Heard Sri Ashish Kumar Srivastava, learned counsel for the appellant, Sri Nipun Singh, learned counsel for the respondent and perused the record.
Facts , in brief, of the present case are that plaintiff/ respondent, Sri Kanhaiya Lal Kasera filed a suit for eviction against Sri Chhotey Lal Kasera, appellant-defendant from House No.C.K. 18/31 Mohalla Thatheri Bazar, Varanasi (hereinafter referred to as 'house in question').
Pleadings as pleaded by plaintiff/ Sri Kanhaiya Lal Kasera in his plaint are that Sri Kanhaiya Lal Kasera and Sri Chhotey Lal Kasera are real brother and their father Shanker Lal Kasera executed a will-deed dated 4.12.1973 registered on 10.12.2973 by virtue of the same, house no. C.K. 18/31 came to his share and house no. C.K. 61/11 to his elder brother Sri Chhotey Lal Kasera.
Sri Shanker Lal died on 17.10.1974 and at the time of his death of both are living together in House No. C.K. 18/31, doing business from the firm known as M/s Chhotey Lal and Kanhaiya Lal Kasera.
On 13.10.1997 an another firm has been registered and started functioning from the house in question known as Ganga-Jamuna Art, Smt. Shashi Kal Kasera, wife of plaintiff/ Sri Kanhaiya Lal Kasera is the proprietor of the firm.
It has also been pleaded on behalf of the plaintiff that defendant/ Chhotey Lal Kasera is residing in the house ( C.K. 18/31) in the capacity of licensee however, in spite of the request when he has not vacated the same, plaintiff has sent a registered notice dated 21.11.2003 to vacate the house, served on 24.11.2003 but no heed has been paid, so a Regular Suit No. 541 of 2005 ( Kanhiya Lal Kasera Vs. Chhotey Lal Kasera) has been filed in the court of Civil Judge( Senior Division) Varanasi.
Sri Chhotey Lal Kasera/ defendant filed written statement denying the case as set up by plaintiff and pleaded that both the brothers are residing in the capacity of owner in the house in question belongs to their grandfather Sri Ayodhya Prasad, died in the year 1948, after his death Sri Shanker Lal(father) has executed a will-deed dated 10.12.1973 in respect to houses namely, C.K. 18/31 and 61/11 but he has got no authority to execute the same rather the said act on his part is void ab initio as per Hindu Law prevailing at that point of time.
After exchange of pleadings and taking into consideration the material evidence (oral/ documentary ) on record, the trial court by means of judgment and decree dated 30.7.2010 decreed the suit filed by plaintiff Kanhiya Lal Kasera holding that the will executed by Sri Shanker Lal is a valid document acted upon by the parties, the same has been challenged by defendant / appellant Chhotey Lal Kasera by filing Civil Appeal No.94 of 2010 ( Chhotey Lal Kasear Vs. Kahaiya Lal Kasera).
Appellate court in order to decide the controversy as per Order 41 Rule 31 CPC, framed the following points of determination:-
"१. क्या दिनांक १०.१२.१९७३ को स्व० शंकर लाल कसेरा के द्वारा वासीहतनामा निष्पादित किया था और यदि हाँ तो क्या उन्हें उक्त वासीहतनामा निष्पादित करने का अधिकार प्राप्त था ?
२. क्या दिनांक ११.७.१९९९ के वाहमी बंटवारा के आधार पर प्रतिवादी विवादित माकन का स्वामी है ?
३.क्या विवादित माकन में प्रतिवादी को वादी ने वतौर लिसेंसी रहने की अनुमति प्रदान किया था ?
Appellate Court by judgment and decree dated 12.11.2010 dismissed the appeal by giving findings that will-deed dated 10.12.1973 executed by Shanker Lal is valid one and by virtue of the same the house no. 18/31 came to the share of Kanhaiya Lal . Further, appellate court has upheld the findings given by trial court that in a regular suit No. 15 of 1982 ( Shitla Vs. Chotey Lal and others) filed by one Sri Shitla Prasad, Sri Chhotey Lal Kasera and Sri Kanhiya Lal Kasera were impleaded as respondents, filed their written statement signed by both of them, verified by Sri Chhotey Lal, accepting the execution of Will by Sri Shankar Lal thereafter in the said matter compromise has been entered between the parties and Will executed by Sri Shanker Lal has been admitted by the parties in the said litigation. Appellate court also given a finding while dismissing the appeal that Sri Chhotey Lal Kasera had written a letter to Tax Officer, Varanasi on the basis of will-deed dated 10.12.1973, houses no. CK 18/31 and C.K. 61/11 be mutated in the name of Kanhiya Lal Kasera and Chhotey Lal Kasera being the owner of the same respectively, same has been done by the Municipal authorities in their record.
Thereafter the present appeal has been filed by Sri Chhotey Lal Kasera, admitted on the following substantial questions of law :-
"1.Whether, even though the plaintiff and defendant had not been born when their father inherited the property from his ancestors and the property was not sold by him thereafter till the plaintiff and the defendant were born, the father would hold the ancestral property in a co-parcenary alongwith his sons?
2.Whether, the first appellate court has committed an illegality in not deciding the third issue framed by it?
3. Whether the plaintiff/ Kanhiya Lal Kasera has discharged is burden to prove his case that Chhotey Lal Kasera/defendant/ appellant was is his license or is there any evidence in this regard?"
Sri Ashish Kumar Srivastava, learned counsel for the appellant while pressing the matter submits that the property in question is ancestral one belongs to Ayodhya Prasad, so as per Section 223 Hindu law prevailing at that time, defendant/appellant being coparcener has got share in ancestral property, hence Sanker Lal has got no authority to execute the will deed dated 4.10.1973 registered on 10.12.1973 as such the same is a void document. In this regard he has placed reliance on a judgement given by the Apex Court in the Case of Rohit Chauhan Vs. Surinder Singh, 2013 ACJ 1353, relevant portion quoted as under:
"We have bestowed our consideration to the rival submission and we find substance in the submission of Mr. Rao. In our opinion coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. Coparcenary is a narrower body than the Joint Hindu family and before commencement of Hindu Succession (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family. It is not static. We are further of the opinion that so long, on partition an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property but if a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a son is born, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener. The view which we have taken finds support from a judgment of this Court in the case of M. Yogendra v. Leelamma N., (2009) 15 SCC 184, in which it has been held as follows:
29. It is now well settled in view of several decisions of this Court that the property in the hands of a sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him. It is one thing to say that the property remains a coparcenary property but it is another thing to say that it revives. The distinction between the two is absolutely clear and unambiguous. In the case of former any sale or alienation which has been done by the sole survivor coparcener shall be valid whereas in the case of a coparcener any alienation made by the karta would be valid."
Learned counsel for the appellant further argued that so far as the findings given by both the courts below taking into consideration the litigation taken place in regular suit no. 15 of 1982 is concerned, the same has got not relevancy in the matter as in the compromise entered in the said suit between the parties on 11.12.2007, in paragraphs 4 and 8 of the compromise incorrect facts have been stated by Sri Kanhaiya Lal Kasera after defendant/appellant signed it, so the same is manipulated document, prepared at the behest of plaintiff /respondent as such the action on the part of court below passing the impugned judgements, placing reliance on the compromise that by virtue of registered will-deed dated 10.12.1973, house no. C.K. 18/31 came to the share of plaintiff/ Sri Kanhaiya Lal Kasera, is a finding which is perverse in nature. In order to elaborate his arguments, learned counsel for the appellant submits that said fact has been admitted by the plaintiff himself in a proceedings under Section 340 Cr.P.C. that the house in question has never been given to the share of plaintiff/respondent rather both the brother are owner and living therein in the said capacity.
It is also submitted on behalf of the appellant that the proceedings in respect to mutation before the Tax Officer, Varanasi has got no relevancy as they are summary proceedings, does not decide the title of any property as such the same cannot be legal impediment in the way of the defendant/ Sri Chhotey Lal Kesariya to challenge that Sri Shankar Lal has got no authority to execute the Will in question. In support of the said plea, he placed reliance on the judgement given in the case of Bhurey Vs. Pir Bux, 1973 ALJ 312 and Smt. Hamidan Vs. Vth Addl. District Judge, Allahabad,1983 ARC 405. and it is further argued that the Will deed executed by Sri Shankar Lal is void ab initio and even if Sri Chhotey Lal Kasera / appellant admitted the execution of Will in the mutation proceeding or in a proceeding/compromise in Regular Suit No. 15 of 1982, the same has got no impact in the matter in controversy in view of the judgement given by Apex Court in the case of Smt. Krishnawati Vs. Hans Raj, AIR 1974 SC 280, relevant portion as under:-
"The respondent relied principally on some previous self-serving statements made by Sohan Singh in other proceedings which could not be used as substantive evidence in the present case. The evidence was clear namely, that to the knowledge of the respondent, the appel- lant and Sohan Singh were living as husband and wife and from the day the rent note was passed by the appellant in 1959 a Chemist's shop was opened in the premises which was run principally by Sohan Singh"
Learned counsel for the appellant further argued that in view of the provisions as provided under Section 223 of the Hindu Law (prevailing at the relevant point of time), Sri Shanker Lal has got no authority to execute the Will in question, thus, keeping the said fact as well as Section 115 of the Indian Evidence Act , appellant /defendant has not debarred from challenging the authority of Shanker Lal to execute the Will as per the following judgements:-
1. M/s. Groupe Chimique Tunisien SA Vs. M/s Southern Petrochemicals Industries Corporation Limited , AIR 2006 SC 2422.
2. A.C. Jose Vs. Sivan Pillai and others, AIR, 1984 SC 921.
3. Shri Krishan Vs. The Kurukshetra University , Kurukshetra, AIR 1976 SC 376.
4. Bankey Bihari Vs. Surya Narain alias Munnoo, AIR 1999 Allahabad, 167
5. AIR 1918 Privy Council, 257 So the courts below have wrongly placed reliance on the Will executed by Sri Shanker Lal and on the decision given by the Apex Court in the Case of Smt. Dipo Vs. Wassan Singh and others, 1983 (3) SCC 376, not applicable in the facts and circumstances involved in the present case while passing the impugned judgements and decree Lastly, it has been submitted on behalf of the appellant/defendant that point of determination as framed by appellate court in respect to status of the appellant as licensee in the house in question has not been dealt with and decided in view the provisions as provided under Order 41 Rule 31 CPC. Accordingly judgements passed by courts below are contrary to facts on record perverse in nature, liable to be set aside.
Sri Niupn Singh, learned counsel for the respondent while defending the impugned judgements submits that during the lifetime of Sri Ayodhya Prasad ( grandfather of plaintiff and defendant), neither plaintiff nor defendant were born as such defendant has got no right in the property of his grandfather, so Sri Shanker Lal, has got right to execute the sale-deed dated 10.12.1973 even otherwise the arguments advanced by learned counsel for the appellant that Shanker Lal has got no authority to execute the will- deed because the property in question is an ancestral property and Sri Chhotey Lal Kasera is a coparcener is incorrect and contrary to law in view of the fact that by virtue of will-deed house No. CK 18/31 came to his share and house no. 61/11 to Sri Chhotey Lal Kasera and other things which are mentioned in the will have acted upon by the parties.
Moreover Sri Chhotey Lal Kasera on the basis of the Will got house No. 61/11 mutated in his name, so at this belated stage, he cannot challenge the same in view of the law as laid down by Hon'ble the Apex Court in the case of Rajasthan State Industrial Development and Investment Corporation and another Vs. Diamond & Gem Development Corporation Limited and another, (2013) 5 SCC 470. Further, Sri Shanker Lal has got an authority to execute the Will as per Sections 323 and 324 of the Hindu Law quoted below -
" 323. Partition by father during his lifetime:- The father of a joint family has the power of devide the family property at any moment during his life , provided he gives his sons equal shares with himself, and if he does so, the effect in law is not only a separation of the father from the sons, but a separation of the sons inter se . The consent of the sons is not necessary for the exercise of that power (f) . But the grandfather has no power to bring about a separation among his grandsons. Even if he allots shares, they remain joint(g) . The right of a father to sever the sons inter se is a part of the patria potestas still recognized by the Hindu law.
324. Whether father can effect partition by a Will:- No coparcener, not even the father, has a right to make a partition by will of joint family property among the various members of the family except with their consent(k)."
Sri Nipun Singh, learned counsel for the respondent also submits that the will in question , is nothing but can said to be a document by which an intention of the testator was to give house no. 61/11 to defendant-appellant and 18/11 to plaintiff-respondent, so as per Hindu Law, the will executed by Sri Shanker Lal is nothing but a document for future generation peace not prejudicial to the interest of his both sons.
He also submits that neither any counter claim nor will in question has been challenged by Sri Chhotey Lal rather the defendant / appellant, acted upon the terms of the Will, got his name mutated over house no. CK 61/11 realizing rent from it, so at this belated stage he cannot challenge the same in view of Section 115 of the Evidence Act because on affidavit filed by him in the litigation taken place in regular suit no. 15/82 he has accepted execution of Will by Sri Shanker Lal, as such Sri Chhotey Lal Kasera has waived his right to challenge the will as per the principles of Acquiescence, Estoppel and Waiver. In support of his argument he has placed reliance the following judgements :-
1.Ram Swaroop Vs. Ram Saran , AIR, 1926 Lahore 650 (1)
2.Sheodan Singh and others Vs. Brijraj Singh and another, 1913 Vol. 35, ILR 337
3.Seth Lakhmi Chand Vs. Mt. Anandi and others AIR 1926 , page54
4.M.N. Aryamurthy Vs. M.D. Subbaraya Setty, 1972 Vol. 4 SCC 1
5.Shyam Lal Vs. Kuldeep , 2009 Vol.12 SCC 454
6.B.L. Sreedhar and others Vs. K.M. Munireddy and others , 2003 Vol. 2 SCC 355.
Sri Nipun Singh , learned counsel for the respondent also argued that lower court has recorded that family partition dated 11.7.1999 was allegedly a transfer and without there being any registration it cannot be read in evidence and given finding that the will was not only accepted but was also acted upon by the parties and in this regard court below have given concurrent finding of facts, so keeping the said facts appellant cannot challenge the validity of the Will. In support of his argument he has placed reliance on the judgement of Hon'ble the Apex Court in the case of Hero Vinoth (Minor) vs. Seshammai (2006) 5 SCC 545.
He further submits that once Sri Kanhaiya Lal Kasera has accepted the will and got house no. CK 61/11 mutated his name and started realizing rent from it then in that circumstances the status of appellant Chhotey Lal Kasera in house in question, is of a licensee in view of the provisions as provided under Section 52 and 54 of the Indian Easements Act, 1882 , the same are reproduced as under:-
"52 " License" defined- Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, somethin which would , in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license.
54. Grant may be expressed or implied- The grant of a license may be expressed or implied from the conduct of the grantor, and an agreement which purports to create an easement, but is ineffectual for that purpose, may operate to create a license."
And " license" has been revoked after giving notice by the plaintiff/respondent, so the judgement given by the trial court upheld by the appellate court is perfectly valid in accordance to the judgement given by Delhi High Court in the case of Shri Arjan Dev Vs. Sri Om Prakash, AIR 1992 Delhi 202.
Thus, once the status of appellant/defendant is of licensee has held by the trial court, the said finding upheld by the appellate court, so the arguments advanced by learned counsel for the appellant that the judgement passed by the appellate court is not in accordance with the provisions as provided under Order 41 Rule 31 CPC is contrary to law as laid down by the Apex Court in the case of M/s Nopany Investment (P) Ltd. Vs. Santokh Singh(HUF) , AIR 2008 SC, 673.
Accordingly, Sri Nipun Singh , learned counsel for the respondent submits that there is no illegality or infirmity in the judgements passed by two courts, appeal liable to be dismissed.
I have heard learned counsel for parties and perused the record.
The concept of Joint Hindu Family is well settled to consist of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters, while a Hindu co-parcenary is a much narrower body including only those persons who acquire by birth an interest in the joint or coparcenary property. In this context I may refer to paragraphs 212 and 213 defining Joint Hindu Family and Hindu coparcenary in Hindu Law by Mulla (Sixteenth Edition):
"212.Joint Hindu family. (1) A joint Hindu family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A daughter ceases to be a member of her father's family on marriage and becomes a member of her husband's family. 213. Hindu coparcenary.- A Hindu coparcenary is a much narrower body than the joint family. Generally speaking it includes only those persons who acquire by birth an interest in the joint or coparcenary property. These are the sons , grandsons and great grandsons of the holder of the joint property for the time being, in other words, the three generations next to the holder in unbroken male descent. "
In Kalyanji Vithaldas and others Vs. Commissioner of Income Tax, Bangal, Manu/PR/0045/1936 the Privy Council clearly settled the position that the phrase "Hindu undivided family" is used in the statute with reference not to one school only of Hindu law, but to all schools. The following paragraph may be reproduced in this regard:
" BUT. after all, if the relevant Hindu law had been that the income belonged not to the assessed himself but to the assessed, his wife and daughter jointly, it is difficult to see how that association of individuals could have been refused the description "Hindu joint family." The phrase "Hindu undivided family" is used in the statute with reference not to one school only of Hindu law but to all schools; and their Lordships think it a mistake in method to begin by pasting over the wider phrase of Act the words "Hindu coparcenary"- all the more that it is not possible to say on the face of the Act that no female can be a member"
In N.V. Narendranath Vs. Commissioner of Wealth Tax, Andhra Pradesh, [1969]74ITR190(SC), the concept of Hindu joint family was distinguished with co-parcenary and it was held that a Hindu joint family consists of all persons lineally descended from the common ancestors, includes their wives and unmarried daughters. Hon'ble the Supreme Court clearly distinguished the concept of Huf from Hindu co-parcenary relevant portion is quoted as under:-
"The only other provision in the Act in which the expression "Hindu Undivided Family" occurs is Section 20. It deals with assessment after partition of a Hindu Undivided family. Under Section 2 of the Act it is the Hindu undivided family which is one of the assessable entities. It should be distinguished from a Hindu coparcenary which is a much narrower body than the joint family. A Hindu joint family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A Hindu co-parcenary includes only those who acquire by birth an interest in the joint coparcenary property, being the sons, grandsons and great grandsons of the holder of the joint property. Thus there can be a joint Hindu family consisting of a single male member and widows of deceased coparceners. It must be remembered that the words "Hindu undivided family are used in the Income tax statutes with reference not to one school of Hindu law only but to all schools."
In Sushil Kumar (Sunil) and another v. Ram Prakash and others [1988]2SCR623, the Hon'ble Supreme Court defined the concept of joint family, joint family property and co-parcenary. Reference may be made to paragraphs 17 and 18 of the judgement, which are reproduced as follows:
"17-Those who are of individualistic attitude and separate ownership may find it hard to understand the significance of a Hindu joint family and joint property. But it is there from the ancient time perhaps, as a social necessity. A Hindu joint family consists of male members descended lineally from a common male ancestor, together with their mothers. wives or widows and unmarried daughters. They are bound together by the fundamental principle of sapindaship or family relation ship which is the essential feature of the institution. The cord that knits the members of the family is not property but the relationship of one another. 18.h The coparcenary consists of only those persons who have taken by birth an interest in the property of the holder and who can enforce a partition whenever they like. It is a narrower body than joint family. It commences with a common ancestor and includes a holder of joint property and only those males in his male line who are not removed from him by more than three degrees. The reason why coparcenership is so limited is to be found in the tenet of the Hindu religion that only male descendants up to three degrees can offer spiritual ministration to an ancestor. Only males can be coparceners, (see Hindu Law by N.R. Raghavachariar, 8th edn., p. 202)"
Thus, Hindu coparcenary is a much narrow body than the joint family. It includes only those persons who acquire by birth an interest in the joint of coparcenary property. These are the sons, grandsons and great-grandsons of the holder of the joint property for the time being, in other words, the three generations next to the holder in unbroken male descent. After the amendment of the Hindu Succession Act in 2005, a daughter of a coparcener has been included as a coparcener along with the sons of the coparcener.
To understand the formation of a coparcenary, it is important to note the distinction between ancestral property and separate property. Property inherited by a Hindu from his father, father's father or father's father's father, is ancestral property. Property inherited by him from other relations is his separate property. The essential feature of ancestral property is that if the person inheriting it has sons, grandsons or great-grandsons, they become joint owner's coparceners with him. They become entitled to it due to their birth.
Keeping into consideration the abovesaid position of law in order to decide the controversy in the present case, the pedigree of Ayodhya Prasad is to be taken into consideration which is as follows :-
Ayodhya Prasad |
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Shri Vishnu Chand pre-deceased his father Sri Ayodhya Prasad and two sons Vishwanath Prasad and Shankar Lal were alive at the time of death of Ayodhya Prasad in 1948. Shri Vishwanath Prasad relinquished his share in lieu of Rs.7000/- in favour of his brother, Shankar Lal for that he also executed a document on 10.04.1961. The fact of relinquishment of share of Vishwanath Prasad has also been affirmed by her daughter who on 7.7.1992 executed a registered Dastbardari in which she acknowledged the act of her father. The said document registered Dastabardari is on record as paper no.49-C.
Shri Shankar Lal executed a Will on 4.12.1973, registered on 10.12.1973 in which House No. CK 18/31 Mohalla Thatheri Bazar, Varanasi and CK 61/11 Mohalla Kashipura, Varanasi bequeathed to his son Kanhaiya Lal and Sri Chhotey Lal respectively.
Further, from the document/ material on record, it also established that a letter dated 11.12.1974 has been written by Chhotey Lal Kasera/defendant-appellant to the Tax Superintendent of Nagar Palika, Varanasi the same is on record as document no.32-K in which he inter alia stated that late Shri Shankar Lal has executed a registered will dated 10.12.1973 and by virtue of the same, Shri Chhotey Lal Kasera is absolute owner of House No.CK 61/11, Mohalla Kashipura, Varanasi whereas Shri Kanhaiya Lal is the owner of House No. CK 18/31 Mohalla Thatheri Bazar, Varanasi and a request has been made that the name of late Shri Shankar Lal may be deleted from the records of Nagar Palika and the name of Chhotey Lal Kasera may be mutated/recorded as owner in respect of House No.61/11 and Sri Kanhaiya Lal Kasera in respect to House No.18/31, the same was done by Municipal authorities of the district Varanasi.
In addition to the above said facts, as per the document on record a Regular Suit No.15 of 1982 has been filed in respect of the house in question by Sheetla Prasad and others on the ground that they are the son,daughter of Sri Vishwanath Prasad, borne out of wedlock between him and Smt. Kalawati, so they have got share in the property in question which is ancestral property.
In the said matter a compromise has been entered between the parties on 11.01.2007 duly signed by Kanhaiya Lal Kasera and chhotey Lal kasera as well as the plaintiff that Shri Vishwanath Prasad has got only one daughter Smt. Manua and he has relinquished his right in favour of his brother Shri Shanker Lal and mutated his daughter Manua by way of registered document- Dastbardari .
Thus, keeping in view the above said facts, the first and foremost question to be decided whether Sri Shanker Lal has got any right to execute the will dated 10.12.1973 thereby bequeathing the house in question to Kanhaiya Lal Kasera, and House No. 61/11 to the appellant. To decide the same , I feel it appropriate to go through the judgements cited on behalf of Sri Chhotey Lal Kasera in support of his case that being an ancestral property and he is a coparcener of it so Sri Shanker Lal has got no right to execute will and the same can be challenged by him as there is no estoppel against law as per Section 115 of the Indian Evidence Act in the case of M/s. Groupe Chimique Tunisien SA Vs. M/s Southern Petrochemicals Industries Corporation Limited , AIR 2006 SC 2422 it has been held as under:-
"It is true that the petitioner had contended before the Jordanian Court that there was no arbitration agreement between the parties. But the said contention was not accepted and the suit filed by the petitioner has been dismissed on the ground of want of jurisdiction. Thereafter, on reconsidering the matter and taking legal advice, with reference to the contentions of the respondent, the petitioner has now proceeded on the basis that an arbitration agreement exists between the parties. If, on account of mistake or wrong understanding of law, a party takes a particular stand (that is, there is no arbitration agreement), he is not barred from changing his stand subsequently or estopped from seeking arbitration. (See U.P. Rajkiya Nirman Nigam Ltd. v. Indore (P) Ltd., [1996] 2 SCC 667, where the contention based on estoppel was negatived while considering a reserve situation)."
In the case of A.C. Jose Vs. Sivan Pillai and others, AIR 1984 SC 921, Hon'ble the Apex Court has held as under:-
"Lastly, it was argued by the counsel for the respondents that the appellant would be estopped from callenging the mechanical process because he did not oppose the introduction of this process although he was present inthe meeting personally or through his agent. This argument is wholly untenable because when we are considering a constitutional or statutory provision ther can be no estoppel against a statute and whether or not the appellant agreed or participated in the meeting which was held before introduction of the voting machines, if such a process is not permissible or authorised by law he cannot be estoppedfrom challenging the same ."
In the case of Shri Krishan Vs. The Kurukshetra University, Kurukshetra, AIR 1976 SC 376, Hon'ble the Supreme Court has held as under:-
"Mr. Nandy counsel for the respondent placed great reliance on the letter written by the appellant to the respondent wherein he undertook to file th requisite permission or to abide by any other order that may be passed by the University authorities. This letter was obviously written because the appellant was very anxious to appeal in Part II Examination and the letter was written in terrorem and in complete ignorance of his legal rights. The appellant did not know that there was any provision in the University Statute which required that he should obtain the permission of his superior officers. But as the respondent was bent on prohibiting him from taking the examination he had no alternative but to write a letter per force. It is well settled that any admission made in ignorance of legal rights or under duress cannot bind the maker of the admission. In these circumstances we are clearly of the opinion that the letter writtenby the appellant does not put him out of court. If only the University authorities would have exercised proper diligence and care by scrutinising the admission form when it was sent by the Head of the Department to the University as Ear back as December 1971 they could have detected the defects or infirmities from which the form suffered according to the University Statute. The Head of the Department of Law was also guilt of dereliction of duty in not scrutinising the admission form of the appellant before he forwarded the same to the University."
In the case of Bankey Bihari Vs. Surya Narain alias Munnoo, AIR 1999 Allahabad, 167 , this Court has held that it is well settled that there cannot be any estoppal against the statue. The law requires that a family arrangement which has been reduced into writing by which a division has been effected and some rights have been created requires to be registered.
In AIR 1918 Privy Council 257 it has been held that mere acquiescence in the view asserted by another does not create or extinguish title.
Keeping into consideration the law as laid down in above said judgements as well as the facts of the present case that Will executed by Sanker Lal in the year 1973 has been acted upon between the parties, the appellant/defendant has enjoyed the benefits/fruits arising out of the will and learned counsel for the appellant has not disputed the facts rather admitted that the house no. C.K. 61/11 which has been given to Sri Chhotey Lal Kasera, appellant/ defendant by virtue of will dated 10.12.1973 recorded his name in the Municipal record, Varanasi thereafter he has accepted the rent from the tenant of the said house . So in view of the principle of waiver now he cannot take the shelter of the provisions under Section 115 of the Indian Evidence Act to challenge that Sri Shanker Lal Kasera has got no authority to execute the will in view of the provisons as provided under Section 223 of the Hindu Law as in the case of Indore Municipal Corporation and another Vs. Dr. Hemalata and others, (2010) 4 SCC 435 Hon'ble the Supreme Court has held as under:-
"The appellants never contended that the said joint inspection report was erroneous. When the said report has been acted upon and accepted, there is no justification for the appellants to get a private report during the pendency of appeal before the High Court to contend that the actual constructed area was marginally more than the sanctioned constructed area. Obviously, the appellants cannot say that the inspection report prepared by the second appellant showing the actual constructed area is to be ignored. The Division Bench of the High Court rightly rejected the request of the appellants to produce the said private report as additional evidence."
In the case of Narendra Kante Vs. Anuradha Kante and others, (2010) 2 SCC 77 Hon'ble the Apex Court has held that once co sharer has acted upon the settlement then he has no right the contend that the said settlement was invalid document taking shelter of Section 151 of the Indian Evidence Act , 1882.
In the case of Rajasthan State Industrial Development and Investment Corporation and another Vs. Diamond & Gem Development Corporation Limited and another, (2013) 5 SCC 470 Hon'ble the Apex Court has held that parties have acted upon a document subsequently taking into consideration the principle that one cannot approbate and reprobate inherent cannot challenge the validity of document by way of principle of estoppel and has been held as under:-
" Approbate and Reprobate A party cannot be permitted to "blow hot-blow cold", "fast and loose" or "approbate and reprobate". Where one knowingly accepts the benefits of a contract, or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract, or conveyance, or order upon himself. This rule is applied to ensure equity, however, it must not be applied in such a manner, so as to violate the principles of, what is right and, of good conscience. (Vide: Nagubai Ammal & Ors. v. B. Shama Rao & Ors., AIR 1956 SC 593; C.I.T. Madras v. Mr. P. Firm Muar, AIR 1965 SC 1216; Ramesh Chandra Sankla etc. v. Vikram Cement etc., AIR 2009 SC 713; Pradeep Oil Corporation v. Municipal Corporation of Delhi & Anr., AIR 2011 SC 1869; Cauvery Coffee Traders, Mangalore v. Hornor Resources (International) Company Limited, (2011) 10 SCC 420; and V. Chandrasekaran & Anr. v. The Administrative Officer & Ors., JT 2012 (9) SC 260).
Thus, it is evident that the doctrine of election is based on the rule of estoppel- the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppels in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had."
Effect of waiver and estoppel has been considered by Hon'ble the Apex Court in the case of Vasu P. Shetty Vs. Hotel Vandana Palace and Ors., AIR 2014 SC 1947 after placing reliance on the earlier judgment in the case of State of Pubjab Vs. Davinder Pal Singh Bhullar and Ors, 2011 (14) SCC 770, held as under:-
"Waiver is an intentional relinquishment of a right. It involves conscious abandonment of an existing legal right, advantage, benefit, claim (sic) or privilege, which except for such a Waiver , a party could have enjoyed. In fact, it is an agreement not to assert a right. There can be no Waiver unless the person who is said to have waived, is fully informed as to his rights and with full knowledge about the same, he intentionally abandons them."
In the said matter, it has been further held as under:-
"In order to constitute Waiver, there must be voluntary and intentional relinquishment of a right. The essence of a Waiver is an estoppel and where there is no estoppel , there is no Waiver. Estoppel and Waiver are questions of conduct and must necessarily be determined on the facts of each case."
In the case of Ram Sarup vs. Ram Saran and another AIR 1926 Lahore 650 (1) , it has been held that Now, there is no doubt from the evidence that the plaintiffs were present that they did make no objection to the gift, and that they had every opportunity of objecting had they desired to do so. It is also quite clear that they knew what the nature of the proceedings and the mutation entry was. Under these circumstances they are clearly estopped by the well-established rule of law and equity that a person is not entitled to do what is commonly known as blowing hot and cold. The maxim allegans contraria non est audiendus is incorporated in S.115 of the Evidence Act.
This Court in the case of Sheodan Singh and Ors. vs. Brijraj Singh and Anr. 1913 ILR 35 All 337 held that the claim of the plaintiffs in this action evidently arose from the suggestion of the pleaders whom they consulted after quarrels arise in the family, and was based on the fact that the document which evidences the partition is termed a will. It is obvious that such a partition could not have been made by Balwant Singh by will strictly so-called. But, as has been already pointed out, the document is much more than a will (if indeed it is in any sense a will at all), for it describes and witnesses to a family arrangement contemporaneously made and acted on by all parties. Everyone treated it as such at the time. The mutations of names show, this beyond controversy. There is nothing, therefore, in the fact that the document is called a will which invalidates the partition, which was undoubtedly made in fact, and which was acted on by all parties for ten years without any dispute or misunderstanding as to their respective rights under it.
In the case of Seth Lakhmi Chand vs. Mt. Anandi and others AIR 1926 Privy Council 54 held as under :-
"The Will although invalid as a Will was a good evidence of a family arrangement by consent of both the brothers and that the interest which A obtained by the mutual agreement of the brothers should continue for her benefit for her life, notwithstanding the birth, if it should happen, of "male issue" to L, as a co-sharer in a Mitakshara joint family without having obtained partition can with the consent of all his cosharers mortgage or charge the share to which he would be entitled on a partition of he joint family property ; but the consent of all the co-sharers must be obtained; and a father who is a co-sharer with a minor son cannot give such a consent for his minor son."
Hon'ble the Apex Court in the case of M. N. Aryamurthy and another vs. M. D. Subbaraya Setty (dead) through LR. And others (1972) 4 SCC 1, paragraph nos,10 and 11 held as under :-
"It is true that, in some cases, the Privy Council had given effect to a "will" by a coparcener when the disposition had been made with the consent of the other coparceners.
The plaintiffs have, therefore, clutched at the above decisions and submitted that, since the sons had agreed to the dispositions made in the will, the will should be given effect to as a family arrangement. When a document which is unexceptionable as a Will-that is to say, a testamentary document, revocable by the testator at his sweet-will-is supposed to embody a family arrangement, we are transported into a different realm where the intentions and objects of the maker or makers of the document are quite different. As pointed out in Halsbury's Laws of England, Third Edition, Vol.17 at p.215 :
"A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour."
This view of a family arrangement has been approved by this Court in Mathuri Pullaiah and another v. Mathuri Narasimham and others AIR 1966 Sc 1836, where is is pointed out that :
"though conflict of legal claims in praesenti or in futuro is generally a condition for the validity of a family arrangement, it is not necessarily so. Even bona fide disputes, present or possible, which may not involve legal claims will suffice. Members of a joint Hindu Family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an arrangement is entered into bona fide and the terms thereof are fair in the circumstances of a particular case, courts will more readly give assent to such an arrangement than to avoid it."
Hon'ble the Apex Court in the case of B. L. Sreedhar and others vs. K. M. Munireddy (dead) and others (2003) 2 SCC 355 held as under :-
"In another illustrious book "Estoppels and the Substantive Law" by Arthur Caspersz under title 'Conduct of Indifference or Acquiescence' it has been noted as follows:
"40. It is, however, with reference to the third class of cases that the greatest difficulty has arisen, especially where statements have been made, expressly or by implication, which cannot properly be characterized as representations at all. It must now be regarded as settled that an estoppel may arise as against persons who have not willfully made any misrepresentation, and whose conduct is free from fraud or negligence, but as against whom inferences may reasonably have been drawn upon which others may have been induced to act.
The doctrine of Acquiescence may be stated thus:
"If a person having a right, and seeing another person about to commit, or in the course of committing, an act infringing upon that right, stands by in such a manner as really to induce the person committing the act, and who might otherwise have abstained from it, to believe that he assents to its being committed, he cannot afterwards be heard to complain of the act." (Duke of Leeds v. Earl of Amherst 2 Ph. 117 (123) (1846). This is the proper sense of the term acquiescence, "and in that sense may be defined as acquiescence, under such circumstances as that assent may be reasonably inferred from it, and is nomore than an instance of the law of estoppel by words or conduct." (De Bussche v. Alt. L.R. 8 Ch.D. 286 (314). Acquiescence is not a question of fact but of legal inference from facts found. (Lata Beni Ram v. Kundan Lall, L.R. 261 I.A. 58 (1899).
The common case of acquiescence is where a man, who has a charge or incumbrance upon certain property, stands by and allows another to advance money on it or to expend money upon it. Equity considers it to be the duty of such a person to be active and to state his adverse title, and that it would be dishonest in him to remain willfully passive in order to profit by the mistake which he might have prevented. (Ramsden v. Dyson L.R. 1 E & I, Ap. 129(140)(1865).
42. In such cases the conduct must be such that assent may reasonably be inferred from it. The doctrine of acquiescence has, however, been stated to be founded upon conduct with a knowledge of legal rights, and as stated in some cases appears to imply the existence of fraud on the part of the person whose conduct raises an estoppel. The remarks of the Judicial Committee, however, in Sarat Chunder Dey v. Gopal Chunder Laha, (L.R. 19 I.A. 203) clearly extend the doctrine of estoppel by conduct of acquiescence or indifference to cases where no fraud whatever can be imputed to the person estopped, and where that person may have acted bona fide without being fully aware, either of his legal rights, or of the probable consequences of his conduct. In every case, as already pointed out, the determining element is not the motive or the state of knowledge of the party estopped, but the effect of his representation or conduct as having induced another to act on the faith of such representation or conduct.
Lapse of time and delay are most material when the plaintiff, by his conduct may be regarded as waiving his rights, or where his conduct, though not amounting to a waiver, has placed the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards asserted. When, however, an argument against a relief, otherwise just, is founded upon mere delay not amounting to bar by limitation, the validity of that defence must be tried by principles substantially equitable."
In Snell's Principles of Equity, 27th Edition, Chapter 3, 12 Maxims of Equity the maxims principles 5, 6 and 7 are relevant for the purpose of the case in hand, they are as follows:
"5. He who seeks equity must do equity.
6. He who comes into equity must come with clean hands.
7. Delay defeats equities, or, equity aids the vigilant and not the indolo Vigilantibus, non dormientibus, jura subveniunt."
The following passage from the "Law relating to Estoppel by Representation" by Geroge Spencer, Second Edition as indicated in Article 3 is as follows:-
"It will be convenient to begin with a satisfactory definition of estoppel by representation. From a careful scrutiny and collation of the various judicial pronouncements on the subject, of which no single one is, or was perhaps intended to be, quite adequate, and many are incorrect, redundant, or slipshod in expression; the following general statement of the doctrine of estoppel by representation emerges; where one person ("the representor") had made a representation to another person ("the representee") in words or by acts and conduct, or (being under a duty to the representee to speak or act) by silence or inaction, with the intention (actual or presumptive), and with the result, of inducing the representee on the faith of such representation to alter his position to his detriment, the represent in any litigation which may afterwards take place between him and the representee, is estopped, as against the representee, from making, or attempting to establish by evidence, any averment substantially at variance with his former representation, if the represent at the proper time, and in the proper manner, objects thereto."
In Article 1175 at page 637 of Halsbury's Laws of England, 3rd Edition, Volume 14, it is stated as follows:
"1175. Waiver is the abandonment of a right, and is express or implied from conduct. A person who is entitled to the benefit of a stipulation in a contract or of a statutory provision may waive it....."
"The essence of waiver is "estoppel" and where thee is no "estoppel" there can be no "waiver", the connection between "estoppel" and "waiver" being very close. But, in spite of that, there is an essential difference between the time and that is whereas estoppel is a rule of evidence waiver is a rule of conduct. Waiver has reference to man's conduct, while estoppel refers to the consequences of that conduct."
Accordingly the arguments advanced by learned counsel for the appellant that Shanker Lal has got no right to execute the will-deed in respect to property in question being ancestral property as per Section 223 of the Hindu Law, appellant being coparcenar as well as the arguments advanced by learned counsel for the appellant that as there is manipulation in the compromise taken place in Regular Suit No. 15 of 1982 has got no force, because Sri Kanhaiya Lal Kasera has acted upon will executed by Sri Shanker Lal not challenged the terms of compromise taken place in regular suit no. 15 of 1982,so the argument on the point in issue has got no force, rejected and appellant cannot derive any benefit from the judgements cited on his behalf in this regard as they are not applicable to the facts and circumstances of the case.
Further, lower appellate court while passing the appellate judgement had recorded a finding that family partition dated 11.7.1999 was allegedly a transfer and without there being any registration it cannot be read in evidence, also recorded a finding that the will was not only accepted but was also acted upon by the parties and the defendant/appellant cannot challenge the Will on the ground that the same is null and void document as per Hindu Law prevailing at that time , so the same is question of fact not a substantial question of law in the present case.
So far as the arguments advanced on behalf of the appellant that the status of appellant/ Sri Chhotey Lal Kasera in the house in question is not of a licensee, in this regard it is to be noted/ taken into consideration that by virtue of will-deed dated 10.12.1973 , house in question ( C.K. 18/31) as well as house no. 61/11 has been mutated in the name of Kanhaiya Lal Kasera.
Accordingly, the status of the appellant/ Chhotey Lal Kasera in respect to his occupation in house no. C.K. 18/31 is of a licensee as per Section 52 of the Indian Easements Act, 1882 terminated by plaintiff/ respondent by giving notice served upon him ,so the findings given by courts below in this regard are perfectly valid rather in accordance with law as laid down by Delhi High Court in the case of Shri Arjan Dev Vs. Sri Om Prakash, AIR 1992 Delhi 202 in which it has been held as under :-
" It is not necessary that for purpose of creation of licence any instrument be written. Under Section 54 of the Act, the grant of licence may be express or implied from the conduct of the grantor. Defendant as a younger brother of the plaintiff had been living in his house with their mother as a family member. When he got married and started his kitchen separately, he continue to stay in the same house with the permission of the plaintiff. It did not give any right of easement or interest in the property to the defendant . The defendant was living in the house as brother of the plaintiff and was,therefore , staying in the suit property as a licensee and such licence was revocable by notice."
Keeping in view the above said facts and the findings given by trial court while passing the judgement, confirmed by the appellate court in respect to status of appellant/defendant as a licensee in the house in question, so the judgement passed by appellate court is in confirmatory with the provisions of Order 41 Rule 31 C.P.C. Rather in accordance with law laid down by Hon'ble the Apex Court in the case of M/s Nopany Investment ( P) Ltd. Vs. Santokh Singh ( HUF) , AIR, 2008 SC 673 relevant portion is quoted below:-
"This takes us to the next issue namely, whether the High Court was right in concluding that the first appellate court had duly dealt with all the issues involved and re-appreciated the evidence as provided under O.41 R.31 of the CPC. The learned senior counsel for the appellant Mr. Gupta sought to argue that the High Court had erred in holding that the first appellate court had acted in due compliance with O.41 of the CPC. It may be noted that the High Court, while concluding as aforesaid, came to the following findings: -
1) The first appellate court has passed a speaking order and it is apparent that it has applied its mind.
2) The First appellate court had to deal with the arguments which were advanced before it. It had rightly given the short shrift to all those arguments which did not inject some coherence.
3) The learned counsel for the appellant had failed to point out the issues regarding which the First Appellate court had not given its own conclusion.
4) The learned counsel for the appellant had also failed to show as to how the authority cited viz., Santosh Hazari Vs. Purushottam Tiwari (dead) by LRs. [AIR 2001 SC 965] was applicable to the facts of the case.
In our view, it is difficult for us to set aside the findings of the High Court on the question whether the first appellate court, while deciding the questions of fact and law, had complied with the requirements under O.41 of the CPC. We are in agreement with the findings of the High Court as on a perusal of the judgment of the first appellate court, it does not appear to us that the findings arrived at by the first appellate court affirming the judgment of the trial court on any issue were either very cryptic or based on non-consideration of the arguments advanced by the parties before it. In support of this contention, before the High Court, the appellant had relied on a decision of this court in the case of Santosh Hazari [supra], but in this appeal, the learned senior counsel for the appellant Mr. Gupta has strongly relied on a decision of this court in the case of Madhukar & Ors. Vs. Sangram & Ors. [(2001) 4 SCC 756] and contended that since the judgment of the first appellate court was cryptic in nature and the first appellate court had not dealt with the issues involved in the appeal, the same was liable to be set aside and the matter was liable to be sent back to the first appellate court for rehearing. We are unable to accept this contention of the learned senior counsel for the appellant. Before we consider the findings of the first appellate court as well as the High Court on this issue, we must keep on record that in Madhukar & Ors. Vs. Sangram & Ors. [supra], this court had to reverse the findings of the High Court because the High Court erred in allowing the plaintiff/respondents first appeal without even considering the grounds on which the trial court had dismissed the suit and without discussing the evidence on record. On the same lines, the decision of this court in Santosh Hazari's case [supra] was based. In our view, the aforesaid two decisions of this court are distinguishable on facts with the present case. A perusal of the judgment of the first appellate court after remand would clearly indicate that the same was neither cryptic nor based on non-consideration of the issues involved in the appeal. Apart from that, it has to be kept in mind that the decisions of this court in Madhukar & Ors. Vs. Sangram & Ors. [supra] and Santosh Hazari Vs. Purushottam Tiwari (dead) by L.Rs. AIR 2001 SC 965, were considering the reversal of the findings of fact of the trial court. In the present case, the first appellate court had affirmed the findings of the trial court, which were based on total consideration of the material evidence documentary and oral on record. " It is well settled that in the case of reversal, the first appellate court ought to give some reason for reversing the findings of the trial court whereas in the case of affirmation, the first appellate court accepts the reasons and findings of the trial court. In any view of the matter, from a perusal of the judgement of the first appellate court, it is clear that it reflects conscious application of mind and has recorded the findings supported by reason on all the issues arising along with the contentions put forward by the parties. In Santosh Hazari (supra) this Court observed:-
" The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with the reasons given by the court, decision of which is under appeal, would ordinarily suffice."
Thus in view of the above said facts and the finding of facts given by the Courts below in the present case as well as taking into consideration that the Apex Court depreciated the liberal construction and generous application of provisions of Section 100 C.P.C. Hon'ble Supreme Court was of the view that only because there is another view possible on appreciation of evidence that cannot be sufficient for interference under Section 100 C.P.C.
In Satya Gupta (Smt.) alias Madhu Gupta Vs. Brijesh Kumar , 1998 (6) SCC 423 by the Supreme Court as under :-
" At the outset , we would like to point out that the findings on facts by the lower appellate court as a final Court of facts, are based on appreciation of evidence and the same cannot be treated as a perverse or based on no evidence. That being the position , we are of the view that the High Court, after re-appreciating the evidence and without finding that the conclusions reached by the Lower Appellate Court were not based on the evidence, reversed the conclusions on fact on the ground that the view taken by it was also a possible view on the facts. The High Court, it is well settled, while exercising jurisdiction under Section 100 CPC, cannot reverse the findings of Lower Appellate Court on facts merely on the ground that on the fact found by the Lower Appellate Court another view was possible."
Similar view was given by the Supreme Court in Kondiba Dagadu Kadam V. Savitribai Sopan Gujar and others, 1999 (36) ALR 218 (SC) and Hamida and other V. Md. Khalil, 2001 (45) AlR 23 (SC) wherein it is held :-
" It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first Appellate Court. It is true that the lower Appellate Court should not ordinarily reject witnesses accepted by the Trial Court in respect of credibility but even where it has rejected the witnesses accepted by the Trial Court, the same is no ground for interference in Second Appeal when it is found that the Appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the Lower Appellate Court is binding on the High Court in Second Appeal. Adopting any other approach is not permissible . The High Court cannot substitute its opinion for the opinion of the first Appellate Court unless it is found that the conclusions drawn by the Lower Appellate Court where erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court , or was based upon inadmissible evidence or arrived at without evidence."
It is well settled by a long series of decisions of the judicial committee of the Privy Council and of this Court that a High Court on second appeal, cannot go into questions of fact, however, erroneous the findings of fact recorded by the Courts of fact may be. It is not necessary to cite those decisions. Indeed, the learned counsel for the plaintiff-appellant did not and could not contend that the High Court was competent to go behind the findings of fact concurrently recorded by the two courts of fact.
In view of the above said facts and circumstances as well as after a careful consideration of arguments of the respective Counsel, I do not find any error of law in the two concurrent conclusions recorded by the Courts below no substantial question of law arises in the instant appeal. The judgement under challenged cannot be interfered in this appeal in exercise of jurisdiction under Section 100 C.P.C. by this Court.
For the foregoing reasons, the present appeal lacks merits and is dismissed .
No order as to costs.
Dated: 26.08.2014 D.K.