Mohanambal v. Veeramani — 1998 DIGILAW 472 (KER)

JUDGMENT P.K. Balasubramanyan, J. 1. The plaintiff is the appellant. The father of the plaintiff took on rent a building from the father of defendants 1 and 2. The father of the plaintiff died in the year 1969. He left behind his widow, two sons and five daughters including the plaintiff as his legal representatives. It is said that a portion of the building was surrendered on 11.12.1975 and the rest continued to he held on tenancy on a reduced rent of Rs. 20/- per month from the rent of Rs. 40/- per month that was payable earlier. The defendants filed R.C.O.P. 110 of 1977 before the Rent Control Court for eviction under S.11(3) of the Kerala Buildings (Lease and Rent Control) Act on the ground that they bona fide needed the building occupied by the tenant. In that application defendants 1 and 2 impleaded only the widow and one of the sons of the original tenant. That son is defendant No. 3 in the present suit. An order for eviction was passed therein. That order was affirmed in appeal and further affirmed in a revision by this Court under S.20 of the Rent Control Act. Thereafter defendant No. 3 herein appears to have filed an original application before the Land Tribunal claiming some rights under the Kerala Land Reforms Act. That proceeding was also dismissed. It was when defendants 1 and 2 attempted to take delivery of the building in execution of the order in R.C.O.P. 110 of 1977 as affirmed in revision that the present suit was filed by the plaintiff one of the daughters of the original tenant claiming that the order for eviction in R.C.O.P. 110 of 1977 was not binding on her and she could not he dispossessed in execution of the order passed therein. Her case was that on the death of the original tenant, the tenancy right devolved not only on the widow and one of the sons of the original tenant but on his widow and all his seven children including the plaintiff and defendant No. 3 and since the order for eviction was obtained without impleading all the heirs of the original tenant, the order was not binding on the other heirs of the original tenant including the plaintiff. The plaintiff therefore sought the relief of a declaration that the order in R.C.O.P. 110 of 1977 was not binding on her and for a perpetual injunction restraining defendants 1 and 2 from executing the order for eviction in R.C.O.P 110 of 1977. 2. Defendants 1 and 2 resisted the suit by contending that on the death of the daughter of the plaintiff, the original tenant, his legal representatives had surrendered the residential premises held on tenancy and that on 11.12.1975 a fresh tenancy arrangement had been entered into regarding the present premises between the landlord on the one hand and the widow and son of the original tenant, namely, the parties to the proceeding before the Rent Control Court on the other, and since only the widow and the son were the tenants, they have been impleaded and the plaintiff has no right either to the declaration sought for by her or to seek a perpetual injunction restraining the execution of the order for eviction. It was alternatively contended that even if it be taken that the original tenancy continued, the order for eviction was binding on the present plaintiff since her mother and brother had substantially represented the estate of the deceased original tenant and since the present plaintiff had no defence peculiar to herself which was not available to the widow and son of the deceased original tenant impleaded before the Rent Control Court, the plaintiff was bound by the order for eviction. 3. The Trial Court found that defendants 1 and 2 have not established the fresh entrustment in favour of the widow and son of the original tenant set up by them, though it found that a portion of the premises originally held had been surrendered to the landlord subsequent to the death of the original tenant. But the Trial Court took the view that the order for eviction in R.C.O.P. 1 10 of 1977 would be binding on the plaintiff in view of the fact that the estate of the deceased tenant was substantially represented by the widow and son of the deceased tenant impleaded as the respondents in the application for eviction and hence the present plaintiff was not entitled to the reliefs claimed by her in the present suit. The Trial Court therefore, dismissed the suit. The Trial Court therefore, dismissed the suit. The lower appellate court did not enter any specific finding on whether the fresh entrustment set up by defendants 1 and 2 was established or not. But it proceeded on the basis that the estate of the original tenant was substantially represented in R.C.O.P. 110 of 1977 and it was bona fide litigated by the widow and son of the original tenant and consequently the order for eviction passed therein is binding not only on the widow and son who are eo nominee parties to that proceeding but on the other heirs of the deceased tenant as well. Thus the appellate court confirmed the dismissal of the suit by the Trial Court. It is this decree that is challenged by the plaintiff in this Second Appeal. I may incidentally noticed that this court had not granted an interim order of stay while admitting this Second Appeal and it is submitted that defendants 1 and 2 had executed the order in R.C.O.P. 110 of 1977 and had obtained possession of the disputed building. That fact of course cannot preclude the hearing and disposal of this Second Appeal on merits and if the plaintiff were to succeed in this Second Appeal, obviously she would be entitled to apply for restitution under S.144 of the Code of Civil Procedure. 4. One of the contentions sought to he raised by the plaintiff was that defendant No. 3, her brother who was one of the respondents before the Rent Control Court had collided with the landlords and it was as a result of that collusion that R.C.O.P. 110 of 1977 happened to be allowed by the Rent Control Court. This case of collusion has been found against by the Trial Court and that finding has not been interfered with by the lower appellate court. The evidence available in the case clearly shows that defendant No. 3 was seriously contesting R.C.O.P. 110 of 1977 and had fought that litigation upto the High Court and even thereafter had sought to invoke die jurisdiction of the Land Tribunal under the Kerala Land Reforms Act with a view to thwart the landlord in getting possession of the premises. The evidence available in the case clearly shows that defendant No. 3 was seriously contesting R.C.O.P. 110 of 1977 and had fought that litigation upto the High Court and even thereafter had sought to invoke die jurisdiction of the Land Tribunal under the Kerala Land Reforms Act with a view to thwart the landlord in getting possession of the premises. It has therefore to be held in agreement with the courts below that the plaintiff has failed to prove that the order in R.C.O.P. 110 of 1977 is vitiated by collusion between the landlord and defendant No.3 in the present suit. No material could be placed before this court by counsel for the plaintiff to show that there was collusion between the landlord and defendant No.3 as alleged by the present plaintiff. The contention therefore that the order in R.C.O.P. 110 of 1977 is vitiated by collusion has only to be rejected. That contention was thus rightly rejected by the courts below and that finding does not call for any interference in Second Appeal. 5. Defendants 1 and 2 raised the contention that subsequent to the death of the original tenant there was a fresh entrustment in favour of the widow and one of the sons of the original tenant in respect of the portion that was the subject matter of the R.C.O.P. 110 of 1977. Defendants 1 and 2 did not make a serious attempt to lead evidence to establish that aspect. The mere examination of R.W. 1 and the production of a letter dated 24.8.1977 cannot be held to be sufficient to establish a fresh tenancy in favour of two of the legal representatives of the original tenant. But it has to be noted that subsequent to the death of the original tenant and the surrender of a portion of the premises held on tenancy originally, the widow, the son defendant No.3 herein and the plaintiff alone had resided in the premises. The rents were obviously being paid by defendant No.3 to the landlord and the same was being received by the landlord. The rents were obviously being paid by defendant No.3 to the landlord and the same was being received by the landlord. In a somewhat similar situation the High Court of Delhi in Prakash Wati Bali v. Hanish Dewan ( 1997 (2) RCJ 320 ) suggested that ii would be sufficient to implead the legal heir who was paying the rent and the others who had never asserted tenancy rights need not he impleaded and in such a situation an implied surrender of tenancy rights by the other heirs could be postulated. In the case on hand on behalf of the widow and the daughter (the present plaintiff), rent was being paid by defendant No. 3, the second son of the original tenant and all the three heirs were residing in the premises. It is seen that the Rent Control Petition was resisted by the widow and son who alone were impleaded in that proceeding not only on their behalf but also on behalf of the present plaintiff though the present plaintiff was eo nominee not a party. It is seen that even during the stage of execution time was sought for and obtained for surrender of the premises on the ground that the present plaintiff was physically handicapped and sometime was required to find out an alternative premises for her. Ext. B1 letter establishes this fact. The evidence of the present plaintiff as PW 1 in the present suit also shows that she was continuing to reside with defendant No. 3. It is also to be seen that the other legal representatives of the deceased original tenant have not come forward with any claim and even in the present suit filed by the plaintiff they have not been impleaded, atleast as defendants. As noticed, the plaintiff has failed to establish any case of collusion between her mother and brother on the one hand and the landlord on the other. It is clearly seen that the litigation in R.C.O.P. 110 of 1977 was fought bona fide and with full vigour by the mother and brother of the present plaintiff. As noticed, the plaintiff has failed to establish any case of collusion between her mother and brother on the one hand and the landlord on the other. It is clearly seen that the litigation in R.C.O.P. 110 of 1977 was fought bona fide and with full vigour by the mother and brother of the present plaintiff. Under such circumstances it is possible to take the view that the plaintiff was aware of the proceedings for eviction and since she has no special defence of her own to put forward in opposition to the claim made in R.C.O.P. 110 of 1977, the order made therein in the presence of her mother and her brother who alone were in occupation along with her cannot be ignored by the plaintiff. The plaintiff is atleast obliged to approach the court that passed the order for eviction and seek a reopening of that order in case she has a contention that she had a defence available to her which was not put forward by the heirs who were impleaded as respondents to that application and one which was peculiar to her. The plaintiff not having done the same, I am of the view that she cannot seek-an injunction restraining the enforcement of the order in R.C.O.P. 110 of 1977. 6. Learned counsel for the plaintiff submitted that the courts below were in error in invoking the theory of substantial representation to the case on hand and the theory of substantial representation applies only in a case where one of the parties to the litigation dies and his legal representatives are impleaded after a bona fide enquiry and in that process one or two of them are omitted to be impleaded. According to counsel that theory has no application in a case where the very proceedings are initiated against some alone of the legal representatives and an order obtained against them. Counsel further submitted that in view of the case set up by defendants 1 and 2 that there was a fresh entrustment to the widow and one of the sons of the original tenant, in this case, there was no scope for invoking the theory of substantial representation. Counsel further submitted that in view of the case set up by defendants 1 and 2 that there was a fresh entrustment to the widow and one of the sons of the original tenant, in this case, there was no scope for invoking the theory of substantial representation. Learned counsel for defendants 1 and 2 on the other hand contended that the estate of the deceased tenant was sufficiently represented in R.C.O.P. 110 of 1977 and the heirs of the tenant who had been impleaded had bona fide defended that proceeding and that proceeding had culminated in an order for eviction. Counsel contended that the plaintiff who was one of the other legal representatives of the deceased original tenant had no defence that was peculiar to herself since the claim in the case on hand was one such S.11(3) if the Kerala Buildings (Lease and Rent Control) Act on the ground that the landlord needed the building bona fide for his own purpose and since this was a residential, building there was not even the question of any claim under the second proviso to S.11(3) of that Act. Counsel further contended that the theory of substantial representation applies not only to a case where the impleading takes place on the death of the original litigant but also in a case where the very litigation is launched only against some of the heirs of the original tenant mid there is no warrant for restricting the scope of the principle of substantial representation in the manner canvassed for by counsel for the plaintiff. 7. In Joseph v. Joseph ( 1958 KLT 957 ) His Lordship Mr. Justice Varadraja Iyengar took the view that the decree obtained against sonic only of the heirs cannot be binding on the rest however few they may be, however little interest they may themselves represent. The doctrine of substantial representation of a deceased opponent's estate cannot apply to a suit when it is laid. A party must suffer the consequences of his own default in not impleading all the heirs of the opposite party. The learned Judge has made a distinction between a case where the representation of the estate is sought for in a pending proceeding and a case where a proceeding is initiated after the death of the original holder of the right. The learned Judge has made a distinction between a case where the representation of the estate is sought for in a pending proceeding and a case where a proceeding is initiated after the death of the original holder of the right. In Hameed v. Sumithra ( 1987 (1) KLT 308 ) His Loadship Mr. Justice Padmanabhan after referring to the decisions of the Supreme Court in Daya Ram v. Shyam Sundari (AIR 1965 SC 1040) (wrongly given as AIR 1955 SC 1040 and Harithar Prasad v. Balmiki Prasad ( AIR 1975 SC 733 ) held. "Ordinarily the court does not regard a decree binding upon a person who was not impleaded eo nominee in the action. But there are certain exceptions to this recognised rule. In a suit whereby the personal law governing the absent heir the heir impleaded represents his interest in the estate of the deceased or in cases where no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily bind all persons interested in the estate. But this is also subject to the condition that vitiating circumstances like fraud or collusion are absent. The court will also enquire whether there was a real contest and for that purpose ascertain whether any special defence was available to the absence of fraud or collusion or other vitiating circumstances, the decree passed against the person impleaded as heir will bind the estate eventhough other persons interested in the estate are not brought on the record (see Mohd. Sulaiman v. Mohd. Ismail AIR 1966 SC 792 ). The first two cases relate to death after suit and the subsequent one is a case of wrong institution, Principle is the same". His Lordship also noticed the decision of the Supreme Court in Ragho Prasad Guptav v. Shri Krishna Poddar ( AIR 1969 SC 316 ). In that case it was held that the decision in any proceeding by or against a benamidar would bind the real owner though he was not joined as a party unless it was shown that the benamidar could not or did not in fact represent the interests of the real owner. In that case when the benamidar, who had instituted the action died, the legal representatives of the benamidar were brought on record. In that case when the benamidar, who had instituted the action died, the legal representatives of the benamidar were brought on record. The real owner made an application for getting himself impleaded. That application was dismissed by the court by observing that the real owner will not be bound by die decree. But in the suit all the contention available to the real Owner were raised and pressed by the heirs of the benamidar. The Supreme Court held that even in such a case, the heirs of the benamidar 'continued to represent the real owner and in the absence of prejudice being established, the real owner was bound by the decree. Mr. Justice Padmanabhan has also noticed the unreported decision of Mr. Justice T.S. Krishnamoorthy Iyer in C.R.P. 1319 of 1972 wherein only the Managing Partner of a firm was impleaded but it was held that the order passed there in was binding on all the partners. His Lordship also noticed the decision in Subramonia Pillai v. Masterly ( AIR 1976 Mad. 303 ) wherein the Division Bench of the Madras High Court held. "It is not always a legal requisite that, inevitably, only the heirs, all of them or any of them, should figure as legal representatives. The procedural law requiring representation will stand satisfied if there is substantial representation in the sense that all that could be done was done by someone interested in the issue in the suit." 8. In Cyriac John v. Jacob Cherian ( 1997 (1) KLT 948 ) the position was considered by the Division Bench. After referring to the decision of the Supreme Court relevant to this aspect including the decision in Mohd. Sulaiman v. Mohd. Ismail AIR 1966 SC 792 ) the Division Bench overruled the decision of Mr. Justice Varadraja Iyenger in Joseph v. Joseph ( 1958 KLT 957 ) making a distinction between an impleading of the legal representatives in pending proceedings and making the legal representatives parties in an action newly initiated. The Division, Bench held that in the light of the decision of the Supreme Court in Mohd. Sulaiman's case the decision of Mr. Justice Varadraja Iyenger cannot be treated as laying down the correct law. Their Lordships held. The Division, Bench held that in the light of the decision of the Supreme Court in Mohd. Sulaiman's case the decision of Mr. Justice Varadraja Iyenger cannot be treated as laying down the correct law. Their Lordships held. "From the above analysis, it is fairly clearly that the principle of substantial representation applies equally to cases where legal representatives are impleaded in a pending proceeding to representative estate of the deceased or where suits or other proceedings are laid against, the legal representatives of a deceased person so as to bind the estate of the deceased. Of course, in both cases, the conditions required to be satisfied for the application of the principles must be satisfied and the party who omits to implead all the legal representatives take the risk of a challenge at the instance of the excluded legal representatives on limited grounds mentioned in the decisions. In the light of the statement of law on the point contained in Mohd. Sulaiman's case the decision in Joseph v. Joseph ( 1958 KLT 957 ) cannot be treated as laying down correct law on the point any more". 9. In the light of position the submission of learned counsel for the plaintiff that the theory of substantial representation is not attracted to a case where the proceeding is instituted only against some of the legal representatives cannot be accepted. Learned counsel for the plaintiff relied on the decision in Jeeth Kaur v. P. Kondalamma ( AIR 1983 AP 219 ) to contend that going by the definition of a 'tenant' in the Kerala Buildings (Lease and Rent Control) Act, each one of the legal representative of the deceased original tenant and unless the tenancy of each one of them is terminated or an order for eviction obtained against each one of them, the omitted or left out heir will continue to be a tenant of the premises. The Andhra Pradesh High Court in the above cited decision stated that each one of the heirs of a tenant has an independent right to claim as a tenant and the right of tenancy under the Andhra Pradesh Buildings (Lease, Rent land Eviction) Control Act can be put an end to only under the provisions of that Act. The Andhra Pradesh High Court in the above cited decision stated that each one of the heirs of a tenant has an independent right to claim as a tenant and the right of tenancy under the Andhra Pradesh Buildings (Lease, Rent land Eviction) Control Act can be put an end to only under the provisions of that Act. If all the heirs were not impleaded while obtaining an order for eviction under that Act, the heir who was not impleaded would not be bound by the order for eviction and could seek, a declaration of his status as a tenant. I must notice that the Andra Pradesh High Court has not referred to the decision of the Supreme Court in Mohd. Sulaiman's case relied on by this Court in Cyriac John v. Jacob Cherian. In the light of the decision in Cyrian John v. Jacob Cherian the ratio propounded by the Andra Pradesh High Court in the above decision cannot he accepted. 10. In Konnappan v. Manikkam ( 1967 KLT 565 ) His Lordship Mr. Justice P.T. Raman Nayar (as he then was) held that unless a notice terminating a tenancy under S.106 of the Transfer of Property Act is issued to all the tenants in common, there will be no due termination of the tenancy. His Lordship stated: "The rule that notice to one alone of several joint tenants in sufficient applies only to a case where the several tenants hold as joint tenants and not where, they hold as tenants in common. Where joint owners are joint tenants, there is unity of title, unity of interest and the right of survivorship in addition to unity of possession so that it might be said that any one of the joint tenants represents the entire estate. Where, however, the joint owners are only tenants in common there is only unity of possession, not of title or interest, and to determine a tenants in common there is only unit of possession, not of title or interest, and to determine a tenancy so held in accordance with S.106 of the Transfer of Property Act, notice must be addressed to all the tenants, though proof of service on one will be prima facie proof of service, on all. In the words of the section notice must go to every party intended to be bound by it, and if it is not issued to any of the joint owners of the lease there is no determination of the lease. A lease cannot be determined piece meal and hence it follows that there is no determination even so far as the others are concerned."t This decision was followed, by the Acting Chief Justice Mr. Justice Subramanian Poti (as he then was) in S.A.Nos. 1077 and 1975 of 1977. His Lordship held that the question being covered by the decision in Konnappan v. Manikkam, notice to one of die several cotenants would not operate as a valid notice. On that basis His Lordship reversed the decree of the lower appellate court and dismissed the suits. This judgment was challenged before the Supreme Court. In the decision in K. K. Manjerintha v. V.M.T. Kalliani (1995 Supp (3) SCC 403) the Supreme Court reversed the decision of the Acting Chief Justice and held that in the light of the decision in H. C. Pandey v. G. C. Paul ( 1989 (3) SCC 77 ), the view in Konnappan v. Manikkam followed by the Acting Chief Justice did not lay down the correct law. Their Lordships held that H.C. Pandey v. G. C. Pandey the Supreme Court had held that after the death of a tenant all the heirs stepped into the shoes of the deceased tenant jointly and they are joint tenants under law. The court had held that service of notice on one of the coheirs of the tenant was sufficient service under S.106 of the, Transfer of Property Act. In H. C. Pandey v. G. C. Paul the Supreme Court laid down that it was well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting succession, the tenancy rights devolved on the heirs of the deceased tenant. The ,incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefore. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefore. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants. Therefore, when on the death of the original tenant the tenancy rights devolved upon the sons, daughters and wife of the original tenant and the notice terminating the tenancy under S.106 of the Transfer of Property Act was addressed to and served upon one of the sons of the original tenant who, paid rent on, behalf of all and acted on behalf of all the heirs of the original tenant, the notice to only one of the joint tenants could not be said to be insufficient. If the tenancy is inherited by the heirs as joint tenants and a notice to quit served on one of them is sufficient to terminate the tenancy, on principle it can be held that an order for eviction obtained against some of the heirs would be binding on the others in the absence of fraud or collusion or in the absence of any special defence available to the particular heir left out." I therefore, overrule the contention of learned counsel for, the plaintiff that the order for eviction in R.C.O.P. 110 of 1977 can be totally ignored by the plaintiff on the ground that she was not eo nominee made a party to that proceeding. She would be bound by that order since the estate was substantially represented by her mother and brother and she could succeed in the present suit only on establishing that there was collusion between the landlord On the one hand and her mother and brother on the other and that she has a special defence available to her which could not be put forward by her mother and brother who represented the estate of her deceased father in the proceedings for eviction under the Rent Control Act. 11. 11. In Textile Association (India) Bombay Unit v. Balmohan Gopal Kurup ( AIR 1990 SC 2053 ) the Supreme Court distinguished the decision in H. C. Pandey v. G. C. Paul and also the earlier decision in Kanji Manji v. The Trustees of the Port of Bombay ( AIR 1963 SC 468 ) on the ground that those cases relate to the validity of the notice issued to one of the joint tenants and that principle was not relevant in a case where a landlord had obtained an order for eviction under the Bombay Rents, Hotel and Lodging House Rates Control Act against two out of three heirs of a deceased tenant ex parte and that the non impleaded had and a right to get the order for eviction re-opened and the petition for eviction retried. I must observe with respect that the principle of substantial representation recognised by the Supreme Court in innumerable decisions was not put forward or considered in the above decision. On facts it was also a case where the order for eviction was obtained ex parte and without contest by the landlord only against some of the legal representatives. In my view, the said decision is distinguishable and cannot be taken to laid down the law that the theory of substantial representation is not available in such cases. 12. Thus on a reconsideration of the relevant aspects I do not find any jurisdiction in interfering with the dismissal of the suit by the courts below. But another human aspect was projected by learned counsel for the plaintiff. The submitted that during the pendency of this Second Appeal the plaintiff was also evicted in execution of the order for eviction in R.C.O.P. 110 of 1977 and though defendant No.3, her brother has found other accommodation, he has not chosen to accommodate his sister, the plaintiff with him and had left her to her own devices. Counsel submits that the plaintiff is a handicapped woman about 55 years old and deserves some protection by this Court and this is an appropriate case where this court can atleast direct the landlord to compensate her to some extent for failing to implead her in the application for eviction. Counsel submits that the plaintiff is a handicapped woman about 55 years old and deserves some protection by this Court and this is an appropriate case where this court can atleast direct the landlord to compensate her to some extent for failing to implead her in the application for eviction. Counsel for defendants 1 and 2 did not dispute the fact that the plaintiff is a handicapped person but took the stand that she had two brothers and four sisters who could look after her and there was no warrant for exercising a jurisdiction of compassion in this case. But on hearing the submissions of both sides and taking note of the fact that the present litigation itself arose because of the failure of defendants 1 and 2 herein to implead the plaintiff in R.C.O.P. 110 of 1977, I am inclined to accept the submission that the plaintiff is entitled to some succor or protection from this court. The fact that she is handicapped and unmarried and is getting on in age cannot be brushed aside. I see no reason why I should not accept the submission made by Sri. P.G. Parameswara Panicker, counsel for the plaintiff that the plaintiff is no snore able to reside with defendant No.3 with whom she was residing along with her mother in the disputed premises. I think that it will be just and equitable to direct defendants 1 and 2 to pay the plaintiff a sum of Rs.10,000/- towards compensation, so as also to cover the costs of this litigation. I think that it is also necessary to protect the interests of the plaintiff by directing defendants 1 and 2 to pay the said sum of Rs. 10,000/- into the hands of Mr. P.G. Parameswara Panicker, counsel for the plaintiff in this court within a period of three months from this date and file a memo in this court evidencing the payment of the said sum. Mr. Parameswara Panicker has graciously agreed to deposit a major portion of the amount in a suitable Bank or other deposit and ensure a monthly return by way of interest to the plaintiff and permit the plaintiff to expend only a minor portion of the sum of Rs. 10,000/- which will be handed over to her. Mr. Parameswara Panicker has graciously agreed to deposit a major portion of the amount in a suitable Bank or other deposit and ensure a monthly return by way of interest to the plaintiff and permit the plaintiff to expend only a minor portion of the sum of Rs. 10,000/- which will be handed over to her. In other words, counsel has submitted that he would ensure that the plaintiff is not handed over the entire amount in cash so that the risk of she being deprived of the sum by unscrupulous elements may be averted. I feel that this direction would be in the interests of justice and would he one made well within the jurisdiction of this court. In case defendants 1 and 2 fall to pay the sum of Rs. 10,000/- as directed above, the plaintiff would be entitled to recover the sum from defendants 1 and 2 in execution of this decree. In that event the plaintiff would he entitled to recover interest on the sum of Rs. 10,000/- at the rate of 12 per cent per annum from this date. Learned counsel for defendants 1 and 2 has assured this court that defendants 1 and 2 would certainly not drive the plaintiff to the executing court for recovery of this sum, though counsel has stuck to his stand that there was no occasion for this court to direct any payment by defendants 1 and 2 to the plaintiff. Thus the judgments and decrees of the courts below are confirmed and this Second Appeal is dismissed but with the direction to defendants 1 and 2 to pay the plaintiff a sum of Rs.10,000/- within two months from this date through her counsel in this court.