Ramu Asari v. Thirumoorthy — 1999 DIGILAW 984 (MAD)

Judgment :- This Second Appeal is directed against the judgment of the learned Principal District Judge, Madurai, in A.S. No. 66 of 1985 confirming the judgment of the learned Subordinate Judge, Madurai, in O.S. No. 177 of 1982. The plaintiffs in the suit are the appellants in the above Second Appeal. 2. According to the plaintiffs the suit property originally belonged to three brothers, Subramanian, Thangavel, Velmurugan, Murugan Asari is one of the ‘Pangalis’ of the said individuals. Subramanian left behind his son Senthilvel and his wife Rakkammal on his death before 1906. On 30.3.1906, while Thangavel was a minor, his mother as guardian, and Thangavel and Velmurugan Asari effected a partition through a registered document. The suit property was allotted to the share to Velmurugan. The said share was in the absolute and exclusive possession of Velmurugan and he died in the year 1936 leaving behind his wife Palaniammal as his sole heir, who succeeded to the suit property and was in exclusive possession and enjoyment in her own rights. Defendants 1 to 3, representing Viswa Brahmana Dakshina Mahajana Sangam (hereinafter called “Sangam”) with the ulterior motive of taking over the property, brought into existence a sale deed dated 20.1.1941 in favour of one Rajamani, a member of the Sangam, by obtaining the signature of Palaniammal fraudulently. Subsequently, a sale deed was executed by Rajamani in the name o f Sangam. Palaniammal after coming to know about the fraud played upon her, filed a suit in O.S. No. 164 of 1950 on the file of the District Munsif, Madurai, to declare her rights and for possession. The said suit was decreed in her favour and the appeal filed against the decree in A.S. No. 23 of 1952 was also dismissed and consequentially, Palaniammal took possession of the property and was in possession and enjoyment of the suit property. 3. The said Sangam who lost the suit earlier, again conspired to acquire the property illegally and by deceiving Palaniammal who had by that time become partly deaf and blind, got a registered deed of Charitable settlement dated 19.10.1970. In accordance with the terms of settlement, the property was to vest with one Ramasami Asari, member of the Sangam. The said document contains incorrect particulars and came to be executed-by Palaniammal by coercion and fraud, without allowing any of her relatives to have access to her and without any independent advice. In accordance with the terms of settlement, the property was to vest with one Ramasami Asari, member of the Sangam. The said document contains incorrect particulars and came to be executed-by Palaniammal by coercion and fraud, without allowing any of her relatives to have access to her and without any independent advice. Therefore, the said document cannot bind either Palaniammal or her heirs in any manner. Neither the Sangam, nor Ramaswamy Asari can claim any right over the property. Defendants 4 to 8 are the tenants of the property. Palaniammal, died in the year 1974. The plaintiffs are the only legal heirs of Palaniammal and hence are entitled to the property. The settlement will not bind the legal heirs and hence the suit to declare the settlement deed as invalid and for possession of the property. It was further pleaded that in accordance with the terms of the partition deed, executed in the year 1906, the sharers were entitled only to execute the properties among themselves and they were not entitled to transfer their respective shares to anybody else. 4. In the written statement while denying the plaint claims, it was contended mat defendants 1 to 3 were not officebearers of the Sangam at the relevant period. The allegation that Sangam had cheated Palaniammal and got the execution of the document dated 2.1.1941, was also denied. The said transaction was between Palaniammal and one Rajamani Asari. In that suit, the main contention was that the said Palaniammal was having some problems from her husbands brother and nephew and criminal complaints had als o filed against them. Therefore, even as early from that time Palaniammal was not having good relationship with the plaintiffs and their “Pangalis”. The Sangam did not help the said Rajamani Asari in any manner. As far as the present transaction was concerned, the allegation that Paianiammal was cheated, coerced and without her knowledge and information, the settlement dated 19.10.1970 was created was without any basis. Palaniammal out of her free Will and volition, had executed the settlement in favou r on the Sangam. She had long standing experience in the conduct of both Civil and Criminal cases which would definitely go in a long way to show that she was a very highly independent person. The allegation that she had lost her eye sight and hearing was also denied. She had long standing experience in the conduct of both Civil and Criminal cases which would definitely go in a long way to show that she was a very highly independent person. The allegation that she had lost her eye sight and hearing was also denied. She was quite hale and healthy and her eye sight and hearing were also normal in terms of the settlement deed. She was also receiving a sum of Rs. 50/- from the Sangam. She had also adopted one Ramasamy who was allotted a portion of the house and was under his enjoyment. Even a few months prior to the execution of the gift deed, she had sent a notice to the plaintiff raising objection to the construction of toilet. She was quite normal in her mind eye sight and hearing. There was absolutely, no basis for the allegation that the Sangam had created the document. The terms and conditions and recitals in the document are all bona fide . It was also acted upon for more than four years till her death in the year 1974. Sangam has been paying tax to the suit property after changing the registry in the name of the Sangam. All these facts were known to the plaintiffs fully and that the plaintiffs did not dare to object to the execution of the settlement deed at the time of the execution. The plaintiffs filed a suit in the year 1980 against the Sangam which was vexatious only to annoy the defendants. The genealogy filed in the plaint as well as the rights of the plaintiffs to succeed Palaniammal was also questioned by the defendants. 5. On the basis of the said pleadings and the evidence, the trial Court held that genealogy filed by the plaintiffs was not substantiated by examining any competent person and the plaintiffs did not establish that they are the proper heirs of Palaniammal. The plaint allegations that Palaniammal was not in a good state of mind and body to execute the settlement and that the entire transaction was vitiated by fraud, were also found against. The further allegation that the document came to be executed by playing fraud on her and by coercion was also rejected. It was further held that the suit having been filed beyond the period of three years, was also barred by limitation. The further allegation that the document came to be executed by playing fraud on her and by coercion was also rejected. It was further held that the suit having been filed beyond the period of three years, was also barred by limitation. The objection by the defendants as regards non-impleading of the necessary party, was rejected. With the result, the suit was dismissed. On appeal also, the findings of the trial Court were confirmed by the appellate Court. The appellate Court also held that the clause of restraint contained in the partition deed executed in the year 1906, imposing pre-emption was not binding on the parties. Hence, the present Second Appeal by the plaintiffs. 6. Mr. T.R. Mani, learned Senior Counsel, appearing for the appellants/plaintiffs contents as follows:— (1) The Courts below have not properly appreciated the real issue involved on paragraph No. 7 of the plaint, namely, the invocation of the principle pf “non-est factum ” as against the settlement deed said to have been executed by Palaniammal. That she was an illiterate person and suffered from certain physical disability was clearly pleaded in the plaint and not seriously disputed by the respondents and therefore, the Courts below instead of considering the issue in proper perspective, have constrained themselves to a limited approach of giving a finding on coercion and undue influence alone. The Courts below have not been alive to the position that the burden of proof should have been cast upon the defendants as a result of applying the principle of nonest factum .According to learned counsel, Palaniammal was already duped once and hence it was for the defendants to prove that the document was executed under proper and valid circumstances. (2) The question of limitation will not arise since this was not a case of mere undue influence, but one vitiated by “nonest factum”. (3) The rejection of the genealogy was erroneous since the genealogy had been upheld in a prior proceedings and as such will come under Section 32 (5) of the Evidence Act. It was a record proved in prior proceeding and hence no oral evidence was required. (4) The pre-emptive restriction as recognised under Ex. A.2 is valid and since partition does not involve any transfer, there was no absolute restriction so as to be held invalid under Section 10 of the Transfer of Property Act. 7. Mr. It was a record proved in prior proceeding and hence no oral evidence was required. (4) The pre-emptive restriction as recognised under Ex. A.2 is valid and since partition does not involve any transfer, there was no absolute restriction so as to be held invalid under Section 10 of the Transfer of Property Act. 7. Mr. R. Thiagarajan, learned Senior Counsel, for the respondents, contends that none of the points raised on behalf of the appellants could be sustained. There are sufficient pleadings and evidence to rebut the allegation of “nonest factum” and considered by the Courts below. The Courts below have also recorded a positive findings against the appellants after analysing the evidence. The findings on the allegation pertaining to nonest factum , fraud, etc. are concurrent findings of fact. As regards the allegation of fraud no facts, details or particulars have been alleged in the pleadings in conformity with the requirement under Order 6, Rule 4 C.P.C. The objection taken on the said ground are by strangers and not parties to the document. With reference to the genealogy, there was no evidence to show that the very same genealogy had been considered by the Courts in the earlier proceedings as regards their correctness. The mere representation or assertion by one of the parties to the earlier proceedings will not create bar in a subsequent proceedings to challenge or to dispute its correctness. It was further contended that the settlement was in favour of the Sangam, but the Sangam had not been impleaded as a party and therefore, the suit as framed was not maintainable. 8. From the very nature of the dispute the important issue which requires consideration is the allegation that the settlement was vitiated by fraud etc. and whether the principles relating to nonest factum would apply and if so whether the findings of the Courts below could be sustained. One other important issue would be as to whether the pre-emptive clause under partition deed, was valid and enforceable. 9. On a perusal of the judgments of both the Courts below, I am unable to sustain the contention of learned counsel for the appellants that the issue of nonest factum has not been properly considered. In paragraph Nos. One other important issue would be as to whether the pre-emptive clause under partition deed, was valid and enforceable. 9. On a perusal of the judgments of both the Courts below, I am unable to sustain the contention of learned counsel for the appellants that the issue of nonest factum has not been properly considered. In paragraph Nos. 8 and 9 of its judgment, the trial Court has correctly focussed the issue and had considered as to whether there was any basis in the allegation regarding the physical and mental condition of Palaniammal and whether there was any exploitation by settlers either by taking advantage of her illiteracy or her poor physical conditions. Likewise, the appellate Court also while considering point No. 2, as formulated by the appellate Court, in paragraph No. 10 of its judgment, had considered the allegation as would constitute the issue of non-est factum in detail. 10. The initial burden of proving mat the transaction would be vitiated by nonest factum , is on the party who puts forward such a plea. It is true that in the plaint that such allegation as would constitute nonest factum had been pleaded. In paragraph No. 7 of the written statement, the said allegations had been denied in a detailed manner and the denial is not a formal one or generally denied. It is also specifically stated that Palaniammal was quite hale and healthy and that she was quite normal and clearin her mind including her eye sight and hearing. Even earlier in paragraph No. 5 of the written statement, apart from stating that Palaniammal had executed document out of her own free Will and volition, it has also been stated that her attitudes and long standing experience which she had in the conduct of both Civil and Criminal cases, would definitely go a long way to show that she was a highly intelligent person and that she could not be cheated or duped by any one. Therefore, there are sufficient pleadings in the written statement as well as the discussion by the Courts below in dealing with the said issue. Hence, it cannot be said that the plaintiffs allegation that the document was vitiated by either fraud or by nonest factum , had either not been denied by the defendants or the Courts below had not properly discussed the issue. Hence, it cannot be said that the plaintiffs allegation that the document was vitiated by either fraud or by nonest factum , had either not been denied by the defendants or the Courts below had not properly discussed the issue. I should also point out that the findings on the issue of nonest factum , and fraud, are simply concurrent findings of fact, which require to be confirmed in the Second Appeal. Nonetheless, I would also independently, deal with the issue and the following features would be sufficient to conclude that the findings of the Courts below are supported by adequate and cogent materials. The following analysis would also be sufficient to reject the plea of fraud as against the settlement. (A) D.Ws. 3 and 4, the witnesses to the document, have sworn to the fact that Palaniammal was maintaining good health. It is also in evidence that she also remained so at the time of execution of the document and during succeeding four years after the execution of the deed. (B) They would also state that at the time of the execution of the document, there was no threat or undue influence over her. (C) It is admitted by the plaintiff, P.W.I that Palaniammal was untiring in the conduct of various litigations both Civil and Criminal till the end. (D) In this background, it is pertinent to note that till she died in the year 1974, she did nothing to challenge the execution of the deed in 1970, for four long years. (E) Within three months prior to the execution of the deed under Ex. B.2, Palaniammal issued to the first plaintiff a notice, strongly dealing with the misunderstandings which arose over the construction of the toilet. (F) The recitals in the deed (Ex. A.7) clearly indicate the motives of the executant in no uncertain terms. She had referred to the fact that she had earlier executed a Will in favour of Kailasam Asari and that he had died six months later and that she felt that his sons were not capable of performing the religious rites and charities and therefore, she had cancelled the Will. She had proceeded further to incorporate her wishes to perform a series of religious ceremonies from and out of the income of the properties. She had proceeded further to incorporate her wishes to perform a series of religious ceremonies from and out of the income of the properties. It is also important to note that in spite of executing the settlement, she was careful enough and endowed with native intelligence to ensure that she should be paid the balance of rental amount deducting only Rs. 50/- to be spent towards Abishegam to be performed each month and that she will also be entitled to occupy a portion of the building till her life time. Therefore, the recitals clearly indicate a very shrewd and sound disposing state of mind to ensure that she will not be left uncared for as long as she lives. Number of conditions had been imposed dealing with the administration of the property including vesting certain rights on Ramasamy Asari, intended to be adopted as her heir. The deed also imposes prohibition on alienation and also subject to enjoyment of portions of the property by Ramasamy Asari and his heirs. Therefore, the recitals only strengthen the case of the defendants that the settlor was exercising her Will and discretion in a very effective manner ensuring her control over the property during her life time and later also by Ramasamy Asari and his heirs. If the defendants had been exercising undue influence or coercion or fraud on the settlor or had thought it fit to exploit her illiteracy or alleged weak mental and physical conditions, it would have been easier for the defendants to have ensured the conditions in one sided manner. (G) Inasmuch as the plaintiffs had pleaded nonest factum , it would also be relevant to see whether the plaintiffs had discharged their initial burden to establish the same. P.W.I disclaims knowledge about the circumstances under which Ex. A.7 was executed. He would only state that he came to know about the execution of the document through one Madasamy who has not been examined. In the plaint, no adequate particulars of fraud or undue influence had been pleaded as required under Order 6 Rule 4 C.P.C. Much less, is there any evidence to support such a plea either by document or by oral evidence adduced on the side of the plaintiffs. (H) The Courts below have also concurrently found that there was no evidence to show that Palaniammal was not keeping good health during 1970 when the document was executed. (H) The Courts below have also concurrently found that there was no evidence to show that Palaniammal was not keeping good health during 1970 when the document was executed. (I) Learned Senior Counsel for the appellant also sought to comment on the document having been presented for registration nearly by the end of me four months. The document was executed on 25.7.1970 and presented for registration on 22.11.1970. Firstly, the statute provides a liberty to the parties to present the document for registration within a particular period. There can be no adverse inference by the mere circumstances of a belated registration. Secondly, this complaint is really a double edged weapon. The fact that the document was presented belatedly and that the executor had not in the mean time changed her mind or made any complaint to anybody alleging that fraud had been played upon her would only disprove such allegation. The delay would only suggest that the set tler had taken her own time to allow the document to be registered after considerable thinking on her own part and deliberations ‘with her near and dear. Thirdly, immediate presentation of the document for registration also could have invited an allegation of hastiness on the part of beneficiaries. Fourthly, it is also to be seen that Palaniammal lived four years thereafter and had not raised any objection as regards either having executed the document or having registered the same. (J) P.W.2 who is the only witness being pressed into service by the plaintiff to establish these allegations, claims to be a neighbouring resident. In the chief-examination containing about four or five sentences only, he would state that Palaniammal was handicapped, by defective hearing and eye sight. In the cross-examination, he would admit that there was no evidence to show that he was a resident in the area and also that he had vacated his house in the year 1970. This is the quality of the evidence on the side of the plaintiff to establish that the transaction was vitiated by fraud and “non-est factum”. (K) The facts would also establish that Palaniammal was having misunderstandings only with the plaintiffs family and having regard to the background in which earlier suit in O.S. No. 164 of 1950 was filed. In fact, a criminal complaint had also been given as against the family members of the plaintiffs. 11. Mr. (K) The facts would also establish that Palaniammal was having misunderstandings only with the plaintiffs family and having regard to the background in which earlier suit in O.S. No. 164 of 1950 was filed. In fact, a criminal complaint had also been given as against the family members of the plaintiffs. 11. Mr. T.R. Mani, learned Senior Counsel cited several judgments which are cited below, in support of his claim regarding the applicability of the principles of nonest factum to the following effect. (1) In a transaction where a party is misled or induced fraudulently into executing a deed or signing a document, it is invalid not merely on the ground of fraud, but also on the ground that the mind of the executant did not accompany his signature. (2) Such a document would be wholly inoperative and void. (3) The principle which was originally applied to Pardanashin ladies, would be applicable to others also who suffered from several mental or physical disabilities or being subjected to be influenced by others or of illiteracy. (4) The said rule which was evolved for the protection of such individuals shall not be confused with other doctrines such as fraud, duress, coercion, undue influence etc. (5) The burden of proof shall be upon the person who seeks to sustain the transaction entered into by such individuals. (6) Such transaction being void, does not require to be set aside. 12. The core content of the principles relating to non est factum as stated above and as put forth by learned Senior Counsel very effectively, leaves no room for any doubt. But in applying the said principles, the Court is bound to adopt a cautions approach, especially when the executant is not a party to the proceedings. Though the submission of Mr. R. Thiagarajan, learned Senior Counsel, appearing for the respondents, that the principles cannot at all be applied to a proceeding where the executant was not a party, is not supported by any binding precedent cited before me by either side, a perusal of the decisions cited before me by Mr. T.R. Mani, happen to be cases where the executant is a party to the proceedings, except one ruling as dealt with below. 13. In the following rulings, the executant was the plaintiff in the suit. (1) A.I.R. 1963 S.C. 1203 ( Kharbuja Kuer v. Jangbahadur ). T.R. Mani, happen to be cases where the executant is a party to the proceedings, except one ruling as dealt with below. 13. In the following rulings, the executant was the plaintiff in the suit. (1) A.I.R. 1963 S.C. 1203 ( Kharbuja Kuer v. Jangbahadur ). (2) A.I.R. 1953 Madras, 611=66 L.W. 304 ( Appanna v. Venkatappadu ) (3) 1992-2-L.W. 209 ( K. Varadhan v. Pattammal (Died) and Four others ). (4) 1993-1-L.W. 406, {Chidambaram Pillai & others v. Muthammal & another ). 14. In the decision of the Privy Council reported in A.I.R. 1940 P.C.I. 34=52 L.W. 393 ( Hem Chandra v. Suradhanidebya ) the executant was impleaded as the second defendant and she had filed written statement pleading that she was a Pardanashin lady and that the document was not explained to her. 15. The only ruling cited before me in which the executant was not a party to the proceeding, is the decision of a Division Bench of this Court reported in 1990-1-L.W. 475 ( Sakkarathayammal v. Shanmuga-vel Chettair ). In that case, the validity of Ex. B.1, a settlement deed dated 16.9.1968 said to have been executed by one Sankaralinga Mudaliar who died even prior to the suit, was called in question. According to the defendants, Sankaralinga Mudaliar was mislead about the nature and character of the transaction. But the peculiar facts of that case were that Sankaralinga Mudaliar himself during his life time and within one month after the execution of the document had cancelled the deed by executing the cancellation deed on 15.10.1968. Not being satisfied with having cancelled the deed on 31.10.1968, he had also sent a lawyers notice to the beneficiaries under the settlement deed informing them about the cancellation and also cancelled the power of attorney executed in favour of the beneficiary. Therefore, in that case there was unimpeachable material showing the executant himself having repudiated the document and had alleged that fraud was played upon him and that he was misled. 16. Therefore, the question which arises for consideration is whether the principle that burden of proof is on the person who wants to sustain the document allegedly vitiated by non est factum , would be applicable to a case where the executant is not a party? 16. Therefore, the question which arises for consideration is whether the principle that burden of proof is on the person who wants to sustain the document allegedly vitiated by non est factum , would be applicable to a case where the executant is not a party? I am inclined to hold that the principle cannot be applied to such a case, the only exception being an extraordinary case as of the decision in 1990-1-L.W. 475, cited supra, where there was clear evidence of the executant himself having repudiated and cancelled the document. 17. A party of full age and understanding is normally bound by his signature to a document. He cannot be heard to say that he did not read it or understand it. However, when he pleads that he has been misled into executing the document, the burden to prove the said allegation is squarely on him. To this burden of proving, the principle of non est factum is recognised as an exception and if the executant to whom the principles could apply, pleads that he was misled into executing the document, then the burden is immediately thrown on the party who wants to sustain the document. But before this shifting of the burden, what is essential is the pleading by the executant himself that he was misled, cheated or duped. When there is no such pleading by the executant himself, it is not for a third party to say that the executant was misled, cheated or duped. If the law is otherwise, it would lead to disastrous results and consequences. Population of our womenfolk and illiteracy would account for more than 70 to 75 per cent of the total population and the principle of non est factum would prove to be a ‘Manthra’ or magical formula to throw overboard all solemn documents and agreements. 18. Being misled or duped or cheated or signing a document without knowing its contents, is a state of mind of the executant and it is only the executant who is competent to say so. To permit other persons to question the documents after the executant was dead and gone would result in chaotic results. In Saunders v. Anglia Building Society (1971 Appeal Cases, 1004) the House of Lords had laid down several preconditions and emphasised extreme caution in applying the plea of non est factum . To permit other persons to question the documents after the executant was dead and gone would result in chaotic results. In Saunders v. Anglia Building Society (1971 Appeal Cases, 1004) the House of Lords had laid down several preconditions and emphasised extreme caution in applying the plea of non est factum . Therefore, in the present case, the mere allegations in the plaint alone alleging that Palaniammal was physically and mentally incapacitated and not in a position to understand the contents of the settlement deed, will not be sufficient to invoke the principle of non est factum , especially when she is not a party to the, suit. I have already referred to the unsatisfactory quality of the evidence on the side of the plaintiff. To the contrary, the very recitals in the deed and subsequent conduct of the executant in not having questioned the document till she died and the terms of the document having been consistently complied with by both parties and that Palaniammal did not demur in any manner and the evidence of the very witnesses to the document about her physical and mental conditions at the time of the execution of the document and subsequently also, amply justify the concurrent findings of the Courts below upholding the settlement in favour of the defendants. 19. Another point which arises for consideration is as to whether the clause in the partition deed executed in the year 1906 holding that the sharers would be entitled to exchange respective shares only as among themselves and cannot alienate in favour of others would be valid. According to the appellants/plaintiffs in the face of such a preemption clause, transfer in favour of third parties, was impermissible. Mr. T.R. Mam, learned Senior Counsel, contends that a partition is not a transfer and hence the question of restriction of alienation being invalidated under Section 10 of the Transfer of Property Act will not arise. Unless and otherwise, there was a transfer, only then another restrictive condition in such a transfer would attract Section 10 of the Transfer of Property Act. Reference is made to the observation of the Supreme Court in A.I.R. 1966 S.C. 432 ( Sarin v. Ajit Kumar ) to support his contention that partition is not a transfer. Unless and otherwise, there was a transfer, only then another restrictive condition in such a transfer would attract Section 10 of the Transfer of Property Act. Reference is made to the observation of the Supreme Court in A.I.R. 1966 S.C. 432 ( Sarin v. Ajit Kumar ) to support his contention that partition is not a transfer. It is further contended that the nature of the restriction which arises for consideration, does not also amount to an absolute restriction and for the said proposition, reliance is placed upon the judgment of the Privy Council in A.I.R. 1932 P.C. 158 ( MD. Raza v. Mt. Abbas Bandi ) followed by the Supreme Court in A.I.R. 1967 S.C. 744 ( Ram Baran v. Ram Mohit ). But as the learned Senior Counsel himself had fairly stated, consideration of this issue would be of no consequence since under Article 97 of the Limitation Act, 1963, any claim to enforce a right of pre-emption under law or on special contract ought to have been initiated within one year either from the date on which the purchaser takes possession of the property or when the instrument of sale is registered. The present suit not having been filed within the said period, the issue of pre-emption does not arise for consideration. 20. Mr. T.R. Mani, learned Senior Counsel, also advanced arguments and placed reliance on several rulings on two other issues. One issues pertains to the findings of the Courts below against the correctness of the genealogy. The other issue pertains to the question of limitation. According to learned Senior Counsel his objection on the ground of limitation cannot be sustained since this was a case of non est factum , the transaction was being void abinitio and did not require to set aside. Therefore, according to him the objection to limitation will not arise. But in view of my decision that the plaintiffs have not even otherwise established the transaction as being vitiated either by non est factum or by fraud or undue influence, it is unnecessary to go into both the said issues. So also, the objection taken on behalf of the respondents/defendants as against nonimpleading of the Sangam since the document was executed only in favour of Sangam. So also, the objection taken on behalf of the respondents/defendants as against nonimpleading of the Sangam since the document was executed only in favour of Sangam. Inasmuch as the settlement executed by Palaniammal is held to be valid and binding, all the other issues as mentioned above do not require to be considered. 21. Therefore, in the result, I do not find any ground to interfere with the concurrent findings of the fact as recorded by the Courts below and the Second Appeal is dismissed. No costs.