REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7434 OF 2008 (Arising out of SLP (C) No.17161 of 2006)

Lalitaben Jayantilal Popat … Appellant

Versus

Pragnaben Jamnadas Kataria & Ors. … Respondents

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. This  appeal  is  directed  against  the  judgment  and  order  dated

26.6.2006 passed in FA No.110 of 2000 and FA No.124 of  2000 by the

High  Court  of  Gujarat  at  Ahmedabad  dismissing  appeals  filed  against  a

common judgment and order dated 23.2.2000 passed by the learned Civil

Judge (SD) Rajkot allowing the Civil Miscellaneous Application No.25 of

1996 and dismissing the Civil Miscellaneous Application 26 of 2006.

3. One Purshottam Manji Thakrar was the owner of the property.  He

purported to have executed a Will on or about 15.4.1978 in favour of the

respondents.  He left behind his two sons (Jamnadas and Jayantilal) and two

daughters (Kasturben and Lalita – appellants herein).   

Purshottam  Manji  Thakrar  died  on  30.11.1984.   His  wife  had

predeceased  him.   Jamnadas  died  leaving  behind  his  wife,  Jasumati

(Respondent No.3) and two daughters, Pragna and Bina (Respondent Nos.1

and 2 respectively).   Jayantilal  died  issueless.   He was  a  divorcee.   He

purported to have executed two Wills; one on 31.1.1995 propounded by the

appellant  and  the  other  on  18.6.1995  propounded  by  respondents.

Kasturben died on 19.12.1995.   

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4. Respondents  filed  an  application  for  grant  of  probate  of  the  Will

dated 18.6.1995.  On the other hand, appellant filed an application for grant

of probate in respect of the Will dated 31.1.1995.   

The  learned  District  Judge  granted  probate  in  respect  of  the  Will

dated  18.6.1995  propounded  by  the  respondents  and  dismissed  the

application  for  grant  of  probate  in  respect  of  the  Will  dated  31.1.1995

executed by Jayantilal.

5. Two appeals were preferred thereagainst.  By reason of the impugned

judgment, the High Court dismissed the said appeals.  

Although  all  the  three  aforesaid  Wills,  i.e.,  one  dated  15.4.1978

executed by Purshottam Manji Thakrar in favour of the respondents, as also

two Wills  executed by Jayantilal  dated  31.1.1995 and 18.6.1995 were in

question,  this  Court by an order dated 2.11.2006, issued a limited notice

directing :

“In  view  of  the  decision  of  this  Court  in  Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003 (2) SCC 91), issue notice only on the question as to  whether  the Will  dated 18.6.1995 was legally proved.”

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6. Mr.  Jay  Savla,  learned  counsel  appearing  on  behalf  of  appellant,

would  submit  that  a  Will,  having  regard  to  the  provisions  contained  in

Section 63(c) of the Indian Succession Act, is required to be attested by two

or more witnesses and furthermore, although in terms of Section 68 of the

Indian Evidence Act  it  is  permissible to  examine one witness,  who must

testify to prove valid  execution and attestation  of  the Will,  i.e.,  both the

witnesses  have  signed  in  the  presence  of  the  testator  or  the  testator  has

either signed in presence of one or acknowledged his signature before the

other.  It was contended that as in this case, the said legal requirements had

not been complied with, the Will in question cannot be said to have been

proved.  Strong reliance in this behalf  has been placed on  Janki Narayan

Bhoir (supra)  and  Benga Behera & Anr. v.  Braja Kishore Nanda & Ors.

[2007 (7) SCALE 228].   

It  was  urged  that  a  large  number  of  suspicious  circumstances

surrounding  the  execution  of  the  Will  by  the  testator  having  not  been

explained  by  respondent,  the  Will  cannot  be  said  to  have  been  legally

proved.  These, according to the learned counsel, are:

“Respondent  Nos.1  and  2  had  filed  suit  for partition  claiming 1/3rd share on the basis  of  the Will of grand father Shri Parshottam Kataria dated 15th April,  1978  and  in  the  alternative  under

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succession  claiming  1/9th share  against  deceased Jayantilal Kataria being Suit No.119/1989.

Testator  had  opposed  the  suit  amongst  other grounds  and  in  the  written  statement  of  the testator, it was averred that Parshottam Kataria had in fact made last Will dated 19th November, 1983.

In  the  reply  dated  10th January,  2006,  to  Public Notice, no mention of Will.

In the  said proceedings,  on 1st January,  1996,  in the  application  for  deletion  of  deceased, Respondents  categorically  averred  that  such Jayantilal Kataria had not executed any Will.

Further an application dated 4th March, 1996 was filed for  impleadment  in the proceeding filed by deceased Testator against the tenant for eviction, it was reiterated that Jayantilal Kataria had not left any Will.

In  the  examination-in-chief,  in  the  Petition  for probate under Section 276 filed on 8th July, 1996, no  explanation  about  the  statement  made  in  the earlier proceedings to the effect that Testator had died intestate.

By the alleged Will, the entire property has been bequeathed  to  Respondents  who  are  not  Class-I legal  heirs  to  the  exclusion  of  Petitioner,  Smt. Lalitaben Popat.

Deceased  is  resident  of  Rajkot  whereas Respondents were residing at Mumbai.

Petitioner  being  younger  sister  was  nursing  the deceased and the relationship was very cordial.”

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It was contended that the District Judge as also the High Court having

failed and/or neglected to deal therewith, the impugned judgment cannot be

sustained.  Strong reliance in this behalf has been placed on  Ram Piari v.

Bhagwant & Ors. [(1990) 1 SCR 813];  Smt. Guro v.  Atma Singh & Ors.

[(1992) 2 SCR 30];  Rambai Padmakar Patil (dead) v.  Rukminibai Vishnu

Vekhande & Ors. [(2003) 8 SCC 537];  B. Venkatamjni v.  Ayodhya Ram

Singh & Ors. [2006 (11) SCALE 148].

7. Mr.  Adarsh  Priyadarshi,  learned  counsel  appearing  on  behalf  of

respondent, on the other hand, would contend:

(a) Law does  not  require that  a Will  must  be proved by two attesting

witnesses.

(b) In  ascertaining  the  genuineness  of  the  Will,  the  only  requirement

being that the Court must satisfy its conscience and as in this case all

the  courts  have  arrived  at  a  concurrent  finding  of  fact,  this  Court

should not exercise its discretionary jurisdiction under Article 136 of

the Constitution of India.

(c) Section 63(c) of the Indian Succession Act does not envisage direct

proof of execution of the Will.  

8. The law in regard to proof of a valid Will is now well settled.   

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It has to be proved not only by proving the signature of the executor

but  it  should  be  found  to  be  free  from  any  suspicious  circumstances.

Section 63(c) of the Indian Succession Act reads as under :

“Section  63.—Execution  of  unprivileged  Wills —Every testator, not being a soldier employed in an expedition or engaged in actual warfare,  1 [or an airman so employed or engaged,] or a mariner at  sea, shall  execute  his  Will  according  to  the following rules :-

(a) and (b) …

(c)  The  Will  shall  be  attested  by  two  or  more witnesses, each of whom has seen the testator sign or  affix his  mark  to  the  Will  or  has  seen  some other person sign the Will, in the presence and by the direction of the testator, or has received from the  testator  a  personal  acknowledgement  of  his signature or mark, or of the signature of such other person;  and  each of  the  witnesses  shall  sign  the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at  the  same  time,  and  no  particular  form  of attestation shall be necessary.”

9. Indisputably, the  said provision is  mandatory in nature.   A Will  is

required to be attested by two or more witnesses.   

Section 68 of the Evidence Act provides  that  the propounder must

prove execution and attestation of the Will by examining at least one of the

attesting witnesses.   

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What is meant by the word ‘attestation’ is defined in Section 3 of the

Transfer of Property Act which reads as under :

Section  3.—Interpretation-clause—In  this  Act, unless there is something repugnant in the subject or context,-

XXX XXX XXX

"attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in  the  presence  and  by  the  direction  of  the executant,  or  has  received  from the  executant  a personal  acknowledgment  of  his  signature  or mark, or of the signature of such other person, and each  of  whom has  signed  the  instrument  in  the presence  of  the  executant;  but  it  shall  not  be necessary  that  more  than  one  of  such  witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.”

10. Indisputably, the Will in question was marked as Exhibit 44.  It bears

the signature of one Mavaji Viraji in Gujrati language and one Ranjit Singh

in English.  Respondents, in order to prove execution of the Will, examined

Ranjit Singh alone.  He was working in the agricultural Department of the

State at Gondal in the District of Rajkot.  On the date of execution of the

Will, he was at his place of work.  The testator was a resident of Jetpur.  The

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Will admittedly was executed at Jetpur.  Attestation of the Will admittedly

had taken place only at Jetpur.   

Ranjit Singh, in his deposition stated :

“I  know  Janyatilal  Purshottam  Kataria.   I  also know  Purshottam  Manaji  Kataria  and  Jamandas Purshottam Kataria.  Jamnadas and Jayantilal  are sons of Purshottam Majaji.   I  have relation  with whole family for the last many years.  I used to go to ask for the health, if any member is sick.

The  said  Will  mark  42/1  is  the  original  Will executed  by  Jayantilal  Purshottam  Kataria. Original  Will  is  executed  upon  the  stamp paper worth  of  Rs.10/-.   The  name  of  Jayantilal Purshotam is upon the stamp paper as purchaser.  I am shown the signature of Jayantilal  Purshottam in  the  Will.   I  identify  that  this  signature  is  of Jayantilal  Purshottam himself.   This  signature  is put in my presence, the signature of two witnesses are  also  there  in  the  Will  dated  18.5.95.   From those one signature is of Mavnjibhai Virjibhai and other is of myself i.e. Ranjit Singh.  I produced the said Will which is produced at exhibit-44.

Jayantilal had called me at the time of Will which is of movable and immoveable properties.  At the time of the execution of this Will, Jayantibhai was conscious  and  well  position.   He  executed  this Will by his wish, not under the pressure of any.”

In cross-examination, he stated:

“I  do  Government  service  in  Gondal.   I  do  my service in Agriculture department.  I am at Gondal

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for the last 4 years.  On 9.5.1996, I was at Gondal. It  is  not  true  that  my  signature  is  obtained  in Gondal.  When I went to Jetpur, I have signed in the Will at Jetpur.  On that day I went Jetpur after putting my report for leave.  I was called at Jetpur. First I was informed therefore I went prior to the week of the execution of Will.  I was informed.  I directly  went  to  Jayantibhai.   It  is  true  that  this original Will  was already prepared in that Will I signed.   Jayantibhai  had  also  signed  in  my presence, when I signed.  At that time we two and one old man was there to whom I know by face. Rest I do not know.”

11. The Will was in Gujarati.  It was typed one.  Who scribed the Will is

not known.  Who typed the same is also not known.  Signature of Ranjit

Singh is at Serial No.2 of the column of the witnesses.  Paragraph 8 of the

Will makes an interesting reading which is reproduced hereinbelow :

“At  Jetpur  my  trusted  Vaisnav  friend  Mavaji Virjabhai  whose  support  I  have  received  in  my religious life, I have trusted upon him.  Therefore, his signature as witness is done and he has to see that my heirs may receive my property according to Will.”

This Will or ‘vasihat nama’ is my last Will and I have  not  executed  any  Will  or  ‘vasihat  nama’ except  this.   If  it  is,  it  is  to  be  considered  as cancelled.   In this  way if  my life may complete, this Will be considered the last Will.

I have executed this Will or vasihat nama with my pleasure, keeping the life permanent, good health, after realize and thinking, according to the voice

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of my soul and I have signed before two witnesses. For  that  I  have  signed  under  this  and  both witnesses have put their own signature.”

12. A perusal of the Will shows that the said Mavajibhai Virajibhai was

made an executor of the Will.  The Will, however, has been produced from

the custody of Ranjit Singh.  How he came in custody of Will has not been

explained.  The recital that no other Will had been executed appears to have

been made as if the executor was not sure thereabout.  The Will is supposed

to have been executed in presence of both the witnesses.  A declaration is

made by the testator that he had signed before both the witnesses and only

before him both the witnesses had put their signatures.   

Ranjit  Singh  does  not  say  so.   He  was  alone  with  the  testator.

According to him, the testator had already put his signature.  Jayantilal, the

testator of the said Will had signed in his presence.  It is, thus, evident that

at that point of time Mavajibhai Virajibhai had not put his signature on the

Will as an attesting witness.  Still his name appears at Serial No.1.  An old

man  only  according  to  the  said  witness  was  present  when  the  testator

executed the Will.  Who was that old man is not known.  Certainly he is not

Mavajibhai Virajibhai.   

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It  has,  therefore,  not  been proved that  both  the  attesting  witnesses

either  attested  the  Will  in  presence  of  each  other  or  the  testator  had

acknowledged his signature in presence of the other witnesses.   

13. The  learned  counsel,  however,  has  drawn  our  attention  to  the

statement made in the counter affidavit that the said Mavajibhai Virajibhai

had expired on 2.5.1996.  It was, however, very fairly stated that the said

fact had not been brought on record before the courts below.  We, therefore,

are not in a position to accept the said contention raised before us for the

first time.

14. Mr. Priyadarshi has drawn our attention to a decision of this Court in

Joyce Primrose Prestor (Mrs) (Nee Vas) v.  Vera Marie Vas (Ms) & Ors.

[(1996) 9 SCC 324].  In that case, the Will was a ‘Holograph Will’.  The

writings of the testatrix was proved.   

The question which arose for consideration therein before this Court

was as to whether the Will was surrounded by suspicious circumstances.   

This  Court  noticed a passage from the ‘Laws of Will  in India and

Pakistan, by Mantha Ramamurthi, at pages 81-82, which reads as under :

“If a will  appears  on the face of it  to have been duly executed and attested in accordance with the requirements of the Act, the maxim "omni a proe

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sumuntur  rite  esse  acta,"  applies,  unless  it  is clearly proved by the attesting witnesses that the Will  is  not  in  fact  duly  executed.  The  Court  of Probate  has  long  been accustomed  to  give  great weight to the presumption of due execution arising from the  regularity  ex  facie  of  the  testamentary paper produced where no suspicion of  fraud has occurred.

The maxim "omni a Proe sumuntur rite esse acta" is an expression in a short form, of a reasonable probability, and of the propriety in point of law on acting on such probability. The maxim expresses an  inference  which  may  reasonably  be  drawn when  an  intention  to  do  some  formal  act  is established. In Blake v. Knight Sir Herbert Jenner Fusty observed  Is it absolutely necessary to have positive  affirmative  testimony by the  subscribed witnesses that the Will was actually signed in their presence,  or  actually  acknowledged  in  their presence?  Is  it  absolutely  necessary,  under  all circumstances that the witnesses should concur in stating  that  these  acts  took  place?  Or  is  it absolutely necessary, where the witnesses will not swear positively, that the Court should pronounce against the validity of the will. I think these are not absolute requisites to the validity of the will.

Consequently,  "where  the  evidence  of  attesting witnesses is vague or doubtful or even conflicting the  Court  may  take  into  consideration  the circumstances  of  the  case  and  judge  from them collectively  whether  the  requirements of  the Statute  were  complied  with;  in  other  words  the Court may, on consideration of other evidence or of the whole circumstances of the case,  come to the  conclusion  that  their  recollection  is  at  fault, that their evidence is of a suspicious character, or that they were willfully misleading the Court, and accordingly  disregard  their  testimony  and pronounce in favour of the will.”

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(Emphasis supplied)

This Court held that a greater degree of presumption arises in the case

of ‘holograph Wills’  The said finding was arrived at as the writing of the

Will  and signature of the testator  were admitted;  there was also due and

proper attestation in accordance with the relevant statutory provisions.  This

Court  held that  no suspicious  circumstances  appeared on  the  face  of  the

instrument and it was found to be moderate and rational.

Whether a Will is surrounded by suspicious circumstances or not is

essentially a question of fact.

We  have  noticed  hereinbefore  that  there  was  a  large  number  of

suspicious circumstances in the instant case.  We have also pointed out that

suspicious circumstances appear on the face of the Will.   

Inferences of suspicious circumstances must be drawn having regard

to the evidence of Ranjit Singh.   

Even the statutory requirements for proof of the Will have not been

complied with.  It is a trite law that execution of a Will must be held to have

been proved not only when the statutory requirements for proving the Will

are satisfied but the Will is also found to be ordinarily free from suspicious

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circumstances.  When such evidences are brought on record, the Court may

take aid of the presumptive evidences also.   

15. Reliance has also been placed by Mr. Priyadarshi on a decision of this

Court  in  Ramabai  Padmakar  Patil  (Dead)  through  LRs.  &  Ors. v.

Rukminibai  Vishnu Vekhande & Ors. [(2003) 8 SCC 537].   In that  case

itself, this Court held :

“Before we advert to the submissions made by the learned counsel for the parties, it will be useful to briefly  notice  the  legal  position  regarding acceptance and proof of a Will.  Section 63 of the Indian  Succession  Act  deals  with  execution  of unprivileged Wills.  It lays down that the testator shall sign or shall affix his mark to the Will or it shall  be  signed  by  some  other  person  in  his presence and by his direction.  It further lays down that  the  Will  shall  be  attested  by  two  or  more witnesses,  each  of  whom  has  seen  the  testator signing or affixing his mark to the Will or has seen some other person sign the Will,  in the presence and on the direction of the testator and each of the witnesses shall sign the Will in the presence of the testator.  Section 68 of the Evidence Act mandates examination of one attesting witness in proof of a Will, whether registered or not.”

It was furthermore held :

“In  P.P.K.  Gopalan  Nambiar v.  P.P.K. Balakrishnan Nambiar it  has been held that it  is the duty of the propounder of the Will to remove

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all the suspected features, but there must be real, germane  and  valid  suspicious  features  and  not fantasy of the doubting mind.”

The said decision, therefore, is of no assistance to us.  

16. The question which,  thus,  arises  for consideration is  as to whether

execution of the Will has been proved.  In our opinion, it has not been.   

The requirements for proving a Will have been laid down in a large

number of decisions.  We would, however, refer to only a few of them.

In  Janki  Narayan  Bhoir (supra),  while  dealing  with  the  question

elaborately, this Court held :

“8.  To  say  will  has  been  duly  executed  the requirement mentioned in Clauses (a), (b) and (c) of  Section  63  of  the  Succession  Act  are  to  be complied with i.e.,  (a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction;  (b)  that  the  signature  or  mark  of  the testator,  or the signature of the person signing at his direction, has to appear at a place form which it could appear that by that mark or signature the document is intended to have effect as a will; (c) the  most  important  point  with  which  we  are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or  affix  his  mark to the Will,  or must  have seen  some  other  person  sign  the  Will  in  the presence  and by the  direction  of  the  testator,  or

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must  have  received  from the  testator  a  personal acknowledgement of signature or mark, or of the signature  of  such  other  person,  and  each  of  the witnesses has to sign the Will  in the presence of the testator.

9. It is thus clear that one of the requirements of due execution of will  is its  attestation by two or more witnesses which is mandatory.

10. Section 68 of the Evidence Act speaks of as to now a document required by law to be attested can be  proved.  According  to  the  said  Section,  a document required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution,  if  there  be  an  attesting  witness  alive, and subject to the process of the Court and capable of giving an evidence. It flows from this Section that if there be an attesting witness alive capable of giving evidence and subject  to the  process of the Court, has to be necessarily examined before the document required by law to be attested can be used in  an  evidence.  On  a  combined  reading  of Section 63 of the Succession Act with Section 68 of  the  Evidence  Act,  it  appears  that  a  person propounding the will has got to prove that the will was  duly  and  validly  executed.  That  cannot  be done by simply proving that the signature on the will  was that  of the testator  but  must also prove that  attestations  were  also  made  properly  as required  by  Clause  (c)  of  Section  63  of  the Succession  Act.  It  is  true  that  Section  68  of Evidence  Act  does  not  say  that  both  or  all  the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63.  Although  Section  63  of  the  Succession  Act requires that a will  has to be attested at least by two  witnesses,  Section  68  of  the  Evidence  Act provides  that  a  document,  which  is  required  by

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law to be attested, shall  not be used as evidence until  one  attesting  witness  at  least  has  been examined  for  the  purpose  of  proving  its  due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a Court of law by examining at least  one attesting witness even though will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be  noted  is  that  that  one  attesting  witness examined  should  be  in  a  position  to  prove  the execution of a will.  to put in other words, if one attesting witness can prove execution of the will in terms of Clause (c) of Section 63, viz., attestation by  two  attesting  witnesses  in  the  manner contemplated  therein,  the  examination  of  other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy  the  attestation  of  a  will  by  him and  the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides  his  attestation  does  not,  in  his evidence, satisfy the requirements of attention of the  will  by  other  witness  also  it  falls  short  of attestation of will at least by two witnesses for the simple reason that the  execution of the will does not  merely mean the signing of it  by the testator but  it  means  fulfilling  and  proof  of  all  the formalities  required  under  Section  63  of  the Succession  Act.  Where  one  attesting  witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has  to  be  called  to  supplement  his  evidence  to make  it  complete  in  all  respects.  Where  one attesting witness is examined and he fails to prove the  attestation  of  the  will  by  the  other  witness

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there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act.”

(Emphasis supplied)

Following  the  said  decision,  as  also  the  other  decisions  in  Benga

Behera (Supra), this Court held:

“21. It was also not necessary for the appellants to confront  him  with  his  signature  in  the  Xeroxed copy of  the Will,  inasmuch as the same had not appeared in the certified copy. Execution of a Will must conform to the requirement of Section 63 of the Succession Act, in terms whereof a Will must be attested by two or more witnesses. Execution of a Will, therefore, can only be proved in terms of clause (c) of Section 63 when at least one of the two witnesses  proves  the  attestation.   A Will  is required to be attested by two or more witnesses, each of whom has seen the testator  sign or affix his mark to the Will.  Section 68 of the Evidence Act  provides  for  the  requirements  for  proof  of execution of the Will.  In terms of said provision, at least one attesting witness has to be examined to prove execution of a Will.”

Yet  again,  recently  in  Anil  Kak v.  Kumari  Sharada  Raje  &  Ors.

[(2008) 6 SCALE 597], it was opined :

“40.  Whereas  execution  of  any  other  document can  be  proved  by  proving  the  writings  of  the document  or  the  contents  of  it  as  also  the execution  thereof,  in  the  event  there  exists suspicious  circumstances  the  party  seeking  to obtain  probate  and/  or  letters  of  administration

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with a copy of the Will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine.

41. As an order granting probate is a judgment in rem,  the  court  must  also  satisfy  its  conscience before it passes an order.

It may be true that deprivation of a due share by the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which  is  taken  into  consideration  by  the  courts before granting probate of a Will.  

Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation.”

In Babu Singh & Ors. v. Ram Sahai @ Ram Singh [2008 (7) SCALE

743], this Court, inter alia, referring to  Apoline D’Souza v.  John D’Souza

[(2007) 7 SCC 225] and  B. Venkatamuni v.  C.J. Ayodhya Ram Singh &

Ors. [(2006)  13  SCC  249]  held  that  the  question  as  to  whether  due

attestation has been established or not will depend upon the fact situation in

each case.

17. For the  reasons  aforementioned,  the impugned judgment  cannot  be

sustained.  It is set aside accordingly.  The appeal is allowed.  However, in

the facts and circumstances of this case, there shall be no order as to costs.

..………………………J.   [S.B. Sinha]

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..………………………J.   [Cyriac Joseph]

New Delhi;

December 19, 2008

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