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Dhanukram And Others vs Dhundh Ram Alias Budhram And … on 16 March, 2020

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AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Second Appeal No. 257 of 2007
Judgment reserved on 06/03/2020
Judgment delivered on 16/03/2020

1. Kheduram Sahu (died) through LRs. :­

A. Dhanukram, Aged about 42 years, S/o Late Shri
Kheduram Sahu.

B. Bisahinbai, Aged about 45 years, D/o Late Shri
Kheduram Sahu.

C. Rohnibai, Aged about 48 years, Wd/o Late Shri
Kheduram Sahu.

D. Gaisuram Sahu, Aged about 30 years, S/o Late
Shri Kheduram Sahu.

E. Dhanendra Kumar, Aged about 23 years, S/o Late
Shri Kheduram Sahu.

All R/o Village Koylari, P.H. No. 46, Revenue
Circle, Birendra Nagar, District Kabirdham,
Chhattisgarh.

F. Ragni Bai, Aged about 25 years, D/o Late Shri
Kandara, W/o Shri Siyaram, R/o Bhadu Tala, R.I.
Circle and Tahsil Sahashpur Lohara, Distt.
Kabirdham, Chhattisgarh.

­­­Appellants/LRs. Of Plaintiff

Versus

1. Agasiya Bai Sahu D/o Shri Phoolsingh (died)
through LRs. :­

A. Dhundh Ram alias Budhram, Aged about 70 years,
S/o Late Shri Raruha Sahu.

B. Navtariha, Aged about 40 years.
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C. Gautam, Aged about 30 years.

B and C both Sons of Shri Dhundh Ram Sahu.

All Agriculturists and R/o Village Kolyari P.C.
No. 46, R.I. Circle, Birendra Nagar Tahsil
Sahaspur, Lohara, Civil and Revenue District
Kabirdham, Chhattisgarh.

D. Chintabai, Aged about 35 years, D/o Shri
Dhundh Ram W/o Shri Musi Ram Sahu, Agriculturist,
Village Dhangaon, R.I. Circle and Tahsil
Sahaspur, Lohara, Revenue and Civil District
Kabirdham, Chhattisgarh.

2. Nemin Bai Sahu, Aged about 35 years, W/o Shri
Kaluram Sahu R/o Village Post Koylari, P.H. No.
46, Revenue Inspector Circle Birendra Nagar,
Tahsil Sahaspur Lohara, Distt. Kabirdham,
Chhattisgarh.

3. Keja Bai, Aged about 45 years, W/o Shri Meghnath
Sahu, Occupation Agriculturist, R/o Village Bami,
Tahsil Sahaspurlohara, District Kabirdham,
Chhattisgarh.

4. Jagdish Sahu, Aged about 35 years, S/o Shri
Kejauram Sahu, Occupation Advocate and
Agriculturist.

5. Jageshwar Ram Sahu, Aged about 30 years, S/o Shri
Kejauram Sahu, Occupation Agriculturist.

Both R/o Village Post Koylari, P.H. No. 46,
Revenue Inspector Circle Birendra Nagar, Tahsil
Sahaspurlohara, District Kabirdham, Chhattisgarh.

6. State of Chhattisgarh, Through The Collector,
District Kabirdham, Chhattisgarh.

­­­ Respondents/Defendants
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For Appellants :­ Mr. Shashi Bhushan Tiwari, Advocate
For Respondents:­ Mr. H.S. Patel, Advocate
For State :­ Mr. Ravi Bhagat, Dy. Government
Advocate

Hon’ble Shri Justice Sanjay K. Agrawal
C.A.V. Judgment

1. This second appeal preferred by the

appellants/LRs. of original plaintiff – Kheduram

Sahu was admitted for hearing on the following

substantial questions of law :­

“1. Whether the finding recorded by the
first appellate Court that the suit land
Schedule ‘A’ was the self­acquired
property of Phool Singh ?

2. Whether the Courts below have
committed error of law by refusing

decree of partition between the parties
when the plaintiff as well as defendants
No. 1 2 have claimed decree for
partition ?”

(For the sake of convenience, parties would be

referred hereinafter as per their status and

ranking shown in the suit before the trial

Court.)

2. The following genealogical tree would demonstrate

the relationship among the parties :­
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Kehri

Budhram Sukham
Sukhram Wife Anariya Bai

Milau Phoolsingh Banaram Sadaram

Kheduram Khediya (dead) Agasiya
Plaintiff Defendant No. 1
Neminbai (daughter)
Defendant No. 2

3. Sukhram had four sons namely Milau, Phoolsingh,

Banaram and Sadaram. Phoolsingh had one son

namely Kheduram who is the plaintiff and two

daughters namely Agasiya who is defendant No. 1

and Khediya who died leaving behind her daughter

Neminbai who is defendant No. 2.

4. Plaintiff – Kheduram filed a suit for declaration

of title and in alternative partition and

possession stating inter alia that the suit land

shown in Schedule ‘A’ annexed with the plaint was

originally held by his grandfather Sukhram and

Sukhram’s brother Sukham and his wife Anariyabai.

Sukham and Anariyabai died issueless and after

the death of Sukhram, Sukham and his wife

Anariyabai, the said suit land was inherited by
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the four sons of Sukhram and partition took place

amongst them in which the suit land shown in

Schedule ‘A’ fell in the share of plaintiff’s

father Phoolsingh, as such, the suit land was the

ancestral property of Phoolsingh. After the death

of Phoolsingh, the names of all three of his

children i.e. Kheduram, Khediya and Agasiya were

jointly recorded in the revenue records as the

three of them were co­owners of the suit land.

The said suit land shown in Schedule ‘A’ was

later on orally partitioned amongst the plaintiff

and defendants No. 1 and 2, yet the revenue

records continued to be in the joint names of all

three of them which persuaded defendants No. 1

and 2 to file an application under Section 178 of

the Land Revenue Code, 1959 wherein Tahsildar,

Kawardha, by its order dated 30/08/2001, directed

that plaintiff along with defendants No. 1 and 2,

each of them is entitled to get 1/3rd share in

the suit land against which plaintiff preferred

an appeal under Section 44 of the Land Revenue

Code, 1959 wherein the Sub­divisional Officer,

Kawardha, by its order dated 01/05/2002,

dismissed the appeal by affirming the order of

the Tahsildar. Thereafter, defendants No. 1 and 2
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sold some part of the suit land to defendants No.

3, 4 and 5 by various sale deeds whereas both

defendants No. 1 and 2 had no right title to

alienate part of the suit land in favour of

defendants No. 3, 4 and 5. It was further pleaded

that the exclusive title of plaintiff is not

found then partition be directed amongst the

parties as per explanation 1 of Section 6 of the

Hindu Succession Act, 1956.

5. Defendants opposed the plaint allegations by

setting up a plea that since Sukham and his wife

Anariya were issueless, they adopted Phoolsingh,

as such, suit land was the self­acquired property

of Phoolsingh. Defendants No. 1 and 2 also filed

a counter­claim for partition and possession

stating that each of them are entitled for 1/3 rd

share in the suit land.

6. Learned trial Court, upon consideration of oral

and documentary evidence on record, vide its

judgment and decree dated 24/07/2006, dismissed

the suit as well as the counter­claim though held

that the suit property shown in Schedule ‘A’ was

the ancestral property of Phoolsingh.

7. On appeal being preferred by the plaintiff and

cross­objection preferred by the defendants,
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learned first appellate Court, vide its judgment

and decree dated 28/04/2007, though interfered

with the finding of the trial Court with respect

to issues No. 5 and 10 and held that suit land

was the self­acquired property of Phoolsingh but

ultimately, dismissed the appeal and the

cross­objection against which this second appeal

under Section 100 of the CPC has been preferred

by the appellant/plaintiff (now, his LRs.) in

which two substantial questions of law have been

formulated and set out in the opening paragraph

of this judgment.

8. Mr. Shashi Bhushan Tiwari, learned counsel for

the appellants/LRs. of plaitiff would submit that

the first appellate Court was absolutely

unjustified in holding that the suit land was the

self­acquired property of Phoolsingh by reversing

the well­reasoned finding of the trial Court in

this regard that the suit land was the ancestral

property of Phoolsingh as there is no evidence on

record to hold that the suit land shown in

Schedule ‘A’ was the self­acquired property of

Phoolsingh. He would further submit that both the

Courts below have committed legal error by

refusing to grant partition as plaintiff as well
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as defendants No. 1 and 2, all three of them have

claimed decree for partition as the plaintiff has

filed the suit for partition whereas defendants

No. 1 and 2 have sought partition by way of

filing counter­claim, as such, the second appeal

deserves to be allowed.

9. Mr. H.S. Patel, learned counsel for the

respondents/defendants would submit that learned

first appellate Court has rightly held that the

suit land was the self­acquired property of

Phoolsingh which is neither perverse nor contrary

to record, as such, the second appeal deserves to

be dismissed.

10. I have heard learned counsel for the parties,

considered their rival submissions made herein­

above and went through the records with utmost

circumspection.

Answer to substantial question of law No. 1 :­

11. Plaintiff has clearly averred in the plaint that

the suit land was originally held by his

grandfather Sukhram and Sukhram’s brother Sukham

and his wife Anariya Bai who died issueless. It

was further pleaded that after the death of

Sukhram, Sukham and Anariya Bai, the suit land

was inherited by Sukhram’s four sons namely
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Milau, plaintiff’s father Phoolsingh, Banaram and

Sadaram and in partition held amongst all the

four brothers, the suit land fell in the share of

plaintiff’s father Phoolsingh, as such, the suit

land was the ancestral property in the hands of

Phoolsingh. Defendant No. 1 is the daughter of

Phoolsingh and defendant No. 2 is the

granddaughter of Phoolsingh. They set up a

defence that the suit land is the self­acquired

property of Phoolsingh and he was the adopted son

of Phoolsingh, as it was held by Sukham’s wife

Anariya Bai and Anariya Bai had given the suit

land to Phoolsingh, therefore, it is the self­

acquired property of Phoolsingh. The trial Court

held that the suit land was the ancestral

property in the hands of Phoolsingh which the

first appellate Court reversed holding that the

suit land was the self­acquired property of

Phoolsingh as he was the adopted son of Anariya

Bai.

12. The following two paragraphs of written statement

filed by defendant No. 2 would show the nature of

the suit land as per her version :­

“4. अ ­ यह कक, ससखररम कक ससखम छछटर भरई थर, बड़र भरई
बसधररम ­ अपनर हहससर लककर अलग हछ चसकर थर ससखम और
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उसकक पतत अनररयर बरई हननससतरन थक इसहलयक फफ लसससह कछ गछद कक
हलयर थर और अपनक परस रखक थक । ससखम अनररयर बरई कक
घरजमरई पहत थर । अनररयर बरई कक परस सछनर­ चरचदत और
पयररप चल अचल ससपहत थत । वरद पत अनससफचत अ मम दरररयर
गयर गरम ­ कछयलररत, बरमत, नवरसगरसव कक कस ल 30.87 एकड़
अनररयर कक थत हजसक अनररयर बरई नक फफ लसससह कछ कदयर थर । इस
तरह वरदगसत जमतन फफ लसससह कक हपतर ससखररम कक नहह थत बहलक
अनररयर कक थत इसहलयक वरदगसत भफहम फफ लसससह कक सवअरजरत भफहम
मरनत जरवकगत ।

4. स. यह कक, गरम बरमत हसतथ 9.14 एकड़ जमतन तथर गरम
नवरगरसव हसतथ 3.06 एकड़ जमतन हजसकर हववरण वरद पत कक
सरथ ससलग अनससफचत अ मम कदयर गयर हह फफ लसससह कक सवअरजरत
जमतन हह चफसकक इस जमतन कछ फफ लसससह नक अनररयर सक परप ककयर
थर।

14. यह कक, वरद पत कस हडकर 14 कक लकख असतय हछनक सक
असवतकरर हह । इस कस हडकर मम वरदत नक वहकहलपक हनवकदन ककयर हह
कक यकद वरदत एवस पहतवरदत क. 1 एवस 2 कक मधय बटवररर नहह
हछनर परयर जरतर हह, उस दरर मम वरदत एवस पहतवरदत क. 1 एवस
2 कक मधय करलपहनक बटवररर ककयर जरवकगर और करलपहनक बटवररर
मम कछयलररत कक 18.67 एकड़ जमतन मम 9.83 एकड़ वरदत कछ
तथर 9.84 एकड़ फफ लसससह कछ तथर गरम बरमत कक 9.14 एकड़
मम 4.67 एकड़ वरदत और तथर 4.67 एकड़ फफ लसससह कछ, गरम
­ नवरगरसव कक 3.06 एकड़ जमतन मम 1.43 एकड़ वरदत कछ तथर
1.43 एकड़ फफ लसससह परप करतर और फफ लसससह कछ परप भफहम
कमरन 9.84, 4.67, 1.63 एकड़ मम ततन बररबर हहससर हछगर
हजसमम एक हहससर वरदत और एक हहससर पहतवरदत क. 1 व 2 कछ
हमलकगर । इस तरह करलपहनक बटवररर कक आधरर पर गणनर करतक
हए वरदत नक इस कस हडकर कक गरम कछयलररत हसतथ जमतन मम वरदत
कछ 12.44 एकड़ तथर पहतवरदत क. 1 कछ 3.11 एकड़ पहतवरदत
क. 2 कछ 3.11 एकड़ तथर गरम बरमत हसतथ जमतन मम 6.09
एकड़ जमतन वरदत कछ तथर पहतवरदत क. 1 कछ 1.52 तथर
1.52 एकड़ पहतवरदत क. 2 कछ तथर गरम नवरगरसव कक हसतथ
2.04 एकड़ वरदत कछ 0.51 एकड़ पहतवरदत क. 1 तथर 0.51
एकड़ पहतवरदत क. 2 कछ हमलनक कक अहभवचन ककयर हह जछ हवहध
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हवपरतत हह वसतसहसतहथ ऊपर दरररयर जर चसकर हह ततनछ गरचव कक
वरदगसत जमतन फफ लसससह कक पहततक जमतन नहह थत बहलक सवअरजरत
जमतन थत हजसक उसनक अनररयर सक परप ककयर थर इसहलयक करलपहनक
बटवररर नहह ककयर जरवकगर बहलक ततनछ गरचव कक जमतन मम वरदत
तथर पहतवरदत क. 1 व 2 कर सरमरन हक़ हहससर हह तदरनससरर हत
तहसतलदरर दररर बटवररर ककयर गयर हह ।

उपरछक तथयय कक अलरवर वरदत वहकहलपक रप सक अगर नयर
बटवररर करनर चरहतर हह तछ उसक फफ लसससह कक दररर खकद स और उसकक
न. बर. बचक कक नरम पर ख़रतदक गए गरम कछयलररत, खहरर,
अमलतडतह, एवस पवनतरर, नवरगरसव कक करतब 29.38 एकड़ तथर
पहततक 7.67 एकड़ जमतन कछ इस वरद मम ररहमल ककयर जरनर
चरहहए चफसकक बटवररर कक बरद मम सभत समपहतयय और सभत पककररछ
कर समरवकर ककयर जरनर आवशयक हछतर हह इसहलयक वरदत कछ नयर
बटवररर कर वहकहलपक हनवकदन भत सवतकरर नहह ककयर जर सकतर ।
इस कस हडकर मम यह असतय हछनक सक असवतकरर हह कक पफरक वरदगसत
जमतन मम 20.67 एकड़ वरदत तथर पहतवरदत क. 1 कक वल 5.14
एकड़ तथर पहतवरदत क. 2 कक वल 5.14 एकड़ हत परप करमगक
वसतसहसतहथ ऊपर दरररयर जर चसकर हह । हनवकदन हह कक हहनदफ
उतररहधकरर ससरछधन अहधहनयम 2005 कक दररर धरर 6 मम ससरछधन
कर पहततक ससपहत मम पसतत कछ भत पसत कक समरन अहधकरर पदरन कर
कदयर गयर हह । ”

13. The above­stated averment of the written

statement would show that it is the case of

defendant No. 2 that the suit land was held by

Anariya Bai who had given the suit land to

Phoolsingh, being her adopted son. No evidence

has been brought on record to establish the fact

of valid adoption of Phoolsingh except the self

serving statement of defendant No. 2. The

compliance of the conditions in Chapter I of the

Hindu Adoption and Maintenance Act, 1956 is
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mandatory for adoption to be treated as valid

(See: C.A. No. 8814/2010 M. Vanjala v. M.

Sarladevi decided by the Supreme Court on

06/03/2020). Furthermore, it is the case of

defendant No. 2 that Anariya Bai had given the

suit land to Phoolsigh. No such registered

instrument has been brought on record to show

that the suit land was gifted or willed by

Anariya Bai in favour of Phoolsingh. Even there

is no clinching evidence on record to show that

the suit land was held by Anariya Bai herself, as

such, for want of evidence, it cannot be held

that the suit land was the property of Anariya

Bai which was given by her to the plaintiff,

therefore, it was the self­acquired property of

Phoolsingh.

14. It is the case of the plaintiff that Phoolsingh

received the suit land in partition which

effected amongst the four brothers and after the

death of his father, plaintiff inherited the suit

land, in which his sister i.e. defendant No. 1

and his sister’s daughter i.e. defendant No. 2

have also claimed equal share.

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15. In the matter of Smt. Dipo v. Wassan Singh1, the

Supreme Court noticed the incidents of ancestral

property as quoted in the Mulla’s Hindu Law (15 th

Edition), pages 289 and 291 respectively, in the

following words :­

“”………. if A inherits property, whether
movable or immovable, from his father or
father’s father, or father’s father’s
father, it is ancestral property as regards
his male issue. If A has no son, son’s son,
or son’s son’s son in existence at the time
when he inherits the property, he holds the
property as absolute owner thereof, and he
can deal with it as he pleases ………. A
person inheriting property from his three
immediate paternal ancestors holds it, and
must hold it, in coparcenary with his sons,
sons’ sons and sons’ sons’ sons’ but as
regards other relations he holds it and is
entitled to hold it, as his absolute
property.”

Again at page 291, it is stated :

“The share which a coparcener obtains on
partition of ancestral property is ancestral
property as regards his male issue. They
take an interest in it by birth, whether
they are in existence at the time of
partition or are born subsequently. Such
share, however, is ancestral property only
as regards his male issue. As regards other
relations, it is separate property, and if
the coparcener dies without leaving male
issue, it passes to his heirs by
succession.””

16. The principle of law enunciated in Dipo (supra)

has been followed by the Supreme Court in the

matter of Doddamuniyappa v. Muniswamy2 holding

that the property inherited from father by his

1 AIR 1983 SC 846
2 (2019) 7 SCC 193
14

sons, becomes joint family property in the hands

of the sons. It was held as under :­

“23. It is well settled and held by this
Court in Dipo v. Wassan Singh that the
property inherited from the father by his
sons becomes joint family property in the
hands of the sons. The relevant portion is as
under: (SCC pp. 378­79, para 2)
“2…Property inherited from paternal
ancestors is, of course, “ancestral
property” as regards the male issue of the
propositus, but it is his absolute
property and not ancestral property as
regards other relations. In Mulla’s
Principles of Hindu Law (15th Edn.), it is
stated at p. 289:

‘223. Ancestral property. ­ (1)
Property inherited from paternal
ancestor. ­ … if A inherits
property, whether movable or
immovable, from his father or father’s
father, or father’s father’s father,
it is ancestral property as regards
his male issue. If A has no son, son’s
son, or son’s son’s son in existence
at the time when he inherits the
property, he holds the property as
absolute owner thereof, and he can
deal with it as he pleases…

* * *
A person inheriting property from his
three immediate paternal ancestors holds
it, and must hold it, in coparcenary with
his sons, sons’ sons and sons’ sons’ sons,
but as regards other relations he holds it,
and is entitled to hold it, as his absolute
property.”

Again at p. 291, it is stated:

‘(4) Share allotted on partition. ­ The
share which a coparcener obtains on
partition of ancestral property is
ancestral property as regards his male
issue. They take an interest in it by
birth, whether they are in existence at the
time of partition or are born subsequently.
Such share, however, is ancestral property
15

only as regards his male issue. As regards
other relations, it is separate property,
and if the coparcener dies without leaving
male issue, it passes to his heirs by
succession.'”

(emphasis in original)

17. Reverting to the facts of the case in light of

the above­stated legal position and legal

analysis, since plaintiff’s father received the

suit land in partition of the ancestral property,

it would remain ancestral in the hands of

plaintiff Kheduram, as such, the first appellate

Court is absolutely unjustified in holding that

the suit land was the self­acquired property of

Phoolsingh. It is held to be the ancestral

property in the hands of Phoolsingh and it would

remain ancestral/co­parcenery property in the

hands of the plaintiff.

Answer to Substantial question of law No. 2 :­

18. The Supreme Court, in the matter of Uttam v.

Saubhag Singh and Ors.3 summarized the principles

relating to succession to joint family property

prior to 2005 amendment and held as under :­

“18…The law, therefore, insofar as it
applies to joint family property governed by
the Mitakshara School, prior to the
amendment of 2005, could therefore be
summarized as follows:­

(i) When a male Hindu dies after the
commencement of the Hindu Succession Act,

3 (2016) 4 SCC 68
16

1956, having at the time of his death an
interest in Mitakshara coparcenary property,
his interest in the property will devolve by
survivorship upon the surviving members of
the coparcenary (vide Section 6).

(ii) To proposition (i), an exception is
contained in Section 30 Explanation of the
Act, making it clear that notwithstanding
anything contained in the Act, the interest
of a male Hindu in Mitakshara coparcenary
property is property that can be disposed of
by him by will or other testamentary
disposition.

(iii) A second exception engrafted on
proposition (i) is contained in the proviso
to Section 6, which states that if such a
male Hindu had died leaving behind a female
relative specified in Class I of the
Schedule or a male relative specified in
that Class who claims through such female
relative surviving him, then the interest of
the deceased in the coparcenary property
would devolve by testamentary or intestate
succession, and not by survivorship.

(iv) In order to determine the share of the
Hindu male coparcener who is governed by
Section 6 proviso, a partition is effected
by operation of law immediately before his
death. In this partition, all the
coparceners and the male Hindu’s widow get a
share in the joint family property.

(v) On the application of Section 8 of the
Act, either by reason of the death of a male
Hindu leaving self­acquired property or by
the application of Section 6 proviso, such
property would devolve only by intestacy and
not survivorship.

(vi) On a conjoint reading of Sections 4, 8
and 19 of the Act, after joint family
property has been distributed in accordance
with section 8 on principles of intestacy,
the joint family property ceases to be joint
family property in the hands of the various
persons who have succeeded to it as they
hold the property as tenants in common and
not as joint tenants.”

17

19. Following the principle of law enunciated in the

matter of Uttam (supra), it is quite vivid that

firstly, the suit land will be divided notionally

as per explanation 1 of Section 6 of the Hindu

Succession Act, 1956 between Phoolsingh and

plaintiff Kheduram and they would get ½ share

each and thereafter, Phoolsingh’s ½ share would

further be divided between plaintiff and

defendant No. 1 (daughter of Phoolsingh) and

defendant No. 2 (daughter of Khediya i.e.

granddaughter of Phoolsingh). Each one of them

would take 1/2 x 1/3 1/6 share. Thus, plaintiff

(now his LRs.) would be entitled for 1/2 + 1/6

and defendants No. 1 and 2 (now their LRs.), each

of them would be entitled for 1/6 share in the

suit land and possession after partition in

accordance with law.

20. As a fallout and consequence of the aforesaid

legal discussion, the judgment and decree of both

the Courts below are modified and the second

appeal is allowed to the extent indicated herein­

above. No cost(s).

21. Decree be drawn­up accordingly.

Sd/­
(Sanjay K. Agrawal)
Judge

Harneet

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