Judgment 1. THE plaintiff pro pounder is the appellant and his impugns a judgment and decree dated. the 27th November 1978 passed by the 8th court of the additional District judge Alipore in Original Suit no. . 5 of 1973 whereby the learned Trial Judge dismissed the proceeding for grant of probate in respect of the purported last Will and Testament executed by Smt. Surabala Debi of 19a, Tarak Dutta Road, P. S. Kareya, Calcutta-17. 2. THE pro pounder alleged that on 29th March, 1970 the testatrix executed a Will in respect of her properties which included, inter alia, the premises no. 19a, Tarak dutta Road, some money lying in the postal savings account no. 488172 with G. P. O. amounting to Rs. 5082/20 with interested the outstanding house rent amounting to Rs. 1025/ -. The testatrix died on 2. 12. 70. It is the pro pounder's contention that in the said Will he and his, brother, Kedareswar were named as executors, but since his brother Kedareswar expressed his unwillingness to join him in the application for probate, the pro pounder alone applied for probate. However, some of the near relations filed objection against the grant of probate and the matter became contentions. The trial court came to an over all finding that even though it cannot be contended that the testatrix did not have a sound disposing mind and the Will could not otherwise be challenged on the ground of un naturalness, there were sufficient suspicious circumstances which prompted the court to hold that the Will, Ext. J, was not a genuine document and hence, dismissed the suit and refused the grant of probate. The testatrix, Surabala, was the second wife of one jnanendra Chandra Mukherjee, who made a gift of premises no. 19a Tarak Dutta Road, to the testatrix by a registered deed of gift dated 7. 1. 58. Atul Chandra Mukherjee, the sister's husband of Surabala, her brother Jagannath Banerjee and her father Bidhu Bhusan Banerjee ware all witness to the deed of gift. The deed of gift is Ext/ B. It has come out in evidence that with the partition of Bengal, the father and brother of Surabala came from eastern Bengal and took their shelter at 17, Turf Road, Bhawanipur, where surabala used to live with her husband Jnanendra. The deed of gift is Ext/ B. It has come out in evidence that with the partition of Bengal, the father and brother of Surabala came from eastern Bengal and took their shelter at 17, Turf Road, Bhawanipur, where surabala used to live with her husband Jnanendra. The address given in the deed of gift by her father and brother also show that they were both residents of 17, Turf Road. With the death of her husband, Jnanendra, Surabala used to live at 19a, Tarak Dutta Road and her father Bidhubhusan and her brother Jagannath also used to say in the said house. It transpired in evidence that the father Bidhubhusan was eager to sell out the house during the life time of surabala for which the latter entrusted the deed of gift and other documents of title with her sister, Niharkana, wife of Atul (O. P. W.) Bidhubhusan, tine father of Surabala, married twice and Jagannath and Kedareswar were the sons by the second wife. Whereas Surabala, Niharkanta and Tarubala ware the daughters by the first wife. According to the version of Niharkana's husband, Atul, Jagannath was not liked by Surabala. Atul also did not know anything about the Will of Surabala, but or. the other hand, he received a letter from his father-in-law, Bidhubhusan immediately after the death of Surabala Ext. 45 which went a long way to establish the fact that Surabala left no will. The letter unequivocally reiterated, "let it be decided who is the owner and then all will be done". There was no disclosure about the Will in the said letter. The latter contained a recital also that Danu Mukherjee, i.e. Piyush who turned out to be one of the Caveators, had threatened idhubhusan. The letter, Ext D, dated 17th June, 1971, issued from the Solicitors Sandersons and Morgans to sri Santimoy Chatterjee, written allegedly for and on behalf of Bidhubhusan, Claimed Bidlubhusan to be the only heir to Late Smt. Surabala Muknerjee. It was stated in the letter that Surabala died intestate on 2na December, 1980 without leaving any child and on her death, Bidhubhusan a her father became the only heir under the Hindu Succession act. The said letter also did not mention anything about the existence of any Will. Curiously enough, Bidhubhusan who was the beneficiary under the Will, Ext. It was stated in the letter that Surabala died intestate on 2na December, 1980 without leaving any child and on her death, Bidhubhusan a her father became the only heir under the Hindu Succession act. The said letter also did not mention anything about the existence of any Will. Curiously enough, Bidhubhusan who was the beneficiary under the Will, Ext. 1, was not examined in the case and even though it was contended on behalf of the appellant that without examination of Bidhubhusan neither Ext. A5 nor Ext. . D could properly be explained, but then the fact remains that the trial court itself was satisfied about the surrounding suspicious circumstances which prompt-id it to hold that its conscience was not cleared in granting the probate of the Will. The appearance of the Will itself coupled with the fact that the second page of the Will was closely written and the Will itself was not a registered one even though registration itself was not compulsory went a long way to establish the fact that Bidhubhusan or for the matter of that Jagaanath, made use of two blank papers allegedly signed by Surabala on the to by way of conversion of the same into a Will. The draft of the Will was not produced and the finding of the will from the lawyers was itself suspicious. The trial court found all the witnesses examined by the pro pounder as attesting witnesses to the will to be the henchmen of the pro pounder. P. W. I. Rabindranath Chakraborty, claimed to be a relation of Bidhubhusan but did not know how he was so related, was under be a person who was most unlikely to be called by Surabala to be in attesting witness to her Will. P. W. 2 Swadesh who was no other than Kedareswar 's brother-in-law who used to visit the house of surabala at the relevant time even though Kedareswar and his wife were then living at Kanpur spoke of only one signature of Surabala in the deed. P. W. 2 Swadesh who was no other than Kedareswar 's brother-in-law who used to visit the house of surabala at the relevant time even though Kedareswar and his wife were then living at Kanpur spoke of only one signature of Surabala in the deed. The third witness P. W. 3, Hemendra, who was the husband of a full sister of Jagannath was a resident of Shibpur and it was most unlikely that he would be visiting Surabal's house in the middle of last week of March when Surabala would be asking her to come to her house on the last sun lay of March for the purpose of executing of the Will. Be that as it may it Bidhubhuan appeared to be the sole legatee to the Will, It was most unlikely that he would write to Atul in the manner it was so done in the letter Ext. A5. The trial court did not rule out the possibility of Bidhubhusan being in possession of some signed papers of Sufabala and obviously a plan was hatched in respect of the properties of Surabala after her death between Bidhubhusan and his sun Jagannath. Had there been a Will Bidhubhusan would not have caused a solicitor's letter to be served on one of the tenant in the manner it was so done in Ext. 0, dated 17. 6. 71. Even though the pro pounder P. W. 6, explained that he did not know, about the Will at the time of its execution or even at the "time of Surabala's death and he came to know of the Will from bimal Khasnabis, Surabala's lawyer, we are constrained to hold that the finding of the Will had not been properly explained by the pro pounder. Bimal Khasnabis, however was dead and no light could be tarown as such by him to explain the circumstances under which the Will remained to be there in his hands but the scribe P. W. 5, Neelkamal Chakraborty, spoke about the Will being prepared on the basis of a draft earlier prepared by Bimal Babu which he claimed to have read over once, whereupon Surabala executed the Will. He also claimed to have signed the Will as writer after its execution and attestation. He brought the Will along with the draft and handed the same over to Bimal Babu and Surabala signed on each page of the Will. He also claimed to have signed the Will as writer after its execution and attestation. He brought the Will along with the draft and handed the same over to Bimal Babu and Surabala signed on each page of the Will. "he become a stamp vendor only for the last two or 2 1/2 years and before that he was a Moharar or a lawyer's clerk. He stated that Bimal babu died three years before the date of his deposition. He admitted that there was no endorsement to the disputed will that it was read over to the Executrix, Bimal Babu handed over the draft to him in the house at 17, Bijoy bose Road and none was present at that time and it was bimal Babu who asked to go to Tarak Dutta Road with tine draft and prepare the Will giving out the time as to when he was to go and he alone wont to Tarak Dutta Road. The lady she met in the room introduced here self as Surabala where he found 2/3 persons also present. He admitted that he was called to depose by Jagannath. He affixed his signature after Surabala's signature, he left with the Will and the draft. This was a statement contrary to his own in his examination in passed in cross examination that he carried the draft along with his diary and conquest paper. He could not say why the second page of the Will was closely written. He denied the suggestion that Bimal did not prepare' the draft. Last bat not the least, he stated that he handed over the" Will aid the draft to Bimal Babu in his house. P. W. 6 sought to explain the circumstance by giving out that he did not know about the Will at the time of its execution or even at the time of Surabala's death according to him, he came to know of the Will from Bimal but there was no evidence as to when he came to know about the Will. It was his further explanation that he came to know of the Will when he went to Bimal Khasnabis with his father and there after he applied for probate. It was obvious that when on 17th June 1971 bidhubhuan gave instruction to his solicitors, he did not know of the Will Bidhubhusan however, did not come forward to say so. It was his further explanation that he came to know of the Will when he went to Bimal Khasnabis with his father and there after he applied for probate. It was obvious that when on 17th June 1971 bidhubhuan gave instruction to his solicitors, he did not know of the Will Bidhubhusan however, did not come forward to say so. The trial court rightly came to an inference, on a construction of Ext. D, that Will 17th June 1971, the disputed Will was not in existence. Surabrla died on 2.12.70. Even though according to the testimony of all the witness to the will, a draft was in existence and on the day of the writing and execution of tine Will, the draft was not forthcoming. To explain away non-production of the draft, P. W. 5 stated that he returned the draft and the Will to Bimal babu the lawyer, but he could not say what happened to the draft afterwards, even though how was at the relevant time the moharaf (clerk) of Bimal babu. 11 Bimal Babu really received the Will and the draft and was goes enough to return the Will to the Pro pounder after the earth of Surabala, there was not reason as to why he would withhold the draft. Hence, the non-production of the draft not having been sufficiently explained, it was rightly taken to, be one of suspicious circumstances which duly weighed with the learned trial Judge to add to the other surrounding suspicious circumstances. The draft was prepared by Bimal Khasnobis who way dead and hence, it is no possible for the court to come to a positive inference as to what art of instruction Bimal Babu received from 3 bala. But Neelkainal, the scribe P. W. 5, stated that after they will was written, executed and attested, he came been with they will and the draft but P. W. 1 on the other hand stated that the scribe did not take it back with him. Even though it was argued by Mr. Roy Chowdhury that those ware all suspicious circumstances prior to the execution of the Will or circumstances after the execution of the Will the trial court's finding in. this regard about the entire surrounding circumstances being comprehensive enough to include the period both before and after the execution, cannot be taken into consideration ext. Roy Chowdhury that those ware all suspicious circumstances prior to the execution of the Will or circumstances after the execution of the Will the trial court's finding in. this regard about the entire surrounding circumstances being comprehensive enough to include the period both before and after the execution, cannot be taken into consideration ext. A5 and Ext.D in arriving at a decision regarding genuineness of the Will. Even though there is no compulsion about registration of the Will when it is sought to be proved that the lawyer acted in the matter and Surabala was not physically weak to attend the registration office or even to admit execution before; a Sub-Registrar on commission, it way not clear before the trial court as to why there was no registration effected in respect of the will. The testatrix lived for more than a period of eight months after the alleged execution of the Will. 3. PIYUSH Kanti, Tushar Kanti Mukherjee, Mrinal Kanti mukherjee and Smt. Jyotimoyee Mukherjee are the agratic relations of the husband of the tectarix Surabala, out of whom Piyush Kanti contested the grant of probate. Nihar kana the step sister of the prop sunder and the wife of atul Mukherjee and a full sister of the testarix also contested the probate proceeding. The examined Santimoy Chatterjeo, one of the tenants of 19a, Tarak Dutta Road, who is' said to have received a letter from Sandersons and Morgans, solicitors which was married as ext D. O. P. W. 3, Durgapra sad, a despatch clerk of Sandersons and Morgans, Solicitors, sought to prove the said letter, but he could not say or whose instruction, who really drafted the letters, Ext, D/d1. Piyush Kanti examined himself, a O. P. W. 4, and claimed that the alleged executrix was his father's ancle's, wife. He used to visit the house of Surabala frequently during her life-tine and Surabala's relation with Jagannath was not good. Tar a died in 1976-77. Taxu and Nihar had he best of relations, with Surabala, He denied that Surabala executed executed any Will before her death. After her death he visited Tarak Dutta Road. He proved the letter Ext. A3. His nick name was Danu. Bidhubhusan did not tell him about any Will at the relevant time when he visited the house. He held correspondence with Surabala and he produced one letter to prove his contention. After her death he visited Tarak Dutta Road. He proved the letter Ext. A3. His nick name was Danu. Bidhubhusan did not tell him about any Will at the relevant time when he visited the house. He held correspondence with Surabala and he produced one letter to prove his contention. He could not say what was the illness of which Surabala died and what treatment was made. He collected the letters from the sister of Surabaya. He did not however, consult lawyers of Surabala regarding her properties on the year of her death. He saw her about 10/12 times and even on the last occasion about 20/25 days before her death. He saw Nihar and Tan in the house of surabala. He proved further the fact that Surabala gave shelter to her father. They lived in the house but not in the same mess. At the Turf Road premises also she lived in the sane house with her father. He had knowledge that surabala executed no Will and it was Bidhubhusan who told him like that. After the death of Surabala, he claimed surabala,he properties and contacted the tenants and even served notices on their. He did not admit the Will of Surabala to be genuine and proper. One Gandhi used to look after surabala from tine time 4/5 years before her death. She was hale and hearty and she needed no help and her father looked after her necessities. He was Surabala's husband's step brother's son. 4. SIFTING the entire evidence on record, we do not come to any finding contrary to that of the learned Trial Judge and we are of the opinion that the surrounding circumstances were suspicious enough" so as not to dispel doubts about the genuineness of the Will. It is indeed true that there is no mathematical precision with which the surrounding circumstances can be adjudicated upon but the pro pounder is called upon to explain the surrounding circumstances sufficiently so as to clear the conscience of the court. The pro pounder not having been able to do so in the facts and circumstances of the case, the trial court has rightly refused to grant the probate and there is not reason whatsoever as to why we should differ with the ultimate findings of the trial court so as to the grant of a probate of the will. The pro pounder not having been able to do so in the facts and circumstances of the case, the trial court has rightly refused to grant the probate and there is not reason whatsoever as to why we should differ with the ultimate findings of the trial court so as to the grant of a probate of the will. We will be failing in our duty if we do not find out the following circumstances which also weighed sufficiently with us to agree with the ultimate findings as made by the learned Trial Judge, The writing in the Will and the signature of Surabal evident enough were not so done at the same time nature of the writing in the two sheets of paper shows bear there was soaking of ink in the text and purport of the Will whereas in respect of signature of Surabala at the top right-hand side vertically it did not show any such soaking and on the other it suggested a signature or the prior date to that of up cuttings in the will. Second page of the Will clearly shows that it was closely written. The scribe P. W. 5 on cross-examination admitted that he brought the draft of the Will, conquest paper and diary on a Sunday, but curiously enough the Will was not written on conquest papers. The discovery of the Will has not been properly explained by the pro pounder. It is clearly evident that even though surabala died on 2nd December 1970, till June 1972, the pro pounder or even his father Bidhubbusan, the sole beneficiary under the disputed Will did not know about its existence and on the other hand, Bidhubhusan wrote a letter to his own son-in-law atul, O. P. W. 2, sister's husband of the testatrix, which did not give out that Surabala left any Will and on the other hand, it suggested that Bidhubhusan wanted 'the advice of Atul in the matter as to how disposition of property of Surabala should take place and exhibit D the letter from the solicitors, Sandersons and morgans issued on behalf of the sole beneficiary under the Will Bidhubhusan to one of the tenants of 19a, Tarak dutta Road house showed that Bidhubhusan claimed the property on intestacy and not on the basis of any Will. Bidhubhusan did not even offer himself to be examined on commission even if he was not physically unable to attend the court. The pro pounder, Jagannath's evidence was not good enough to impress the court about dispelling doubts about surrounding circumstances which were suspicious enough to warrant the trial court to refuse the grant of the probate. If Bimal Khasnabis, the lawyer was looking after surabala's properties it was not properly understood as to. why eighteen month's delay in making application for probate would be there when it was only expected that Bimal would apprise Bidhubhusan the sole beneficiary under the will and Jagannath, the propuader, immediately after the death of Surabala about the existence a of the Will, which he did not and which accounted or the day. The pro pounder jagannath' s evidence is to the effect that if anybody came to the house they would know and the father was living in the self-same house in another room. It was rather curious that swadesh in his cross examination deposed to the effect that he went up stairs to see Jagannath. The conduct of the testatrix was also not properly appreciable as well. She was not really depending on her father. Her title deeds were kept with Nihar Kana since she was not agreeable to sell away the property at the behest of her father as was evident from the letter of Bidhubhusan. One of the attesting witnesses deposed to the effect that Surabala put only one signature in the Will whereas admittedly there are two signatures in two pages on the top right-hand side vertically on the two pages of the Will. 5. THE appeal was filed before this court on 12th February 1979 after the lower court passed its judgment on 2 7th November 1978. Tarubala who was a party to the proceeding is an uterine sister of the testatrix and she was even categorised as a respondent in the present appeal as is evident from the Memo of Appeal and even though she died on 7th July. 197/ and the judgment of the court below was delivered as earlier pointed out, on 27. 11. 78. Tarubala 's heirs were not brought on record in the court know. Mr. 197/ and the judgment of the court below was delivered as earlier pointed out, on 27. 11. 78. Tarubala 's heirs were not brought on record in the court know. Mr. S. P. Roy Chowdhury, Advocate for the appellant, contended before us that the probate proceeding itself abated in the court below and that being so, there could not have been any judgment in the probate suit being Original Suit no 5/7 j without effecting substitution of the heirs and legal representative of Tarub la. Mr. S. P. Roy Chowdhury cited before us a Division Bench Judgment of our court in Kanailal Manna and Ors. vs. Bhabataran Santra and ors. reported in AIR 1970 Calcutta Page 99 for the proposition that the High Court neither can affirm a decree of 'trial court nor can set aside abatement, where one of the parties died while the proceedings were pending in tine court below and the decree was passed by the court below in ignorance of the death one of the parties. The High Court cannot on an appeal against such a decree also set aside abatement and cannot affirm the decree passed by the trial court. The proper procure which ought to be followed by the High court is to set aside the ineffective decree and remand the case to the court below where the abatement has really taken effect, keeping it open to the parties to move that court for an opportunity to have the abatement set aside, in the parties could satisfy it that they are so entitled in law. Or answer, therefore, has necessarily to be given to the question as to whether probate proceeding was liable to abate as all eyed or at all, while the same was pending decision in the court below. Even though, the proposition is propounded by the Division Bench in Kanailal Manna vs. Bhabataran Santra (ibid) is good law for tine facts of the said particular case, the facts in the present one re quite distinguishable. Tarubala' s name was mentioned in the application for grant of probate as one of the close relations of the issueless deceased testatrix who were entitled to notice. The beneficiary under the Will was bidhubhusan, the father of the testatrix and Tarubala was not a beneficiary at all during the life the of her father. Tarubala' s name was mentioned in the application for grant of probate as one of the close relations of the issueless deceased testatrix who were entitled to notice. The beneficiary under the Will was bidhubhusan, the father of the testatrix and Tarubala was not a beneficiary at all during the life the of her father. As and her she died, bidhubhusan was alive and she had, therefore, no subsisting interest to the property covered by the disputed Will. Only a caveat is entered after citation but the caveator does not become a party. Hence, there was no lis between the pro pounder Jagannath and Tarubala therefore, on Tarubala's death, according to our considered view, the proceeding did not abate. Tarubala was not an interested party at all since either on testacy or on intestacy, she was not an heir to her deceased sister. After bidhubhusan having survived her, her interests, if any, were represented by her father. Hence, the inference as was arrived at in AIR 1970 -Calcutta 99 regarding taking away of a valuable right of" the party who died and whose heirs were not brought on record does not arise in the facts and circumstances of the present case Jagannath could never agitate that he did not know about the death of Tarubala since Tarubala was a sister of Jagannath. If he has not chosen to bring on record the heirs of Tarubala, jagannath cannot also take any advantage of his own wrong and lapses by virtue of the death of Tarubala and non substitution of the heirs of Tarubala in the probate proceeding the carriage of which was solely in the hands of Jagannath. We are constrained to hold that the suit did not abate in the court below and there is much of a valid distinction between grant of probate and non-grant of probate by the court below. At the present stage, now that the heirs of tarubala have been brought on record and the abatement has been set aside and the entire matter has been regularised by virtue of the orders passed by this court on 2. 3. 90 and 21. 3. 90 in conjunction with the earlier order dated 23. 6. At the present stage, now that the heirs of tarubala have been brought on record and the abatement has been set aside and the entire matter has been regularised by virtue of the orders passed by this court on 2. 3. 90 and 21. 3. 90 in conjunction with the earlier order dated 23. 6. 86 we cannot hold that taking advantage of the fact that the pro pounder did hot effect substitution of the heirs of Tarubala in the court below, he Can contend anymore that the entire proceeding is a ability hence, he should apply for grant of probate over again on the face of the clear finding as arrived at by the trial court as also by ourselves. It would be quite relevant in this context to point out relying upon the decision in Radheshyam Das vs. Rangasundari Dassi reported in 24 OWN 541 at 544 that a citation is not a summons and only When a caveat is lodged, the matter is contentious. Till a party files his written statement or lodges a caveat, he is not said to be a party at all and Order 32 Civil Procedure Code is not applicable. As was correctly laid down by the Supreme court in N. Jayaram Reddi vs. the Revenue Divisional Officer and Land acquisition officer kurnool, reported in AIR 1979 SC 393, a decree against a dead person' is not necessarily a nullity for all purposes. A decree against a dead person is treated as a nullity because it cannot be allowed to operate against "his legal representative when he was never brought oh the record to defend the case. It is a matter entirely at the discretion of the legal representative of a deceased respondent against whom a decree has been passed after his death to decide whether he will raise the question that the decree had become a nullity, at the appropriate time, namely during the course of the hearing of the appeal that may be filed by the other party, or to abandon that obvious technical objection and fight the appeal on the merits. Thereafter., it cannot be said that an appellate court is denuded of its jurisdiction to hear an appeal in which one of the respondents has died and right to sue does not survive against the surviving defendants or defendant a loner merely because no application has been made to bring his legal representative on the record when no objection to that effect is raised by anyone. A point of defence which has been wilfully or deliberately abandoned by a party in a civil case, at a crucial stage, when it was most relevant or material, cannot be allowed to be taken up later, at the sweet will of the party which had abandoned the point or as a last resort, or as an afterthought. In fact in a case where a point has been wilfully abandoned by a party even if in a given case, such a conclusion is arrived at on the basis of his conduct, it will not be permissible to allow that party to revoke the abandonment if that will, be disadvantageous to the other party. Now that the heirs and legal representative of Tarubala have been brought on record in this appeal after setting aside abatement to which also Jagannath did not raise any objection and the alleged heirs and legal representatives of Tarubala who have been brought on record have not also objected to the same, Jagannath cannot now be allowed to take advantage of the fact that the heirs of tarubala not having been substituted in the court below, the decree pissed by the trial court is a nullity and he would be proceeding with the probate proceeding anew. After having waived his right, he cannot raise such a point right now as was correctly pointed out by us earlier. Order 22 Rule 3 and 4 is undisputably a facet of natural justice or a limb of audi alteram partem rule. The first limb of this rule audi alteram partem requires that a person must be given an opportunity of being heard before a decision one way or the other affecting him is recorded. In this case the decision as arrived by the trial court did not affect Tarubala or her heirs in any manner. The first limb of this rule audi alteram partem requires that a person must be given an opportunity of being heard before a decision one way or the other affecting him is recorded. In this case the decision as arrived by the trial court did not affect Tarubala or her heirs in any manner. As a corollary to the rule, it is provided in Civil Procedure Code that where a party to the proceeding dies pending the proceeding and the cause of action survives, the legal representatives of the deceased party should be brought on record, which means that such legal representatives must be afforded an opportunity of being heard before any liability is fastened upon them. . In the facts and circumstances of the present case, the heirs and legal representatives of Tarubala are not in any manner so affected and when they were brought on record in this court, they did not raise any objection. The trial court refused the grant of probate and even if we concur with the findings of the trial court and refuse the probate of the Will, the heirs of Tarubala are not in any manner affected adversely. As was rightly pointed put in the case if some legal representatives are before the court in the same action or they are before court in another capacity or are brought on record at a later stage of the suit or proceeding action will not abate even if there is no strict compliance of the requirement of rules 3 and 4 of Order 22. 6. HENCE, regard being had to the entire surrounding circumstances, we would hold that the contention raised by Mr. Roy Chowdhury has no force and we are unable to agree that the present proceeding has abated or the proceeding before the court below abated as such, so that we may grant leave to the pro pounder to start the proceeding de novo or afresh as was so directed in the given facts and circumstances in Kanailal msanna vs. Bhabataran Santra, reported in AIR 1970 Cal. 99 , since we are convinced that on facts the said case has no manner of application "to the present one. In the result, we dismiss tine appeal but pass no order as to costs. The prayer for stay of operation of this judgment is considered and refused.