CHANDA BAI v. SAIDA JAN — 1995 DIGILAW 1286 (ALL)

B. K. SHARMA, J. This is an appeal against the judgment and decree dated 12. 8. 1976 passed by Sri Chandra Mohan, District Judge, Banda in Civil Appeal No. 63 of 1971, Mohan Das and others v. Smt. Saida Jan, whereby he dismissed it and confirmed the judgment and decree passed by IIIrd Additional Civil and Sessions Judge, Banda in Original Suit No. 10 of 1970, Smt. Saida Jan v. Mohan Das and another. 2. Smt. Hasmat Jan had executed a gift-deed (Ex. 4) on 23. 4. 1938 in favour of Zahir Uddin. Sri Zahir Uddin executed a gift-deed dated 8. 7. 1957 (Ex. 1) in favour of Smt. Saida Jan, present plaintiff- respondent, which was registered on 5. 8. 1957. On 26. 4. 1960 Zahir Uddin executed a registered deed Ex. A-5 purporting to revoke the aforesaid gift-deed dated 8. 7. 1957 in respect of the disputed house. He also gave a notice (Ex. 6) on 30. 4. 60 to Smt. Saida Jan informing her of his said revocation deed. On 1. 7. 68 Zahir Uddin executed a mortgage deed with possession in respect of the said house in favour of original defendants-appellants Mohan Das Sindhi and Smt. Chanda Bai for a sum of Rs. 5,000/ -. 3. The suit had been brought by Smt. Saida Jan against Mohan Das and wife Smt. Chanda Bai in respect of the house in dispute claiming decree for recovery of possession over a portion of it (and also seeking damages in respect of it) and also seeking permanent prohibitary injunction restraining in terference with her possession over the remaining part of the house. She claimed that she was owner in possession by virtue of the registered gift-deed dated 8. 7. 57, that she was given actual possession over the house and the title of deceased Zahir Uddin had come to an end on the execution of the gift-deed ; that she had brought Original Suit No. 416 of 68 seeking permanent injunction against Mohan Das Sindhi on 19. 8. 68 and interim prohibitary in junction was granted therein and served on him restraining interference with her possession, but despite the injunction order he took forcible possession over a part of the house specified in the plaint and in the site plan by break ing open lock in the night between 21st and 22nd August, 1968. 4. The original defendant-appellants took various pleas. 4. The original defendant-appellants took various pleas. Some of the pleas were that the gift was obtained by playing fraud ; that the gift was incomplete and so was invalid ; that it was not followed up by actual possession by donor to Smt. Saida Jan and that there was a valid revocation of the gift deed and further that the mortgage deed was valid one and in pursuance of the said mortgage deed Smt. Chanda Bai entered into possession of the disputed house. 5. The said defendant-appellants pleaded that Zahir Uddin was in posses sion all along uptil the time of the mortgage deed and thereafter the mortgagee Smt. Chanda Bai was in actual possession over the entire disputed property. Numerous other pleas were also taken but the same need no details, 6. The trial court found that the execution of the gift deed dated 8. 7. 1957 by Zahir Uddin in favour of Saida Jan plaintiff and its attestation was not disputed, that before the gift-deed she (the plaintiff i. e. the donee) was living separate from Zahir Uddin in separate house along with her parents and other relations but on the day following the date of execution of the gift-deed she actually shifted to the house in suit with her all belongings and she had been living in it since then and Zahir Uddin continued to live in the house with her (plaintiff) till his death, that she used to cook and provide food to Zahir Uddin, that he had actually become dependent on her (plain tiff) since he had no means of his livelihood, that the wife of Zahir Uddin had died long ago, that Zahir Uddin had no issue of his own ; that the gift-deed itself contained the recital that from the date of the gift deed the donee has been put in proprietary possession and occupation of the premises and was free to let it out on rent or to transfer it in any other mode and that the donor had ceased to have any right in respect of the premises. The trial court further found that though the said recital in the gift deed regarding the possession itself may not be sufficient to hold that possession had actually been delivered, it certainly had the effect of shifting the onus of proof on those who challenged the gift. The trial court further found that though the said recital in the gift deed regarding the possession itself may not be sufficient to hold that possession had actually been delivered, it certainly had the effect of shifting the onus of proof on those who challenged the gift. The trial court also placed on record the fact that the original title deed namely, the gift deed executed by Smt. Hashmat Jan in favour of Zahir Uddin (Ex. 4) dated 23. 4. 38 had been handed over by Zahir Uddin to her (Smt. Saida Jan) at the time of the gift as also the original gift-deed executed by him in her favour (Ex. IV and that both these documents i. e. gift- deed (Ex. 4) executed in favour of Zahir Uddin, and gift deed (Ex. 1) executed by Zahir Uddin in favour of Saida Jan had been filed by her (Smt. Saida Jan) at the time of presenting the suit. It was also held by the trial court that fact that not only the gift-deed but the original document of title also had been handed over to the donee is also indicative of delivery of possession. 7. The trial court also accepted her (Smt. Saida Jan) testimony that ear lier the house was not assessed to Municipal tax at all and that it was only recently that an assessment had been made and she had been paying the tax since then. The trial court rejected the contention that unless the donor physi cally departs from the premises with all goods and chattels and the donee for mally enters into possession, the delivery of possession is not complete under the Mohammaden Law. The trial court held that the plaintiff Smt. Saida Jan having been put into possession in pursuance of the gift-deed, the mere fact that Zahir Uddin, donor, did not vacate the house and continued to live therein is of no consequence. The trial court held that the plaintiff Smt. Saida Jan having been put into possession in pursuance of the gift-deed, the mere fact that Zahir Uddin, donor, did not vacate the house and continued to live therein is of no consequence. He further held that the gift in favour of Smt. Saida Jan having become complete and valid according to Mohammaden Law it could not be subsequently revoked except by the decree of court and that mere declaration by Zahir Uddin that he has revoked he gift deed is of no avail and further that though the execution of the mortgage deed by Zahir Uddin in favour of defendant Mohan Das Sindhi is not in controversy since Zahir Uddia having made a valid gift in favour of the plaintiff Smt. Saida Jan he divested himself of all rights in respect of the house in suit and so he had no authority to execute a mortgage deed in respect of it and that the defen dant who claimed to be mortgagee did not acquire any right under the mortgage deed. On the question of delivery of possession he held that the mortgagee defendant of the suit had not acquired any possession during the life-time of Zahir Uddin. He further held that the defendants had entered in occupation of a portion of the house in suit during the night between 21/22. 8. 68. He discarded the claim for damages by the plaintiff on the mere ground that the old construction which existed in the portion occupied by the defendants was a room and verandah which were in dilapidated condition and had been reconstructed by the defendants which was further improvement in the house. He consequently decreed the suit for recovery of possession over a part of the disputed house and for permanent injunction in respect of the remaining house. 8. All the above findings of the trial court have been upheld by the lower appellate court. The present appeal has been preferred before the amendment of Section 10 of the C. P. C. by C. P. C. Amendment Act, 1976, which came into force only on 1st February, 1977. 8. All the above findings of the trial court have been upheld by the lower appellate court. The present appeal has been preferred before the amendment of Section 10 of the C. P. C. by C. P. C. Amendment Act, 1976, which came into force only on 1st February, 1977. Section 100 as it previously stood allowed the appeal to the High Court on the following grounds : "the decision of the lower appellate court being contrary to law or to some usage having the force of law ; (b) the decision of the lower appellate court having failed to determine some material issue of law or usage having the force of law ; and (c) the lower appellate court has committed a substantial error or defect in pro cedure provided by the Code or any other law for the time being in force, which may have produced error or defect in the decision of the case upon the merits. " The learned Counsel for the appellants claimed that the gift deed in favour of Smt. Saida Begum was invalid because there was no delivery of pos session; that the recital m the gift-deed in her favour cannot lead to presump tion of delivery of possession in the absence of some overt act on the part of the donor Zahir Uddin; that the donor never completely extinguished his ownership and consequently there was no valid gift and so the mortgage was valid. It was claimed that no issue had been framed on the plea of exercising fraud and undue influence and that for this reason the court below committed a manifest error of law. It was also claimed that the appellants were entitled to protection of Section 41 of the T. P. Act and the courts below had not recorded any finding on the point. 9. So far as the plea of fraud and undue influence is concerned, the con tention is against the record because the trial court framed a specific issue on the point of fraud and rejected it giving cogent reasons, one being that in the revocation deed executed by Zahir Uddin donor subsequently though there was allegation that he purported to revoke the gift-deed by this registered docu ment dated 26. 4. 1960 it was not registered document dated 26. 4. 4. 1960 it was not registered document dated 26. 4. 1960 it was not alleged therein that the gift deed had been obtained from him by exercise of fraud or undue influence. The only plea therein was that despite the execu tion of the gift deed, possession had not been delivered to the donee and that the donor (he) himself had continued in possession and as such was revoking the gift. In the discussion of the said issue the question of misrepresentation was also considered. So, this plea of the learned Counsel for the appellants has no legs to stand. 10. The crucial question in this case is whether the impugned gift-deed in favour of Smt. Saida Jan (sic) plaintiff was valid or not. If it was valid then the subsequent revocation of the gift-deed becomes useless and is of no conse quence and the mortgage deed also becomes ineffective and does not convey rights to the mortgagee. The controversy in this case revolves round the ques tion of delivery of possession. In this case there is concurrent finding of fact of the courts below that the gift-deed (Ex. 1) in favour of Smt. Saida Begum was duly executed by Zahir Uddin donor on 8. 7. 57 and it was duly registered on 5. 8. 57, that at the time of the said gift the title deed, namely the gift-deed executed by Smt. Hashmat Jan in favour of Zahir Uddin dated 23. 4. 38 (Ex. 4) and the present gift-deed dated 8. 7. 57 (Ex. 1) in favour of plaintiff Smt. Saida Jan (sic) were both delivered to her by Zahir Uddin and the same were filed by her on the record of the original suit itself; that in the gift-deed (Ext. 4. 38 (Ex. 4) and the present gift-deed dated 8. 7. 57 (Ex. 1) in favour of plaintiff Smt. Saida Jan (sic) were both delivered to her by Zahir Uddin and the same were filed by her on the record of the original suit itself; that in the gift-deed (Ext. 1) there was a clear recital of the delivery of possession that from the date of the gift the donee has been put in proprietary possession and occupation of the premises and she has a right either to live in the house herself or to let it out on rent or to transfer it in any other mode and the donor had ceased to have any right in respect of the premises ; that before the execution of the gift deed by Zahir Uddin in favour of Smt. Saida Jan he was living all alone in the house in suit ; that his wife had died and he had no issues of his own and that after the execution of the gift-deed donee also came to live in the house in suit and that thereafter she (Smt. Saida Jaan donee) used to cook and provide food to Zahir Uddin donor ; that thereafter both Zahir Uddin donor and Smt. Saida Jaan donee continued to live in the house till the death of Zahir Uddin. There is also concurrent finding of fact of the courts below that after the gift deed the municipal assessment in respect of the house in suit was made for the first time and after that assessment Smt. Saida Jaan was paying the municipal tax in respect of the house in suit. 11. Both the courts below came to the conclusion that from the recital of delivery of possession an inference arose that the delivery of possession was in fact made and it shifted the burden on the other side to show that the ad mission was wrong and further that the admission was binding on the donor and all those persons claiming right through him. i. e. the mortgagees but they could show that the admission was wrong. 12. On the aforesaid established facts, both the courts below have held that there was sufficient delivery of possession as required under the Moham-maden Law to complete the gift. 13. i. e. the mortgagees but they could show that the admission was wrong. 12. On the aforesaid established facts, both the courts below have held that there was sufficient delivery of possession as required under the Moham-maden Law to complete the gift. 13. The learned Counsel for the plaintiff-respondents relied on a number of authorities to support the conclusion of the courts below. In AIR 1932 Privy Council 13 - Nawab Mirza Mohammad Sadiq Ali Khan and others v. Nawab Fakr Jahan Begum and another, it was held : "a gift of immovable property must ordinarily be completed by a transfer of possession, and there is no difference on this point between Hanafi and Shiah law. In a gift by a husband to his wife the gift-deed contained the statement : i deliver possession of the gifted property to my said wife ; the deed of gift was handed over to the donee as soon as it was registered. Held : that the declaration in the deed was binding on heirs of donor and that actual vacation by the husband and an actual taking of separate possession by the wife was not necessary. The declaration made by the husband followed by the hand ing over of the deed, was amply sufficient to establish a transfer of possession. " 14. In A. I. R. 1958 Madras 527 - S. VS. Muhammad Yusuf Rowther and another v. Mohammad Yusuf Rowther and others, it was held : ". . . . . . . Where in the deed of gift executed by deceased, there is a recital that the possession of the property which is the subject-matter of the gift is delivered to the donees, it is an admission binding on the deceased and those claiming under him. Consequently the burden lies on those who claim under the deceased, to prove that no delivery of possession was in fact effected in favour of the donees. Burden in such a case is not on the donees to prove the delivery of possession to them. " 15. Consequently the burden lies on those who claim under the deceased, to prove that no delivery of possession was in fact effected in favour of the donees. Burden in such a case is not on the donees to prove the delivery of possession to them. " 15. In the authority A. I. R. 1975 Kerala 150 - Kollanchil Padinhakkara Abdulrahiman and another v. Kunhimohamad and others, the facts were stated thus : "the gift-deed recited that the donor had along with the title deeds completely and absolutely surrendered possession of all her rights and interests in the properties scheduled to that document without receiving any consideration and by way of gift, to be enjoyed by them and that they may possess and enjoy the properties (physical) possession of which had been given to them from then onwards, and the properties outstanding on leases, by recovering possession thereof etc. It was not shown that the admission made in this document was erroneously made or that the real state of af fairs was not as admitted by the donor. " 16. It was held that the admission of surrender of possession and the handing over of such of the title deeds the donor was in possession of and of the gift-deed itself (by enabling the donee to collect it from the registry) es tablished beyond doubt that the donor parted with possession of the gifted property and the donee (brothers children) came to be possessed of the same and that the gift has been completed by the donors not for there remained nothing else to be done by the donor. 17. In the authority Baldeo Prasad Balgovind through Baldeo Prasad v. Shubhratan 1938 ALJR 590 it was held: "the rule of Mohammadan Law as regards delivery of possession in case of gift is well-settled. 17. In the authority Baldeo Prasad Balgovind through Baldeo Prasad v. Shubhratan 1938 ALJR 590 it was held: "the rule of Mohammadan Law as regards delivery of possession in case of gift is well-settled. All that is required is that the donor should clearly divest himself of his ownership in the subject-matter of the gift and should deliver such possession as the subject-matter of the gift admits of, where a house is in actual occupation of the donor and the donee, who are related as father-in-law and daughter-in-law, and the donor declares, in unequivocal language, that he has divested himself of ownership of half of it, retaining the other half, and authorised the donee to take possession, the character of the donees possession, which already existed, is altered, and for all for mal purposes the gift must be considered to have been perfected by such delivery of possession as was possible in the circumstances. The mere fact that donor did not have mutation of names effected in the municipal registeres does not affect the case. " 18. In the said case mutation had not been got. done in favour of the donee but even that fact was held as not affecting the case. 19. In the authority Ayeeshee v. K. S. A. Shaik Mohammad Alim Sahib and others (A. I. R. 1964 Madras 309 (V 51 C 93) it was held: "the requirement of delivery, to constitute a valid gift under the Mohammaden Law, is not that irrespective of the circumstances, there should always be physical delivery. The requirement is only that there should be such delivery to the donee as the property which is the subject-matter of the gift is capable of. What delivery the property is capable of and whether such delivery as the property is capable of has been given would depend upon the particular facts of each case. Where the subject-matter of the gift was a house in which the donor, her five daughters and her son, the donee, were residing at the time the gift was made by her, a recital in the gift-deed that the donor was delivering the property to her son was enough to indicate that the donee was put in possession of the house, such pos session as it was at that time capable of. In order to make a valid gift, by complet ing delivery, it was not necessary that the mother should immediately go out of the house. " 20. In the authority Dubri and another v. Bibban Bibi and others, 1965 A. L. J. 519, it was observed : "there can be no controversy that one of the essential requirements of a gift under the Mohammaden Law is that the property which is the subject-matter of the gift must be put in possession of the donee. The mere fact that the donor may con tinue to reside in a portion of the subject-matter of the gift would not mean that delivery of possession did not take place. This is a question of intention and has to be decided in each case in view of the facts and circumstances of that case. " In that case Mohammaden lady made a gift of her house by means of a registered deed, but she continued to live in a room of the house. There was a dec laration in the deed of gift that the donor had delivered possession to the donee and after the gift the donee paid hosue-tax in respect of the whole house. It was held, "it would be extremely unreasonable to take the view that, in order to satisfy the requirements of the Mohammaden Law, it was incumbent on the part of the donor to temporarily leave the room she was occupying and then re-enter the room to complete the gift and enable the room to complete the gift and enable her to reside in that room for the rest of her life. On the facts and circumstances of the case the requirements of Mohammaden Law as to delivery of possession must be deemed to have been fulfilled and the gift must be upheld in its entirely. " 21. The above authorities are very much in favour of the plaintiff-respon dent. On the facts and circumstances of the case the requirements of Mohammaden Law as to delivery of possession must be deemed to have been fulfilled and the gift must be upheld in its entirely. " 21. The above authorities are very much in favour of the plaintiff-respon dent. In fact her case is on a stronger footing because it was a case where she lived elsewhere before the execution of the gift deed and consequent upon the execution of gift-deed she shifted to the disputed house and started living therein and thus took actual physical possession over it and if the donor continued to live in the house and was being looked after and maintained by her till his death, he cannot be held to be in actual possession of the house this possession would now be that of a licensee the nature of his possession having changed. His possession turned from proprietary possession into the possession of a licensee only. The evidence from the plaintiff- respondents side was that she was cousin sister of Zahir Uddin donor and this fact has been supported by the recital in the gift-deed (Ex. 1) itself which recital is of great value and there was no reason to discard or disbelieve this recital. 22. Learned Counsel for the defendants-appellants has relied on the authority Mahboob Sahab, v. Syed Ismail and other, AIR 1995 SC 1205 : 1995 (1) JCLR 545 (SC), wherein para 5 at page 1208 of the judgment the following words occur : ". . . . . . Section 152 envisages that where donor is in possession, a gift of immovable property of which the donor is in actual possession is not complete unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession. . . . . . Section 152 envisages that where donor is in possession, a gift of immovable property of which the donor is in actual possession is not complete unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession. " His contention is that the purport of it is that unless the donor physically departs from the premises with all his goods and chattels, there can be no delivery of possession as contemplated in Mohammaden Law for completing the gift and in the present case there is concurrent finding of the courts below that donor Zahir Uddin continued to live in the house in dispute even after the execution of the gift deed right upto the time of his death and that consequently in this case it must be held that the gift was not complete and was, therefore, void and so the judgment and decree of both the courts below should be set aside and the suit should be dismissed with costs. 23. Learned Counsel for the plaintiff-respondent has analysed the said authority of the Apex Court and argued that it does not mean to say that which the learned Counsel for the defendants-appellants claim it says. He has pointed out that the donee in that case were Syed Ismail and Ibrahim, both sons of Magdoom, who had executed a gift-deed jointly in favour of Syed Is mail and Ibrahim and their mother Smt. Chandi and Smt. Chandi in her turn orally gifted over her share to one of her sons Syed Ismaill ; that the gift-deed related to agricultural land and further it was pointed out that in that case the name of the donor had continued to be as owner in revenue record till it was mutated after its purchase and that the original or certified copy of the gift deed alleged to have been executed by Magdoom (father of the minors Syed Ismail and Irahim) was not filed. He further pointed out that as observed by the Apex Court in Para 4, neither the mother nor the father were examined as witness to prove the gifts said to have been given in favour of their minor sons Ismail and Ibrahim and that Syed Ismail too was not examined as a witness. He further pointed out that as observed by the Apex Court in Para 4, neither the mother nor the father were examined as witness to prove the gifts said to have been given in favour of their minor sons Ismail and Ibrahim and that Syed Ismail too was not examined as a witness. In that case a sale deed had been executed by the father (the donor) in favour of the appellant of that case and the Apex Court further observed in the said para 4 that Ibrahim (one of the donees) in the first gift deed) in his evidence had admitted the execution of the sale deed by his father and he acted as an attesting witness to the sale transaction and that he also admitted that his father had mortgaged the property. 24. The Apex Court has also placed on record in the same para 4 that in the objection petition the gift was not set up, and that the appellate court, as a final court of fact, found that the alleged registered gift-deed said to have been given by Magdoom jointly to his minor sons and wife as aforesaid was not filed either in this suit or in earlier Original Suit. 25. It further was argued by the learned Counsel that the observations made in para 5 of the judgment of the Apex Court must be read against the background of the aforesaid facts and then para 5 is to be read as a whole, which is reproduced below : "5. Section 147 of the Principles of Mohammaden Law by Mulla, 19th Ed. Edited by Chief Justice M. Hidayatullah, envisages that writing is not essential to the validity of a gift either of movable or of immovable property. Section 148 requires that it is essential, to the validity of a gift, that the donor should divest himself com pletely of all ownership and dominion over the subject of the gift. Under Section 149, three essentials to the validity of the gift should be, (i) a declaration of gift by the donor, (ii) acceptance of the gift, express or implied, by or on behalf of the donee, and (iii) delivery of possession of the subject of the gift by the donor to the donee as mentioned in Section 150. If these conditions are complied with, the gift is complete. If these conditions are complied with, the gift is complete. Section 150 specifically mentions that for a valid gift there should be delivery of possession of the subject of the gift and taking of possession of the gift by the donee, actually or constructively. Then only gift is complete. Section 152 en visages that where donor is in possession, a gift of immovable property of which the donor is in actual possession is not complete unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into pos session. It would, thus, be clear that though gift by a Mohammaden is not required to be in writing and consequently need not be registered under the Registration Act ; a gift to be complete, there should be a declaration of the gift by the donor ; ac ceptance of the gift, expressed or implied, by or on behalf of the donee and delivery of possession of the property, the subject-matter of the gift by the donor to the donee. The donee should take delivery of the possession of that property either ac tually or constructively. On proof of these essential conditions, the gift becomes com plete and valid. In case of immovable property in the possession of the donor, he should completely divest himself physically of the subject of the gift. No evidence has been adduced to establish declaration of the gift, acceptance of the gift by or on be half of the minor or delivery of possession or taking possession or who had accepted the gift actually or constructively. Admittedly, he was in possession and enjoyment of the property till it was sold to the appellant. Equally, in Mohammaden Law mother cannot act nor be appointed as property guardian of the minor. She equally cannot act as legal guardian. " 26. Learned Counsel for the plaintiff-respondent pointed out that part observations which have been relied upon by the learned Counsel for the defendants-appellants. Equally, in Mohammaden Law mother cannot act nor be appointed as property guardian of the minor. She equally cannot act as legal guardian. " 26. Learned Counsel for the plaintiff-respondent pointed out that part observations which have been relied upon by the learned Counsel for the defendants-appellants. In Section 152 of Mullas Mohammaden Law, but the same authority has observed under sub- section (2) that where both the donor and donee reside in the property some overt act is necessary and that sub-section (3) deals with the case where the donor and donee both reside in the property and thereunder it was stated on the basis of the case law : "where a person is present on the premises proposed to be delivered to him, a declaration of the person previously possessed puts him into possession, without any physical or formal entry. " 27. He also pointed out that the Apex Court in para 5 has categorically observed that the donee should take delivery of possession, actually or constructively. It means that even a constructive delivery of possession could serve to complete the gift under the Mohammaden Law. Further observations that the donor should completely divest himself physically of the subject of the gift is to be read in the light of the aforesaid observations that no evidence has been adduced to establish delivery of possession or taking possession or who had accepted the gift actually or constructively, relating to the case before his Lordship where the donor was all along in possession and enjoyment of the property till it was sold to the appellant. 28. As noted earlier, in that case the subject-matter was agricultural land and the donor had all along been in possession and enjoyment of the property in dispute and- there was no overt act established to show any intention to divest himself of the ownership and the possession of the property. I am inclined to accepted the interpretation of this authority as put by the learned Counsel for the plaintiff- respondents. 29. In view of the above discussion, it cannot be said that the decision of the lower appellate court was contrary to law. I am inclined to accepted the interpretation of this authority as put by the learned Counsel for the plaintiff- respondents. 29. In view of the above discussion, it cannot be said that the decision of the lower appellate court was contrary to law. It was also not a case where the court had failed to determine any material issue of law or had committed any substantial error or defect in procedure provided by the Code of Civil Procedure or any other law which may have prejudiced the case on merits. Both the courts below have studded their judgments with various authorities and made an exhaustive discussion of all the facts and circumstances. In my view, no ground for interference is made out. 30. In the result, the second appeal fails and is dismissed with costs. Appeal dismissed. .