IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 21 of 1995(C)
1. BALAKRISHNAN
... Petitioner
Vs
1. KALYANI
... Respondent
For Petitioner :SRI.P.R.VENKETESH
For Respondent :SRI.B.GOPAKUMAR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :21/10/2009
O R D E R
THOMAS P. JOSEPH, J.
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S.A.No.21 of 1995
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Dated this the 21st day of October, 2009.
JUDGMENT
Second Appeal arises at the instance of defendant Nos.1 and 2 in
O.S.No.23 of 1988. Parties are referred to as plaintiff and defendants as in the
trial court for convenience.
2. Plaintiff, defendant Nos.1, 4 and 10, the late Velayudhan, the late
Padmanabhan and the late Karthyayani are children of Achuthan (he died in the
year 1959). Padmanabhan died as a bachelor. Defendant No.3 is the wife of the
late Velayudhan. Defendant Nos.5 to 9 are children of the late Karthyayani.
Defendant No.11 claimed to have entered into some agreement with defendant
No.1 to purchase a portion of the suit property. Case of the plaintiff is that late
Achuthan was residing in the building in the suit property since long taking
income therefrom. While so, a document was obtained on 17.7.1957 in the
name of defendant No.1 from the prior owner, Keralavarma Thampuran getting
assignment of the entire right over the property in favour of defendant No.1.
According to the plaintiff, at the time of that document Achuthan was aged about
70 years and was dependant on defendant No.1. That document was taken by
defendant No.1 without the consent of the plaintiff or other legal representatives
(of Achuthan). While so, defendant No.1 executed a document in favour of
Velayudhan, husband of defendant No.3 as document No.896 of 1957 dated
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26.9.1957. Plaintiff would say that the said document has not taken effect, it
was not intended to take effect, nor does it bind the plaintiff or others.
Document No.632 of 1958 dated 23.7.1958 was got executed by defendant
No.1 from late Achuthan getting release of his right in the suit property for a
consideration of Rs.2,300/-. Plaintiff would say that there was no occasion for
executing such document and that Achuthan did not have the mental capacity or
financial stability to execute such document. Moreover, defendant No.1 had no
right to get any document executed without the consent of other legal
representatives. It is stated that document No.632 of 1958 was got executed
by defendant No.1 exercising undue influence. Plaintiff learnt about the
document only recently when defendant No.11 asked her about her right in the
suit property. Plaintiff claimed that she has been in joint possession of the
property with other legal representatives of Achuthan and that the right which
Achuthan had in the suit property existed even now. That right is heritable and
thus, plaintiff and other legal representatives got right in the suit property.
Accordingly she prayed for partition and separate possession of her one sixth
share in the suit property “after finding that the above said documents are null
and void and are sham”. Defendant Nos.1 and 2 resisted the suit contending
that the late Achuthan was residing in the suit property as a ‘kudikidappukaran’
and that the suit property originally belonged to the Cochin Royal Family in jenm.
The property was owned by the late Kavoo Thampuran. While so, there was a
partition in the Royal Family and the suit property was allotted to the share of
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Keralavarma Thampuran, son of .Kavoo Thampuran. He executed document
No.718 of 1057 dated 17.7.1957 transferring his right, title, interest and
possession of the suit property in favour of defendant No.1 receiving
consideration of Rs.3,752/-. The amount retained with defendant No.1 to be
paid to the late Achuthan was paid to him and received by him. It is
contended that 30 cents out of the suit property was sold to Velayudhan, eldest
brother of defendant No.1 on 26.9.1957. Later defendant No.1 executed a gift
deed in favour of defendant No.2 in the year 1968 and presently defendant No.2
is in possession of the suit property. It is incorrect to say that the documents
are got executed in the manner stated in the plaint. It is also not correct to say
that the documents have not taken effect or are sham. Plaintiff has no right or
interest in the suit property. Plaintiff was aware of execution of the documents
during the relevant time itself. Defendant No.3 adopted the contentions of
defendant Nos.1 and 2. She claimed that defendant No.1 sold 30 cents from the
suit property to her husband, the late Velayudhan on 26.9.1957 as per a
registered document. Defendant Nos.4 and 10 supported defendant Nos.1 and
2. Learned Munsiff found that plaintiff has no partiable right in the suit property
and dismissed the suit. Plaintiff took up the matter in appeal. First appellate
court found that Exts.A1 to A3 are sham documents which have not taken effect
and reversing the judgment and decree of the trial court the suit was decreed. A
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preliminary decree for partition was passed in favour of the plaintiff. That
judgment and preliminary decree are under challenge in this Second Appeal at
the instance of defendant Nos.1 and 2.
3. Following substantial questions of law are framed for a decision:
i. When there are registered documents in respect of a
property and right is claimed only as a sharer by the plaintiff, could partition be
allowed without a declaration to the effect that plaintiff is entitled to a share in
the suit?
ii. Was not the first appellate court wrong in concluding that
Exts.A1 to A3 are sham transactions, in the absence of any evidence in that
line?
It is contended by learned counsel for appellants/defendant Nos.1 and 2 that in
the nature of the averments in the plaint attacking the relevant documents,
plaintiff could not succeed without incorporating a prayer for declaration of the
right claimed by her or, to set aside the documents which according to her,
stand against her. It is also the contention of learned counsel that the first
appellate court was not legally correct in concluding that Exts.A1 to A3 are sham
documents in the absence of any evidence to that effect. Learned counsel
contends that the failure of plaintiff to mount the witness box is fatal and placed
reliance on the decisions in Iswar Bhai C.Patel v. Harihar Behera [AIR
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1999 SC 1341] and Vidhyadhar v. Manikrao [AIR 1999 SC 1441].
Per contra, it is contended by learned counsel for plaintiff that the only contention
raised by the plaintiff in the trial court and the first appellate court as regards
the documents in question is that the said documents are sham, which does not
require a declaration to that effect. According to the learned counsel it is
sufficient that plaintiff avoided the said documents by appropriate plea and
produced evidence to show that the said documents are sham and have not
taken effect. Learned counsel would contend that the first appellate court was
justified on evidence in concluding that Exts.A1 to A3 are sham and have not
taken effect. Further contention is that the said finding is one on fact, no
substantial question of law is involved and this Court is not justified in interfering
on a finding of fact entered by the first appellate court.
4. Ext.A1 is the certified copy of sale deed dated 17.7.1957 executed
by Keralavarma Thampuran in favour of defendant No.1 purporting to transfer
his right, title, interest and possession over the suit property – 1.46 = acres for
the consideration mentioned therein and directing that defendant No.1 shall pay
certain amount to Achuthan, his father who has been residing in the suit property
since time immemorial looking after that property. Ext.A2 is the certified copy of
sale deed dated 26.9.1957 executed by defendant No.1 in favour of his eldest
brother, the late Velayudhan (husband of defendant No.3) conveying right, title,
interest and possession of 30 cents from the said 1.46 = acres. Ext.A3 (Ext.B2
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is the original) is the certified copy of release deed dated 23.7.1958 executed
by the late Achuthan in favour of defendant No.1 releasing his right over 1.15 =
acres from out of the suit property (less 30 cents covered by Ext.A2) for the
consideration mentioned therein. Ext.A4 is the certified copy of gift deed dated
5.7.1968 executed by defendant No.1 in favour of defendant No.2 concerning
1.46 = acres. I shall refer to the rest of documents a bit later.
5. According to the plaintiff, as seen from the averments in
paragraph No.3 of the plaint Ext.A1 was got executed by defendant No.1 without
the consent of plaintiff or other legal representatives (meaning those were
entitled to a share in the suit property after the death of Achuthan). So far as
Ext.A2 is concerned the averment in the plaint is that it is a sham document
which has not taken effect, nor intended to take effect. When it comes to
Ext.A3, averment in paragraph No.3 of the plaint is that there was no occasion
for Achuthan to execute any such document, nor had he the mental capacity to
do so. In paragraph No.4 of the plaint it is stated that it was exercising undue
influence that Ext.A3 was got executed. In the relief portion it is stated that the
said documents are null and void, sham and holding so, plaintiff may be granted
a decree for partition and separate possession of her one sixth share.
6. Contention raised by learned counsel for defendant Nos.1 and
2/appellants is that in that nature of the attack against Exts.A1 to A3, without a
prayer for declaration regarding the validity of the said documents in the manner
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pleaded by the plaintiff or, without setting aside those documents plaintiff could
not ask for the relief of partition as if she were a co-owner of the suit property.
Learned counsel for plaintiff in response would contend that the plea raised
concerning Exts.A1 to A3 is only that the said documents are sham and that
was how those documents were attacked in the first appellate court also That
being the plea, a declaration or setting aside of the documents is not required
before seeking partition, according to the learned counsel.
7. If a document is sought to be attacked on the ground that it is null
and void or it is sham having not taken effect, a declaration to that effect or
setting aside the document is not required. Reason is that so far as a document
which is null and void is concerned, it is non est in the eye of law and can be
ignored by proving the same to be null and void. When a document is attacked
on the ground that it is sham, then also in my view, a declaration to that effect
or setting aside that document is not required since a sham document cannot
create rights or obligations or affect the rights of parties concerned. The
decision of the Madras High Court in Venkatrama Aiyar and others v.
Krishnammal and another [AIR 1927 Madras 255] and the decision of
this Court in Gouri Amma Vaidehi Amma v. Parameswaran Pillai
Madhavan Pillai [1956 KLT 431] support that view. Therefore, so far as
the contention of plaintiff that the documents are sham is concerned, even
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without setting aside those documents or seeking a declaration to that effect, it
was well within the right of the plaintiff to seek partition and separate possession
of the share claimed by her. But, if a document is attacked on the ground that
the executant was not having the mental capacity to execute that document or it
was got executed under undue influence, then it is only voidable in nature,
remains valid till avoided and has to be set aside in the manner known to law.
In the plaint, it is stated that at the time Ext.A3 was executed by late Achuthan
he did not have the mental capacity to do so. It is also stated that the said
document was got executed by defendant No.1 using undue influence. Son of
plaintiff when examined as PW1 asserted in chief examination that at the time
Ext.A3 was executed Achuthan was not having sound disposing state of mind.
He further stated that it was executed fraudulently. If that be so, plaintiff had to
set aside the said document (Ext.A3) before claiming partition. However, it is
stated by learned counsel for the plaintiff that plaintiff is not pursuing such a
contention and her contention is only that Ext.A3 is sham and has not taken
effect. Though what is stated in the relief portion in the plaint is not a substitute
for pleadings, what is prayed for is that partition may be ordered after holding
that Exts.A1 to A3 are sham and null and void. That is how plaintiff presented
her case in the first appellate court also as seen from the finding entered by that
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court and the learned counsel for plaintiff submits. In the circumstances I hold
that a declaration or setting aside of the documents as suggested by learned
counsel for defendant Nos.1 and 2, before seeking partition was not necessary.
8. Now I shall come to the question whether finding of the first
appellate court, in reversal of the finding of the trial court that Exts.A1 to A3 are
sham and that plaintiff has partiable interest in the property is supported by any
evidence. What is stated in the plaint is that late Achuthan was residing in the
building in the suit property and taking yield from time immemorial. Apart from
the said averment there is nothing averred in the plaint to indicate that Achuthan
had any other right or interest in the suit property. Though it is contended by
learned counsel for plaintiff that the recital in Ext.A1 would show that Achuthan
had been making customary payments to Keralavarma Thampuran which is
indicative of a tenancy in favour of the late Achuthan, I do not find any such
averment in the plaint nor evidence on the side of PW1 who testified for the
plaintiff. There is no averment in the plaint that suit property was entrusted to
the late Achuthan for effecting cultivation or that he was empowered or
authorised to effect such cultivation. A ‘cultivating tenant’ is defined in Section
2(8) of the Kerala Land Reforms Act as ” a tenant who is in actual possession of
and is entitled to cultivate the land comprised in his holding”. I do not find any
such averment in the plaint or evidence in that line. Exts.A1 and A3 (which
ofcourse plaintiff challenge as ‘sham’) only say that late Achuthan was a
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caretaker of the suit property residing in the house therein since long. That does
not make him a cultivating tenant. Therefore, that contention of the learned
counsel cannot be accepted.
9. Learned counsel for plaintiff contended that there is no evidence to
show that Keralavarma Thampuran, the executant of Ext.A1 had any right over
the suit property as stated in Ext.A1. Ext.A1 states that it was by way of a
partition in the Royal Family that Keralavarma Thampuran got the suit property
absolutely, but the copy of that partition deed is not produced. Here also I
must also say that there is no averment in the plaint that Keralavarma
Thampuran had no right in the property so that, he could not execute Ext.A1.
On the other hand what is stated in paragraph No.2 of the plaint is that
defendant No.1 got Ext.A1 got executed from Keralavarma Thampuran, the
owner of the property. Moreover, PW1 has given evidence that Keralavarma
Thampuran was the owner of the property. It is true that when defendant No.1
was in the box, he was questioned whether he had seen the partition deed
referred to in Ext.A1 or any other document showing the title of Keralavarma
Thampuran over the property and he answered in the negative. But in the light
of what is stated in paragraph No.2 of the plaint, lack of averments in the plaint
that Keralavarma Thampuran had no property and the evidence of PW1 that
the property belonged to Keralavarma Thampuran, I am unable to accept that
contention of the learned counsel for plaintiff.
10. So far as Ext.A1 is concerned, it recites that Keralavarma
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Thampuran assigned his right, title, interest and possession of the suit property
in favour of defendant No.1 on receipt of the consideration mentioned therein
and it is also stipulated in Ext.A1 that defendant No.1 was to pay certain amount
to the late Achuthan in consideration of his looking after the properties staying
there since time immemorial. Defendant Nos.1 and 2 produced Ext.B1 to show
that the amount recited to be paid to Achuthan was paid. Ext.B1 is a photocopy
of receipt dated 15.7.1957 said to have been executed by Achuthan in favour of
defendant No.1 receiving the sum of Rs.3,752/- recited in Ext.A1 to be paid to
him. Ext.A1 is however dated 17.7.1957. First appellate court held that
execution of Ext.A1 itself is doubtful in so far as the amount recited in Ext.A1 to
be paid to Achuthan is seen paid by Ext.B1 to the said Achuthan two days prior
to Ext.A1. I shall refer to acceptability of that contention a bit later. Ext.A2
states that defendant No.1 sold 30 cents out of 1.46 = acres to Velayudhan,
husband of defendant No.1 for consideration. It is as per Ext.A3 that the late
Achuthan is said to have released his right over the remaining 1.15 = acres in
favour of defendant No.1, and later comes Ext.A4, gift deed dated 5.1.1968
executed by defendant No.1 in favour of defendant No.2, but in respect of the
entire 1.46 = acres.
11. First appellate court found that Ext.B1 could not have been
executed by the late Achuthan two days prior to Ext.A1. A further finding is that
though as per Ext.A2, defendant No.1 had sold 30 cents to his eldest brother,
Velayudhan (husband of defendant No.3) from out of 1.46 = acres, it would
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appear from Ext.A4, gift deed dated 5.1.1968 that defendant No.1 gifted the
entire 1.46 = acres (including the 30 cents covered by Ext.A2) to defendant
No.2, wife. Thus first appellate court came to the conclusion that Ext.A1 to A3
are sham transactions.
12. I am afraid, the first appellate court has not gone into the evidence
or considered the relevant aspects in depth while holding so. Assuming that
Ext.B1(it is the photocopy of an unregistered receipt) came into existence two
days prior to Ext.A1, that could be a reason to discard Ext.B1 but, not sufficient
to ignore Ext.A1 which is a registered document. Execution of Exts.A1 to A3 are
not being disputed by the plaintiff before me. Though registration by itself is not
proof of execution of a document, binding authorities on the point say that
registration is prima facie evidence of valid execution of the document which is
required by law to be registered. Therefore that Ext.B1 was got executed two
days prior to Ext.A1 is no ground to hold that Ext.A1 has not taken effect. May
be Ext.B1 can be ignored which does not affect the right of defendant Nos.1 and
2 over the property. It is also true that as per Ext.A2, 30 cents was assigned to
Velayudhan (late husband of defendant No.3) from out of 1.46 = acres and
Ext.A4 would say that the entire property including the said 30 cents was gifted
to defendant No.2. From that also it is not possible to say, in the light of
evidence on record that either Ext.A2 or Ext.A4 has not taken effect. What
could be said is that Ext.A4 does not affect the 30 cents sold as per Ext.A2.
13. Learned Munsiff observed that so far as Exts.A1 to A3 and Ext.B1
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are concerned, the presumption under Section 90 of the Evidence of Act (for
Short, “the Act”) is available to it. That finding in my view is not legally correct
for, Exts.A1 to A3 are only certified copies and though, for certified copies also a
presumption under Section 90 could be drawn, two conditions are to be
satisfied: firstly, the said documents are brought in evidence after complying with
the requirements of Section 63 of the Act and secondly, the certified copies by
themselves are of thirty years old (see the decision of the Supreme Court in
Lakhi Baruah v. Padma Kanta Kalita (AIR 1996 SC 1253).
Therefore, the presumption under Section 90 of the Act is not available to
Exts.A1 to A3. So far Ext.B1 is concerned, the same principle must apply since
it is a photocopy and Ext.B1, I stated cannot be accepted in the light of Ext.A1
and for the reason which I have already stated above.
14. It has come in evidence that defendant Nos.5 to 9, children of late
Karthyayani (daughter of the late Achuthan) filed O.A.No.813 of 1970 before the
Land Tribunal making defendant No.2 as the opposite party and claiming right of
kudikidappu. That application comes after Ext.A4, gift deed in her favour. It is
not disputed that the said application was concerning the portion of property
covered by Ext.A4 and excluding the 30 cents covered by Ext.A2. Ext.B4 is the
copy of application dated 28.3.1970 preferred by defendant Nos.2 to 5 before
the Land Tribunal. Ext.B5 is the copy of notice dated 28.10.1970 issued to
defendant No.2 from Land Tribunal in O.A.No.813 of 1970. Ext.B6 is the sketch
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of the land to be assigned to defendant Nos.5 to 9 by way of kudikidappu.
Ext.B7, notice in O.A.No.813 of 1970 shows that the purchase price was
deposited by defendant Nos.5 to 9 in the Land Tribunal and notice of the deposit
was given to defendant No.2. Ext.B7 reveals that kudikidappu was assigned to
defendant Nos.5 to 9 from property belonging to defendant No.2 as per Ext.A4.
That also indicates that the gift in favour of defendant No.2 to the extent it
concerned 1.15 = acres had taken effect.
15. Now I shall refer to the evidence let in by the plaintiff. She has not
gone to the box. True, her son was examined as PW1 on the strength of the
order passed on an application to examine him on behalf of plaintiff stating that
she is laid up. Evidence reveals that PW1 was not even born at the time of
Exts.A1 to A3. Certainly PW1 was not competent to give evidence regarding
Exts.A1 to A3. He admitted that defendant No.1 was in possession of the
property from 1957 onwards though, according to him on behalf of all legal
representatives. At one stage, he stated that defendant No.1 is in possession
from 1958 onwards. Admittedly, Achuthan died only in the year 1959. In other
words, possession of defendant No.1 from 1957 or 1958 (as PW1 says) can be
traced to Ext.A1 and as recited therein. Though it is contended by the plaintiff
that she has been in joint possession of the suit property with other legal
representatives and was sharing the income therefrom, there is no evidence in
that line except the interested version of PW1. It is not disputed that plaintiff is
residing with her family elsewhere. It is admitted by PW1 that the revenue for
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the suit property is being paid by defendant No.1. Defendant No.1 on the other
side gave evidence that he got right, title and possession of the suit property as
per Ext.A1 and since then he is in possession and enjoyment of the property as
the owner. He has also referred to execution of Exts.A2 to A4. He claimed that
right from 1957-58 onwards he has been paying revenue for the suit property,
effecting mutation in his name. True, revenue receipts are not produced. But, in
the light of evidence of PW1 that revenue was paid by defendant No.1 there is
no reason to disbelieve the evidence of DW1. It is also seen from Ext.B11,
certified copy of mortgage deed No.719 of 1959 dated 20.8.1959, that
defendant No.1 had mortgaged the suit property to the Dakshina Bharatha
Bank. These circumstances are sufficient to show that contention of the
plaintiff that Exts.A1 to A3 have not taken effect is not correct.
16. Defendant No.11 came to the picture claiming that there was an
agreement for sale of a portion of the property belonging to defendant No.2.
Exts.B8 to B10 are produced to prove the same. Exts.B8 to B10 are notices
dated 15.4.1988, 21.10.1988 and 30.3.1989 issued on behalf of defendant
No.11 to defendant No.2 referring to the alleged agreement for sale.
17. So far as the right of the late Achuthan in the suit property is
concerned I found that there is no plea or evidence of tenancy and in the light of
Exts.A1 and A3 no such contention could also stand. Defendant Nos.1 and 2
on the other hand contended that Achuthan was a kudikidappukaran but,
plaintiff does not have such a case and no relief is claimed based on any right of
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kudikidappu of the late Achuthan. Therefore, it is not necessary to go into that
question in this appeal.
18. I have gone through the judgment and decree under challenge and
I find that learned Munsiff has considered the evidence on record and concluded
that the contention that Exts.A1 to A3 are sham cannot stand. On the other
hand, first appellate court after narrating the contention raised by both sides
stated in paragraph No.12 of the judgment that Exts.A1 to A3 are sham
documents without referring to the evidence on record and merely for the
reasons that Ext.B1 is seen executed two days before the execution of Ext.A1
and that inspite of sale of 30 cents to the late husband of defendant No.3 as per
Ext.A2, defendant No.1 has gifted the entire property to defendant No.2 as per
Ext.A4. I stated that these circumstances are not at all sufficient to hold that
Exts.A1 to A3 are sham documents. I also stated that first appellate court has
not considered the evidence on record before holding that Exts.A1 to A3 are
sham documents. Finding of the first appellate court regarding Exts.A1 to A3 is
without referring to the evidence on record. In such a situation it is open to the
second appellate court to interfere as held in Maria Colaco v. Alba Flora
Herminda D’souza[(2008) 5 SCC 268]. There it was held that normally in
the Second Appeal the High Court should not interfere on the question of fact.
But if on the scrutiny of evidence it is found that the finding recorded by the first
appellate court is totally perverse, then, certainly the High Court can interfere in
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the matter as it constitutes a substantial question of law. I am satisfied that
finding of the first appellate court is of that nature and hence it involved a
substantial question of law permitting and requiring this Court to interfere in this
Second Appeal. On going through the evidence and hearing learned counsel on
both sides I am unable to sustain the finding entered by the first appellate court.
The substantial questions of law raised are answered as above.
Resultantly, this Second Appeal succeeds. Judgment and decree of the
first appellate court are set aside and that of the trial court are restored. Parties
shall suffer their cost through out.
C.M.P.No.56 of 1995 and I.A.No.1351 of 2003 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
cks
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Thomas P.Joseph, J.
S.A.No.21 of 1995
JUDGMENT
21st October, 2009.