JUDGMENT
S. Nainar Sundaram, C.J.
1. In this Letters Patent Appeal the controversy stems out of the Will of one Motilal Ranchhoddas dated 3-10-1908, and registered on 10-10-1908. The parties clamour and counter-clamour for rights under the terms of the Will, putting respective constructions of their own on the said terms. A question of limitation and a question of proof of the Will have also arisen on the pleadings put forth in the case.
2. The facts preceding the litigation and in the litigation run as follows. One Motilal Ranchhoddas, hereinafter referred to as the Testator, who died in the year 1912, left behind him his widow Bai Parson, two sons – Narayanlal and Vasantlal; and two daughters – Parvati and Kamla. The Testator owned properties movable and immovable. As per the terms of the Will the properties were distributed amongst the heirs of the Testator, when Vasantlal attained the age of 21 years. Narayanlal died leaving behind two sons – Vadilal and Thakorelal. Bai Parson, widow of the Testator died in 1942. Vasantlal died issueless in 1967-68 leaving behind him his widow Bai Rukshmani as his only heir. Vadilal and Thakorelal, hereinafter referred to as the plaintiffs, coming to know that Bai Rukshmani, hereinafter referred to as the defendant, was about to deal with the properties of Vasantlal claiming to be the absolute owner thereof and was about to dispose of the suit house, filed Civil Suit No. 1081 of 1976 on the file of the City Civil Court, Ahmedabad for permanent injunction restraining the defendant from selling or alienating the suit house and from handing over possession thereof to a third party.
3. The case of the plaintiffs is that Vasantlal, the deceased husband of the defendant had inherited the suit house under the Will of the Testator and one of the conditions of the bequest thereunder was that if any one of the two sons of the Testator died issueless, then the surviving son and his children should become the owners of the properties of the predeceased son; and as Vasantlal died issueless, the plaintiffs being the sons of the other son Narayanlal became the owners of the suit house and therefore, the defendant has no right to sell or alienate the suit house.
4. The defendant contested the suit pleading, inter alia, that on her husband attaining the age of 21 years, the properties inherited by him including the suit house vested in him absolutely and therefore, he became the full and absolute owner thereof and on his death the suit house devolved on the defendant. The defendant further contended that even as per the terms of a Will dated 1-10-1963 made by her deceased husband, she became the absolute owner of that suit house.
5. There were two other aspects arising on the pleadings in the case, and relating to an award given by Arbitrators and the Will left by Vasantlal. These two aspects are not very germane for finding a solution to the controversy in this Letters Patent Appeal. The first Court raised the requisite issues and the main issue related to the construction to be put on the terms of the Will to find out the nature of the devolution of the properties; and there were two other questions relating to the proof of the Will and the limitation. The first Court on the main issue opined as follows:
In the present case also as stated earlier, the intention of the testator was to make his sons absolute owner in respect of the properties to be distributed by Bai Parson at the time when Bai Parson expired and his anxiety in respect of the provision to be made in respect of the sons, widow has to be related to the period prior to the distribution of the estate when Vasantlal attained the age of 21 years. In that view of the matter, I must hold mat after the death of Vasantlal, his widow would inherit the property as an absolute owner….
On the question of limitation me first Court answered it in favour of the plaintiffs. On the question of proof of the Will, the first Court, held that the copy of the Will produced in the case was a copy made from the original Will and on the facts and in me circumstances of the case the said copy being a correct copy of the original Will is admissible in evidence. In view of its findings on the main issue, the first Court dismissed me suit of the plaintiffs. This obliged the plaintiffs to prefer First Appeal No. 336 of 1978 to this Court, The defendant preferred cross-objections with reference to adverse findings rendered by the first Court on the question of the proof of the Will and on the question of limitation. The learned single Judge elaborately dealt with the question of construction to be put on the terms of the Will and held that the Testator had made the bequest with a condition super-added that in case if any of the sons died issueless, the properties bequeathed to him should stand divested and should go over to the surviving son. In this view, the learned single Judge could not agree with the construction Of the term of the Will put up by the first Court and the learned single Judge declared that the defendant has no right to sell or create any encumbrance on or to part with the possession of me suit house. Taking up the question of the proof of the Will, the learned single Judge concurred with the finding of the first Court. Equally so, on the question of limitation, the learned single Judge confirmed the view of me first Court. In view of his finding on the construction of me terms of the Will and devolution of the rights thereunder, the learned single Judge allowed the First Appeal, set aside the judgment and decree of the first Court, and decreed the suit of the plaintiffs as prayed for. However, in view of the close relationship of the parties there was no imposition of costs. This Letters Patent Appeal has been preferred by the defendant being aggrieved over the decision of the learned single Judge.
6. We shall take up and deal with the questions in the order as argued by Mr. S.K. Zaveri, learned Counsel for the defendant/appellant herein. The learned Counsel for the defendant would first take up the question of limitation. While on this question it will be appropriate, if we first recapitulate what was the case of the plaintiffs in the plaint and what was the answer of the defendant to that case of the plaintiffs. In the plaint which is in Guiarati, we are asked to take note of, the averments in paragraphs 11, 12, 13 and 16 in this behalf and their English translation runs as follows:
11. It is learnt that the defendant has executed a sale agreement in respect of the house described in paragraph 1. It is also learnt yesterday that since the sale deed could not be immediately executed, a major portion of the sale price is to be taken in a day or two, retaining the possession and therefore it has become necessary to urgently file this suit. This suit has been filed for restraining the defendant from transferring the suit house or encumbering it in any manner or parting with the possession of the first floor of the house which is vacant and other reliefs.
12. The suit property has come to the possession of the defendant after coming into force of the Hindu Succession Act The defendant has, therefore, represented that as per her belief, she was entitled to sell and dispose of the property and she is accordingly going to dispose of the property. The defendant will not pay any heed to us.
13. The plaintiffs submit that it is their case that pursuant to the aforesaid Will, the plaintiffs have become owners of the suit house in the event of Vasantlal dying without any child, and the defendant could only use the rental income The defendant is not even entitled to rent etc. because she is not staying in the house of her husband and is staying with a stranger in violation of the terms of the Will
16. Cause of action has arisen within the jurisdiction of this Court around 1-4-1976 at Ahmedabad when the defendant was about to hand over possession of the house and the defendant is about to present draft of the sale deed in the office of the Sub-Registrar in a day or two,
The defendant has answered the above case of the plaintiffs in paragraph 4 of the written statement pleading the bar of limitation for the suit. The averments in paragraph 4 of the written statement which is in Gujarati, translated in English run as follows:
4. This suit is barred by limitation and, therefore, the application for interim injunction and the suit are liable to be dismissed. As per the provisions contained in the alleged Will, Vasantlal had become absolute owner, when he attained the age of 21 years and when he died in 1967, he was about 72 years of age. Therefore, being absolute owner of the suit properly for over 50 years, the plaintiffs are not entitled to raise any dispute. The rent of the suit property was being recovered by the defendant’s husband, since more than 50 years back and after the demise of her husband in the year 1967, the defendant has been recovering the rent and the plaintiffs have never raised any dispute in this connection uptil now.
The first Court would not annex any legal significance to the possession of the defendant in the suit house and her enjoying the usufructs thereof. It was disclosed that on the death of Vasantlal, the husband of the defendant the plaintiffs got the suit house mutated in their names and it stood in their names up to the date of the suit. The first Court rightly opined that mere possession of the suit house by the defendant had no significance at all and would not come in the way of the plaintiffs seeking the reliefs in the suit. The learned single Judge, after adverting to the decision of the first Court opined that there is absolutely no substance in the contention regarding limitation and agreeing with the reasons given by the first Court negatived this contention advanced before him.
7. Mr. S.K. Zaveri, learned Counsel for the defendant would submit that Article 58 of the Limitation Act, 1963 would be the appropriate Article to govern the situation, since the plaintiffs have in substance sought for a declaration that the defendant is not the absolute owner of the suit house and she has no right to alienate it, and the present suit would be one “to obtain any other declaration” spoken to in that Article. We can take it that the plaintiffs want the Court to declare that the defendant is not the absolute owner of the suit house and she has no right to alienate it and in that sense Article 58 of the Limitation Act, 1963 would be attracted to the suit of the plaintiffs. Then we are obliged to examine as to whether the suit of the plaintiffs is berred under that Article. Learned Counsel for the defendant would’ contend that on the facts of the case we must hold mat the right to sue first accrued on the demise of Vasantlal in 1967 and the suit having come to be laid beyond the period of 3 years from the time the right to sue first accrued, must be held to be barred by limitation. Article 58 of the Limitation Act, 1963 with all its 3 columns, runs as follows:
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Description of suit Period of Time from which period
limitation beings to run
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58. To obtain any Three When the right to sue
other declaration years first accrues,
The question as to when the right to sue accrues is not one coming up before Courts for the first time and even as early as in Mt. Bolo v. Mt. Koklan and Ors. , as to what could be the meaning to be annexed to the expressions “right to sue” occuring in Article 120 of the Old Limitation Act, 1908, came up for consideration, lit must be noted that Article 120 of the Old Limitation Act, 1908, corresponding to Article 113 of the Limitation Act, 1963 deals with suits for which no period of limitation is provided elsewhere. Except for the insertion of the word “first” as found in Article 58 of the Limitation Act, 1963, the stipulation as to commencement of time is same under both the Articles. It was opined in the above pronouncement as follows:
There can be no “right to sue” until there is an accrual of the right asserted in the suit and its infringement or at least clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.
8. In Annamalai Chettiar and Ors. v. A.M.K.C.T. Muthukaruppan Chettiar and Anr. , there was a reference to the pronouncement in Mt. Bolo v. Mt. Koklan and Ors. and the question was assessed as follows:
In a recent decision of their Lordships’ Board delivered by Sri Binod Mitter, it is stated, in reference to Article 120:
There can be no “right to sue” until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted: Mt. Bolo. v. Mt. Koklan . Counsel for the appellant admitted that he was unable to specify any date at which the claims to an account here in suit was denied by the appellants. Accordingly this contention fails.
9. In Gobinda Narayan Singh and Ors. v. Sham Lal Singh and Ors. , it was opined that the starting point for limitation under Article 120 must be the date when the rights were first invaded. The discussion runs as follows:
Assuming that Article 120 applies, they think that the expression “right to sue” in that Article means the right to bring the particular suit with reference to which the plea of limitation is raised, and that the present suit being in respect of Dendua only, the starting point limitation must be the date when the appellants rights in Dendua were first invaded. Their Lordships think that there is no reliable evidence of mining in Dendua prior to 1912; indeed, the respondents’ Counsel has made no attempt to support the finding of Walmsley, J. on this point.
10. In Pothukutchi Appa Rao and Ors. v. Secretary of State AIR 1938 Madras 193, a Division Bench of the High Court of Madras dealt with the question of starting point of limitation for a declaratory suit. The discussion runs as follows:
There is nothing in law which says that the moment a person’s right is denied, he is bound at his peril to bring a suit for declaration. The Government beyond passing the order did nothing to disturb the plaintiffs possession. It would be most unreasonable to hold that a bare repudiation of a person’s title, without even an overt act, would make it incumbent on him to bring a declaratory suit.
11. In Mst. Rukhmabai v. Lala Laxminarayan and Ors. , after adverting to the pronouncements of the Judicial Committee referred to above, there was also a reference to the pronouncement of the Division Bench of the High Court of Madras in Pothukutchi Appa Rao and Ors. v. Secretary of State AIR 1938 Madras 193 and the legal position was summed up as follows:
The legal position may be briefly stated thus : The right to sue under Article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right.
12. In C. Mohammad Yunus v. Syed Unnisa and Ors. , as to how the period under Article 120 has to be computed was indicated as follows:
The period of six years prescribed by Article 120 has to be computed from the date when the right to sue accrues and there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right.
13. In Gannon Dunkerley & Co. Ltd. v. Union of India , there was a reference to the pronouncement of the Judicial Committee in Mt. Bolo v. Mt. Koklan and Ors. and the proposition was expressed as follows:
But under Article 120 of the Limitation Act the period of six years for suits for which no period of limitation is provided elsewhere in the Schedule commences to run when the right to sue accrues. In our judgment, there is no right to sue until there is an accrual of the right asserted in the suit, and its infringement, or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted: Bolo v. Koklan
14. As already noted Article 58 of the Limitation Act, 1963, which Article learned Counsel for the defendant wants us to apply to the pleas of the plaintiffs stipulates that the time of three years for a suit to obtain any other declaration would begin to run “when the right to sue first accrues”. The word “first” found in Article 58 could not have a separate or an independent significance, unless the right to sue accrues. It is the element of accrual of the right to sue that is decisive and only when the right to sue has accrued, then it has got to be found out as to when it “first” accrued. Hence, the pronouncements which have spoken on Article 120 of the Old Limitation Act, 1908 do form a firm guidance, to find out as to when the right to sue accrues for the purpose of Article 58 of Limitation Act, 1963.
15. There must be accrual of the right to sue for the plaintiff, in the sense an infringement or at least a clear and unequivocal threat to infringe that right by the defendant should happen. So far the right of the plaintiff is not infringed or there is no positive and overt act on the part of the defendant to infringe the right of the plaintiff, there would not be accrual of the right to sue. When the plaintiff states and proves his case that on a particular date there was an infringement or at least a clear and unequivocal threat to infringe the right of the plaintiff, the defendant, if he wants to demonstrate a contrary position, must plead and prove the same. Some overt act on the part of the defendant towards infringement or threat to infringe is expected to make it incumbent for the plaintiff to institute the suit. Then only it could be stated that me right to sue has accrued. A hostile attitude remaining dormant in the mind of me defendant and which never got expressed in any overt act of his, by infringing or at least clearly and unequivocally threatening to infringe the right of the plaintiff will not bring the case within the purview of the set of expressions “right to sue accrues”. The above propositions gleaned from the pronouncements which we have referred to above, though do not require reiteration, yet we have recapitulated them for the purpose of guiding ourselves to assess the facts of the case to find out as to whether the suit of the plaintiffs is barred as contended by the defendant.
16. In the present case, when we analyse the pleadings put forth by me parties, we find that me rights of me plaintiffs as per me terms of the Will could be stated to have faced the threat of infringement only when the defendant attempted to effect the sale of the suit house shortly before the institution of me suit. The clear and unequivocal threat to infringe the rights of the plaintiffs could be held to have happened only men and not earlier. The overt act on me part of the defendant mat would make it incumbent for the plaintiffs to bring me suit, happened only shortly before the institution of the suit. It has not been made out by the defendant that there was any overt act on her part anterior to her attempt to alienate the suit house which could be characterised as a repudiation or an infringement of the rights of the plaintiffs under the terms of the Will. As pointed out by the first Court, whose findings have been confirmed by the learned single Judge, mere possession of the defendant of the suit house is of no legal consequence so as to abridge or abrogate the rights of the plaintiffs as per the terms of the Will. As per our above discussion we have to hold that the suit of the plaintiff was not barred by limitation as contended by the defendant and we uphold the findings of the first Court as confirmed by the learned single Judge on this question.
17. Mr. S.K. Zaveri, learned Counsel for the defendant would then advance before us the aspect of proper construction to be put on the terms of the Will to find out the devolution of rights on the parties. According to the learned Counsel for the defendant, on a proper construction of the terms of the Will, the Court must hold that the properties given to Vasantlal were taken by him absolutely and the subsequent relevant clause in the Will abrogating the absolute estate is repugnant to the earlier clause giving such absolute estate. We find that the terms of the Will have been appropriately and adequately analysed and assessed by the learned single Judge and the relevant passage in the judgment of the learned single Judge runs as follows:
After expressing his desire and necessity to execute the Will, the testator In Clause 1 of the Will stated who were his heirs. In Clauses 2 to 5 he referred to various movable and immovable properties which belonged to him. In Clause 6 he indicated how his properties were to be disposed of after his death. In Sub-clause (a) of Clause 6 he has indicated what expenses should be incurred and by whom towards his after-death ceremonies. By Sub-clause (b) of Clause 6 his widow Bai Parson was given a right to give on lease the shops and houses mentioned in Clause 2 and which were to go to share of Vasantlal. Out of the rental income which was to be received by Bai Parson, she was given a right, and was also put under an obligation, to spend for the household expenses. If there was any surplus, she was entitled to retain the same with her in her own name. But younger son Vasantlal was made the owner of the amounts allowed to be retained by her, for the reasons stated in the said clause. It was further provided that in case she died before Vasantlal attained the age of 21 years, then the properties were to be managed jointly by Narayanlal and Parvati till Vasantlal attained the age of 21 years. They were then required to hand over the amounts collected by them to Vasantlal. By Sub-clause (c), Bai Parson was directed to distribute immovable properties amongst the two sons of the testator when Vasantlal attained the age of 21 years. The properties mentioned in Sub-clauses (2) and (3) of Clause 2 were to be given to Vasantlal. But as far as the income of the shops mentioned in Sub-clause (2) was concerned, Bai Parson was to receive the same till her death. She was also given a right to reside in the house mentioned in Sub-clause (3). Vasantlal was to become full owner of that house and the shops after her death. The properties mentioned in Sub-clauses (4) and (5) of Clause 2 were to be given over to Narayanlal on a condition that the income realised from the shop mentioned in Sub-clause (5) was to be collected by Bai Parson, and half of the said Income was to be retained by her and the other half was to be given over to Narayanlal.
After her death, Narayanlal was to receive the whole income and become a full owner of the said properties. As provided in Sub-clause (d) of Clause 6, Narayanlal was to become the full owner of the house in which he was residing after Vasantlal attained the age of 21 years. The other two sub-clauses are not material for our purpose. One house was also bequeathed to Jashwantlal, son of Parvati, daughter of the testator, who being the widow was staying with him. That is stated in Clause 7 of the Will. It was, however, provided that in case Jashwantlal died issue-less, then the said house was to revert back to the two sons of the testator, i.e., Narayanlal and Vasantlal. Similarly, one house was given to Bai Kamla, another daughter of the testator with a condition that if she died issueless then the said, house was also to revert back to the two sons of the testator. That provision is contained in Clause 8 of the Will. In Clause 9 it was provided that in case Bai Parson died before Vasantlal attained the age of 21 years, then the properties were to be managed jointly by Bai Parvati and Narayanlal. Then follows Clause 10 which is material for the purpose of deciding this appeal and regarding which there is much controversy. When translated into English, that Clause reads as under:
I have two sons If one of them dies issueless, the other son and his issues would become the owner of his properties. If the widow of issueless son does not contract Natra marriage and does not return to her father’s place but resides in the deceased husband’s house, she should be provided maintenance and accommodation during her lifetime by the surviving son.
We do not think we could improve over the exercise gone through by the learned single Judge as above. Then, we must look into the controversy between the parties as to whether Clause 10 is repugnant to Clause 6 or whether it merely provides for divesting of the properties on the happening of a specified uncertain event at the time of the death of one of the two sons of the Testator. We must also note that by Clause 13 it was provided that if Bai Parson died before the death of the Testator and if Vasantlal had not attained the age of 21 years till then, then both his sons Narayanlal and Vasantlal would take the properties absolutely on Vasantlal attaining the age of 21 years.
18. There is no rigid and inflexible rule of construction of Wills, because no two Wills would be similar. The Court must endeavour to get at the dominant intention of the Testator. It would not be proper, even at the beginning, to have the mind of the Court impressed and obsessed with the construction put up on Wills by judicial pronouncements, and then proceed to, construe the Will in question in the Us to find out the dominant intention of the Testator. The Court must first construe the terms of the Will as a whole, to get at the dominant intention of the Testator and then proceed to find out as to whether the discussion in the judicial pronouncements will impel the Court to express an opinion other than the one formed by it on the construction of the terms of the Will. We find that such is the guidance expressed by the Full Bench of this Court in Shantilal Babubhai and Ors. v. Bai Chhani, D/o. Babubhai Mohanlal (1973) XIV GLR 45. It has always been countenanced that to find out the dominant intention of the Testator the Will must be read as a whole.
19. On an assessment of the terms of the Will in the present case, there are features apparent therein which bear out the dominant intention of the Testator. The Will read as a whole, makes the dominant intention of the Testator clear that his properties should not go into the hands of any outsider. Though the properties were to be distributed on Vasantlal attaining the age of 21 years, Bai Parson was given right to let out shops and receive part of the income therefrom till her death and it was only after her death Narayanlal and Vasantlal would become absolute owners. The specified uncertain event which the Testator had kept in mind was the demise of either of his two sons issueless. The intention of the Testator that his property should not go into the hands of any outsider becomes evident when we see that in respect of properties bequeathed to Jashwantlal and Bai Kamla, they should revert back to the two sons of the Testator, if either Jashwantlal or Bai Kamla should the issueless. Under Clause 6, the properties were given to Vasantlal and Narayanlal and by Clause 10 it was provided that if either of them died issueless then, subject to the right of the widow for residence and maintenance out of the said properties, they should go to the other son and his issues. On a proper construction of all the clauses of the Will, it becomes clear that the Testator wanted to give his two sons the properties absolutely, but subject to the condition that if any one of them should the issueless, the properties vested in him should stand divested and vest in the surviving son and his issues. We do not find any impediment in giving effect to the dominant intention of the Testator as above. A Will containing similar terms – except for the variation that instead of ‘issue’, ‘male issue’ was found in the Will – came up for consideration before Privy Council in Chunilal Parvatishankar v. Bai Samrath (1914) XVI BLR 366, and it was held that looking at the whole Will, on the death of one of the two sons leaving no male issue, the surviving son put the property appertaining to the share of the deceased son. This pronouncement of the Privy Council in Indira Rani Ghose v. Akhoy Kumar Ghose (1933) XXXV BLR 211, is also to the same effect.
20. However, Mr. S.K. Zaveri, would place reliance on the following pronouncements with a view to persuade us to take a different view:
(i) Saraju Bala Debi v. Jyotirmoyee Debi (1931) XXXIII BLR 1257; and
(ii) Ambalal Hargovind v. Ambalal Shivlal Thakor (1932) XXXIV BLR 1506.
As we have reminded ourselves, even at the beginning of our discussion, that it is not possible to take implicit guidance from the pronouncements, unless we have by ourselves formed an opinion with reference to the dominant intention of the Testator and then only we must go to the pronouncement to find out as to whether there could be a change of that opinion looking at what was stated in the pronouncements. With regard to the cases cited by Mr. S.K. Zaveri, learned Counsel for the defendant, they are not at all comparable to the present case and hence we do not find a warrant to adopt any ratio set down therein to the facts of the present case. Thus, we concur with the learned single Judge that Clause 10 of the Will was not a repugnant clause, but it was defeasance clause and therefore, in the event of Vasantlal dying issueless, the property bequeathed to him under the Will, stood vested in the plaintiffs, subject to right of the defendant for residence and maintenance. This being the position we have to hold that the defendant has no right to sell or create any encumbrance on or to part with the possession of the suit house.
20.1. Thirdly, Mr. S.K. Zaveri, learned Counsel for the defendant would to submit that the Court ought not to have allowed and acted upon secondary evidence with regard to proof of the contents of the original Will. What has come out in the evidence on this aspect could not be ignored. According to the plaintiffs, the original Will of the Testator was in the possession of the defendant. The Testator, Bai Parson and Vasantlal were residing together till the demise of the Testator. Narayanlal, the father of the plaintiffs was residing separately. Narayanlal, the father of the plaintiffs, obtained the original Will from Vasantlal for the purpose of preparing a copy, when plaintiff No. 1 was about 21 years of age. Plaintiffs No. 1 had himself dictated the contents of the Will to his father for the purpose of taking out a copy thereof and the father, Narayanlal prepared a copy of the said Will in his own handwriting and thereafter the original Will was returned to Vasantlal. A typewritten copy got prepared from the copy written by Narayanlal was produced before the City Survey Authorities, when an application was jointly made by Narayanlal and Vasantlal for mutation of their names, regarding the properties. Both the copies tally with one another. Of course, the defendant would deny that she was in possession of the original Will. The plaintiffs applied to the Sub-Registrar for obtaining a copy of the Will. But they were notified that the records prior to 1919 are not available. Thus, when the original Will was not available, the only manner in which the original Will could be proved was by leading secondary evidence and that is what happened in the present case. We do not find any merit in the contention put forth by the learned Counsel for the defendant on this question.
21. In the result, this Letters Patent Appeal fails and the same is dismissed. Keeping in mind the close relationship between the parties, we make no order as to costs.