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2011 DIGILAW 1217 (KAR)

Saheb Reddy v. Sharanappa

2011-12-15

N.ANANDA

body2011
Judgment :- Ananda, J 1. This regular second appeal by first defendant was admitted for consideration of following substantial question of law:- “Whether the lower Appellate Court was justified in increasing the share of the plaintiff in addition to his legitimate share of 1/16?” 2. I have heard Sri S.S. Kumman, Learned Counsel for appellant/first defendant and Sri Deepak V. Barad, Learned Counsel for first respondent/plaintiff. 3. The admitted facts and findings recorded by the Courts below which are necessary to answer substantial question of law as aforestated are as follows:- The proposition of family was one Sharanappa Gaded, S/o Bheemanna Gaded. The suit schedule properties are self-acquired properties of Sharanappa Gaded who died in the year 1957 leaving behind his wife Sharanamma and three daughters namely Kyadigamma Nagamma and Sarojamma. After the death of her husband, Sharanamma adopted the first dependant under registered Adoption deed dated 9.2.1971. The daughters of Sharanappa Gaded and Sharanamma namely Kyadigamma, Nagamma and Sarojamma predeceased their mother. 4. The plaintiff and defendants No.4 to 6 are the son and daughters of deceased Nagamma; and Sarojamma; Defendant No.2 is the daughter of deceased Kyadigamma and wife of first defendant; Defendants No.3, 7 to 9 are the son and daughters of deceased Sarojamma. 5. the sit was filed for partition and separate possession of plaintiffs share in suit schedule properties. The Trial Court framed following issues; 1. Whether plaintiff proves that on the demise of SHARANAPPA, his wife, three daughters (female heirs) became absolute owners of their respective share (1/4) in suit properties? 2. Whether plaintiff proves that undivided share (1/4) of NAGAMMA in suit properties devolved upon him and D-4, D-5 & D-6? 3. Whether plaintiff proves his joint possession of suit properties with defendants? 4. Whether D-1, D-2 & D-4 proves that Defendant No.1 is adopted son of SHARANAPPA and Sharanamma? 5. Whether D-1, D-2 & D-4 proves that Defendant No.1 has also became owner by adverse possession? 6. Is the suit not properly valued? 7. Is the Court Fees paid inadequate? 8. Has the Court no pecuniary jurisdiction? 9. Is the suit barred by limitation? 10. Is the suit filed in collusion with D-3 & D-5 to D-9? 11. To what relief the parties are entitled? .6. The Trial Court answered Issues No.1 to 3 in favour of plaintiff and Issue No.4 in favour of first defendant. 8. Has the Court no pecuniary jurisdiction? 9. Is the suit barred by limitation? 10. Is the suit filed in collusion with D-3 & D-5 to D-9? 11. To what relief the parties are entitled? .6. The Trial Court answered Issues No.1 to 3 in favour of plaintiff and Issue No.4 in favour of first defendant. The Trial court answered Issue No.5 against defendants and granted decree for partition and separate possession of 1/16th share in suit schedule properties. 7. The Trial Court has held that plaintiff and defendants No.4 to 6 being son and daughters of deceased Nagamma are together entitled to 1/4th share; second defendant being daughter of deceased Kyadigamma is entitled to 1/4th share; first defendant being adopted son is entitled to 1/4th share; Defendants No.3 and 7 to 9 being the son and daughters of deceased Sarojamma are together entitled to 1/4th share. Aggrieved by .the decree made by the Trial Court, first defendant was before the I-Appellate Court. The plaintiff had also filed cross-objections. 8. The Learned Judge of I-Appellate Court dismissed the appeal and accepted the cross appeal filed by plaintiff to hold that plaintiff and defendants No.4 to 6 are together entitled to 1/4th share of their mother deceased Nagamma and also 1/4th share out of 1/4th share of their grand mother deceased Sharanamma. Aggrieved by decree of I-Appellate Court, first defendant is before this Court. 9. It is not in dispute that first defendant was adopted by Sharanamma after the death of her husband. It is also not in dispute that daughters of Sharanappa Gaded and Sharanamma namely Kyadigamma, Nagamma and Sarojamma pre-deceased their mother leaving behind their legal heirs as aforestated. 10. The Learned Judge of I-Appellate Court has held: “That said Sharanamma taken this appellant adoption in the year 1971 i.e., after the death of her husband so he has become the adopted son of Sharanamma. That in view of the said notional partition between the said Sharanamma and her daughters the 1/4th share vested in favour of Sharanamma becomes her absolute property as per Section 14(1) of Hindu Succession Act, 1956. Just because Sharanamma taken this appellant in adoption to her family will not effect on her properties. Because after adoption he becomes adopted son of said Sharanamma and he will not get any share in the adoptive mothers property unless she divest the same in his favour. Just because Sharanamma taken this appellant in adoption to her family will not effect on her properties. Because after adoption he becomes adopted son of said Sharanamma and he will not get any share in the adoptive mothers property unless she divest the same in his favour. The Learned Judge of I-Appellate Court while modifying the shares allotted by Trial Court has proceeded on the assumption that there was devolution of property after the death of Sharanappa Gaded. The Learned Judge of I-Appellate Court has held that under Section 12(c) of Hindu Adoption & Maintenance Act, 1956, first defendant cannot divest properties vested with wife and daughters of deceased Sharanappa Gaded. Therefore, it is necessary to consider the rights and status of first defendant in the family of deceased Sharanappa Gaded and Sharanamma after he was taken in adoption under registered adoption deed dated 9.2.1971 and consequences of adoption. Section 12 of the Hindu Adoption and Maintenance Act, 1956 reds thus: “12. Effects of adoption – An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family: Provided that- .(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his other birth; .(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth; .(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption”. 11. In a decision in the case of BASAVARAJAPPA vs. GURUBASAMMA AND OTHERS ( (2005) 12 SCC 290 ), the Supreme Court referring to the earlier judgment reported in (1969) 2 SCC 544 has held: 11. On adoption, the adoptee gets transplanted in the family in which he is adopted with the same rights as that of a natural-born son. 11. In a decision in the case of BASAVARAJAPPA vs. GURUBASAMMA AND OTHERS ( (2005) 12 SCC 290 ), the Supreme Court referring to the earlier judgment reported in (1969) 2 SCC 544 has held: 11. On adoption, the adoptee gets transplanted in the family in which he is adopted with the same rights as that of a natural-born son. The legal effect of giving a child in adoption is to transfer the child from the family of his birth to the family of his adoption. He serves all his ties with the family from which he is taken in adoption. Interpreting Section 12 and sub-Section (vi) of Section 11, this Court in Sitabai vs. Ramachandra held that the adoptee ceases to have any ties with the family of his birth. Correspondingly, these ties are automatically replaced by those created by the adoption in the adopted family. The adopted child becomes a coparcener in the joint Hindu family property. It was observed: (SCC pp.549-50, para 5) “5. It is clear on a reading of the main part of Section 12 and sub-Section (vi) of Section 11 that the effect of adoption under the Act is that it brings about severance of all ties of the child given in adoption in the family of his or her birth. Correspondingly, these very ties are automatically replaced by those created by the adoption in the adoptive family. The legal effect of giving the child in adoption must therefore be to transfer the child from the family of its birth to the family of its adoption. The result is, as mentioned in Section 14(1) namely where a wife is living, adoption by the husband results in the adoption of child by both these spouses; the child is not only the child of adoptive father but also of the adoptive mother. In case of there being two wives, the child becomes adoptive child of the seniormost wife in marriage, the junior wife becoming the stepmother of the adopted child. Even when a widower or a bachelor adopts a child, and he gets married subsequent to the adoption, his wife becomes the stepmother of the adopted child. When the widow or an unmarried women adopts a child, any husband she marries subsequent to adoption becomes the stepfather of the adopted child. Even when a widower or a bachelor adopts a child, and he gets married subsequent to the adoption, his wife becomes the stepmother of the adopted child. When the widow or an unmarried women adopts a child, any husband she marries subsequent to adoption becomes the stepfather of the adopted child. The Scheme of Sections 11 and 12, therefore, is that in the case of adoption by a widow the adopted child becomes absorbed in the adoptive family to which the widow belonged. In other words the child adopted is tied with the relationship of sonship with the deceased husband of the widow. The other collateral relations of the husband would be connected with a child through that deceased husband of the widow. For instance the husband’s brother would necessarily be the uncle of the adopted child. The daughter of the adoptive mother (and father) would necessarily be the sister of the adopted son, and in this way, the adopted son would become a member of a widow’s family, with the ties of relationship with the deceased husband of the widow as his adoptive father. It is true that Section 14 of the Act does not expressly state that the child adopted by the widow becomes the adopted son of the husband of the widow. But it is a necessary implication of Sections 12 and 14 of the Act that a son adopted by the widow becomes a son not only of the widow but also of the deceased husband. It is for this reason that we find in sub-Section (4) of Section 14 a provision that where a widow adopts a child and subsequently marries a husband, the husband becomes the ‘stepfather’ of the adopted child. The true effect and interpretation of Sections 11 and 12 of the Act 78 of 1956 therefore is that when either of spouses adopts a child, all the ties of the child in the family of his or her birth become completely served and these are all replaced by those created by the adoption in the adoptive family. In other words the result of adoption by either spouse is that the adoptive child becomes the child of both the spouses. This view is borne out by the decision of the Bombay High Court in Ankush Narayan Shingate vs. Janabai Rama Sawat. In other words the result of adoption by either spouse is that the adoptive child becomes the child of both the spouses. This view is borne out by the decision of the Bombay High Court in Ankush Narayan Shingate vs. Janabai Rama Sawat. It follows that in the present case Plaintiff 2 Suresh Chandra, when he was adopted by Bhagirath’s widow, became the adopted son of both the widow and her deceased husband Bhagirath and, therefore, became a coparcener with Dulichand in the joint family properties. After the death of Dulichand, Plaintiff 2 became the sole surviving coparcener and was entitled to the possession of all joint family properties. The Additional District Judge was, therefore, right in granting a decree in favour of Plaintiffs 2 declaring his title to the agriculture lands in the Village Palasia and half share of the house situated in the village.” In the case on hand, the Learned Judge of I-Appellate Court has held that, after death of Sharanappa Gaded, his wife Sharanamma and his daughters namely Kyadigamma, Nagamma and Sarojamma got 1/4th share each. Therefore, the first defendant was entitled to 1/4th share out of 1/4th share, which had fallen to the share of Sharanamma (his adoptive mother). 12. In view of what has been held in the provisions of Section 12 of the Act and decision reported in (2005) 12 SCC 290 , the finding of the Learned Judge of I-Appellate Court that adoption of first defendant on 09.02.1971 did not divest property already vested with Sharanamma and the daughters of Sharanamma namely Kyadigamma, Nagamma and Sarojamma is erroneous. After the death of Sharanappa Gaded in the year 1957, there was devolution of property by him in terms of Section 8 of the Hindu Succession Act, however, the property held and left by him had not vested with his wife Sharanamma, his daughters Kyadigamma, Nagamma and Sarojamma. Therefore, the finding of Learned Judge of I-Appellate Court that before adoption of first defendant on 9.2.1971, the property held and left by Sharanappa Gaded had vested with his wife and daughters is erroneous. The Learned Judge of I-Appellate Court has held that first defendant became adopted son of Sharanamma and a member of joint family after his adoption on 09.02.1971. This finding of the Learned Judge of I-Appellate Court is contrary to the provisions of Section 12 of the Hindu Adoptions and Maintenance Act, 1956. The Learned Judge of I-Appellate Court has held that first defendant became adopted son of Sharanamma and a member of joint family after his adoption on 09.02.1971. This finding of the Learned Judge of I-Appellate Court is contrary to the provisions of Section 12 of the Hindu Adoptions and Maintenance Act, 1956. The first defendant is the adopted son of Sharanappa Gaded and Sharanamma. 13. Section 8 of the Hindu Succession Act, 1956 reads thus” “8. General rules of succession in the case of males-The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter- .(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; .(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; .(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and .(d) lastly, if there is no agnate, then upon the cognates of the deceased. Section 8 of Hindu Success Act, 1956 provides generally rules of succession and devolution of property of a male Hindu dying intestate. 14. In order to find out the distinction between devolution of property, and vesting of property it would be useful to refer to a decision in DEVGONDA RAYGONDA PATIL vs. SHAMGONDA RAYAGONDA PATIL AND ANOTHER (AIR 1992 Bombay 189), wherein it is held: “14.) Section 12 and particularly proviso (c) to it, came for consideration before the Division Bench of this Court and also before the Supreme Court. The division Bench of our Court in AIR 1981 Bom 109 , V.K. Nalavade Ananda G. Chavan considered the meaning of word “vest”. In the said case one Govinda died in 1926 as a member of the joint family of himself and his brother Dhondi. The Family owned various properties, which were ancestral. Dhondi had 2 sons. On 1.4.1957 Govinda’s widow adopted Ananda, one of the sons of Dhondi. In the said case one Govinda died in 1926 as a member of the joint family of himself and his brother Dhondi. The Family owned various properties, which were ancestral. Dhondi had 2 sons. On 1.4.1957 Govinda’s widow adopted Ananda, one of the sons of Dhondi. The question arose whether Ananda could challenge certain post adoption alienations made by the Dhondi on the basis that he was coparcener of equal status in place of his adoptive father Govinda on 1.4.1957 or whether he had no such right because his adoption could not have the effect of divesting Dhondi of the property held by him since 1929 in view of the proviso (c) of Section 12. The Division Bench held that the adoptee has equal status in the family of his adoptive father and he could challenge the alienations effected after the adoption. The property left with Dhondi on the death of Govinda in 1929, continued to be the joint family property, notwithstanding his being the sole surviving coparcener. The title of Dhondi was defensible. There was no question of property being vested in Dhondi or his being divested by Ananda in 1957 on adoption really arose. Ananda succeeds to the interest of his father as coparcener by sheer force of this legal provision as per rules of survivorship. This Court observed the word “vest” is a word of variable import, its precise meaning depending on the context. Ownership of the joint family property vests in the joint family while management thereof alone vests in the Manager. No one member, including even a sole surviving coparcener, can ever claim to be the owner of the entire or any specific share in a specific property, till the partition takes place, the quantum of the share and the extent of the property falling to it till then, being in a perpetual state of fluctuation.” The Division Bench further held that Section 12 consists of two parts. The second part specifically deals with the ties forged and snapped on adoption and their forged and snapped on adoption and their effect on the right in the property acquired during the subsistence of such ties. The second part specifically deals with the ties forged and snapped on adoption and their forged and snapped on adoption and their effect on the right in the property acquired during the subsistence of such ties. It is observed “The second part takes notice of the inevitable retrospective effect of the severance and replacement of the “ties” on adoption and consequential divesting of the adopted son and others of the properties inherited as the nearest available heir during the subsistence of the pre-adoption ties, consistent with the fiction of his being born in adoptive family. While devolution of the property on the member of the joint family entering therein by birth or adoption, under the rule of survivorship becomes effective only on partition, the succession to the same under rule of inheritance by the nearest available heir becomes effective immediately on the death of the holder, when succession opens. Second part, however, makes such divesting ineffective firstly by culminating all pervasive “for all purposes” fiction of the first part from this part, and secondly by making the post-adoption ties effective from the date of adoption; and thirdly, by engrafting an exception to ordinary retrospective effect of severance and replacement of “ties” by enacting Clauses (b) and (c) in the proviso and expressly preventing the divesting of the child and other persons of the properties inherited by then, as nearest heir, during the subsistence of the pre-adoption ties. Merely making adoption effective from the date of adoption could not have had this effect. Arguably such date and could be taken as the date from which, rights acquired under the ties newly forged could be enforced with retrospective effect. The “for all purposes” fiction of the first part also could have operated to produce the proviso thus from integral part of the second part of the section which is aimed at preventing the adoption lies from having any retrospective effect on the properties vested”. In my view Section 30 of the Hindu succession Act supports the view that coparcenary property is not vested in the coparcener. The legislature therefore included Section 30 with a view to enable a coparcener to dispose of his interest in the coparcenary property by will or other testamentary disposition. But for this enabling provision, that was not possible. In my view Section 30 of the Hindu succession Act supports the view that coparcenary property is not vested in the coparcener. The legislature therefore included Section 30 with a view to enable a coparcener to dispose of his interest in the coparcenary property by will or other testamentary disposition. But for this enabling provision, that was not possible. 15.) The question of interpretation of proviso (c) to Section 12 arose before the Supreme Court in AIR 1987 SC 398 Vasant vs. Dattu and the Supreme Court has observed as follows (at page 399): “We are concerned with proviso (c) Section 12. The introduction of a member into joint family, by birth or adoption, may have the effect of decreasing the share of the rest of the members of the joint family, but it certainly does not involve any question of divesting any person of any estate vested in him. The joint family continues to hold the estate, but with more members than before. There is no fresh, vesting or divesting of the estate in anyone.” 16.) The same view came to be reiterated by the Supreme Court in AIR 1988 SC 845 , Dharmu Shamrao Agalawe vs. Pandurang Miragu Agalawe. The Supreme Court also approved the decision of this Court in AIR 1981 page 109. Therefore, in my view, if there is coparcenary of joint family in existence in the family of birth on date of adoption then the adoptee cannot be said to have any vested property. The property does not vest and therefore provision of S.12 proviso (b) is not attracted. In the context of S.12 proviso (b) ‘vested property’ means where indefeasible right is created i.e., on no contingency it can be defeated in respect of particular property. In other words where full ownership is conferred in respect of a particular property. But this is not the position in case of coparcenary property is not owned by a coparcener and never any particular property. All the properties vest in the joint family and are held by it.” (Underling supplied by me) 15. In a decision in the case of NARASIMHAIAH SETTY vs. GOVINDAPPA (1982 (1) Kar. LJ 210) a Division Bench of this Court dealing with Section 12(c) of the Hindu Adoptions & Maintenance Act, 1956 has held: “20.) This leads to the next and important question. In a decision in the case of NARASIMHAIAH SETTY vs. GOVINDAPPA (1982 (1) Kar. LJ 210) a Division Bench of this Court dealing with Section 12(c) of the Hindu Adoptions & Maintenance Act, 1956 has held: “20.) This leads to the next and important question. The question is whether the alienation made by Achiah Setty after the plaintiff was adopted was binding on the plaintiff. The decision on this question depends firstly, on the scope of Clause (c) of the proviso to Section 12 of the ADMA Act; and secondly, on the existence of antecedent debts for which the property was alleged to have been alienated. It was urged that Achiah Setty was a sole surviving member of the family in whom the plaint schedule properties vested as his separate properties and the plaintiff, by reason of his adoption cold not divest him of those properties in view of the constraint imposed by Clause (c) of the proviso to Section 12. It was also urged that the alienation in any event was binding on the plaintiff as the adoptive father sold the property to discharge antecedent debts. 21.) For a proper determination of the scope and purpose of Clause (c) of the proviso to Section 12 we may briefly state the Shastric Hindu Law prevalent prior to the passing of the ADMA Act. The rights of an adopted son of a Hindu were held to be the same in very respect of those of a natural born son. He was the continuator of his adoptive father’s line exactly as an aurasa son. It was so declared by the Privy Council in Pratapsingh Shivasingh vs. Thaker Shir Agarsingji (1) and that has been accepted as a correct rule of Hindu Law by the Supreme Court in Srinivas Krishnarao vs. Narayan Devji (2) and Krishnamurthy Vasudeorao vs. Dhruwaraj (3). 21 (i) The adopted son although was entitled to claim the properties of his adoptive father with the rights accrued to him on the date of his adoption, by the fictional theory of relation back, he was considered to be in existence as on the date of the death of the adoptive father. This fiction was introduced for the purpose of bringing a new heir into succession since it is a well-known principle that succession cannot remain in abeyance and there cannot be a hiatus in the continuity of the line. This fiction was introduced for the purpose of bringing a new heir into succession since it is a well-known principle that succession cannot remain in abeyance and there cannot be a hiatus in the continuity of the line. 21 (ii) One of the consequences of the application of the theory of relation back was that the adopted son as a preferential heir to the adoptive father could retrospectively invoke the rule of survivorship, undo the partition effected after the death of his adoptive father and divest the properties vested in the intermediate holder, if any. These principles, however, were allowed to operate only in respect of the estate of the adoptive father, and not with regard to the properties of collaterals as held by the Supreme Court in Srinivas Krishnarao vs. Narayana Devji (4) and Krishnamurthy Vasudeorao vs. Dhruwaraj (5). 22.) Having looked back to the past, we may now look forward and consider what rule of law was intended to be incorporated by the Legislature by enacting Section 112 of the ADMA Act. The section was apparently designed to remove the hardship and injustice caused to persons by a operation of the said rule of relation back. It states that although the adopted child shall be deemed to be child for all purposes with effect from the date of adoption, he shall not divest any person of any estate which vested in him or her before the adoption. There is thus no relation back to the death of the adoptive father and the legislature has expressly abolished that doctrine. The adopted child shall, however, be deemed to be child for all purposes with effect from the date of adoption.” 16. In view of what has been held in the above decisions, it is clear that the Learned Judge of I-Appellate Court has committed an error in holding that, after the death of Sharanappa Gaded, property held by him vested with his wife and three daughters. The Learned Judge of I-Appellate Court has committed as error in holding that, after the death of Sharanamma, interest held by her vested in equal proportions with first defendant and her daughters. Before first defendant was adopted on 09.02.1971 by deceased Sharanamma under registered adoption deed dated 09.02.1971, the property held and left by Sharanappa Gaded had not vested with any person. Before first defendant was adopted on 09.02.1971 by deceased Sharanamma under registered adoption deed dated 09.02.1971, the property held and left by Sharanappa Gaded had not vested with any person. Therefore, there is no question of first defendant on his adoption divesting any person of any estate, which had vested with him or her before adoption of first defendant. After the adoption of first defendant, he became the natural son of Sharanappa Gaded and Sharanamma from the date of adoption and he was entitled to succeed to the properties held and left by Sharanappa Gaded equally so after the death of his adoptive mother Sharanamma. Therefore, first defendant and daughters of Sharanappa Gaded and Sharanamma namely Kyadigamma, Nagamma and Sarojamma were entitled to 1/4th share in suit schedule properties in terms of Section 8. 17. In view of the above discussion, quantification of shares of parties to suit is stated thus: The first defendant is entitled to 1/4th share. The second defendant who is the daughter of deceased Kyadigamma is entitled to 1/4th share. The plaintiff and defendants 4 to 6 being son and daughters of deceased Nagamma are together entitled to 1/4th share. Defendants No.3 and 7 to 9 being son and daughters of deceased Sarojamma are together entitled to 1/4th share. The Learned Trial Judge considering these aspects granted 1/16th share to plaintiff (1/4th share out of 1/4th share held by his mother deceased Nagamma). The Learned Judge of I-Appellate Court without properly understanding the legal consequences of adoption and provisions of Section 12(c) of the Hindu Adoption and Maintenance Act, accepted the cross appeal filed by the plaintiff to hold that plaintiff and defendants No.4 to 6 are together entitled to 1/4th share in the suit property as granted by the Trial Court and they are also entitled to 1/4th share out of 1/4th share held by deceased Sharanamma. The approach of I-Appellate Court is erroneous. 18. The Learned Counsel for appellant/first defendant would submit that, when other defendants had not sought for their shares, the Trial Court should not have quantified their shares. The Learned counsel would further submit that the Learned Judge of I-Appellate Court should have corrected this error. This submission cannot be accepted for more than one reason. In a suit for partition, there is not much difference between plaintiff and defendant. The Learned counsel would further submit that the Learned Judge of I-Appellate Court should have corrected this error. This submission cannot be accepted for more than one reason. In a suit for partition, there is not much difference between plaintiff and defendant. In a sit for partition, it is only after quantification of shares of all persons entitled to shares in joint family properties, the share of plaintiff can be ascertained. 19. In view of the above discussion, I hold that the I-Appellate Court was not justified in increasing the share of plaintiff granted by the Trial Court. 20. Therefore, I pass the following: ORDER i) The appeal is accepted. ii) The judgment and decree of I-Appellate court are set-aside. iii) The judgment and decree of Trial Court are restored. Parties to bear their costs.