JUDGMENT : Vincent Salvador Felicio da Costa was the common ancestor. First, in early 1900s, he married Maria Carmelina Florinda da Costa and had two sons through her. But his wife died soon after giving birth to the second child; within hours, the child too died. For the record, I may mention their names: Rosario Fernando Alex da Costa and Jose da Costa—the infant that died. When his wife died leaving behind the two children, the succession opened up, and the inventory proceedings took place. 2. In terms of Portuguese Eivil Code, Vincente da Costa (“Senior Vincente”) retained his ½ share of the property; the other ½ share, that is the moiety of his deceased wife, devolved on the two sons, each succeeding to ½th share in the total property. But, as we have noted, the second son died as an infant, hours after his mother’s death. With that, another round of notional succession took place. In the absence of descendants, the infant had only an ascendant, his father, to succeed. So, the second son’s ¼th share devolved on Senior Vincente. 3. Later, Vincent Salvador married Maria Florinda Menezes. He took into that marriage his original 1/2 share, keeping to himself 1/4th share he had succeeded to as an ascendant. Through the second wife, Senior Vincente had a daughter: Maria Carmelina Quitera Aleluia da Costa (“Maria Carmelina”). Then, the Second wife too died. 4. With the second wife’s death in 1918, once again the family estate was notionally divided. Senior Vicente retained 1/2 of the 1/2 share he had brought into the marriagethat is, 1/4th share of the total property. The remaining “1/2 of 1/2 (1/4th) devolved on Maria Carmelina, his daughter through the second wife. 5. So, then, Senior Vincente married Maria Elixena Florinda Da Costa, his third wife. Through her, Senior Vincent had three daughters and three sons. The daughters are Maria Benedita Florina da Costa, Rosa Maria Carmelina da Costa, and Maria Tereza Celina da Costa; the sons are Vincente Henriques Nicolay da Costa (“elder brother”, respondent No. 1), Simoes Salvador Lorete da Costa (“younger brother”, appellant No. 1), and Agnelo Lino Alexandre da Costa (“youngest brother”, respondent No. 3). First Branch : 6. The daughters are Maria Benedita Florina da Costa, Rosa Maria Carmelina da Costa, and Maria Tereza Celina da Costa; the sons are Vincente Henriques Nicolay da Costa (“elder brother”, respondent No. 1), Simoes Salvador Lorete da Costa (“younger brother”, appellant No. 1), and Agnelo Lino Alexandre da Costa (“youngest brother”, respondent No. 3). First Branch : 6. In terms of the provisions of succession prevalent in the community under the Portuguese Civil Code, once a person gets married the estates of the spouses get merged; thus, there is a communion of assets. Once either spouse dies, the surviving spouse’s half share remains intact, and succession opens vis-à-vis the deceased spouse. Here, when Senior Vincent’s first wife died, she had left behind her two sons to succeed to her half share. Thus, the two sons divided between them the mother’s share equally. In other words, from the total property, the father retained 50% and each son 25% : ½ for the father and 1/4th each for the two sons. True, the second son died a few hours after his mother’s death, but, by then, succession opened, and he came to own 1/4th property. 7. After the second son’s death, as he had no successors; his father, as his ascendant, succeeded to that estate. So, the father possessed 3/4th, and the surviving son Rosaria had 1/4th share. Second Branch : 8. Similarly, when his second wife died, again the succession opened. But when senior Vincent carried his property into the communion, the property he succeeded to as an ascendant to his deceased son remained untouched. Thus, after his second wife’s death, his daughter through the second wife succeeded to 1/4th share of the estate. The rest remained with the father. Third Branch : 9. Eventually, Senior Vincent married the third time and had six children. The third wife survived. Thus, when Senior Vincent died in 1951, the succession opened vis-à-vis the branch of the third wife and inventory proceedings took place. His half share was open for succession: 1/4th share that devolved on him through his infant son from the first marriage and 1/4th share that remained with him after his second wife’s death. 10. Here, we must refer to two developments. His half share was open for succession: 1/4th share that devolved on him through his infant son from the first marriage and 1/4th share that remained with him after his second wife’s death. 10. Here, we must refer to two developments. Maria Carmelina, the daughter through the second wife, sold or gifted her property to two of her four half-brothers-that is, the first and the second sons through the third wife: elder brother and younger brother. 11. Eventually, the shares of all the four sons-the only son through the first wife and the three sons through the third wifewere determined thus: Rosario Fernando 1/4th + 1/8th (3/8th), Junior Vincent (elder brother) 1/8th + 1/8th (1/4th), Simoes Salvador (younger brother) 1/8th + 1/8th (1/4th), and Agnelo Lino (youngest brother) 1/8th. Dispute : 12. Junior Vincent, the eldest son through the third wife, along with his wife, filed Special Civil Suit No. 155 of 1988 for partition; on 30th August 2001, he secured a preliminary decree. 13. The second son and his wife, that is the defendants 1 and 2, filed an appeal, originally numbered as First Appeal No. 72/2002. That First Appeal was before this Court. But later, because of change of pecuniary jurisdiction, it was transferred to District Court, where it was renumbered as Regular Civil Appeal No. 349/2010. The District Court dismissed the first appeal on 732013. Aggrieved, the defendant Nos. 1 and 2 filed this Second Appeal. The dispute is between the first two sons of Senior Vincente through his third wife. Their respective wives joined them in the litigation only as supporting co-owners. To avoid confusion, I will call the first plaintiff the “elder brother” and the first defendant the “younger son.” Their respective wives, that is the second plaintiff and the second defendant, are not referred to separately. The third son has never contested the case. Submissions : 14. Shri R. Menezes, the learned counsel for the younger brother, has first drawn my attention to the family genealogy of the parties to the partition and later taken me through the pleadings on either side. Then, he has strenuously contended that Rosario, the eldest and the only surviving son through the first wife, took Rs.1100/- in 1935 from his father and executed a deed of conveyance. Then, he has strenuously contended that Rosario, the eldest and the only surviving son through the first wife, took Rs.1100/- in 1935 from his father and executed a deed of conveyance. According to him, the deed recorded that Rosario relinquished his right in the property, that is 1/4th share, in his father’s favour. He could have reclaimed his right and redeemed his property in the next 10 years, by repaying the amount with an addition of Rs.400/-. But he did not do so. Shri Menezes stresses that the deed provided for no time extension beyond 10 years. 15. About the validity of the document, Shri Menezes has submitted that despite the elder son’s objection, the trial Court accepted the document, took it on file, and marked it. So the document must be read into the proceedings, and its consequences applied. To elaborate, Shri Menezes has submitted that despite taking the document on file, neither the trial Court nor the first Appellate Court has specifically addressed the impact of the document on the rights of the parties to the partition. He has also contended that the amount Rosario took from his father could not be treated as a loan; on the contrary, it must be treated as a conveyance with a condition attached. The condition remaining unfulfilled, according to Shri Menezes, Rosario lost all his right over the property. Therefore, Rosario gifting his share to the elder brother’s wife does not arise. 16. About the share of Agnelo Lino, the youngest brother, Shri Menezes highlights that he has not contested the case. He has claimed no right in the joint family property. To put it explicitly, Shri Menezes has submitted that in 1982, the youngest brother relinquished his right in the property through a registered document in favour of all other members of the family Therefore, the trial Court ought to have apportioned the youngest brother’s share among all the surviving co-owners equally. 17. Shri Menezes has submitted that during the trial, the younger brother could not secure the deed of relinquishment. In the First Appeal, after securing a certified copy of the document, the younger brother applied under Order 41, Rule 27 of Civil Procedure Code. But the Appellate Court dismissed the application for additional evidence. 17. Shri Menezes has submitted that during the trial, the younger brother could not secure the deed of relinquishment. In the First Appeal, after securing a certified copy of the document, the younger brother applied under Order 41, Rule 27 of Civil Procedure Code. But the Appellate Court dismissed the application for additional evidence. The dismissal was on the premise that the younger brother as the defendant was aware of the relinquishment deed but did not exercise due diligence to secure and place it on record. 18. At any rate, regarding the property remaining undivided, Shri Menezes contends that the Courts below should not have adopted a hypertechnical approach. Instead, they ought to have treated the property as remaining with the’ joint family and divided it equally amongst all the members. Referring to the pleadings in the application under Order 41, Rule 27 of Civil Procedure Code, Shri Menezes has submitted that the youngest brother left India long back and settled in Brazil; he had no intention to come back, much less stake any claim to the property. In this context, he has also submitted that on all occasions—say, in the suit, in the first appeal, and in the second appeal—the youngest brother living in Brazil was served with the notice. After receiving the notice in the First Appeal, he called up the younger brother and told him not to trouble him with the litigation as he had already relinquished his right over the property. So all other members could take the property in equal measure. Thus, Shri Menezes urges this Court to allow the members of the family to have their claim over the youngest brother’s share in terms of the relinquishment deed or as the unclaimed joint family property available for partition amongst the remaining members of the joint family. Respondents : 19. On the contrary, Shri Sudesh Usgaonkar, the learned counsel for the elder brother, has submitted that in the Inventory Proceeding drawn soon after the common ancestor’s death, Rosario, the first wife’s son, was allotted 1/8th share from his father’s estate. That was along with the other three brothers, who also secured equal shares. By then, because of the initial succession, Rosario had 1/4th share. So he became the owner of 1/4th + 1/8th share. In 1984, Rosario gifted his entire share to Junior Vincent’s wife. That was along with the other three brothers, who also secured equal shares. By then, because of the initial succession, Rosario had 1/4th share. So he became the owner of 1/4th + 1/8th share. In 1984, Rosario gifted his entire share to Junior Vincent’s wife. Thus, the elder brother claimed not only his 1/4th share but also Rosario’s 3/8th share. Then, the total claim comes to 1/4th + 3/8th : 5/8th share. 20. About the youngest brother’s relinquishment, Shri Usgaonkar submits that the relinquishment should take place only at the time of succession. Once the succession completes and shares determined, each member of the family becomes the owner of his or her moiety. So, here, the youngest brother already became the owner; his relinquishment, then, becomes impermissible. Instead, as the owner, he could have either gifted his property as Rosario did or conveyed the property by some other means, such as sale. At any rate, he admits that the youngest brother has left India for good and settled in Brazil. As he has left the property to benefit all the other members, the elder brother does not object to the younger brother’s plea that the property could be apportioned amongst the remaining members equally. 21. Heard Shri R. Menezes, the learned counsel for the appellants; and Shri S. Usgaonkar, the learned counsel for the respondents. Discussion : 22. While admitting the Second Appeal, this Court framed the substantial questions of law. Instead of extracting them verbatim, I may succinctly set them out : (i) Have the Courts below been justified in ruling on the validity of the Deed of Gift, dt. 30-4-1984,’as well as the Deed of Rectification, dt. 3-9-1987, executed by Rosario da Costa and the claim of the respondents 1 and 2 for 5/8th share, without their determining the effect of the Public Deed of Gift and Obligation dated 10-8-1935? (ii) and (iii) Has Rosario forfeited his share in the property because of his failure to comply with the mandatory condition in the Public Deed of Gift and Obligation, dt. 10-8-1935? (iv) Has the Appellate Court erred in rejecting the appellants’ application, dated 22-10-2010, under Order XLI, Rules 2, 7 of Civil Procedure Code? (ii) and (iii) Has Rosario forfeited his share in the property because of his failure to comply with the mandatory condition in the Public Deed of Gift and Obligation, dt. 10-8-1935? (iv) Has the Appellate Court erred in rejecting the appellants’ application, dated 22-10-2010, under Order XLI, Rules 2, 7 of Civil Procedure Code? Vicente Salvador Felicio Da Costa (Vincent Senior) Maria Cannelina Florina da Costa (First Wife) Maria Florinda Menezes (Second Wife) Maria Elixena Florinda Da Costa (Third Wife) Rosario Fernando (son) Alex da Costa (son) (died as infant) Maria Carmelina Quitera Aleluia da Costa @ Maria Carnlelina da Costa Maria Benedita Florinda da Costa (Daughter) Rosa Maria Carmelina da Costa (Daughter) Maria Tereza Celina da Costa (Daughter) Vicente Henriques Nicolau da Costa (“Elder Son”) married to Maria Lina Justina da Costa (Plaintiffs) Simoes Salvador Lorete da Costa (“Younger Son”) married to Olive da Costa (Defendant Nos. 1 and 2) Agnelo Lino Alexandre da Costa (“Youngest Son”) married to Maria Aparecida da Costa (Defendant) 23. Though the family genealogy is set out, we need not refer to it in its entirety. All the parties to the partition agree about the shares they are entitled to. The only bone of contention is Rosario’s share. 24. In March, 1984, Rosario da Costa (the elder son through the first marriage) gifted his entire share to respondent No. 2, “reserving the usufruct to himself during his lifetime.” In September 1987, Rosario da Costa executed a Deed of Rectification. It clarifies or rectifies the Gift thus : (i) Rosario da Costa acquired 1/4th share in the suit property upon his mother’s death and 1/8th share upon his father’s death: a total of 8/8th share. (ii) That appellant No. 1 and respondent No. 1 (the first two sons through the third marriage) acquired 1/8th right each from Maria Carmelina da Costa (the daughter through the second marriage) and her husband, and a 1/8th share each upon his father’s death. (iii) That respondent No. 3 acquired 1/8th share in the property upon his father’s death. The Dispute in Perspective : 25. One man, three wives, and nine children through all the three wives. One half-brother (first wife’s only surviving son) and one half-sister (second wife’s only child) gifted and sold their properties, respectively. And of the three sons through the third wife, the last son has settled abroad and staked no claim to the property. The Dispute in Perspective : 25. One man, three wives, and nine children through all the three wives. One half-brother (first wife’s only surviving son) and one half-sister (second wife’s only child) gifted and sold their properties, respectively. And of the three sons through the third wife, the last son has settled abroad and staked no claim to the property. The half-sister’s sale creates no problems, but the half-brother’s gift does. Plainly put, the dispute is between the first and the second sons of the third wife: the elder brother and the younger brother. These sons’ wives, too, are parties to the partition proceedings because their marriage, under the Portuguese Code, has made them co-owners of their husbands’ share. Barring these two sons, we can keep aside the rest of the family. So the dispute boils down to a fight between two brothers about the share of their half-brother. The Bone of Contention : 26. Has Rosario da Costa, the elder son through the first marriage, retained his 3/8th share, for him to be gifted to respondent No. 2, his sister-in-law (the wife of the first son through the third marriage)? The First Appellate Court’s Verdict : 27. To begin with, the First Appellate Court has framed these issues : (1) Has the plaintiff proved that he is the owner of 5/8th share, the first defendant 2/8th (1/4th) share and the third defendant 1/8th share in the property? (2) Has the plaintiff proved that the bequeathing of share has been validly done? (3) Has the plaintiff proved that the suit house was validly partitioned? (4) Have the defendants proved that the suit is not maintainable since partition must be done through inventory proceedings? Or (5) Have the defendants proved that the partition of agricultural property must be done by the Collector? 28. In fact, the issues before the trial Court and the points for consideration before the First Appellate Court are identical. In this Second Appeal, the parties have focused on the first issue before the Courts below: has the first respondent properly secured 5/8th share in the property? To begin with, the trial Court has decided this issue on what it has felt to be the admissions of the appellants 1 and 2. In this Second Appeal, the parties have focused on the first issue before the Courts below: has the first respondent properly secured 5/8th share in the property? To begin with, the trial Court has decided this issue on what it has felt to be the admissions of the appellants 1 and 2. It has held that the “Defendant No. 1 and 2 in the written statement did not dispute the above position and the shares.” But it acknowledges that those-defendants have disputed the Gift Deed dated 3-9-1987. The First Appellate Court has also noted that “in his evidence, PW1 meticulously brought on record how and in what manner they have come to acquire 5/8th share.” Then, it refers to the cross-examination of the defendants 1 and 2. It first observes that they have tried to develop a different case in the evidence from what they have pleaded in their written statement. It has, then, observed that “to put an end to the said controversy, DW1 squarely admits that inventory proceedings took place after the death of his mother.” In fact, the First Appellate Court has concluded that the defendants 1 and 2 have admitted the plaintiffs’ entire case. How has the First Appellate Court considered the rival claims? 29. In the First Appeal, the Appellate Court has accepted the trial Court’s findings on all issues. So, in the light of these concurrent findings let us examine the validity of the “Public Deed of Gift and Obligation” (“1935 Deed”), dt. 10th August, 1935. It is the appellants’ contention that the Senior Vincente advanced to his eldest son Rs.1,100/-towards “the legitimate maternal share due to him and future paternal legitimate share that would be due to him”. And the Deed stipulated that the son could claim his share in “the estate of his deceased mother” within 10 years, on payment of Rs.1,100/-, the original amount taken, and Rs.400/-: Rs.1,500/-. Has Rosario da Costa forfeited his right to a share in the property? 30. In the suit, the elder brother has pleaded that sometime in 1982, when their mother was alive, the elder brother, the younger brother, and their mother amicably partitioned the house. The southern part was allotted to him. The youngest brother, living in Brazil, was not a party to this Agreement but signed as a witness to it. 30. In the suit, the elder brother has pleaded that sometime in 1982, when their mother was alive, the elder brother, the younger brother, and their mother amicably partitioned the house. The southern part was allotted to him. The youngest brother, living in Brazil, was not a party to this Agreement but signed as a witness to it. After that partition, the elder brother claimed to have extended his part of the house and also repaired the old house, spending a huge amount. 31. As a part of the cause of action, the elder brother has pleaded that the younger brother every now and then harassed him for one reason or another, besides threatening that he would not allow the elder brother to reside “in the old part of the house.” The younger brother has “refused to do legal papers.” 32. That said, everything hinges on Rosario’s share. In fact, there was no dispute on the share he was entitled to. But the question is whether he has given up his share under an arrangement with his father or whether his right to “repurchase” the property stood forfeited. 33. The younger brother has maintained that under the 1935-deed, Rosario had been deprived of any share in the property. That is, after taking Rs.1100/- from his father, he conveyed his share to his father. And he did not exercise his right to repurchase the property in 10 years; so he forfeited his right over the property. That right forfeited, nothing remains with him to be gifted to his sister-in-law : the elder brother’s wife. 34. The condition stipulated in the 1935 Deed, as extracted by the First Appellate Court, reads: “It is free to the second party to get his share in the estate left by his deceased mother within the time limit of ten years from today, on payment of the amount today received from the first party plus rupees four hundred only.” 35. Now, let us see how this document comes in the way of the elder brother. But our task is made easier. The younger brother’s cross-examination gives away almost everything. In fact, he has admitted many of the pleas the younger brother, as the plaintiffs, has raised. DW1’s Cross-Examination : 36. DW1, that is the younger brother, deposes that “upon the death of the first wife of my father, inventory proceedings were initiated ... But our task is made easier. The younger brother’s cross-examination gives away almost everything. In fact, he has admitted many of the pleas the younger brother, as the plaintiffs, has raised. DW1’s Cross-Examination : 36. DW1, that is the younger brother, deposes that “upon the death of the first wife of my father, inventory proceedings were initiated ... In the inventory proceedings after the death of (my father’s first wife), half of the suit property was allotted to my father and the remaining half was divided equally amongst her two sons by name Rosario and Jose i.e., 1/4th each.” Of course, the inventory proceedings after the death of the second wife, too, stands admitted. 37. Here come more admissions. DW1 admits that his father “expired in the yr.1951 and the same inventory proceedings continued further ... I executed the mutual agreement with plaintiff No. 1 in 1982. It is true that the inventory proceedings after the death of my father was concluded by order, dt. 25-8-60. It is true that in the said inventory my father’s share i.e., 2/4th was divided equally amongst 4 of us i.e. 1/8th to Rosario, 1/8th to plaintiff No. 1, 1/8th to me and the remaining 1/8th to deft. No. 3.” 38. Pertinently, the younger brother admits what was allotted to him from the joint family property, too: “At the time of filing of the suit I came to know that my share in the suit property according to the inventory proceedings is only 1/4th and that of deft. No. 3 is 1/8th and the rest i.e. 5/8th is claimed by the plaintiff.” 39. Indeed, the younger brother has never challenged the inventory proceedings, at any stage. Had the 1935 document resulted in forfeiture, Rosario would have got no share in the property from his maternal side. In the alternative, when the inventory proceedings took place after their father’s death, his property was subjected to inventory proceedings. That property must have included Rosario’s share, too, because of the alleged forfeiture under the 1935deed. But the father’s property never included Rosario’s share. So, whatever be the nature of the 1935 document, the parties to it never treated it as a sale with a condition to repurchase. It was, at best, treated as a loan lent to Rosario from the family fund. 40. But the father’s property never included Rosario’s share. So, whatever be the nature of the 1935 document, the parties to it never treated it as a sale with a condition to repurchase. It was, at best, treated as a loan lent to Rosario from the family fund. 40. To call the transaction a loan under the 1935 document, we may refer to the inventory proceedings after the death of Senior Vincente, the father. True, the younger brother has argued that in the inventory proceedings after the death of Senior Vincente, item 12 was allotted to his third wife. Agreed. It was what seems to be a right to recover Rs.1100/- . But the younger brother insists what actually allotted was the share Rosario forfeited under the 1935 document. To support this contention, the younger brother asserts that “how the property came to be described as Item No. 12 in subsequent inventory proceedings could hardly define the nature of the transaction in the 1935 Deed, or the intent of the parties who executed it.” 41. Indeed, Item No. 12 does show the “intent of the parties who executed it.” Had it been a case of forfeiture, the inventory proceedings would not have mentioned the money as a recoverable asset. Then, the property could have reverted to Senior Vincente, who lent the money. By the same reckoning, Rosario’s 1/4th share from distaff division must have been added to Senior Vincente’s estate and, thus, available for division in the inventory proceedings after his death. None of this has happened. 42. Item No. 12 was described as “the amount of one thousand and one hundred rupees gifted to the interested party Rosario Fernando Aleixo da Costa, by the deed dated ... August of the year one thousand nine hundred and thirty five, drawn up by the Notary of this Judicial Division, ... “ Even the additional Rs.400/- has been waived. 43. To the inventory proceedings the younger brother was a party, and he has not challenged them; on the contrary, he has acted on it. So those proceedings bind him. Rather, he is estopped from contending otherwise. 44. DW1, the younger brother, also admits that the elder brother has constructed some additional structures to the northeast corner of the property, that is ground plus one storey. In fact, the old ancestral house originally had only the ground floor. So those proceedings bind him. Rather, he is estopped from contending otherwise. 44. DW1, the younger brother, also admits that the elder brother has constructed some additional structures to the northeast corner of the property, that is ground plus one storey. In fact, the old ancestral house originally had only the ground floor. He agrees that “the plan produced by me along with article ‘A’ was prepared by the Government Surveyor on the basis of the terms and conditions written in the mutual agreement.” 45. Indisputably because of the laconic pleadings on the younger brother’s part, the trial Court has framed no issue about the 1935 document. Even if one were to accept the younger brother’s claim, the fact would remain that in the inventory proceedings after the father’s death, Rosario was allotted 1/8th share. That was beside the share he had secured: 1/4th share. Rs.1100/-, which he took from his father, was shown as item No. 12 in the inventory and that was allotted to the third wife. Thus, the surviving members of the family treated that amount as, perhaps, debt owned by Rosario and that debt, as a realizable asset, was allotted to Maria Elixena, that is the third wife. She may recover the amount in terms of the inventory, but that right depends on other statutory restrictions, such as limitation. Inventory was in 1960. The third wife is said to have passed away in 1980s. 46. I reckon both the Courts below have disregarded the 1935 document for justifiable reasons: lack of pleadings and lack of proof. In the Second Appeal, it is impermissible for me to reappreciate the evidence and upset the concurrent findings. 47. The youngest brother’s share in the property and his relinquishment remained uncontested. First, he had relinquished in favour of the all the members of the family. No particular member gets preference over another. He has never chosen to contest the case, for he has settled in Brazil. But there remains a technical objection: post inventory proceedings, he could not have relinquished his right over the property which, in fact, has become his absolute property. Relinquishment must be contemporaneous with division and allotment of property. Though the younger brother wanted to bring on record the relinquishment deed in the First Appeal, the Court rejected it. But there remains a technical objection: post inventory proceedings, he could not have relinquished his right over the property which, in fact, has become his absolute property. Relinquishment must be contemporaneous with division and allotment of property. Though the younger brother wanted to bring on record the relinquishment deed in the First Appeal, the Court rejected it. It was on the ground that the younger brother had known about the document during the trial but did not bring it on record. Technically that plea sustains. But in the interest of justice, this Court may take an alternative view. 48. As the youngest brother could not have legally relinquished the right over the property which already became his absolute property, we could gather that he refused to claim any share in the property and that remains with the joint family. Thus, the unclaimed property must enure to the benefit of all the members of the joint family. Therefore, in the interest of justice, I hold that the youngest brother’s share in the property must devolve on all other members. 49. Save the above observation, this Court refuses to interfere with the concurrent findings of the trial Court and the appellate Court. The Second Appeal stands dismissed. No order on costs. Appeal dismissed.