Dani Ram (D) Through L.Rs. Vs. Jamuna Das (D) Through L.Rs. and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/487526
SubjectFamily
CourtAllahabad High Court
Decided OnOct-09-2009
JudgePankaj Mithal, J.
Reported in2010(1)AWC22
AppellantDani Ram (D) Through L.Rs.
RespondentJamuna Das (D) Through L.Rs. and ors.
Cases ReferredRamagya Prasad Gupta and Anr. v. Murli Prasad and Ors.
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 168; [s.b. sinha & h.s. bedi, jj ] determination of compensation meaning of income of victim held, the term income has different connotations for different purposes. a court of law, having regard to the change in societal conditions must consider the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. loss caused to the family on a death of a near and dear one can hardly be compensated on monetary terms. section 168 uses the word just compensation which, in our opinion, should be assigned a broad meaning. it cannot be lost sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory provident fund, gratuity and other perks to attract the people who are efficient and hard working. different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family if some facilities are being provided whereby the entire family stands to benefit, the same, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined. the amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. from the said amount of income, the statutory amount of tax payable thereupon must be deducted. - bindeshwari thakur ilr (1916) cal 28, while dealing with an identical controversy clearly ruled that a right to receive offerings from pilgrim in a particular temple is inalienable on the dictum that right to receive offerings is linked with the right of performance of pooja of idol and as such right of pooja obviously cannot be transferred inasmuch as if it is made transferable and a transfer is made in favour of mohammedan person or a person of other caste such a person would obviously be incompetent to perform pooja. the finding of the trial court that the plaintiff has failed to prove that he is the son of the daughter's son of girdhar has been set aside by the lower appellate court on due consideration of the evidence on record. this is precisely the legal position which has been described and laid down by the apex court in the case of state of punjab v. air 1973 sc 1181, wherein it was held that though the appeal abates against some of the respondents but under the given circumstances it may not proceed with and may be dismissed as a whole as the courts will not proceed with an appeal when the success of the appeal may lead to the courts coming to a decision which may be in conflict with the decision between the appellant and the deceased respondent and this would lead to the courts passing a decree which is contradictory to the decree which has become final with respect to the same subject-matter between the appellant and the deceased respondent.pankaj mithal, j.1. the plaintiff jamuna das instituted original suit no. 709/1968 ag inst the defendants dani ram and others for declaration that he is entitled for 1/8th share in the two anna charhawa/bhent (offerings) received at the giriraj ji maharaj mukharbindu situate in village jatipura, district mathura and for recovery of rs. 112.50 paise from defendant no. 1 as his share in the offerings till 30.11.1968. the suit was mainly contested by the defendant no. 1 dani ram. the other defendants contended that they have already paid the share of the plaintiff to the defendant no. 1 and as such no relief is liable to be granted against them.2. the court of first instance framed the following issues:1. whether the plaintiff is cosharer in bhent chadhava? if so, his share?2. whether the plaintiff is daughter's son's son of girdhar? if so, is the plaintiff cosharer either by succession or by sale-deed?3. whether the plaintiff is prohibited by custom from receiving bhent-chadhava?4. relief?3. the suit was dismissed holding that plaintiff is not the son's son of the daughter of girdhar and that he is not a co-sharer either by succession or by sale though there is no custom excluding the daughter or daughter's son from receiving offerings. in appeal preferred by the plaintiff, the judgment, order and decree of the court below has been set aside and the suit has been decreed. the plaintiff has been held to be cosharer to the extent of l/8th share in 1/64th part of the offerings and entitle to rs. 112.50 paise from defendant no. 1 as the amount of his share due till 30.11.1968.4. it is against the judgment, order and decree dated 30.9.1978 passed by the lower appellate court that the defendant no. 1 dani ram has preferred this second appeal. the appeal was admitted and the following substantial questions of law were formulated for adjudication:(1) whether the certified copy of the sale deed could be read in evidence even though it was admitted to the plaintiff that the original sale deed was in his possession?(2) whether the certified copy of the sale deed could be read in evidence even though it was the basis of the suit and was relied upon by the plaintiff in his pleadings?(3) whether the appeal before the lower appellate court was incompetent because of the four defendants respondents dying during the pendency of the appeal and their heirs and legal representatives not having been substituted in their place?5. i have heard sri a.n. bhargawa and sri subhashish banerji, learned counsel for the defendant no. 1/appellant and sri kripa shankar singh, learned counsel for the plaintiff respondent no. 1.6. the first submission of sri bhargawa is that the lower appellate court has manifestly erred in law in placing reliance upon the exhibit-1, the sale deed dated 20.10.1914 which was only a certified copy of the original. the said sale deed being the basis of the suit was not admissible in evidence, unless the original was produced and proved. the argument has been countered by sri kripa shankar singh contending that the aforesaid sale deed was not at all the basis of the suit.admittedly, the above sale deed in original was not produced in the courts below and the certified copy thereof which was produced from proper custody was relied upon. the lower appellate court accepted the same as admissible in evidence in view of provisions of section 90a of the indian evidence act.7. in this connection, it would be material to refer to the provisions of section 90 and 90a of the indian evidence act as applicable to the state of u.p. section 90 of the act provides that where a document which is more than 20 years old is produced from proper custody, the court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting and in case executed and attested, that it is duly executed and attested by the persons by whom it is said to be so executed and attested. similarly, section 90a of the act provides that where any registered document or a duly certified copy thereof is produced from the proper custody, the court may presume that the original was executed by the person by whom it purports to have been executed. in. other words, a certified copy of a document which is more than 20 years old and is produced in evidence from the proper custody, the presumption would be that it bears the signature of the person and that it is duly executed and attested by such a person. therefore, in such circumstances, it is not necessary to produce the original of such document and to prove it. however, sub-section (2) of section 90a places a rider and provides that such a presumption shall not be available where the document is the basis of the suit or of defence or is relied upon in a plaintor written statement. therefore, it is being contended that as the said document is the basis of the suit and has been relied upon in the plaint, the lower appellate court has committed an error of law in placing reliance upon it and drawing presumption about its due execution without being proved.8. i have given my anxious consideration to the pleadings of the parties in this connection. a perusal of the plaint reveals that the plaintiff has claimed rights as co-sharer in the offerings by way of inheritance from girdhar who was admittedly one of the co-sharers and whose rights devolved upon his daughters son dulli, who happened to be the father of the plaintiff. there is no mention in the plaint about the sale deed dated 20.10.1914 or that the plaintiff is claiming rights on the basis of the sale deed. a reference of the said sale deed has come only in evidence. accordingly, the above sale deed is neither the basis of the plaint nor it has been relied upon by the plaintiff in the pleadings. in view of the above, sub-section (2) of section 90a of the evidence act would not be attracted and as such the presumption drawn in favour of the sale deed by the lower appellate court is legally correct and there is no error on its part in placing reliance upon it.9. accordingly, even though the original of the said sale deed was not produced and only a certified copy thereof was brought on record coupled with the fact that its production from the proper custody is not disputed, it was admissible in evidence under sections 90 and 90a of the act.10. in view of the aforesaid facts and circumstances and the legal position, the first two substantial questions of law which have been formulated in this appeal are answered in favour of the plaintiff respondent no. 1 and it is held that the sale deed dated 20.10.1914 is not the basis of the suit and as such its certified copy is admissible in evidence under section 90/90a of the act even if the original is not produced.11. at this stage, sri bhargawa has contended that the right to receive offerings as co-sharer is not transferable under law and therefore even if the above sale deed is admissible in evidence, the plaintiff gets no right on its basis.12. legally, there are certain rights that cannot be transferred. some of the said rights have been enumerated under section 6 of the transfer of property act which provides property of any kind may be transferred except as provided under the act which under sub-clause (d) includes 'all interest in property restricted in its enjoyment to the owner personally cannot be transferred by him'. thus, interest restricted in enjoyment to the owner personally by its very nature is not transferable. the rights that cannot be transferred are termed res extra commercium such as office of the priest of a particular temple. their lordships of the calcutta high court in second appeal puncha thakur v. bindeshwari thakur ilr (1916) cal 28, while dealing with an identical controversy clearly ruled that a right to receive offerings from pilgrim in a particular temple is inalienable on the dictum that right to receive offerings is linked with the right of performance of pooja of idol and as such right of pooja obviously cannot be transferred inasmuch as if it is made transferable and a transfer is made in favour of mohammedan person or a person of other caste such a person would obviously be incompetent to perform pooja. following the above ratio, coupled with the provisions of section 6(d) of the transfer of property act, i am of the view that the right to receive offerings of a temple is dependent upon the right of performance of pooja which right is non-alienable and as such could not have been transferred vide sale deed dated 20.10.1914.13. notwithstanding that the claim of the plaintiff respondent no. 1 cannot be accepted on the basis of the above sale deed nonetheless his claim on the basis of inheritance survives. the court of first instance has accepted that there is no custom excluding females or the daughter's son from taking share in the offerings. the finding of the trial court that the plaintiff has failed to prove that he is the son of the daughter's son of girdhar has been set aside by the lower appellate court on due consideration of the evidence on record. the lower appellate court has returned a finding that the plaintiff is son's son of girdhar's daughter. this is a finding of fact and as such cannot be disturbed in second appeal as no perversity in the same has been shown. therefore, in view of the above finding even if the plaintiff gets no right on the basis of the sale deed he is certainly entitle to share the offerings by inheritance as a successor of girdhar.14. this takes me to the third substantial question of law which has been raised in this appeal.15. in order to answer the above question of law, i consider it appropriate to examine the reliefs claimed in the plaint. the plaintiff in the suit has prayed for two reliefs:(1) a declaration that he is entitle to l/8th share in the two anna offerings of the giriraji maharaj mukharbinidu.(2) for the recovery of rs. 112.50 paise from defendant no. 1 as his share in the offerings.16. the two reliefs are distinct. the first relief has been claimed against all the defendants to the suit whereas the second relief is directed only against defendant no. 1. the suit of the plaintiff was dismissed by the court of first instance in toto. he was not held to be a co-sharer in the offerings of the temple and as such was not entitle for any declaration as claimed by him and for recovery of the amount as against the defendant no. 1. the lower appellate court allowed the appeal and decreed the suit in full. however, in the appeal preferred by the plaintiff before the lower appellate court four of the defendants died and their heirs and legal representatives were not substituted. therefore, the appeal stood abated against the said defendants. accordingly, the decree passed by the court of first instance became final and conclusive as against those four defendants. the lower appellate court however in ignorance of the said aspect allowed the appeal and decreed the suit in full. this, apparently has given rise to a conflicting decree as regards the relief of declaration claimed in the suit. to put it in a more simpler manner the decree refusing to declare the plaintiff as a co-sharer having become final as against four of the defendants who have died during the pendency of the appeal and whose heirs and legal representatives were not substituted, the lower appellate court could not have passed a different decree in conflict with the same. this is precisely the legal position which has been described and laid down by the apex court in the case of state of punjab v. nathu ram air 1962 sc 1989. in the said case land belonging to two brothers was acquired. on a reference made for compensation, an award was made enhancing the compensation against which the state government preferred an appeal to the high court. during pendency of the appeal one of the brothers died and his heirs and legal representatives were not brought on record and as such appeal stood abated as against the deceased brother. in the circumstances the question arose whether the appeal can be continued or not and as to whether it would abate as a whole? it was held that the subject-matter for which the compensation has been awarded was one and the same and as the assessment of compensation as against one of the brothers has become final, there could be no different assessment of compensation for the same parcel of land for the purposes of payment to the other brother. thus, it was held that it was not possible for the court to proceed further with the appeal except to dismiss it. similar, is the position in the instant case. the right of the plaintiff to be declared as a co-sharer in the offerings of the temple having been denied by the trial court and the said decree having become final as against four of the defendants, it was not competent for the lower appellate court to have proceeded with the appeal and to pass a conflicting decree in respect to the same cause of action even though the appeal had not abated against surviving defendants but by the very nature of things could not be proceeded with on merits. a similar view to this very/effect has been expressed by the apex court in the case of ramagya prasad gupta and anr. v. murli prasad and ors. air 1973 sc 1181, wherein it was held that though the appeal abates against some of the respondents but under the given circumstances it may not proceed with and may be dismissed as a whole as the courts will not proceed with an appeal when the success of the appeal may lead to the courts coming to a decision which may be in conflict with the decision between the appellant and the deceased respondent and this would lead to the courts passing a decree which is contradictory to the decree which has become final with respect to the same subject-matter between the appellant and the deceased respondent.17. in view of the above legal position the third substantial question of law which has been framed is answered in affirmative in favour of the appellant and it is held that the appeal with regard to the first relief before the lower appellate court was incompetent and could not have been proceeded with, as four of the defendants respondents have died during pendency of the appeal and their heirs and legal representatives were not substituted, resulting in the decree of the trial court which existed in favour of the four deceased defendants respondents to be final.18. accordingly, this second appeal succeeds and is allowed. the judgment, order and decree of the lower appellate court dated 20.9.1978, passed in civil appeal no. 86 of 1973 is set aside.parties to bear their own costs.
Judgment:

Pankaj Mithal, J.

1. The plaintiff Jamuna Das instituted original Suit No. 709/1968 ag Inst the defendants Dani Ram and others for declaration that he is entitled for 1/8th share in the two anna charhawa/bhent (offerings) received at the Giriraj Ji Maharaj Mukharbindu situate in village Jatipura, district Mathura and for recovery of Rs. 112.50 paise from defendant No. 1 as his share in the offerings till 30.11.1968. The suit was mainly contested by the defendant No. 1 Dani Ram. The other defendants contended that they have already paid the share of the plaintiff to the defendant No. 1 and as such no relief is liable to be granted against them.

2. The court of first instance framed the following issues:

1. Whether the plaintiff is cosharer in bhent chadhava? If so, his share?

2. Whether the plaintiff is daughter's son's son of Girdhar? If so, is the plaintiff cosharer either by succession or by sale-deed?

3. Whether the plaintiff is prohibited by custom from receiving bhent-chadhava?

4. Relief?

3. The suit was dismissed holding that plaintiff is not the son's son of the daughter of Girdhar and that he is not a co-sharer either by succession or by sale though there is no custom excluding the daughter or daughter's son from receiving offerings. In appeal preferred by the plaintiff, the judgment, order and decree of the court below has been set aside and the suit has been decreed. The plaintiff has been held to be cosharer to the extent of l/8th share in 1/64th part of the offerings and entitle to Rs. 112.50 paise from defendant No. 1 as the amount of his share due till 30.11.1968.

4. It is against the judgment, order and decree dated 30.9.1978 passed by the lower appellate court that the defendant No. 1 Dani Ram has preferred this second appeal. The appeal was admitted and the following substantial questions of law were formulated for adjudication:

(1) Whether the certified copy of the sale deed could be read in evidence even though it was admitted to the plaintiff that the original sale deed was in his possession?

(2) Whether the certified copy of the sale deed could be read in evidence even though it was the basis of the suit and was relied upon by the plaintiff in his pleadings?

(3) Whether the appeal before the lower appellate court was incompetent because of the four defendants respondents dying during the pendency of the appeal and their heirs and legal representatives not having been substituted in their place?

5. I have heard Sri A.N. Bhargawa and Sri Subhashish Banerji, learned Counsel for the defendant No. 1/appellant and Sri Kripa Shankar Singh, learned Counsel for the plaintiff respondent No. 1.

6. The first submission of Sri Bhargawa is that the lower appellate court has manifestly erred in law in placing reliance upon the Exhibit-1, the sale deed dated 20.10.1914 which was only a certified copy of the original. The said sale deed being the basis of the suit was not admissible in evidence, unless the original was produced and proved. The argument has been countered by Sri Kripa Shankar Singh contending that the aforesaid sale deed was not at all the basis of the suit.

Admittedly, the above sale deed in original was not produced in the courts below and the certified copy thereof which was produced from proper custody was relied upon. The lower appellate court accepted the same as admissible in evidence in view of provisions of Section 90A of the Indian Evidence Act.

7. In this connection, it would be material to refer to the provisions of Section 90 and 90A of the Indian Evidence Act as applicable to the State of U.P. Section 90 of the Act provides that where a document which is more than 20 years old is produced from proper custody, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting and in case executed and attested, that it is duly executed and attested by the persons by whom it is said to be so executed and attested. Similarly, Section 90A of the Act provides that where any registered document or a duly certified copy thereof is produced from the proper custody, the Court may presume that the original was executed by the person by whom it purports to have been executed. In. other words, a certified copy of a document which is more than 20 years old and is produced in evidence from the proper custody, the presumption would be that it bears the signature of the person and that it is duly executed and attested by such a person. Therefore, in such circumstances, it is not necessary to produce the original of such document and to prove it. However, Sub-section (2) of Section 90A places a rider and provides that such a presumption shall not be available where the document is the basis of the suit or of defence or is relied upon in a plaintor written statement. Therefore, it is being contended that as the said document is the basis of the suit and has been relied upon in the plaint, the lower appellate court has committed an error of law in placing reliance upon it and drawing presumption about its due execution without being proved.

8. I have given my anxious consideration to the pleadings of the parties in this connection. A perusal of the plaint reveals that the plaintiff has claimed rights as co-sharer in the offerings by way of inheritance from Girdhar who was admittedly one of the co-sharers and whose rights devolved upon his daughters son Dulli, who happened to be the father of the plaintiff. There is no mention in the plaint about the sale deed dated 20.10.1914 or that the plaintiff is claiming rights on the basis of the sale deed. A reference of the said sale deed has come only in evidence. Accordingly, the above sale deed is neither the basis of the plaint nor it has been relied upon by the plaintiff in the pleadings. In view of the above, Sub-section (2) of Section 90A of the Evidence Act would not be attracted and as such the presumption drawn in favour of the sale deed by the lower appellate court is legally correct and there is no error on its part in placing reliance upon it.

9. Accordingly, even though the original of the said sale deed was not produced and only a certified copy thereof was brought on record coupled with the fact that its production from the proper custody is not disputed, it was admissible in evidence under Sections 90 and 90A of the Act.

10. In view of the aforesaid facts and circumstances and the legal position, the first two substantial questions of law which have been formulated in this appeal are answered in favour of the plaintiff respondent No. 1 and it is held that the sale deed dated 20.10.1914 is not the basis of the suit and as such its certified copy is admissible in evidence under Section 90/90A of the Act even if the original is not produced.

11. At this stage, Sri Bhargawa has contended that the right to receive offerings as co-sharer is not transferable under law and therefore even if the above sale deed is admissible in evidence, the plaintiff gets no right on its basis.

12. Legally, there are certain rights that cannot be transferred. Some of the said rights have been enumerated under Section 6 of the Transfer of Property Act which provides property of any kind may be transferred except as provided under the Act which under Sub-clause (d) includes 'all interest in property restricted in its enjoyment to the owner personally cannot be transferred by him'. Thus, interest restricted in enjoyment to the owner personally by its very nature is not transferable. The rights that cannot be transferred are termed res extra commercium such as office of the priest of a particular temple. Their Lordships of the Calcutta High Court in second appeal Puncha Thakur v. Bindeshwari Thakur ILR (1916) Cal 28, while dealing with an identical controversy clearly ruled that a right to receive offerings from pilgrim in a particular temple is inalienable on the dictum that right to receive offerings is linked with the right of performance of pooja of idol and as such right of pooja obviously cannot be transferred inasmuch as if it is made transferable and a transfer is made in favour of Mohammedan person or a person of other caste such a person would obviously be incompetent to perform pooja. Following the above ratio, coupled with the provisions of Section 6(d) of the Transfer of Property Act, I am of the view that the right to receive offerings of a temple is dependent upon the right of performance of pooja which right is non-alienable and as such could not have been transferred vide sale deed dated 20.10.1914.

13. Notwithstanding that the claim of the plaintiff respondent No. 1 cannot be accepted on the basis of the above sale deed nonetheless his claim on the basis of inheritance survives. The court of first instance has accepted that there is no custom excluding females or the daughter's son from taking share in the offerings. The finding of the trial court that the plaintiff has failed to prove that he is the son of the daughter's son of Girdhar has been set aside by the lower appellate court on due consideration of the evidence on record. The lower appellate court has returned a finding that the plaintiff is son's son of Girdhar's daughter. This is a finding of fact and as such cannot be disturbed in second appeal as no perversity in the same has been shown. Therefore, in view of the above finding even if the plaintiff gets no right on the basis of the sale deed he is certainly entitle to share the offerings by inheritance as a successor of Girdhar.

14. This takes me to the third substantial question of law which has been raised in this appeal.

15. In order to answer the above question of law, I consider it appropriate to examine the reliefs claimed in the plaint. The plaintiff in the suit has prayed for two reliefs:

(1) A declaration that he is entitle to l/8th share in the two anna offerings of the Giriraji Maharaj Mukharbinidu.

(2) For the recovery of Rs. 112.50 paise from defendant No. 1 as his share in the offerings.

16. The two reliefs are distinct. The first relief has been claimed against all the defendants to the suit whereas the second relief is directed only against defendant No. 1. The suit of the plaintiff was dismissed by the court of first instance in toto. He was not held to be a co-sharer in the offerings of the temple and as such was not entitle for any declaration as claimed by him and for recovery of the amount as against the defendant No. 1. The lower appellate court allowed the appeal and decreed the suit in full. However, in the appeal preferred by the plaintiff before the lower appellate court four of the defendants died and their heirs and legal representatives were not substituted. Therefore, the appeal stood abated against the said defendants. Accordingly, the decree passed by the court of first instance became final and conclusive as against those four defendants. The lower appellate court however in ignorance of the said aspect allowed the appeal and decreed the suit in full. This, apparently has given rise to a conflicting decree as regards the relief of declaration claimed in the suit. To put it in a more simpler manner the decree refusing to declare the plaintiff as a co-sharer having become final as against four of the defendants who have died during the pendency of the appeal and whose heirs and legal representatives were not substituted, the lower appellate court could not have passed a different decree in conflict with the same. This is precisely the legal position which has been described and laid down by the Apex Court in the case of State of Punjab v. Nathu Ram AIR 1962 SC 1989. In the said case land belonging to two brothers was acquired. On a reference made for compensation, an award was made enhancing the compensation against which the State Government preferred an appeal to the High Court. During pendency of the appeal one of the brothers died and his heirs and legal representatives were not brought on record and as such appeal stood abated as against the deceased brother. In the circumstances the question arose whether the appeal can be continued or not and as to whether it would abate as a whole? It was held that the subject-matter for which the compensation has been awarded was one and the same and as the assessment of compensation as against one of the brothers has become final, there could be no different assessment of compensation for the same parcel of land for the purposes of payment to the other brother. Thus, it was held that it was not possible for the Court to proceed further with the appeal except to dismiss it. Similar, is the position in the instant case. The right of the plaintiff to be declared as a co-sharer in the offerings of the temple having been denied by the trial court and the said decree having become final as against four of the defendants, it was not competent for the lower appellate court to have proceeded with the appeal and to pass a conflicting decree in respect to the same cause of action even though the appeal had not abated against surviving defendants but by the very nature of things could not be proceeded with on merits. A similar view to this very/effect has been expressed by the Apex Court in the case of Ramagya Prasad Gupta and Anr. v. Murli Prasad and Ors. AIR 1973 SC 1181, wherein it was held that though the appeal abates against some of the respondents but under the given circumstances it may not proceed with and may be dismissed as a whole as the Courts will not proceed with an appeal when the success of the appeal may lead to the Courts coming to a decision which may be in conflict with the decision between the appellant and the deceased respondent and this would lead to the Courts passing a decree which is contradictory to the decree which has become final with respect to the same subject-matter between the appellant and the deceased respondent.

17. In view of the above legal position the third substantial question of law which has been framed is answered in affirmative in favour of the appellant and it is held that the appeal with regard to the first relief before the lower appellate court was incompetent and could not have been proceeded with, as four of the defendants respondents have died during pendency of the appeal and their heirs and legal representatives were not substituted, resulting in the decree of the trial court which existed in favour of the four deceased defendants respondents to be final.

18. Accordingly, this second appeal succeeds and is allowed. The judgment, order and decree of the lower appellate court dated 20.9.1978, passed in Civil Appeal No. 86 of 1973 is set aside.

Parties to bear their own costs.