BHIM SINGH &.ANR. v. KAN SINGH (2)

Citation: [1980] 2 S.C.R. 628

Court: Supreme Court of India

Bench: P.N. SHINGAL, E.S. VENKATARAMIAH

Case summary

-These two cross appeals by certificate arise out of a suit for posse6sion of a house situate in Bikaner and for damages for use and occupation thereof filed in Civil Original Case No....

Judgment text

BHIM SINGH &. ANR. v. I - • KAN SINGH (AND VICE VERSA) December 21, 1979 n fP. N. SHINGHAL AND E. S. VENKAlARAMIAII, JJ. ] Benanii-What is-Tests for deciding benami transactions. Plaintiff no. 1 and plaintiff no. 2 were father and son while defendant wa5 the brother of plaintiff no. 1. The plaintiffs in their suit against the defendanl claimed that the suit house in Which the defendant WM living, belonged to them by virtue of a patta issued in their names. They alleged that the deceased brother of plaintiff no. 1, who remain'ed a bar-Jielor till his death, loved plaintiff no. 2 as bis son and had thought of adopting plaintiff no. 2 but since he· died all of a sudden it could not be done.

The defendant on the other band claimed that he and his deceased brother lived as m'embers of a joint family after the partition of their family that as a rellult of the joint efforts of himself and his deceased brother the Ma-haraja, of Bikaner sanctioned sale cf the house io them, that the purchase money v;as paid out of their joint income but that the patta wa. s granted in the names of the plaintiffs du'e t_g political reasons and therefore the plaintiffs were at the most benamidars. The trial court held that the house was acquired by the deceas'ed brother from the Government of Bikaner for the plaintiffs and the patta was granted in favour of the plaintiffs and that they were in its J>0S5csi;ion till 195fj. It rejected the defendant's claim that it was acquired with the joint funds of him~clf z-nd his deceased brother.

On appeal the High Court held that the house bad been purchased by the deceased brother out of his own money in the names of the plaintiffs without j any intention to confer any beneficial interest on them a. nd on his d'eath plain· tiff no. l and the defendant su=eded jointly to the estate as his heirs. HELD : The transaction under 'Which the· patta was obtained was not a benami transaction. The house WM w. :quired by the deceased brother with his money and with the intention of constituting plaintiff no. 2 as the absolute owner thereof. [648G] Where a person buys property with his own money but in the name of another person without any intention to benefit such other person, the transac· • tion is called benami. In that case the ~eree holcb! I the property for the benefit of the person who hali. contributed the purchase money and he is a real owner. T·he second case which ts looeely termed a benami tr.

ansaction is a ~ase where a person, Who is the owner of the property, executes a conveyance in favour of another without the intention of transferring the title to the property thereund'er. In this case the transferor continues to be the real owner. The difference between the two kinds of benamj transactions is tha. t whereas in the former there is an operative tramfer from the tramferor to the transferee, though the transferee holds the property for tbe benefit of the person who bas •• BHIM SINGH v. KAN SINGH (Venkataramiah J. ) 629 • contributed the purchase mon·ey, in the latter there is no operative transfer at all and the title rests with the transferor notwithstanding the execution of the - ) conveyance. One common feature in both cases is that the real title is divorced • from the ostensible title and they are vested in different persons. The queition whether a transaction is a benami transaction'.

or not depends upon the intention of the p'erson who has contributed the purchase money in the former case, and upon the intention of the person who has executed the conveyance in the latter case. The principle underlying the former case is statutorily r'ecognized in section 82 of the Indian Trust Act, 1882. [638B-E] Mcenakshi Mills, Madurai v.. The r:ommissioner of Income-Tax, Madras, (1956] S. C. R. 691 at p. 722; Mohammad Sadiq Ali Khan v. Fakhr Jahan Begam &: Ors. 59 I. A. 1; Manrnohan Das & Ors. v. Mr. Ramdai & Anr. A. I. R. 1931 P. C. 175; Jaydayal Poddar (deceased) through /iis L. Rs. & Anr. v. Mst. Bibi • Hazra & Ors. [1974] 2 S. C. R. 90 referred to. (3 2. The prinlciples governing the determination of the question whether a transfer is a benami or not are : ( 1) The burden: of showing that a. transfer is a benami transaction lies on th'e person who asserts that it is such a transaction; (2) if it is proved that the purchase money came from a person other tha.

n the person in whose fa\. uur the: property is transferred, the purchase is prilna-facie assumed to b'e for the benefit of the person who supplied the purchase money, nnle! S there is evidence to the contrary; (3) the true character of the transaction 0 is governed by the intention of the person who has contributed the purchas'e money and (4) the question as to what his intention was, has to be decided on the basis of the surrounding circumstances, the relationship of th'e parties • the motives governing their action in bringing about the transaction and their sui,. eqnent conduct. [6410. E] In the instant case the deceased brother was a bachelor. On the death of the wife of plaintiff no. 1, plaintiff no. 2 and his younger brother were staying with the de. ceased brother. Plaintiff no. l was almost in an indigent condition while d'efendant practised law for some time and later entered into service. The patta for the house was issued in the name of plaintiffs nos..

l and 2 at the request of the deceased brother for the benefit of plaintiff no. 2 and was handed over to him after h'e completed his education. This conduct of the deceased brothel established that it was his intention that, when he secured the patta from the State Government in the names of plaintiffs it was his intentioni that plaintiff no. 2 whom he loved, should become th~ owner. [641F-H) 3. The declaration made by the deceased, who had contributed the purch.. ,e money subsequent to the date of purchase to the effect that the property belonged to plaintiff no. 2 wag admissible in evidence either under section 32(3) or section 21 of the Indian Evidence Act to prove his intention that he intended that plaintiff No. 2 should become its owner. [647E] SheP. hard & Anr. v. Cartwright & Anr. [1955] A. C. 431, distinguished. CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 626 & 629 of 1971. From the Judgment and Order dated 5-8-1970 of the Rajasthan High Conrt in R. F. A. No. 31/60.

• -j S. T. Desai and Naunit Lal for the Appellant. • P. R. Mridul, B. P. Sharma, Krishna Bhatt and R. K. Bhatt for the ' . • Respondents. The Judgment of the Conrt was delivered by 8 VENKATARAMIAH, J. -These two cross appeals by certificate arise out of a suit for posse6sion of a house situate in Bikaner and for damages for use and occupation thereof filed in Civil Original Case No. 17 of 1957 on the file of the District Judge, Bikaner. The plain· . -,. tiffs in the suit are the appellants in Civil Appeal No. 626 of 1971 and · 't tl:. e defendant is the appellant in Civil Appeal No. 629 of 1971. The r genealogy showing the relationship between the parties is given "· below:- Sur lingh . I. h Bhar. ltSingh Bhims1ng Kan~ingh (Died in (P. I. ) (Deft. ) Sept. 1955) • I I I Duley Dhaney Deep Singh Singh Singh j Himmat Dalip Singh Singh (P. 2. ) (Died in Sept. 56) Gad Singh, Bharat Singh, Bhim Singh (plaintiff No. 1) and Kan Singh (defendant) are the sons of Sur Singh.

Bharat Singh died un- ... married in September, 1955. Gad Singh died thereafter leavinfli behind him three sons, Duley Singh, Dhaney Singh and Deep Singh. Dalip Singh, the second son of plaintiff No. 1 died in September, 1956. Bharat Singh and the defendant were residing in the house which was the subject matter of the suit. After the death of Bharat Singh, the plaintiffs Bhim Singh and Himmat Singh filed the suit out of which this appeal arises against Kan Singh, the defendant for recovery of possession of the suit house and other ancillary reliefs. In the plaint, they + ' BIIIM SINGH v. KAN SINGH (Venkataramia,h !. ) 63 I pleaded that the suit house belonged to them by virtue of a patta dated July 12, 1940 issued in their names; that the cloofendant who was the brother of plaintiff No. 1 and uncle of plaintiff No. 2 was living in a part of the house with their consent; that plaintiff No.

2 and his yonhger brother Dalip Singh were also Jiving in th" house till the year • 1956; that the defendant had refused to receive a notice issued by them ir. the month of September, 1957 calling npon him to hand over possession of the house to the plaintiffs; that the defendant had done so on account of personal ill will and ·that the plaintiffs were, there- .... fore, entitled to recover possession of the ~uit house and damages from the defendant The 1 2 S,C. R. 286. 636 SUPREME C! JURT REPORTS [1980] Z S. C. R. attempt to sustain the same claim on a ground which is I entirely new. . . . . . . . . . But in considering the application of this doctrine to the facts of the present ca~e, it is necessary to bear in mind the other principle that considerations of ' form cannot over-ride the legitimate considerations of substance.

If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadinga made by the parties. Bnt where the substantial matters relating to the title of both parties to the suit arc touched, though indirectly or even obscurely in the issues, because he was in the service of the State. We do not find any substance in this submission because the property was being purchased from the State Government itself and there was no need for him to shield his title from the knowledge of the State Government. It appears that Bharat Singh acquired the suit house for the benefit of plaintiff No.

2 for the following circumstances : The first circumstance is that the original patta had been handed over by Bharat Singh to plaintiff No. 2 on his passing B. Sc. Examination. This fact is proved by the evidence of plaintiff No. 2 and it is corrobomted by the fact tbat the patta was produced by the plaintiffs before the Court. In the course of bis evidence, the defendant no doubt stated that tbe patt:i had been stolen by plaintiff No. 2 from the suit bouse during tl:e twelve days following the deatb of Bharat Singh when the keys •Jf Bharat Singh's residence had been h•anded over to plaintiff No. 2 by the defendant. It is difficult to believe the above statement of foe defendant because of two circumstances-(i) that the defendant did not state in the written statement that the patta had been stolen by plaintiff No. 2 and (ii) that within a month or two after the death of Bharat Singh, plaintiff No.

2 wrote a letter which is marked as Exhibit A-124 to the defendant stating that the rumour which the defenda,1t was spreading that plaintiff No. 2 had stolen some articles from the suit house was not true since whenever plaintiff No. 2 opened room or any of the almirahs of Bharat Singh in the suit house, Devi Singh. lhe son of the defendant was keeping watch over him. That letter hos been produced by the defendant and there is no reference in it to a false rumour being spread about the theft of the patta by plaintiff F No. 2. Pl'aintiff No. 2 however, while asserting his claim to the suit house in the course of that letter stated that he had seen that the patta had been executed in his favour; and that the patta c·ontained his name. The defendant does not appear to have sent any reply to Exhibit A. 124 nor did he cull upon the plaintiffs to return the patta to him. He did not also file a complaint stating that the patta had been stolen ·G by plaintiff No. 2.

We are of the view that there; is no reason to di>believe the evidence of plaintiff No. 2 that the patta had been handed over to him by Bharat Singh on his passing the B. Sc. examination. This conduct of Bharat Singh establishes that it was the intention of Bharat Singh when he secured the patta from the State Government in the names of the plaintiffs that plaintiff No. 2 whom he loved should become the owner. It is no doubt trne that the name of plaintiff No. 1 is also included in the P'atla. It may have been so included by way BllIM SINGH v. KAN SINGH (Venkataramia;/z, !. ) 643 of abundant caution as plaintiff No. 2 was a minor when the patta A· was issued. The above circumstance is similar to the one which persuaded their Lordships of the Privy Council in the case of Mohammad Sadiq Ali Khan (supra) to hold that the property involved in that case belonged to the person in whose favour the conveyance had been executed.

The second circumstance which supports the view that Bharat Singh intended that plaintiff No. 2 should become the owner of the suit house is proved by the declarations made by Bharat Singh regarding the title to the suit house. Jaswant Singh (P. W. 2) was a former Prime Minister of the State of Bikaner. His wife was a cousin of plaintiff No. 1, Bharat Singh and the defendant. Being a close relative of Bharat Singh who was also the Aid-de-Camp of the Mahamja of Bikaner, he was quite intimate with Bharat Singh who used to discuss with him about his personal affairs. P. W. 2 has stated in the course of his evidence that Bharat Singh thought it proper to purchase the house i11 ! he name of plaintiff No. 2 and that he intended to make plaintiff No. 2 his heir and successor. · He has also stated that Bharat Singh had expressed his desire to give all his property to plaintiff No. 2 by a will and that he bad told Kesri Singh (P. W.

3) just a day prior to his (Bharat Singh's) death that a will was to be executed. This statement of Jaswant Singh (PW. 2) is corroborated by the evidence of Kesri Sing. -i (P. W. 3) whose wife was also a cousin of Bharat Singh, plaintiff No. 1 and the defendant. The relevant portion of the deposition of Kesri Singh (P. W. 3) reads thus: "I came from Jaipur to Bikaner by train one day before the death of Blrarat Singh and when I was returning after a walk I found Bharat Singh standing at the gate of his house. I ' asked Bharat Singh to accompany me to my house to have tea etc. Bharat Singh came with me to my house. Bharat Singh told me at my house that he was not quite all right and that he might die at any time.. He wanted to execute a will. He further told me that his house really belonged to Himmat Singh. It has been purchased in his name. He wanted to give even other property to Himmal Singh. . . . .

By other property which Bhamt Singh wanted to give to Himmat Singh was meant Motor car, bank balance and the presents which he had. The house regarding which my talk took place with Bharat Singh at my honse was the house in dispute. " There is no reason to disbelieve the evidence of these two wilnesses. Their evidence is corroborated by the deposition of Dr. Himmat Singh (D. W. 6) who was the Secretary of a Club in Bikaner 644 SUPREME COUl<T REPOR'I S [1980] 2 S. C. R. of which Bharat Singh was a member. He was examined by the ( defendant himself as his witness. Jn the course of his cross-examination, Dr. Himmat Singh (D. W. 6) rc! errcd to what Bharat Singh had told him a few months prior to his death. The substance of his deposition is found in the judgment of the trial court, the relevant portion of which reads thus : "D. W. 6 Dr. Hinunat Singh is the Secretary of the Sardul Club, Bikancr. He is the Senior Eye-Surgeon in the Government Hospital, Bikancr.

He has stated that Bharat Singh was the member of Sardul Club. A sum of Rs. 42516/.. remained outstanding against him till the year 1955. This amount was received on 28-10-1955. He has said that he does not know who deposited this amount. On the merits of the case, he has stated that he intimately knew Bharat Singh and members of his family. Bhim Singh and his sons Himmat Singh and Dalip Singh used to live in this house. Bharat Singh took this house for Bhim Singh and Himmat Singh. Four months before his death, Bharnt Singh told the witness that he had already taken the house for Bhim Singh and Himmat Singh and that whatever else would remain with him shall go to them. Dr. Himmat Singh refutes the defendant's stand and supports the plaintiff's case. " It was argued on behalf of the defendant that there is some varia. tion between the deposition of Dr. Himmat Singh (D. W. 6) and the above passage found in the judgment of the trial court and that the evidence of D. W.

6 should not be believed as he had turned hostile. ) The deposition of Dr. Himmat Singh (D. W. 6) was read out to us. It was also brought to our notice that an application had been made by the defendant to treat D. W. 6 as hostile and that it had not been granted by the trial court. Even though there is a slight ,·ariation between what is stated by D. W. 6 and what is contained in the judgment of the trial court with regard to certain det·ails, we do not feel that the said variation is of any substantial nature. The evidence of D. W. 6 suggests that Bharat Singh was of the view even during his life time that the suit house bolonged to plaintiffs and not to himself. Even though an application had been made by the defendant to treat D. W. 6 as hostile, we feel that this part of the evidence of D. W. 6 cannot be rejected on that ground since it is consistent with the evidence of Jaswant Singh (P. W. 2) and Kesri Singh (P. W. 3).

II It is seen from the judgment of the High Court that the effect of the statement of Kesri Singh (P. W. 3) in his deposition that Bharat Singh BIHM SINGII v. KAN S! NGJI (Ve11kataramia/1. J. ) 64b •had told him that the suit house was the property of pla,intiff No. 2 "has not been considered. The High Court while dealing with the evi· -dencc of Jaswant Singh (P. W. 2) and Kesri Singh (P. W. 3) laid more emphasis on those parts of their evidence where there was a reference ' to the alleged utilisation of the jewels or moneys belonging to th~ ,plaintiffs by Bharat Singh for the ,urpose of acquiring the suit house. The High Court has also observed in the course of its judgment that neither of them had stated that Bhamt Singh had told them that he was purchasing or had purchased the suit house as a gift to Bhim Singh· and Himmat Singh. The above observation does not appear to be consistent with the evidence of Kesri Singh (P. W. 3) discussed above. 't.

It was, however, contended on behalf of the defendant that the statement made by Bharat Singh in the year 1955 could not be accepted as evidence in proof of the nature of the transaction which had taken place in the year 1940. It was contended that the question whether a transaction was of a benami nature or not should be decided on the basis of evidence about facts which had taken place at or about the time of the transaction and not by statements made several years after the date of the transaction. In support of the ·above contention, the learned counsel for the defendant relied on the decision of the House ' of Lords in Shephard & Anr. v. Cartwright & Anr. ('). The facts of ~:\that case were these: In 1929, a father, with an assii(;'ate, promoted " several private companies and caused a large part of the shares, for which he subscribed, to be allotted in varying proportions to his three children, one of them being then an infant.

There was no evidence as to the circumstances in which the allotments were made. The companies were successful and in 1934 the father and his associate pro· moted a public company which acquired the shares of all the companies. The children signed the requisite documents at the request of their father without understanding what they were doing. He received a cash consideration and at ~mious times sold, and received the proceeds of sale of, their shares in the new company. He subsequently placed to the credit of the children respectively in separate deposit accounts the exact amount of the· cash consideration for the Qld shares and round sums in each case equivalent to proceeds of sale of the new shares.

Later he obtained the children's signatures to documents, of the contents of which they were ignorant, authorising him to withdraw money from these accounts and without their knowledge he drew on the accounts, which were by the end of 1936 exhausted, part of the sums withdrawn being dealt with for the benefit of the children but a large part remaining unaccounted for. He died in (1) [1955] A. C. 431. 646 SUPREl\iIE COURT REPORTS [1980] ~ s. c. R. A 1949. ln the action filed against his executors, it was contended by them that the subsequent conduct of the father showed that when the shares were got allotted by him in the names of the children in 1929, he did not intend to make them the real owners of the shares and that the presumption of advancement had been rebutted. This • contention was met by the plea that the subsequent conduct of the ' B father in dealing with the shares as if they were his own could not be relied upon either in his favour or in favour of his representa.

tives, executors and administrators to prove that he had no intention to create any beneficial interest in his children in the shares in question when they were obtained. On these facts, the House of Lords held that the subsequent acts and declarations of the father could not be relied y upon in his favour or in favour of his executors to rebut the presl! lllption of ad\'ancement. Viscount Simonds in the course of his judgment observed thus : "1\ly Lords, I do not distinguish between the purchase of D shares and the acquisition of shares upon allotment, and l think that the law is clear that on the one hand where a man purchases shares and they arc registered in the nume of " stranger there is a resulting trust in favour of the purchaser; on the other hand, if they are registered in the name of a child or one to whom the purchaser then stood in loco parentis, there is no such resulting trust but a presumption of advancement.

Equally it is clear that the presumption • may be rebutted but should not, a. s Lord Eldon said, give way to slight circumstances : Finch v. Finch (1808) 15 Ves. 43. It must then be asked by what evidence can the presumption be rebutted, and it would, I think, be very unfortunate if any doubt were cast (as I think it has been by certain passages in the judgments under review) upon the wellsettled law on this subject. It is, I think, correctly stated in substantially the same terms in every text book that I have consulted and supported by authority extending over a Jong period of time. I will take, as an example, a passage from Snell's Equity, 24th ed. , p. 153, which is as follows : "The acts and declarations of the parties before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction, are admissible in evidence either for or against the party who did the act or made the BHIM Sll\GH v. KAN SINGH (Venkataramiah, J. ) 64 7 declaration. . ..

But subsequent declarations are admissible as evidence only against the party who made them, and not in his favour. " The above passage, we are of the view, does not really assist the defendant in this case. What was held by the House of Lords iri the case of Shephard & Anr. (supra) was that the presumption of advancement could be displaced only by a statement or conduct anterior to or contemporaneous to the purchase nor could any conduct of the children operate against them as admissions against their in- " terest as they acted without the knowledge of the facts. In the instant case, we are concerned with the conduct and declarations of Bharat Singh subsequent to the transaction which were against his interest. The evidence regarding such conduct and declarations is not being used in his favour but against the legal representative of Bharat Singh i. e. the defendant who would have become entitled to claim a share in the suit house if it had formed part of his estate.

Such conduct or declaration would be admissible even according to the above decision of the House of Lords in which the statement of law in Snell's Equity to the effect 'but subsequent declarations ar'1 admissible as evidence only against the party who made them, and not in his favour' is quoted with approval. The declarations made by Bharat Singh would be admissible as admissions under the provisions of the Indian Evidence Act being statements made by him against his proprietary interest under section 21 and section 32(3) of the Indian Evidence Act. The defendant cannot also derive any assistance from the decision of this Court in Bibi Saddiqa Fatima v. Saiyed. M"Ohammad Mahmood Hasan('). The question before the Court in the case of Bibi Siddiqa Fatima (supra) was whether a property which had • been purchased by a husband in ! Ji's wife's name out of the fund belonging to a waqf of which he was a Mutawalli could be claimed by the wife as her own property.

This Court held that the wife who was the ostensible owner could not be treated as a real owner having regard to the fact that the purchase money had come out of a fund belonging to a waqf over which her husband who was the Mutawalli had no uncontrolled or absolute interest. Jn reaching the aoove conclusion. this Court observed thus : "We may again emphasize that im a case of this nature. all the aspects of the benami law including the 8 (1) [1978] 3 S. C. R. 886. 4-91SCij80 648 SUPREME COORT REPORTS [1980] 2 S. C. R. A question of burden of proof cannot justifiably be applied fully. Once it is found, as it has been consistently found, that the property was acquired with the money of the waqf, a presumption would mise that the property is a waqf property irrespective of the fact as to in whose name 11 was acquired.

The Mutawalli by transgressing the limits B of his power and showing undue fdvour to one of the beneficiaries in disregard to a large number of other beneficiaries could not be and should not be permitted to gain advantage by this method for one beneficiary which in substance would be gaining advantage for himself. In such a situation it will not be unreasonable to say-rather it c would be quite legitimate to infer, that it was for the plaintiff to establish that the property acquired was her personal property and not the property of the waqf. " It was next contended that the defendant had spent money on the repairs and reconstruction of the building subsequent to the D date of the patta and that therefore, he must be held to have acquired some interest in it. We have gone through the evidence bearing on the above question. We are satisfied that the defendant has not established that he had spent any money at all for construction and repairs.

Even if he has spent some money in that way with the knowledge of the actual state of affairs, it would not in law confer on the defendant any proprietary interest in the property. It is also significant that neither Gad Singh during his life time nor his children after his death have laid any claim to a share in the suit hou~e which they were entitled to claim alongwith the / defendant if it was in fact a part of the estate of Bharat Singh. f1 Their conduct also probabalises, the case of the plaintiffs1 that Bharat Singh did not intend to retain for himself any interest in the suit house. On the material placed before us, we are satisfied that the transaction under which the patta was obtained was not a benami transaction end that Bharat Singh had acquired the suit house with his money with the intention of constituting plaintiff No. 2 as the absolute owner thereof. Plaintiff No. 2 is, therefore, entitled to a decree for possession of the suit house.

H The trial court passed a decree directing the defendant to pay damage~ for use and occupation in respect of the suit house at the rate of Rs. 50/- per month from September 20, 1956 fr]] the DHIM SINGH v. KAN SINGH (Venkataramiah, !. ) 649 possession of the house was delivered to the plaintiffs. The operalion of the decree of the trial court was stayed by the High Court during the pendency of the appeal before it. In view of the decree passed by the High Court, the defendant has continued to be in possession of the suit house till now. Nearly twenty years have elapsed from the date of the institution of the suit. Jn the circumstances, we are of the view that the defendant should be directed to pay mesnc profits at the rate of Rs. 50/- per month till today and that an enquiry should be made by the trial court under Ordoc 20, "- Rule 12 of the Code of Civil Procedure to determine the mesne profits payable by the defendant hereafter till the date of delivery of 'Possession.

In the result, the decree passed by the High Court is set aside and a decree is passed directing the defendant to deliver possession of the suit house to plaintiff No. 2 and to pay mesne profits to him at the rate of Rs. 50/- per month from September 20, 1956 till today and also to pay future mesne profits as per decree to be passed by the trial court under Order 20, Rule 12 of the Code of Civil Procedure. For the foregoing reasons, Civil Appeal No. 626 of 197! Is accordingly allowed with costs throughout. Civil Appeal No. 629 of 1971 is dismissed but without costs. C. A. 626/71 allowed. P. B. R. C. A. 629/71 dismissed. •