will dated 15.03.2008 said to have executed by deceased Fakkirawwa Kuri?. vi) Whether the suit property valued for the purpose of Court fee and jurisdiction and Court fee paid is sufficient?. vii) Whether the plaintiffs are entitled for the reliefs claimed in the suit. 11 Additional Issue 1. Whether the plaintiffs prove that the alleged Will dated. 15.03.2008 is concocted and created document by second defendant as alleged at para No.6 of the plaint?.
9. In support of their case, plaintiff No.5 (Basappa Lalappa Kuri) was examined as PW.1 and produced and marked Exs.P.1 to P.23. On behalf of defendants, mother of first defendant was examined as DW.1, the attesting witness to the Will was examined as D.W3and the Officer who was in-charge of the office of the Sub-Registrar, at the relevant point of time, was examined as DW.3. Another witness namely Hanamantappa Laxman Langoti was examined as DW.4 to show that he was cultivating the land belonging to late Fakirawwa. Ex.D.1 to D.11 were got marked in their evidence.
10. The trial Court, on appreciation of evidence on record, both oral and documentary, has held that plaintiffs failed to prove that they were the absolute 12 owners of the suit schedule properties and were in exclusive possession of the same. It has been further held that defendants successfully proved due execution of the Will dated 15.03.2008 by late Fakirawwa Kuri, in favour of Muttanna, defendant No.1. Findings on the other issues which are not of much consequence and on which no arguments have been advanced, are not necessary to be dealt with. Hence, they are not dealt in detail.
11. Sri. M.G. Naganuri, learned counsel appearing for the appellants-Plaintiffs contends that burden was on the propounder of the Will to prove its due execution and attestation, as contemplated in law. He takes us through the evidence of DW.2, the attesting witness to contend that he does not whisper about the fact that he had seen the testatrix putting her thumb mark on the Will before the Sub-Registrar, nor does he speak regarding obtaining acknowledgement from her for having duly put her thumb 13 mark on the Will. He urges that this itself would indicate that the said Will was a concocted one.
12. It is his next contention that admittedly, late Fakirawwa, the testatrix was an illiterate/rustic lady and there was nothing to show that it was her own Will which was written in her presence or that she had understood the contents of the same: there is nothing to show that contents of the Will were explained to her at the time when the Will was registered by the Sub-Registrar. In this regard, he invites our attention to Rule-73 of the Karnataka Registration Rules, 1965 to contend that the Rules mandate that in case where the executant is unable to read the document, the same shall be read over and if necessary, explained to him/her. He urges that, as the duty cast under Rule-73 is mandatory and as the witness DW.3, in his examination-in-chief, has not stated anything regarding the contents of the Will having been read over and explained to the executant, the Will has to 14 be regarded as not registered as per law and the same has to be treated as not proved and not duly executed. In this regard he has placed reliance on the judgment of this Court in MFA No.907 and 975/1977 disposed of on 27th October 1978 in the case of Shivaji Rao M. V. v. K. S. Narayana Rao and others (ILR1979Volume 1 Short Note Item 10 page 229).
13. It is his next contention that the Will executed as per Ex.D.1 has been indeed executed in favour of defendant No.2 and not in favour of Muttanna, defendant No.1 and therefore, the Will cannot be treated as an unequivocal last Will and testament expressing the definite intention of the testatrix to bequeath the properties in favour of defendant No.1, as urged by the propounder of the Will. It is also sought to be pointed out that when Satyawwa, mother of minor defendant No.1 was alive, there was no reason for the testatrix to appoint defendant No.2 as his guardian. 15 14. With regard to the sound disposable state of mind of late Fakirawwa, Shri. M.G. Naganuri, learned counsel invites the attention of the Court to Ex.P.17, medical certificate issued by the Doctor in the hospital at Saundatti to contend that the testatrix was admitted in the hospital on 21.03.2008 and expired on 27.03.2008, whereas, the Will was executed on 15.03.2008. Therefore, he contends that execution of the Will is shrouded in mystery and the same is surrounded by suspicious circumstances.
15. It is his last contention that the contents of Ex.D.1 Will discloses that undivided half share of Fakirawwa in the suit schedule properties was bequeathed in favour of defendant No.1 and that being so, even assuming that the plaintiffs have failed to establish their absolute right over the suit schedule properties, their entitlement for partition and separate possession in the remaining half share cannot be denied, inasmuch as, the 16 properties are joint family properties and therefore, half share in the joint family properties can be decreed by this Court by directing partition and separate possession and therefore, the learned counsel for the Plaintiffs-appellants, alternately, would contend that Order-VII Rule-7 of CPC, as interpreted and construed by the Division Bench of this Court in the case of Neelawwa –vs- Shivawwa (ILR1988KAR- 2761).
16. It is the last contention of Sri M.G.Naganuri, that there is variance in the pleadings as compared to the contents of Ex.D1 inasmuch as while the defendants have taken up a plea that there was an apsaath vatani in the family and the properties were separately enjoyed by Lalappa and Yallappa, the contents of the Will disclosed that undivided half share of the testatrix in the suit properties was bequeathed by her in favour of Muttanna.
17. Learned counsel for the respondents supports the findings recorded by the trial Court and urges that the 17 Will has been duly proved by examining the attesting witness: that the Will not being compulsorily registrable document is required to be proved by examining the attesting witness and if there is any procedural lapse on the part of the registering authority, on that ground the Will cannot be held as not proved. Reliance is placed by the learned counsel for the respondents on the judgment in the case of Bhagat Ram and Another Vs Suresh and Others, AIR2004SC436 to contend that endorsement made by the Sub-Registrar at the time of registration are relevant to matters of registration only and they have no relevance for proof of Will.
18. It is urged that Will has to be proved in the manner provided in Section 68 of the Evidence Act read with Section 63 of Indian Succession Act. It is further urged by the learned counsel for the respondents that bequest, in the instant case is made in favour of minor Muttanna, defendant No.1 by appointing the second defendant as his 18 guardian. It is also pointed out that there is no adverse interest of defendant No.2 against defendant No.1 and indeed he has not filed any written statement claiming any such interest against the interest of the first defendant or by urging that the bequest was not in favour of defendant No.1 but was in his favour.
19. On the basis of the various contentions urged by the learned counsel for the parties and the materials on record, the points that arise for our consideration are; (i) Whether the Court below has committed any illegality in recording a finding that plaintiffs had failed to prove their absolute title to the suit schedule properties and that defendants successfully proved due execution of the Will by Fakirawwa Kuri bequeathing the properties owned by her in favour of defendant No.1?. (ii) What order?. 19 20. As both points are interconnected, points No.1 and 2 are taken up together for consideration.
21. As there is no dispute regarding the genealogy, it is sufficient if we recount here that Fakirawwa being the wife of late Yallappa succeeded to the estate of Yallappa and was absolutely entitled to the share of Yallappa in the suit properties, as they had no issues. It is also borne out from the evidence on record and the plaint averments that Fakirawwa was living separately; she was enjoying the properties that were left behind by her husband and that plaintiff No.3 Neelappa, his wife Satyawwa and the beneficiary of the Will, Muttanna lived along with her. Neelappa was taken to vices, he was ill-treating Satyawwa and Fakirawwa and therefore Fakirawwa having decided to protect the interest of Muttanna, defendant No.1, out of love and affection for him and his mother executed the Will on 15.03.2008. 20 22. The Will is produced and marked as Ex.D1. There is nothing unnatural in this bequest inasmuch as Satyawwa is none other than the niece (daughter of brother) of the testatrix Fakirawwa. Ex.D1 also recites the fact that out of love and affection towards Muttanna and as Muttanna and Satyawwa were residing with her and as she had strong hope that they would look after her in future, she was bequeathing the properties in favour of Muttanna. Indeed PW.1 in the cross-examination admits that Satyawwa and her children were residing along with testatrix Fakirawwa. Hence, we are of the view that there is no substance in the contention that the bequest was unnatural.
23. Now it has to be seen whether due execution of the Will has been proved by the propounder of the Will. DW.2, Parappa Tippananna Kuri is the attesting witness. In his evidence he has stated that he was aware of the family affairs of Yallappa and Fakirawwa and of the fact 21 that Satyawwa and the first defendant were staying along with Fakirawwa in her house. He has also deposed with regard to the apsaath vatani that took place between Lalappa and Yallappa. As regards the bequest by Fakirawwa, he has specifically stated that a day prior to the execution of the Will Fakirawwa had called him and another person by name Giriyappa Hosamani along with other elders in connection with execution of the Will and that the Will was executed by her after having discussion with them. He has also stated as to why Satyawwa decided to name Fakirappa Jagali as minor guardian of Muttanna because Satyawwa expressed her unwillingness to act as minor guardian/executor. He has also stated in the evidence that Fakirappa Jagali did not claim any interest or right in the property that was being bequeathed in favour of the minor. In this background, he has stated that the testatrix executed the Will while she was in healthy state of mind. He has also stated that she was completely aware of what she was doing and was not 22 suffering from any ailment. He has identified the Will as one written by Fakirawwa. He has identified the thumb mark of the testatrix Fakirawwa found on all the pages of the Will as Ex.D1(a) to Ex.D1(c). He has also clearly stated that he has put his signature as attesting witness to the said Will. He has identified his signature as Ex.D1(d). He has also identified the signature of another attesting witness Giriyappa as Ex.D1(e). He has also stated that Fakirawwa gave the information for writing the Will to the scribe by name Hongal: they had gone to the Office of the Sub-Registrar Saundatti at around 11.00 to 12.00 p.m. and the document was got written between 1.00 to 2.00 p.m. as per the information furnished by Fakirawwa.
24. It is relevant, at this stage, to refer to Section 68 of the Evidence Act 1872 and Section 63 (c) of the Indian Succession Act, which deal with proof of execution of document required to be attested. Section 68 mandates 23 that at least one of the attesting witnesses shall be called for the purpose of proving its execution. Section 63(c) requires that Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator.
25. In the instant case, evidence of DW.2 the attesting witness makes it very clear that he accompanied the testatrix to the office of the Sub-Registrar, Saundatti, where, on her instruction, the Will was reduced into writing by the scribe and that he was present before the Sub-Registrar when the Will was executed by the testatrix and also that he signed the Will as an attesting witness. He has identified the thumb mark of the testatrix and his 24 own signature and also the signature of another attesting witness. In such circumstance, requirement of Section 68 of the Indian Evidence Act and Section 63(c) of Indian Succession Act have been complied with. Therefore, there is no merit in the contention urged by the learned counsel for the appellants that due execution and due attestation of the Will is not proved.
26. Coming to the point urged by the counsel for the appellants that there is non-compliance of the mandatory requirement of Rule 73 of the Karnataka Registration Rules, 1965, in as much as the Sub-Registrar did not read out the contents of the document let alone explained the same to the testatrix who was illiterate, as rightly contended by the learned counsel for the respondent, Will is not compulsorily registerable. Proof of Will does not depend on the endorsement to be made by the Sub- Registrar. Regarding reading out the contents and explaining them to the testatrix as long as the 25 requirements of Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act are duly complied and the due execution and attestation are proved, mere fact that the Sub-Registrar did not make any endorsement nor deposed before the Court regarding the contents of the Will being read over or explained to the testatrix, would not in any manner render the Will invalid. Reliance placed by the learned counsel for the appellants on the judgment of this Court in the case of Shivaji Rao M. V. v. K. S. Narayana Rao and others (ILR1979Short Note of Recent Decisions Item No.10 is not apposite to the facts and circumstances of the present case. Though detailed facts involved in the said case and the legal contentions canvassed are not placed before the Court because only the head note portion contained in the report that too the short notes of decisions has been placed for perusal of the Court, the principle laid down there does not lend support to the contention of the learned counsel for the appellants 26 that if due registration is not proved, the Will cannot be held otherwise proved.
27. On the other hand, as rightly urged by the learned counsel for the respondents placing reliance on the judgment of Apex Court in Bhagat Ram and another, Appellants v. Suresh and Others, Respondents (AIR2004SC436, the Registrar of Deeds who has registered a document in discharge of his statutory duty, does not become an attesting witness to the deed solely on account of his having discharged the statutory duties relating to registration of a document. Registration of any Will, and the endorsements made by the Registrar of Deeds in discharge of his statutory duties, do not elevate him to the status of a ‘statutory attesting witness’.
28. In para 23 of this judgment, the Apex Court has emphatically laid down that registration of a document (Will) does not dispense with the need of proving the execution and attestation of a document as required by 27 law to be proved in the manner provided in Section 68 of the Evidence Act. The Apex Court has further held by referring to Section 58 of the Registration Act that though the Registrar is required to endorse certain particulars on every document admitted to registration, none of the endorsements required to be made by the registration of deeds as per Registration Act, contemplate the factum of attestation within the meaning of Section 63(c) of the Succession Act or Section 68 of the Evidence Act and the endorsements made at the time of registration are relevant to the matters of the registration only. The Apex Court has also dealt with the circumstance under which the Sub-Registrar who registers the Will can satisfy the requirement of an attesting witness in given cases of which we are not concerned in this particular case.
29. Suffice to observe that due execution and attestation of the Will depends upon the compliance of provisions of Section 68 of the Indian Evidence Act and Section 63(C) of 28 the Indian Succession Act. In the instant case as the attesting witness has clearly spoken regarding the due execution and attestation, we have no doubt in agreeing with the findings recorded by the Court below that Ex.D.1- Will was duly proved by the defendant.
30. The other contention urged based on Ex.P.17 medical certificate issued by Dr.C.B.Navadgi of Surgical Nursing Home, Saundatti, requires to be dealt with. Ex.P.17 certificate discloses that testatrix was admitted to the hospital on 21.03.2008 and she expired on 27.03.2008. Contents of Ex.P.17 disclose that she was suffering from malignant pleural effusion with abdominal wall abscess. There is nothing in this certificate to show that testatrix Fakiravva was not keeping sound mental health and was not able to understand the consequences of her actions. Except producing the medical certificate, no effort is made by the plaintiffs to place on record the physical and mental condition of the testatrix. The doctor 29 who has issued Ex.P.17 Medical Certificate has not been examined. On the other hand, the attesting witness has clearly stated that testatrix was in sound mental condition and she had herself requested the attesting witnesses and other elders to come over to her house in connection with execution of the Will and that she herself had given instructions to the scribe to write the Will. In such circumstance, Ex.P.17 cannot form the basis to hold that the Will was executed when the executant was not in sound mental and physical condition.
31. The last contention urged by learned counsel is that there is variance between the pleadings and the contents of Ex.D.1 with regard to the nature of suit schedule properties, inasmuch as, in the pleadings and evidence, defendants contend that there was partition (apsaath vatani) whereas the recitals in the Will disclose that an undivided half share in the suit properties was bequeathed to defendant No.1. 30 32. The question for consideration is whether the plaintiffs were the absolute owners of the suit properties and whether the Will executed by Fakirawwa was valid. It is apparent that both the brothers were living separately. They were enjoying their definite shares in the property and after the death of Yellappa, Fakirawwa was enjoying her share in the property. Indeed, evidence of DW-4 shows that he was cultivating the lands that had come to the share of Fakirawwa on her behalf. Thus, material on record including admission made in the cross-examination of PW-1 show that both brothers dealt with their respective shares by alienating the portions out of their respective shares. This makes it very clear that they were enjoying the properties separately. The question whether partition had taken place by meets and bounds in the family does not arise for consideration in this case. The fact remains that property that was enjoyed by the respective parties was dealt with by them and accordingly, 31 Fakirawwa has bequeathed portion in her possession and enjoyment to which she had succeeded upon the death of her husband in favour of defendant Muttanna. Therefore, the claim made by the plaintiffs that they were absolute owners of the properties or that the Will in question was not duly executed by Fakirawwa is not tenable.
33. The Court below has considered all aspects of the matter and has rightly dismissed the suit. On re- appreciation of the entire evidence on record, we have absolutely no reason to disagree with the findings recorded by the trial Court. The appeal, therefore, fails and the same is dismissed. In the circumstances of the case, parties to bear their respective costs. Sd/- JUDGE Sd/- JUDGE Vr/msr/sh/jm/-