JUDGMENT ASHIM KUMAR BANERJEE, J: BACKDROP 1. One Mr. Sarat Sashi Mallick was a Barrister by profession. He had a roaring practice both at Calcutta and Patna. He had two wives, Smt. Radharani Dasi residing at Calcutta and Mrs. Jeawlta Christabel Mallick residing at Patna. Radharani had only one daughter, namely, Rasheswari Dasi. Christabel had more than one child. Sarat Sashi Mallick made his fortune. He had properties at both places having the respective control of his two branches headed by his respective wives. He had liquid cash invested in banks and financial institutions. The dispute arose after the death of Sarat Sashi Mallick. The parties however resolved their dispute. The settlement was recorded in writing through an Indenture dated April 20, 1929. By the said Indenture both the wives recognized each other to be the widow of the deceased. Christabel allowed withdrawal of money from banks by Radharani. She also paid Rs.6500/- in cash to Radharani. Radharani got Rs.20037-6-9. It was agreed, Rs.15000/- would be invested in an appropriate account, the interest of which would be used by Radharani and Rasheswari during their life time. After their demise, the male children of Rasheswari would get it in equal share absolutely. The Indenture however gave an absolute right to the balance sum of Rs.5037-6-9/- to Radharani Devi with liberty to spend the same as per her likings and without any objection, if any, raised by Rasheswari or her male children. In exchange, Patna properties were retained by Christabel and her children. We also find another document dated October 2, 1931 being a Declaration made by Radharani to the effect that she had purchased a house at 9, Panchanantala Lane, Calcutta in a Court auction on June 5, 1931. By the said Declaration, Radharani recorded that she was the “full owner and proprietor” of the premises in question and one Janoki Nath Sen did not have any right over the same. In 1979, Radharani died leaving her surviving her sole heir Rasheswari. Rasheswari died on May 12, 1979 leaving her surviving Durga Narayan Sen and Satya Narayan Sen (hereinafter referred to as Sens), Tara Dey, Smt. Mira Dey and Gouri Laha being her children. In 1979, Radharani died leaving her surviving her sole heir Rasheswari. Rasheswari died on May 12, 1979 leaving her surviving Durga Narayan Sen and Satya Narayan Sen (hereinafter referred to as Sens), Tara Dey, Smt. Mira Dey and Gouri Laha being her children. By a Deed of Indenture dated August 10, 1993 Durga and Satya being the respondent no.1 and 2 duly conveyed the property in favour of Shri Nirmal Chandra Bhattacharya and Smt. Lili Bhattacharya (hereinafter referred to Bhattacharyas) being the respondent no.4 and 5 who were already in part possession of the house as tenant. The respondent no.6 to 10 were the other tenants. LITIGATION 2. Bhattacharjees filed ejectment suit as against the tenants being the respondent no.6 to 10 and ultimately obtained decree of eviction against them that was affirmed up to the Apex Court level. During the pendency of the said proceeding the appellant being one of the grand children (Daughters’ branch) of Rasheswari filed a suit being Title Suit no.2680 of 1997 inter alia praying for a Declaration that the scheduled property being 9, Panchanantala Lane, Calcutta was a joint property of the estate of Rasheswari and thus was liable to partition. The Deed of Conveyance executed on August 13, 1993 was liable to be declared null and void. He made the other heirs of the daughter brunch as proforma defendants being respondent no.11, 12 and 13 above named. He also made the tenants as parties including both Durga Narayan Sen and Satya Narayan Sen as also Bhattacharjees. 3. Despite service of summons Sens did not appear. Bhattacharyas appeared and contested the suit whereas the other tenants did not appear and the proforma defendants supported the plaintiff. Bhattarcharyas, in their written statement, disclosed the incident of 1929 and 1931. IMPUGNED JUDGMENT 4. The learned Judge of the Court below vide judgment and order dated March 31, 2007 appearing at Page 141-184 of the paper book dismissed the suit. The learned Judge dismissed the said suit on contest against the contesting defendants and ex-parte against the rest. Hence, this appeal by the plaintiff. The learned Judge in his judgment and order held that plaintiff had not been able to prove his right, title and interest in respect of ¼th share in the property. The learned Judge dismissed the said suit on contest against the contesting defendants and ex-parte against the rest. Hence, this appeal by the plaintiff. The learned Judge in his judgment and order held that plaintiff had not been able to prove his right, title and interest in respect of ¼th share in the property. The learned Judge heavily relied on two documents referred to above and came to conclusion that the issue could be resolved taking recourse to Section 14(2) of the Hindu Succession Act and not Section 14(1) as contended by the plaintiff. CONTENTIONS 5. Mr. Bidyut Kumar Banerjee, learned senior advocate appeared for the appellant whereas Mr. Souradipta Banerjee, learned advocate appeared for the proforma respondents. However, both of them supported each other. Mr. S. Banerjee however advanced the main argument on behalf of the heirs of the female brunch of Rasheswari. Mr. Banerjee drew our attention to both the documents referred to above, to examine the purport of the same. His principal plunk of submission was raised on the link between the money paid to Radharani and Rasheswari in 1929 and the property purchased by Radharani in 1931. According to him, the plaintiff was the natural heir of Rasheswari as she died intestate. The plaintiff became the ¼th owner as sole heir of one of the daughters, Smt. Tara Dey was also entitled to ¼th share. Pertinent to note, Rasheswari had five children, Durga, Satya, Tara, Mira and Gouri. Gouri died without leaving any heir. Hence, the other two daughter brunches became entitled to the estate of Rasheswari to the extent of ¼th share each. Durga and Satya could not have sold the entire property to Bhattacharyas to the exclusion of the female brunch. Hence, the Bhattacharyas could not have acquired the property and the subject document was liable to be cancelled. The learned Judge erred in holding otherwise. On the question of law, Mr. S. Banerjee contended that Section 14(1) and (2) read together, particularly after the Hindu Succession Act, 1956 having undergone an amendment in 1973 giving absolute right to the female heirs, Sens could not have sold the property to the exclusion of the female brunch in 1993. 6. The learned Judge erred in holding otherwise. On the question of law, Mr. S. Banerjee contended that Section 14(1) and (2) read together, particularly after the Hindu Succession Act, 1956 having undergone an amendment in 1973 giving absolute right to the female heirs, Sens could not have sold the property to the exclusion of the female brunch in 1993. 6. To support his contentions he relied on the following decisions :- i) All India Reporter 1964 Madras Page-387 (Rangaswami Naicker -Vs- Chinnammal & Anr.) ii) All India Reporter 1967 Supreme Court Page-1786 (Mangal Singh & Ors. -Vs- Smt. Rattno & Anr.) iii) All India Reporter 1987 Supreme Court Page-2251 (Smt. Gulwant Kaur & Anr. -Vs- Mohinder Singh & Ors.) iv) All India Reporter 1989 Calcutta Page-242 (Panchanan Samanta -Vs- Smt. Lakshmi Mondal & Ors.) v) 1995 Volume-VI Supreme Court Cases Page-88 (Mangat Mal & Anr. -Vs- Punni Devi & Ors.) vi) Calcutta Law Times 1999 Volume-II Supreme Court Page-66 (Smt. Beni Bai -Vs- Raghubir Prasad) 7. Mr. Bidyut Kumar Banerjee, learned senior advocate adopted the submissions made by Mr. S. Banerjee. In addition, he contended that Rs.15000/- was paid to Radharani and Rasheswari with restrictive covenant to the effect that they would be entitled only to the usufruct of the same i.e. the interest on the said sum. However, the balance sum of Rs.5037-6-9/- was paid to Radharani exclusively. It was not clear whether Radharani purchased the said property out of the said Rs.15000/- or the balance amount or from any other sources. In absence of a definite proof that the sum of Rs.15000/- was utilized for purchase of the subject property, the claim of Bhattacharyas on the title derived from Sens would consequently fall. 8. Mr. Sudhir Dasgupta, learned senior counsel appearing for Bhattacharyas contended that in an application the appellant was to show the infirmity in the judgment. The scope of appeal should be restricted to such infirmities being pointed out and considered. The fact finding of the court below considering the evidence on record, could not be replaced by an independent exercise to be done by the Court of Appeal. 9. Mr. Dasgupta placed the said two documents in his own way. The scope of appeal should be restricted to such infirmities being pointed out and considered. The fact finding of the court below considering the evidence on record, could not be replaced by an independent exercise to be done by the Court of Appeal. 9. Mr. Dasgupta placed the said two documents in his own way. According to him, the subsequent declaration of 1931 wherein Radharani claimed absolute ownership on the property, was for a limited purpose to resist any future claim from one Janokinath Sen or his successor in interest that would not per se give right to the appellant to claim that the subject property was owned by Radharani absolutely. Mr. Dasgupta relied on Section 91and 92 of the Evidence Act on this score. 10. While commenting on merits, Mr. Das Gupta contended that conduct of parties would be relevant to decide the present controversy. The conduct of the parties would show that the parties accepted the fact that the said sum of Rs.15000/-was transformed into immovable property. The restriction imposed by the document of 1929 would thus continue to remain that would thus automatically debar the female heirs to claim any share in the immovable property. 11. Mr. Das Gupta further contended that in a suit filed by the plaintiff for declaration, the plaintiff must discharge his onus which, in the instant case, he miserably failed to discharge. According to Mr. Das Gupta, Malay should have proved that the property was purchased by Radharani out of her own resource and not the said sum of Rs.15000/- to make them eligible to claim share in the immovable property. He further contended that the plaintiffs were never in possession. They also did not claim recovery of possession. Hence, the suit was hit by Section 34 of the Specific Relief Act. The learned Judge held so. The appellant did not make any argument on that score. Mr. Das Gupta further contended that the learned Judge held that the suit was not properly valued and it was hit by the relevant provisions of the Court Fees Act. No argument was advanced on that score by the appellant. 12. To support his contentions Mr. Das Gupta relied on the following decisions:- i) Nabakishore Mandal & Ors. -Vs- Upendrakishore Mandal & Anr. reported in 1935 Calcutta Law Journal Page-116. ii) Sarju Pershad -Vs- Raja Jwaleshwari Pratap Narain Singh & Ors. No argument was advanced on that score by the appellant. 12. To support his contentions Mr. Das Gupta relied on the following decisions:- i) Nabakishore Mandal & Ors. -Vs- Upendrakishore Mandal & Anr. reported in 1935 Calcutta Law Journal Page-116. ii) Sarju Pershad -Vs- Raja Jwaleshwari Pratap Narain Singh & Ors. reported in All India Reporter1950 Supreme Court Page-781. iii) Radha Prasad Singh -Vs- Gajadhar Singh & Ors. reported in All India Reporter 1960 Supreme Court Page-115. iv) Navanath & Ors. -Vs- State of Maharashtra reported in 2009 in Volume-XIV Supreme Court Cases Page-480. v) Hamida Begum alias Alo Bibi -Vs- Umran Bibi & Ors. reported in 2008 Volume-III Calcutta High Court Notes Page 639. 13. Neither Mr. Bidyut Kumar Banerjee nor Mr. Souradipta Banerjee addressed us in reply. Their juniors present at the hearing, declined to do so. LAW ON THE SUBJECT AS WE UNDERSTAND 14. Before we deal with the subjective controversy, let us first know the law on the subject. Section 14 of the Hindu Succession Act, 1956 being relevant herein is quoted below:- Section 14 “Property of a female Hindu to be her absolute property. – (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation. – In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as Stridhana immediately before the commencement of this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.” 15. On a combined reading of the aforesaid provisions, it would appear that as per Sub-section-1, any property acquired by a female Hindu before the said Act coming into force would give her full ownership whereas Sub-section-2 would restrict such absolute right to the property inherited by a female Hindu through any Indenture and, thus, excluding property acquired by other means being Gift, Will, Decree, Order of a Civil Court, Award or any other instrument that would otherwise restrict her right in such property. Pertinent to note, before the said Act coming into force, the Women Right to Property Act, 1937 was in vogue that gave a limited right to the female Hindus. Such right became absolute in view of introduction of Section 14(1). However, such right would apply only in case of inheritance by way of intestate succession or otherwise without any definite restrictive covenant. In the instant case, the agreement of 1929 did provide specific restricting covenant with regard to utilization of rupees fifteen thousand. Hence, even after 1956 Act coming into force, the restriction should continue to remain with regard to the sum of rupees fifteen thousand. This is clear from the mandate of the provision that need no special effort to inculcate a special meaning out of it and to apply the same in the present controversy. In short, in case the defendants being respondent nos.4 and 5 were able to show that the said sum of rupees fifteen thousand was transformed into an immovable property being the subject property involved in the present litigation, the suit filed by the appellant would automatically fail. We have only to find out that whether the learned Judge could come to such a conclusion. If is it so, the appellants are out of Court, if it is other way round, the meaning thereby the respondent’s effort was not successful, as a natural heir the plaintiff would be entitled to 1/4th share and the decision of the learned Judge could not be faulted on that score. Mr. Souradipta Banerjee relied on various decisions on the issue. We would, however, consider the Apex Court decision in the case of Smt. Beni Bai (Supra), the passage being relevant herein is quoted below. Mr. Souradipta Banerjee relied on various decisions on the issue. We would, however, consider the Apex Court decision in the case of Smt. Beni Bai (Supra), the passage being relevant herein is quoted below. “From the aforesaid pronouncement of law by this court, it is clear that sub-section(1) of section 14 applies to the cases where the conferment of right to a Hindu widow was in lieu of maintenance or in recognition of her pre-existing right as provided under the Shastric law and Hindu Women’s Rights to Property Act. Sub-section(2) of section 14 of the Act would apply only to such cases where grant conferred a fresh right or title for the first time and while conferring the said right certain restrictions were placed by the grant or transfer.” 16. Their Lordships were of the view that Section 14(1) would apply to the cases where conferment of a right of Hindu widow was in lieu of maintenance or recognition of her pre-existing right under the Hindu Women’s Right to Property Act. The Apex Court was of the view that Sub-section 2 would apply only to such cases where any grant conferred any fresh right or title for the first time and such grant was subject to restrictions that restrictions would not be hindered by Sub-section 1. 17. In the case of Mangat Mal (Supra), the testator executed a Will bequeathing his estate to one of his sons. The widow of the other son protested on the ground that she was entitled to be maintained by the family out of the joint family property and agreement was entered into by which an arbitrator was appointed to resolve the dispute between the parties. The arbitrator gave an award giving life interest to the lady to reside in the dwelling house and to use the same in the way she liked. However, such right was restricted to her lifetime. Even development of the property by her did not give any absolute right to her. She was also given monthly maintenance in cash out of the family property. After the death of the testator, the lady executed a Sale Deed in respect of the property in question that sale was called in question. Pertinent to note, the sale was conducted in 1960, 1956 Act had already come into force. She was also given monthly maintenance in cash out of the family property. After the death of the testator, the lady executed a Sale Deed in respect of the property in question that sale was called in question. Pertinent to note, the sale was conducted in 1960, 1956 Act had already come into force. The lady claimed that she was entitled to the property under Section 14(1) as her life interest as per the award became absolute. The Apex Court recognized such right and held that the limited right she had, became absolute in 1956. Hence, she was entitled to sell the property. Pertinent to note, neither in the agreement nor the award there was any specific restriction imposed by the testator or the arbitrator as the case may be, which would otherwise come within the purview of Section 14(2) and not Section 14(1). On that score we are in full agreement with Mr. Souradipta Banerjee when he says that it was a case under Section 14(1) and not Section 14(2). We, however, wish to add a line of caution that such proposition of law, per se, would not give any benefit to the appellant. In case, it was found that the respondent nos. 4 and 5 were successful in proving that the said sum of rupees fifteen thousand was, in fact, transformed into the property in question and the said sum was utilized from purchasing the subject property, Section 14(2) would automatically come to play. 18. Mr. Dasgupta, on the other hand, relied on the Apex Court decisions in the case of Navanath (Supra) to support his contention that merely on surmise or conjecture, the Court should not come into a definite conclusion that the plaintiff was entitled to the 1/4th share in the property. 18. Mr. Dasgupta, on the other hand, relied on the Apex Court decisions in the case of Navanath (Supra) to support his contention that merely on surmise or conjecture, the Court should not come into a definite conclusion that the plaintiff was entitled to the 1/4th share in the property. The Apex Court in the said decision observed, “surmises and conjectures alone cannot form basis of a judgment.” Paragraph 14 of the decision in the case of Radha Prasad Singh (Supra) laid down the guidelines as to the duties and responsibilities of a Court of Appeal that is quoted below : “The position in law, in our opinion, is that when an appeal lies on facts it is the right and the duty of the Appeal Court to consider what its decision on the question of facts should be; but in coming to its own decision it should bear in mind that it is looking at the printed record and has not the opportunity of seeing the witnesses and that it should not lightly reject the Trial Judge’s conclusion that the evidence of a particular witness should be believed or should not be believed particularly when such conclusion is based on the observation of the demeanour of the witness in Court. But, this does not mean that merely because an appeal court has not heard or seen the witness it will in no case reverse the findings of a Trial Judge even on the question of credibility, if such question depends on a fair consideration of matters on record. When it appears to the Appeal Court that important considerations bearing on the question of credibility have not been taken into account or properly weighed by the Trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the Trial Judge is wrong, the Appeal Court should have no hesitation in reversing the findings of the Trial Judge on such questions. Where the question is not of credibility based entirely on the demeanour of witnesses observed in Court but a question of inference of one fact from proved primary facts the Court of Appeal is in as good a position as the Trial Judge and is free to reserve the findings if it thinks that the inference made by the Trial Judge is not justified.” 19. Citing the above passage, Mr. Das Gupta contended that the appellant should have discharged their onus to demonstrate how the decision was infirm. The appellant miserably failed to do so. We fully agree with Mr. Das Gupta when he mentions the role of the Court of Appeal as an abstract proposition. We also hold that the duty of the Court of Appeal was to examine the lacunae and/or infirmity pointed out by the appellant and found ex facie apparent on the face of the judgment and order and thereby to correct the same so that a litigant gets a correct judgment. Order 41, Rule 33 would also obligate the Court of Appeal not only to restrict its exercise only to the extent being pointed out by the appellant but also the judgment and order as a whole. Such proposition would restrict not only multiplicity of proceeding but also have a comprehensive right decision given by a Court of Law, when approached. OUR VIEW 20. On this understanding of law on the subject and the duties and responsibilities of a Court of Appeal let us now deal with the controversy in hand. We, being the first Appellant Court, are entitled to look into the evidence and the factual matrix. 21. The admitted facts would reveal, the agreement between the Christabel on the one hand and the Radharani and Rasheswari on the other hand by giving fifteen thousand to Radharani with restrictions to have utilization of the usufruct only throughout their life that would pass on to the male descendants only. Section 14(1), in our view, did not take away such right in view of Provisions of Section 14(2). To that extent, the learned Judge was correct and we do not find any scope of interference. We are only to find out whether there was sufficient evidence for the learned Judge to come to conclusion that the said rupees fifteen thousand was transformed into the subject property. Such onus was on the respondent nos. 4 and 5 that, in our view, was not properly discharged. 22. Mr. Das Gupta was emphatic on the restrictions imposed by the 1929 agreement. However, he was unable to establish a nexus between the money and the property being the subject matter of the controversy. 23. We fully agree with Mr. Das Gupta that a judgment could not be based on surmise or conjecture. 22. Mr. Das Gupta was emphatic on the restrictions imposed by the 1929 agreement. However, he was unable to establish a nexus between the money and the property being the subject matter of the controversy. 23. We fully agree with Mr. Das Gupta that a judgment could not be based on surmise or conjecture. We are unable to accept his submissions at the Bar that Radharani and Rasheswari did not have sufficient means of livelihood from where they could acquire the subject property. We are not oblivion of the fact that a part of the money being rupees five thousand and odd was also given to them for their absolute use. We are at a loss as to the source of acquiring the property. The property was purchased in a Court sale. The source was however not available on record, at least not came out in evidence. Document of 1931 could not save the appellant and his supporters as it was a unilateral declaration that too, for a limited purpose to forestall one Janokinath Sen or his heirs to come and make any claim in respect of the property. Such unilateral declaration could not per se give an absolute right to Radharani or Rasheswari. To that extent, we are with Mr. B.K. Banerjee and Mr. S. Banerjkee. 24. At the end of the day we find that the subject property was admittedly owned by Radharani and thereafter Rasheswari. Rasheswari died in 1979. Hence, the heirs of Rasheswari and/or Radharani became the lawful heirs by an automatic process. Such claim could only be resisted by establishing a nexus between the subject property and the said sum of rupees fifteen thousand. The respondent nos.4 and 5 could not do so. In our view, in the case of the like nature the plaintiff would be required to prove that the property belonged to their predecessor. That aspect was not in dispute. The plaintiff was also to show that he was one of the heirs of the deceased owner that was not in dispute. Hence, his onus was discharged. Such onus could only be rebutted and would have to be rebutted by the defendants who wish to resist such claim. That aspect was not in dispute. The plaintiff was also to show that he was one of the heirs of the deceased owner that was not in dispute. Hence, his onus was discharged. Such onus could only be rebutted and would have to be rebutted by the defendants who wish to resist such claim. Once the resistance was put up the person putting up such resistance must demonstrate before the Court of Law that his resistance was lawful, if he could not, the plaintiff would be entitled to declaration of his share as an obvious eventuality. To that extent, the Court below faulted. 25. The learned Judge proceeded on the basis as if it was an admitted issue that the restriction so imposed by the document would apply in case of the subject property and, thus, proceeded to dilate as to whether the case would govern by Section 14(1) or Section 14(2). On the question of cancellation of the Deed of Conveyance executed by Sens in favour of respondent nos. 4 and 5 we are with the learned Judge when he denied such relief. We thus hold that the plaintiff was not entitled to cancellation of the Deed of Conveyance entered into between Sens and Bhattacharjees. We only observe that that document could only be restricted to the transfer of rights the Sens had over the property in favour of Bhattacharjees and that would not and could not have taken away the right of the plaintiff and the defendant no.3 over the property. In our view, the appellant’s suit should have succeeded in part declaring his share in the subject property to the extent of 1/4th leaving another 1/4th share for the defendant no.3 and the rest half for the respondent nos.4 and 5. The argument so advanced by and on behalf of the respondents to the extent Section 34 of the Specific Relief Act was fallacious. According to the appellant, he was entitled to 1/4th share whereas the other female branch represented by defendant no.3 was having 1/4th share and thus leaving half share for Sens whose interest the respondent nos. 4 and 5 purchased. If that be the position, the possession of Sens or Bhattacharjees as the case may be, could only be restricted to their interest in the property. 4 and 5 purchased. If that be the position, the possession of Sens or Bhattacharjees as the case may be, could only be restricted to their interest in the property. Once we hold that the plaintiff had a share in the property even if there was an ouster and no prayer for recovery of possession was claimed that would not per se make the suit bad. On that score, we do not find any bar of Section 34 of the Specific Relief Act operating in the present case. Consequently, the argument advanced in relation to the Court Fees Act is also not tenable. RESULT 26. The parties would be at liberty to approach the Civil Court for partition of the property in an appropriate proceeding. 27. With the observations, the judgment and decree of the Court below is modified. The appeal is allowed in part and is disposed of accordingly without any order as to costs. DIRECTION 28. Urgent Photostat copy will be given to the parties, if applied for.