# Gowli Buddanna v. C.I.T. Mysore, 60 l.T.R. 293 (S.C.), followed

- **Citation:** [1970] 2 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1969-08-20
- **Case number:** Civil Appeal No. 856 of 1966
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gowli-buddanna-v-c-i-t-mysore-60-l-t-r-293-s-c-followed-4781
- **Pages:** 9

## Headnote

A
SITABAI & ANR.
VRAM CHANDRA
August 20, 1969
B
[J. C. SHAH, ACTING C.J., V. RAMASWAMI AND
A. N. GROVER,
JJ.]
c
D
E
F
G
H
Hindu Law-Join·! faniily properties in the
hands of sole
sutl'Il'tng
coparcener-lf properties lose their character of joint ja1nily propert}'.
Hindu Adoption and Maintenance Act (78 of 1956) ss. 11 to 14Adoption by widow-Deceased husband, if dee1ned to be father.
Madhya Bharat Land Revenue (/nd Tenuncy Act (M.B. Act 66 of 1950),
s. 86---Tenancy rir:ht of ordinary te11ant, if heritable-Heritability gvvern~
ed by personal law.
"fwo brothers \Vere i~ possession of ancestral properties consisting of
a house and tenancy rights of an
ordinary tenant in agricultural lands.
The elder brother died in 1930 leaving a widow, the first appellant.
Tho
first appellant continued to live with the younger brother and had an illegitimate son by him, the respondent.
In March 1958, she adopted the
second appellant, and some time later, the surviving brother died. After hi5
putative father died, the respondent took possession of all the ioint family
properties. The t\vo appellants thereupon filed a suit for ejectment. The
trial court decreed the suit.
The first appellate court found that a will
exec:..1ted by the respondent's father (the younger brother) was valid in
so far as his half share in the house \Vas concerned and therefore ffii"'difieJ
the decree by granting a half-share of the house to the respondl!nL
Itt
second appeal, the High Court held that the appellants were not entitled
to any relief and that there suit should be dismissed, on the grounds th:it :
( 1) the joint family properties ceased to have that character in the hand<>
of the surviving brother when he became the sole surviving coparcener;
and (2) the. second appellant did not become, on his adoption, a c:Jparcener with his uncle in the joint family properties.
In appeal to this Court.
HELD : ( 1) The joint family properties
continued to retain
th-eir
character in the hands of the surviving brother, as the widow (the first
appellant) of the elder brother was still alive and continued to enjoy
the right of maintenance out of the joint family properties. [5 B]
Gowli Buddanna v. C.I.T. Mysore, 60 l.T.R. 293 (S.C.), followed.
A. G. of Ceylon v. A. R. Arunachalam Chettiar [1957] A.C.
540,
applied.
(2) The scheme of ss. II and 12 of the Hindu Adoptions an<l Maintenance Act, 1956, is that in the case. of adoption by a wido\v the adopted
child becomes absorbed in the adoptive family to which the wido\V belonged.
Though s. 14 of the Act doos not expressly state that the child
adopted by a widow becomes the adopted son of her deceased husband,
it is a necessary implication of ss. 12 and 14 of the Act. That is y;hy~ s.
14(4) provides that when a widow
adop1'· a child and
subsequently
marries, that husband becoines the step-father of the adopted child. There- .
2
SUPREME COURT REPORTS
(1970) 2 S.C.R.
fore, in the present case, when the the second appellant was adopted by
the first appellant he became the adopted son of the first appellant and
her deceased. husband, namely, the elder brother, and hence became a
coparcener with the surviving brother in the joint family properties· and,
after the. d.eath of the surviving brother the second appellant beca~e the
sole su:v1v1ng coparcener entitled to the possession of all the joint family
properties except those bequeathed under the will, that is, except the half·
share of the house. (7 D-G; A-BJ
Arukushi Narayan v. Janabai Sama Sawat, 67 B.L.R. 864, approved.
A
(3) Section 86 of the Madhya Bharat Land Revenue and Tenancy
Ac~. 1950 applies to the rights of an ordinary tenant in agricultural lands
\Yh1ch were therefore heritable.
In the absence of any special statutory
provision, the heritability is governed by the personal law of the tenants.
Therefore, the second •ppellant was entitled to the tenancy rights of his
C
uncle on his death. (8 G-H; 9 C-DJ

## Text

A
SITABAI & ANR.
VRAM CHANDRA
August 20, 1969
B
[J. C. SHAH, ACTING C.J., V. RAMASWAMI AND
A. N. GROVER,
JJ.]
c
D
E
F
G
H
Hindu Law-Join·! faniily properties in the
hands of sole
sutl'Il'tng
coparcener-lf properties lose their character of joint ja1nily propert}'.
Hindu Adoption and Maintenance Act (78 of 1956) ss. 11 to 14Adoption by widow-Deceased husband, if dee1ned to be father.
Madhya Bharat Land Revenue (/nd Tenuncy Act (M.B. Act 66 of 1950),
s. 86---Tenancy rir:ht of ordinary te11ant, if heritable-Heritability gvvern~
ed by personal law.
"fwo brothers \Vere i~ possession of ancestral properties consisting of
a house and tenancy rights of an
ordinary tenant in agricultural lands.
The elder brother died in 1930 leaving a widow, the first appellant.
Tho
first appellant continued to live with the younger brother and had an illegitimate son by him, the respondent.
In March 1958, she adopted the
second appellant, and some time later, the surviving brother died. After hi5
putative father died, the respondent took possession of all the ioint family
properties. The t\vo appellants thereupon filed a suit for ejectment. The
trial court decreed the suit.
The first appellate court found that a will
exec:..1ted by the respondent's father (the younger brother) was valid in
so far as his half share in the house \Vas concerned and therefore ffii"'difieJ
the decree by granting a half-share of the house to the respondl!nL
Itt
second appeal, the High Court held that the appellants were not entitled
to any relief and that there suit should be dismissed, on the grounds th:it :
( 1) the joint family properties ceased to have that character in the hand<>
of the surviving brother when he became the sole surviving coparcener;
and (2) the. second appellant did not become, on his adoption, a c:Jparcener with his uncle in the joint family properties.
In appeal to this Court.
HELD : ( 1) The joint family properties
continued to retain
th-eir
character in the hands of the surviving brother, as the widow (the first
appellant) of the elder brother was still alive and continued to enjoy
the right of maintenance out of the joint family properties. [5 B]
Gowli Buddanna v. C.I.T. Mysore, 60 l.T.R. 293 (S.C.), followed.
A. G. of Ceylon v. A. R. Arunachalam Chettiar [1957] A.C.
540,
applied.
(2) The scheme of ss. II and 12 of the Hindu Adoptions an<l Maintenance Act, 1956, is that in the case. of adoption by a wido\v the adopted
child becomes absorbed in the adoptive family to which the wido\V belonged.
Though s. 14 of the Act doos not expressly state that the child
adopted by a widow becomes the adopted son of her deceased husband,
it is a necessary implication of ss. 12 and 14 of the Act. That is y;hy~ s.
14(4) provides that when a widow
adop1'· a child and
subsequently
marries, that husband becoines the step-father of the adopted child. There- .
2
SUPREME COURT REPORTS
(1970) 2 S.C.R.
fore, in the present case, when the the second appellant was adopted by
the first appellant he became the adopted son of the first appellant and
her deceased. husband, namely, the elder brother, and hence became a
coparcener with the surviving brother in the joint family properties· and,
after the. d.eath of the surviving brother the second appellant beca~e the
sole su:v1v1ng coparcener entitled to the possession of all the joint family
properties except those bequeathed under the will, that is, except the half·
share of the house. (7 D-G; A-BJ
Arukushi Narayan v. Janabai Sama Sawat, 67 B.L.R. 864, approved.
A
(3) Section 86 of the Madhya Bharat Land Revenue and Tenancy
Ac~. 1950 applies to the rights of an ordinary tenant in agricultural lands
\Yh1ch were therefore heritable.
In the absence of any special statutory
provision, the heritability is governed by the personal law of the tenants.
Therefore, the second •ppellant was entitled to the tenancy rights of his
C
uncle on his death. (8 G-H; 9 C-DJ
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 856 of
1966.
Appeal by special leave from the judgment and decree dated
September 7, 1965 of the Madhya Pradesh High _Court, Indore
Bench in Second Appeal No. 275 of 1962.
D
M. C. Chag/a and A. K. Nag, for the appellants.
K. A. Chita/e and R.. Gopalakrishnan, for the respondent.
The Judgment of the Court was delivered by
Ramaswami, J.
This appeal is brought by special leave from
the judgment of the Madhya Pradesh High Court dated Septem·
ber 7, 1965 in Second Appeal No. 275 of 1962.
Dulichand and Bhagirath were brothers and the properties concerned are, according to the written statement of the defendant
himself, ancestral.
Plaintiff Sitabai is the widow of Bhagirath,
who pre-deceased Dulichand, his elder brother sometime in 1930.
It is the admitted case of both the parties that after Bhagirath died,
the plaintiff Sitabai was living with Dulichand as a result of which
connection an illegitimate child defendant Ranrchandra was born
in 1935. Dulichand died on March 13, 1958. Sometime before
his death Sitabai adopted plaintiff no. 2 Suresh Chandra and an
adoption deed was executed on March 4, 1958.
After the death
of Dulichand Ramchandra took possession of the joint family
properties.
The plaintiff therefore brought the present suit for
ejectment of the defendant Ramchandra, the illegitimate son of
Dulichand from the disputed properties.
The suit was contested
by the defendant on the ground that Dulichand had in his lifetime surrendered the lands to the Jagirdar who made re-settlement
of the same with the defendant.
As regards the house the conten·
tion of the defendant was that Dulichand had executed a will before
his death making a bequest of his house entirely to him.
The
trial court decided all the issues in
favour of the plaintiff and
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SITABAI v. RAM CHANDRA (Ramaswami, J.)
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granted the plaintiffs a decree for possession with regard to
the
land and the house.
The defendant took the matter in appeal to
the District Judge who modified the decree.
The District Judge
took the view that the will executed by Dulichand was valid so far
as half of his share in the house was concerned and, therefore,
defendant was entitled to claim half the share of the house in dispute. The defendant preferred a
second appeal before
the
Madhya Pradesh High Court which reversed the decree of the
lower courts and held that the plaintiff was not entitled to i.ny
relief and the suit should be dismissed in its entirety.
The High
Court held that plaintiff no. 2 became the son of plaintiff no. 1
in 1958 from the date of adoption and did not obtafo. any coparcenary interest in the joint family properties.
The High Court
thought that on the date of adoption Dulichand was
the sole
coparcener and there was nobody else to take a share of his property and plaintiff no. 2 had no concern with the coparcenary
property in the hands of Dulichand.
The first question to be considered in this appeal is whether
the High Court was right in holding that plaintiff no. 2 Suresh
Chandra at the time of his adoption by plaintiff no. 1 did not become a coparcener of Dulichand in the joint family properties. It
is the admitted case of both the parties that the properties consisted
of apricultural land and a house jointly held by Bhagirath and
Dulichand. After the death of Bhagirath, Du!ichand became the
sole surviving coparcener of the joint family.
At the time when
plaintiff no. 2 Suresh Chandra was adopted the joint family still
continued to exist and the disputed properties retained their
character of coparcenary properties.
It has been pointed out in
Gowli Buddanna v. Commissioner of Income-tax, Mysore(') that
undcr the Hindu system of law a joint family may consist of a
sin~le male member and widows of deceased male members and
that the property of a joint family did not cease to belong to a joint
family merely because the family is represented by a single coparcener who possesses rights which an absolute owner of property
may possess.
In that case, one Buddappa. his wife, his two unmarried daughters and his unmarried son, Buddanna, were members of a Hindu i:ndivided family.
Buddappa died and after his
death the question arose whether the income of the properties held
by Buddanna as the sole surviving coparcener was assessable as·
the individual income of Buddanna or as the income of the Hindu
Undivided Family.
Tt was held by this Court that since the property which came into the hands of Buddanna as the sole surviving
coparcener was originally joint family property, it did not cease
to belong to the joint family and income from it was assessable in
the hands of Buddanna as income of the Hindu Undivided Family.
As pointed out by the Judicial Committee in Attorney General of
Ceylon v. A. R. Arunachalam Chettiar( 2 ) it is only by analysing
{1) 60 l.T.R. 293 (S.C.).
(2) 1957[ A. C. 540 .
4
SUPREME COURT REPORTS
[1970] 2 S.<C.R.
the nature of the rights of the members of the undivided family,
both those in being and those yet to be born, that it can be determined whether the family property can properly be described as
'joint property' of the undivided family. In that case one Arunachalam Chettiar and his son constituted a joint family governed
by the Mitakshara school of Hindu law. The father and son were
domiciled in India and had trading and other interests in India,
Ceylon and Far Eastern countries. The undivided son died in
1934 and Arunachalam became the sole surviving coparcener in
the Hindu undivided family to which a number of female members
belonged.
Arunachalam died in 1938, shortly after the Estate
Ordinance no. 1 of 1938 came into operation in Ceylon. Bys.
73 of the Ordinance it was provided that property passing on the
death of a member of the Hindu undivided family was exempt
from payment of estate duty. On a claim to estate duty in respect
of Arunachalam's estate in Ceylon, the Judicial Committee held
that Arunachalam was a• his death a member of the Hindu undivided family, the same undivided family of which his son, when
alive, was a member and of which the continuity was preserved
after Aruna.chalam's death by adoption made by the widc·.vs of
the family and since the undivided family continued to persist, the
property in the hands of Arunachalam as a single coparcener was
the property of the Hindu undivided family.
The Judicial Committee observed at p. 543 of the report.
". . . . . . though it may be correct to speak of him
as the 'owner', yet it is still
correct to describe that
which he owns as the joint family property. For his
ownership is such that upon the adoption of a son it
assumes a different quality; it is such, too, that female
members of the family
(whose members
may
increase) have a right to maintenance out of it and in
some ~ircumstances to a charge for maintenance upon
it.
And th~se are incidents which arise, notwithstanding his so-called ownership, just becaiJse the property
has been and has not ceased to be joint family property.
Once again their Lordships quote from the
judgment of Gratiaen, J. 'To my mind it would make
a mockery of the undivided family system if this temporary reduction of the coparcenary unit to a single
individual were to convert what was previously joint
property belonging to an undivided family into the
separaie property of the surviving coparcener.' To this
it may be added that it would not appear reasonable
to impart to the legislature the intention to discriminate, sv long as the family iiself subsists, between property in the hands of a single coparcener and that in
the hands of two or more coparce11ers." _
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S!TABAI v. RAM CHANDRA (Ramaswami, J.)
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A The basis of the decision was that the property which was the
joint family property of the Hindu
undivided family did not
cease to be so because of the "temporary reducuon of the coparcellary unit to a single individual".
The character of the property, viz. that it was the joint property of a Hindu undivided
family, remained the same. Applying the principle to the present
B case, after the death of Bhagirath the joint family property continued to retain its character in the hands of Dulichand as the
widow of Bhagirath was still alive and continued to enjoy the right
of maintenance out of the joint family properties.
The question next arises whether Suresh Chandra, plaintiff
no. 2, when he was adopted by Bhagirath's widow became a
c coparcener of Dulichand in the Hindu joint family properties.
The High Court has taken the view that Suresh Chandra became
the son of plaintiff no. I with effect from 1958 and plaintiff no.
2 would not become the adopted son of Bhagirath in view of the
provisions of the Hindu Adoptions and Maintenance Act, 1956
(Act 78 of 1956). It was argued on behalf of the appellant
that the High Court was in error in holding that the necessary
D
consequence of a widow adopting a son under the provisions of
Act 78 of 1956 was that the adoptee would be the adopted son
of the widow and not of her deceased husband. In our view the
argument put forward on behalf of the appellant is well-founded
and must be accepted as correct.
Section 5 ( 1) of Act 78 of
1956 states :
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"(!) No adoption shall be made after the commencement of this Act by or to a Hindu except inaccordance with
the
provisions contained
in this
chapter . ..... "
Section 6 deals with the
requisites of a valid
adoption and
provides :
"No adoption shall be valid unless-
( i) the person adopting has the capacity, and also
the right, to take in adoption.
(ii) the person giving in adoption has the capacity
to do so;
(iii) the person adopted is capable of being taken
in adoption; and
(iv) the adoption is made in compliance with the
other conditions
mentioned in this Chapter."
Sections 7 and 8 relate to the capacity of a male Hindu and a
H female Hindu to take in adoption. Under s. 7 any male Hindu
who is of sound mind and is not a minor has the capacity to take
a son or a daughter in adoption. If he is married, requires the
consent of his wife in connection with the adoption.
A person
SUPREME COURT REPORTS
[1970] 2 S.C.R.
having more than one wife is required to have the consent of all
A
his wives. Under s. 8 any female Hindu; who is of sound mind
and not a minor is stated to have capacity to take a son or a
daughter in adoption. The language of this section shows that all
females except a wife have capacity to adopt a son or a daughter.
Thus, an unmarried female or a divorcee or a widow has the legal
capacity to take a son or a daughter in adoption.
Section 11
B
relates to "other conditions for a valid adoption".
Clause (vi) of s. 11 states :
" (vi) the child to be
adopted must be
actualiy
given and taken in adoption by the parents or guardian
concerned or under their authority with intent to transc
fer the child from the family of its birth to the family
of its adoption."
Section 12 enacts:
"An adopted child shall be deemed to be the child
of his or her adoptive father or mother for all purposes
D
with effect from the date of the adoption and from such
date all the ties of the chlld in the family of his or her
birth shall be deemed to be severed and replaced· by
those created by the adoption in the adoptive family;
Provided that-
·
00
E
(b)
( c) the adopted child shall not divest any p.~rson
of any estate which vested in him or her before
the adoption."
Section 14 provides:
" ( 1) Where a Hindu who has a wife living adopts
a child, she shall be deemed to be the adoptive mother.
(2) Where an adoption has been made with the
consent of more than one wife, the senior-most in marriage among them shall be deemed to be the adoptive
mother and the others to be step-mothers.
( 3) Where a widower or a bachelor adopts a child
any wife whom he subsequently marries shall be deemed
to be the step-mother of the adopted child.
( 4) Where a widow or an unmarried woman
adopts a child, any husband whom she marries subsequently shall be de~med to be the step-father of the
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SITABAI v. RAM CHANDRA (Ramaswami, J.)
7
adopted child."
It is clear on a reading of the main part of s. 12 and sub-s.
(vi) .of s. 11 that the effect of adoption under the Act is that it
brings about severance of all ties of the child given in adoption in
the family of his or her birth.
The child altogether ceases to
have any ties with the family of his birth. Correspondingly,
these very ties are automatically replaced by those created by the
adoption in the adoptive family.
The legal effect of giving the
child in adoption must therefore be to transfer the child from the
family of its birth to the family of its adoption. The result is, as
mentioned in s. 14 ( 1) namely where a wife is living, adoption by
the husband results in the adoption of the child by both these
spouses; the child is not only the child of the adoptive father but
also of the adoptive mother. In case qf there being two wives, the
child becomes the adoptive child of the senior-most wife in
marriage, the junior wife becoming the step-mother of the adopted
child. Even when a widower or a bachelor adopts a child, and he
gets marri.ed subsequent to the adoption, his wife becomes the
step-mother of the adopted child. When a widow or an unmarried
woman adopts a child, any husband she marries subsequent to
adoption b.ecomes the step-father of the
adopted child. The
scheme of ss. 11 and 12, therefore, is that in the case of adoption
by a widow the adopted child becomes absorbed in the adoptive
family to which the widow belonged.
In other words the child
adopted is tied with the relationship of sonship with the deceased
husband of the widow.
The other collateral relation; of the husband would be connected with the child through that deceased
husband of the widow.
For instance, the husband's brother
would necessarily be the uncle of the adopted child.
The
daughter of the adoptive mother (and father) would necessarily
be the sister of the adopted son, and in this way, the adopted son
would become a member of the widow's family, with the ties of
relationship with the deceased husband of the widow as his adoptive father.
It is true that s. 14 of the Act does not expressly
state that the child adopted by the widow becomes the adopted
son of the husband of the widow.
But it is a necessary implication of ss. 12 and 14 of the Act that a son adopted by the widow
becomes a son not only of the widow but also of the deceased
husband.
It is for this reason that we find in sub-s. (4) of s. 14
a provision that where a widow adopts a child and subsequently
marries a husband, the husband becomes the "step-father" of the
adopted child. The true effect and interpretation of ss. 11 and
12 of Act No. 78 of 1956 therefore is that when either of the
spouses adopts a child, all the ties of the child in the family of
his or her birth become completely severed and these are all replaced by those created by the adoption in the adoptive family.
In other words the result of adoption by either spouse is that the
8
SUPREME COURT REPORTS
[1970] 2 S.C.R.
adoptive child becomes the child of both the spouses. This view
is borne out by the decision of the Bombay High Court in
Arukushi Narayan v. Janabai Sama Sawat('). It follows
that
in the present case plaintiff no. 2 Suresh Chandra, when he was·
adopted by Bhagirath's widow, became the adopted son of both
the widow and her deceased husband Bhagirath and,
therefore,
became a coparcener with Dulichand in the joint family properties. After the death of Dulichand, plaintiff no. 2 became the sole
surviving coparcener and was entitled to the possession of all
joint family properties.
The Additional District Judge was,
therefore, right in granting a decree in favour of the plaintifI no. 2
declaring his title to the agricultural lands in the village Palasia
and half share of the house situated in the village.
1 t is contended on behalf of the respondent that the rights of
the Jnamdar's tenants were not heritable
under
the Madhya
Bharat Land Revenue and Tenancy Act,
1950 (Act no. 66 of
1950) and therefore the plaintiffs could not claim to become the
Jnamdar's tenants after the death of Dulichand in the absence of
a contract between the Inamdar and themselves.
Reference was
made to ss. 63 to 88 dealing with the rights of pakka tenants and
it was argued that there was no provision in the Act dealing with
the rights of an ordinary tenant.
Section 87 states:
"An ordinary tenant is entitled to hold the land Jet
to him in accordance with such terms as may be agreed
upon with the person from whom he holds, provided
that they are not inconsistent with the provisions of
this Act."
Section 89 deals with the rights of sub-tenants and reads:
" ( 1) A sub-tenant is entitled to hold -the land let
to him in accordance with such terms as may be agreed
upon with the person from whom he holds, subject to
his comp.liance with the general conditions of tenancy
as laid down in section 5 5, provided that he shall, in
no circumstances, lease out the land to any person."
It is not possible to accept the argument advanced on behalf of
the respondent that under the scheme of Act 66 of 1950 the rights
of ordinary tenant are not heritable. It is true· that there are special
provisions with regard to
heritability as regards pakka tenant.
But in the absence of any special statutory provision, the heritability of ordinary 'tenancies must be governed by the personal
law of the tenants concerned. Section 86 of the Act contains
provisions with regard to mutation of names.
Sub-section ( 1)
of s. 86 states:
(l) 67 B.L. R. 864
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SITABAI v. RAM CHANDRA (Ramaswami, J.)
"When a holder of land, other than an assignee of
proprietary rights, loses his rights, in any land in a village by death or by surrender or abandonment of the
land or by transfer of his rights to any other person, or
by dispossession or otherwise, the patwari of the village
in which the land is situated shall forthwith report the
fact to the Tehsildar intimating the name of the new
holder and the grounds on which the latter claims to succeed to the title of the former holder.
Any person
claiming to succeed to the title of the former holder may
also apply to the Tehsildar for the mutation of hi3
name within a period of two years from the date the
last holder loses his rights."
9
The section
applies to all classes of tenants and contemplates
heritability and transferability of the rights of a tenant or a subtenant. We
accordingly reject the argument of the respondent
that the rights of Dulichand were not heritable.
It is also urged on behalf of the respondent that the jurisdiction of the Civil Court was barred by the provisions of the Madhya
Bharat Land Revenue Administration and Ryotwari Land Revenue and Tenancy Act, 1950 (Act no. 66 of 1950). This issue
was decided against the respondent in the trial court and also in the
first appellate court.
The decision of the lower courts on this
point was not challenged in the High Court and it is not permissible for the respondent to raise this question at this stage.
For the reasons already given we hold that the judgment and
decree of the High Court of Madhya Pradesh dated September 7,
1965 in Second Appeal no. 275 of 1962 should be set aside and
the judgment and decree of the Additional District Judge, Indore
dated April 21, J 962 in First Appeal No. 26 of 1961 should be
restored.
This appeal is accordingly allowed with costs.
V.P.S.
Appeal allowed.
L I Sup CI/7(}-2