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PETITIONER: SANT NARAIN MATHUR & ORS.

       Vs.

RESPONDENT: RAMA KRISHNA MISSION & ORS.

DATE OF JUDGMENT27/09/1974

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ BEG, M. HAMEEDULLAH KRISHNAIYER, V.R.

CITATION:  1974 AIR 2241            1975 SCR  (2) 188  CITATOR INFO :  R          1976 SC 866  (9)

ACT: Practice and Procedure-Statement in the High Court  judgment that certain issues were conceded whether can be  challenged before  the  Supreme  Court particularly when.  it  was  not challenged  in the Leave Application and the  Special  Leave Petition--Permission to raise a new plea to be determined on what grouting.

HEADNOTE: Dr. Chandan Singh had two sons Tegh Singh and Shamsher Singh and two daughters Deva Devi and Lakshmi Devi Dayali Devi was the  wife of Shamsher Singh.  Dr. Chandan Singh  executed  a will   in  1897.   Chandan  Singh  and  Tegh   Singh   died. Thereafter Shamsher Singh executed a will in 1944 in  favour of  Rama  Krishna  Mission  and  making  provision  for  the residence and maintenance of his wife and sister.  Mr. Mitra the executor obtained a probate of the will in spite of  the opposition  of Dayali Devi.  The Division Bench of the  High Court  confirmed the grant of probate by the  Single  Judge. Therefore,  Dayali Devi filed a suit for a declaration  that she  was  the owner of the Properties left by  her  husband. The  said suit was dismissed.  The High Court dismissed  the appeal.   In  the meanwhile, a suit for  possession  of  the property bequeathed to Rama Krishna Mission was filed  where Deva  Devi was impleaded as a defendant on her  application. The Trial Court awarded the decree for possession in  favour of  Rama  Krishna  Mission.  Dayali  Devi  filed  an  appeal against  that  judgment  in  the  High  Court.   During  the pendency  of  the  appeal in the High Court  Deva  Devi  and Dayali  Devi  died.  Four persons including  the  appellants applied  to  the  High  Court to  be  substituted  as  legal representatives  of Dayali Devi on the ground  that  Dayali- Devi  had executed a will in their favour 2 days before  her death.  The High Court dismissed the appeal.  The High Court judgment  mentioned  that  it  was  not  challenged  by  the appellants that a part of the bequeathed property was  self- acquired property of Shamsher Singh and that Shamsher  Singh had  become full owner of the share of Tegh Singh.   It  was contended  on behalf of the appellant that the  observations in  the  High  Court  judgment  about  the  concession   are

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erroneous. HELD  :  The  observation of the  High  Court  that  certain findings  were  not  challenged is  unequivocal  and  it  is difficult  to  believe that the Learned Judges of  the  High Court would erroneously say so.  The same counsel who argued the  appeal  also filed the Application for Leave  which  is silent  on  the point.  Even in the Special  Leave  Petition filed in this Court no ground was taken that the observation of the High Court was incorrect. [193 E-H] The contention that Shamsher Singh was owner of only I share of the estate of Chandan Singh after the death of Tegh Singh was  not  allowed to be raised for the first  time  in  this Court.   While  disallowing  the  appellant  to  raise   the contention  this  Court  took  into  account  various  facts including the fact that the plea is being set up by  persons who  admittedly  had  no relationship  with  Chandan  Singh, Shamsher  Singh or Dayali Devi.  Another fact which  weighed with this Court is that the suit giving rise to this  appeal was instituted more than 16 years ago.  The suit  instituted in 1958 was the off-shoot of the litigation which started in 1946  and  it is time that a final curtain is drawn  on  the long litigation.  The Court in this context observed : "Deva Devi and Dayali Devi, who claimed rights and  interest in  the property is dispute, are now no more.  So  is  Capt. Mitra  who was the party arrayed against the two  ladies  in the litigation.  It is time in our opinion, that we draw the final  curtain on this long drawn litigation and  not  allow its embers to shoulder for a further length of time, more so when  the principal contestants have all departed bowing  as it were to the inexorable law of nature." [195 D-H] 189

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 689 of 1973. Appeal  by special leave from the judgment and  Order  dated the  October 19, 1972 of the Allahabad, High Court in  First Appeal No. 360 of 1963. Sri  Narain  Andley, O. C. Mathur and D. N. Misra,  for  the appellant. B.  Sen,  P.  K. Chaterjee and G.  S.  Chatterjee,  for  the respondent The Judgment of the Court was delivered by  KHANNA,  J.-This is an appeal by special leave against  the judgment of the Allahabad High Court affirming on appeal the decision of the trial court whereby a decree for  possession of  the  property in dispute had been awarded in  favour  of Capt.   J. N. Mitra deceased plaintiff, now  represented  by Rama  Krishna  Mission and other respondents,  against  Smt. Dayali  Devi and Smt.  Deva Devi decease&,  defendants,  now represented  by  Sant Narain Mathur  and  other  appellants. Although  the  question  involved in appeal  lies  within  a narrow  compass, the case has a long history going  back  to the  end  of the last century, and it would,  therefore,  be necessary to set out the detailed facts. "Dr.  Chandan Singh who  hailed from Pilibhit settled in Dehra Dun  towards  the end  of  the last century.  Dr. Chandan Singh had  two  sons Tegh  Singh and Shamsher Singh and two daughters  Deva  Devi and  Lachmi  Devi.   Dayali Devi was the  wife  of  Shamsher Singh.  On March 26, 1897 Dr. Chandan Singh executed a will. After making provision for the maintenance of his two  wives and  the  marriage  expenses of  daughter-  Deva  Devi,  Dr. Chandan  Singh bequeathed his estate in equal shares to  his sons Tegh Singh and ShamSher Singh for their life time.  The

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relevant part of clause 6-B of the will read as under :               "By way of policy I deem it necessary to  make               it clear that by this writing I want to give a               moiety share, at the most, to each of my  both               the sons, in the income of the estate left  by               me  for  their life-time; and  after  each  of               them,  his  son  or  legal  heir  shall   have               absolute  proprietary right to the  extent  of               one,half  subject to the  age  aforementioned.               In  case one of the brothers dies  issue  less               and  the  other brother may be alive  at  that               time,  (i.e., after the death of the  former),               then  the  deceased brother’s  wife  shall  be               entitled to receive maintenance allowance only               and  the property shall vest in the  surviving               brother.  Should both of them die issue  less,               their legal heirs shall become entitled to all               as mentioned above, at the most, to the extent               of one-half share." Chandan Singh died on April 1, 1897.  Tegh Singh, elder  son of Chandan Singh, died issue less in 1908.  On July 14, 1944 Shamsher  Singh,  younger son of Chandan Singh,  executed  a will.   Shamsher  Singh  be fore that had  been  married  to Dayali Devi but he had no issue from her.  The will  related to  the  entire  estate of  Shamsher  Singh,  including  the property  in dispute, and was executed by Shamsher Singh  on the 190 assumption that he was the full owner of that property.   By this will Shamsher Singh appointed Capt.  J. N. Mitra as the executor  of  his estate.  Shamsher Singh gave  a  right  of residence and maintenance to his wife Dayali Devi.  He  also made  provision  for the residence and  maintenance  of  his sister Deva Devi.  The entire estate was bequeathed to  Rama Krishna Mission and the bequest was to take effect after the death  of  Dayali Devi.  Shamsher Singh  died  issueless  on January  20, 1946 leaving- behind his widow Dayali Devi  and sister Deva Devi. On December 10, 1946 Capt.  J. N. Mitra applied for grant of probate of the will of Shamsher Singh in the Allahabad  High Court.   Dayali  Devi contested the aforesaid  petition  and also set up arrival will.  The High Court did not accept the plea  of Dayali Devi regarding the rival will.  Probate  was granted  to  Capt.  Mitra on March 18,  1949.   Dayali  Devi filed Letters Patent appeal against the order of the  single Judge  granting probate to Capt.  Mitra but her  appeal  was dismissed on March 14, 1952. On July 15, 1952 Dayali Devi filed civil suit No. 54 of 1952 against Capt.  Mitra, Rama Krishna Mission and Deva Devi  in the  court  of the Civil Judge Dehra Dun for  a  declaration that  she  was  the  owner  of  all  movable  and  immovable properties of her husband Shamsher Singh.  According to  the claim  of Dayali Devi, as the legal heir of  Shamsher  Singh she  became entitled to the aforesaid properties  under  the will of Chandan Singh.  Dayali Devi’s suit was dismissed  by the  trial  court  on November 7, 1958.  It  was  held  that Dayali  Devi did not acquire any interest under the will  of Chandan  Singh.  The trial court came to this conclusion  on the  basis  of  the  Privy Council  decision  in  Tagore  v. Tagore(1)  that  a bequest in favour of unborn  persons  was void.  It was observed that Chandan Singh did not intend  to give  any property to any legal heir of his sons  except  to their  sons.   The  court held that  part  of  the  property bequeathed by Shamsher Singh was his self-acquired property’ It  was  also held that Shamsher Singh was entitled  to  one

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half share for his life in the property bequeathed to him by Chandan  Singh.   Regarding the other half share  which  was bequeathed  for his life to Tegh Singh, the court held  that after  Tegh  Singh’s death Shamsher  Singh  became  absolute owner of that.  As Dayali Devi was held not entitled to  the property  in question under the will of Chandan  Singh,  her suit was dismissed. Dayali  Devi  filed  appeal  No. 605  of  1958  against  the judgment and decree of the trial court dismissing her  suit. The  Allahabad  High  Court  dismissed  the  appeal  as  per judgment  dated November 21, 1961.  It was held by the  High Court that Chandan Singh never intended to give by his  will to  his sons widows anything more than a right  of  mainten- ance.   Dayali  Devi as such was held to have  no  right  in Chandan Singh’s property under his will.  Shamsher Singh, it was  further held, was the heir of Tegh Singh who  had  died issue-less.  There was, in the opinion of the High Court, no difficulty  in  the way of Shamsher Singh executing  a  will with  respect to half of the estate of Chandan  Singh  which had  been earmarked for the maintenance of Tegh  Singh.   As regards  the other half share intended for  Shamsher  Singh, although the High Court observed that, his sister Deva  Devi seemed to be his legal heir, it did (1)  I.A. Supp Vol. 1872-73 p. 43. 191 not go into this aspect of the matter as Deva Devi had  made no claim.  Another finding of the High Court was that Dayali Devi  was born in 1904 and as such was not in  existence  at the  time of the death of Chandan Singh in 1897.   Following the  case of Tagore v. Tagore (supra), the High  Court  held that  Dayali  Devi being not in existence, at  the  time  of Chandan Singh’s death could not acquire any interest in  his estate  under his will.  Dayali Devi was  consequently  held not entitled to challenge Shamsher Singh’s will. In  the meantime during the pendency of Dayali  Devi’s  suit No.  54  of 1952 in the trial court, Capt.  Mitra  filed  on February  1,1958  suit  No. 31 of 1958 giving  rise  to  the present  appeal  against Dayali Devi.  This was a  suit  for possession of the property, details of which are as, under :               (1)   Kothi  No.  7 Kutcheri Road,  Dehra  Dun               known as Tegh Villa.               (2)   One _shop being part of No. 4, New Road,               Dehra  Dun in which a Chemist  and  Druggist’s               business styled Dr. Chandan Singh & Sons  used               to be run.               (3)   Haveli  being part of No. 4,  New  Road,               Dehra  Dun  in the occupation of  Shri  B.  K.               Mukherji Vakil tenant.               (4)   Haveli  being part of No. 4,  New  Road,               Dehra Dun.               (5)   Kothi  known  as Vishranti  situated  at               Kishanpura, Rajpur Road, Dehra Dun. Capt.   Mitra  claimed  possession of  the  above  mentioned properties  as  the, executor appointed under  the  will  of Shamsher Singh. Deva  Devi  was  impleaded  as  a  defendant  in  the  above mentioned  suit  on  her  application  as  she  claimed  the property in dispute in her own, right. The  trial  court  awarded a decree for  possession  of  the property in. dispute in favour of the plaintiff against  the defendants  on  March 27, 1963.  It was held  that  Shamsher Singh  had executed will dated July 14, 1944 while being  of sound  disposing  mind.  Vishranti kothi was    held  to  be self-acquired property of Shamsher Singh.  As regards  Kothi No. 7, Kutcheri Road, the court held that the superstructure

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thereof  was  the self-acquired property of  Shamsher  Singh while  the sight of that Kothi was his  ancestral  property. The shopand  the two Havelis on New Road were held  to  be ancestral properties of Shamsher Singh.  Dayali Devi, it was held, had no interest in the estate of Chandan Singh as  she was  not born when Chandan Singh had died.  As regards  Deva Devi,  the trial court observed that Chandan Singh  did  not intend  to create any interest in favour of  his  daughters. Shamsher  Singh  was held to ’have acquired  full  ownership rights in the assets left by Chandan Singh.  In the result a decree for possession of the property in dispute was awarded in favour of Capt.  Mitra against Dayali Devi and Deva Devi. Dayali Devi filed appeal No. 360 of 1963 against the  decree for possession of the property in dispute.  Deva Devi  filed application to- 192 appeal against that decree in forma pauperis.  Dayali Devi’s application  in this respect was rejected by the High  Court on  September 18, 1963.  Dayali Devi thereupon filed  cross- objections,  but her cross-objections too were dismissed  by the  High  Court on April 24, 1964 on the ground  that  they were barred by limitation as well as on the ground that they were   not   maintainable.   Deva  Devi   thereafter   filed application  for review of the judgment of the trial  court, but  this  application was dismissed by the trial  court  on August 18, 1965.  Deva Devi died on November 29, 1966.   The High  Court  as per order dated December 20,  1967  directed that Deva Devi’s name be struck off.  As Dayali Devi made  a claim that Deva Devi had executed a will in her favour,  the High  Court observed that the question whether  Dayali  Devi was  legate of Deva Devi would be determined, if  necessary, at  the time of the hearing or the appeal.  Dayali Devi  too died during the pendency of her appeal in the High Court  on November  10,  1968.   Four  persons,  including  the  three appellants, and Durga Prasad respondent No. 4 applied to the High  Court  to  be substituted in appeal  as  legal  repre- sentatives of Dayali Devi on the ground that Dayali Devi had two  days before her death executed a will in their  favour. The High Court as per order dated August 4, 1972 allowed the said application for substitution on the ground that even an intermedellers the applicants would be legal representatives of Dayali Devi. On October 19, 1972 the High Court dismissed appeal No.  360 of  1963  which  had  been filed by  Dayali  Devi.   It  was observed  that  the finding of the trial  court  that  Kothi Vishranti  and superstructure of Kothi No. 7, Kutcheri  Road were self-acquired properties of Shamsher Singh had not been challenged  in  appeal.  It was further  observed  that  the finding  of the trial court that Shamsher Singh  had  become full owner of one half share of Tegh Singh in the estate  of Chandan  Singh too had not been challenged.  So far  as  the rights of Deva Devi were concerned, the High Court  observed that  the decree which had been awarded in favour  of  Capt. Mitra   against  her  was  binding  on  Deva  Devi  as   her application  to  appeal  in forma pauperis as  well  as  her cross-objections had been dismissed.  Deva Devi’s successors could  not therefore, challenge the decree  awarded  against her.   Dealing with the case of Dayali Devi, the High  Court held that she was bound by the findings given against her in the earlier appeal No. 605 of 1958.  The aforesaid judgment, it  was  observed, operated as res judicata  against  Dayali Devi.   The counsel for the appellant also  referred  before the  High  Court to Order 41, Rule 33 of the Code  of  Civil Procedure  and  contended that the trial court  had  wrongly held that Deva Devi had nointerest  in  Chandan  Singh’s

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estate on the death of Shamsher Singh. The  High Court  was asked to set aside that error by recourse tothe       above provision  of the Code of Civil Procedure.  The  High  Court rejected this contention because it was of the view that the power under Order 41, Rule 33 of the Code could be exercised only  if  as  a  result of interference  in  favour  of  the appellant,  it  became necessary to readjust the  rights  of other  parties.   If  in  a case  the  appellant  failed  to substantiate  the grounds upon which he sought  relief  from the  appellate  court and his appeal failed on  merits.  the appellant  could  not ask the court to consider  and  decide points which could have risen 193 only  if another party had filed an appeal.  An  observation was  also  made  by  the High Court  that  Dayali  Devi  was approbating  and  repro bating as she herself had set  up  a will by Shamsher Singh on the basis that there was the fully owner of the property in dispute. After the dismissal of the appeal, the appellants applied to the  High  Court under article 133 of the  Constitution  for certifying  the  case to be fit for appeal  to  this  Court. This  application  was dismissed by the High  Court  as  per order  dated  February 21, 1973.  The  appellants  thereupon filed the present appeal by special leave. Mr.  Andley  on behalf of the appellants has at  the  outset referred  to the following observations in the  judgment  of the High Court               "Here it may, however, be mentioned and  noted               that  the  finding of the trial court  on  the               above  issues was not challenged before us  by               the  learned counsel for the appellants.   The               finding is as follows :               I,  therefore,  hold that the, land  on  which               Kothi  No. 7 Kutchery Road, Dehra  Dun  stands               and properties detailed at Nos. 2 to 4 in  the               Schedule appended to the plaint i.e., shop and               two  Havelies  belonged to Dr.  Chandan  Singh               deceased and were the ancestral properties  in               the hands of Shamsher Singh deceased and Kothi               known  as Vishranti detailed at No. 5  in  the               Schedule and the constructions now known as 7,               Kutchery Road, are self-acquired properties of               Shamsher Singh deceased." It  is submitted by the learned counsel that the High  Court was in error in observing that the finding reproduced  above had not been challenged in the High Court, We are unable  to accede  to  this submission.  The observation  of  the  High Court that the above finding had not been challenged by  the learned  counsel for the appellants is unequivocal,  and  we find it difficult to believe that the learned Judges of  the High Court would state it in their judgment that the finding reproduced  above had not been challenged before  them  even though   the  counsel  for  the  appellants   had   actually challenged the same.  It is not disputed by Mr. Andley  that the   same  counsel  who  argued  the  appeal   also   filed application before the High Court for obtaining  certificate of  fitness  for appeal to the Supreme Court.   It  was  not mentioned  in that application that the observation  in  the judgment of the High Court that the finding reproduced above had  not been challenged was incorrect.  Had  the  aforesaid finding in fact been challenged and the observation made  by the  High  Court in this respect was  incorrect,  one  would normally  expect this fact to be mentioned in the  forefront of  that application.  The fact that there was no  reference to such incorrect observation shows that the stand now taken

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is  the result of an afterthought.  It is  also  significant that  even in the special leave petition which was filed  in this  Court no ground was taken that the finding  reproduced above  had been challenged before the trial court  and  that the  observation  of  the High Court  in  this  respect  was factually incorrect. The main contention advanced by Mr. Andley is that the trial court and the High Court were in error in awarding a  decree for possession 14-L251 Sup.CI/75 194 of the entire property in dispute in favour of Capt.  Mitra. It  is urged that Shamsher Singh was owner of only  one-half of the estate of Chandan Singh after the death of Tegh Singh and,  as such, Capt.  Mitra, who was the executor  appointed under  the  will  of Shamsher Singh, could even  in  a  suit against a trespasser obtain only a decree for joint  posses- sion  to the extent of one-half share.  The learned  counsel in  this  context  has referred to  two  English  decisions, Eughes v. Justin(1) and Muir v. Jenks(2) wherein it was held in  claims for recovery of money that the plaintiff was  not entitled  to judgment for an amount in excess of that  which was actually due to him.  Reference has further been made to the  cases,  Naresh  Chandra Basu v. Hayder  Sheikh  Khan  & Ors.(3)   Joy  Gopal  Singha  &  Ors.  v.  Probodh   Chandra Bhattacharjee,(4)  Abdul  Hamid  &  Ors.  v.   Durga  Charan Das,(5)  Rain  Ranbijaya  Prasad Singh v.   Ramjivan  Ram  & Ors.(6) and Abdul Kabir and Ors. v. Ht.  Jamila Khatoon  and Ors. (7) in support of the proposition that a co-sharer in a suit against a trespasser can get a decree for joint posses- sion  of the property to the extent of his share  only.   As against  the above, Mr. B. Sen on behalf of  the  contesting respondents   has  argued  that  the  contention  that   the plaintiff was entitled only to a decree for joint possession should not be entertained in appeal to this Court as no such plea  was  taken either in the trial court or  in  the  High Court.   After hearing the learned counsel for the  parties, we  are of the view that the submission made by Mr.  Sen  in this behalf is well founded. The  present suit for possession of the property in  dispute was  filed  by  Capt.   Mitra on February  1,  1958  on  the allegation  that  Shamsher  Singh  was  the  owner  of  that property  and had executed a will where-under the  plaintiff was  appointed the executor of Shamsher Singh’s estate.   As under  the  will a right of maintenance  and  residence  was given to Dayali Devi, the plaintiff sought possession of the property  in  dispute subject to the right and  interest  of Dayali  Devi  under the will of Shamsher Singh.   The  trial court  held that Shamsher Singh had acquired full  ownership rights in the assets left by Chandan Singh.  When the matter came up in appeal before the High Court, it found that ’the, appeal  must  fail because the decree awarded  against  Deva Devi  had become final and because Dayali Devi was bound  by the  Previous decision dated November 21, 1961 of  the  High Court.   The  High  Court under the  circumstances  did  not consider it necessary to construe the will of Chandan  Singh and  to  decide whether the finding recorded  by  the  trial court  that Shamsher Singh had become the absolute owner  of the  entire estate of Chandan Singh was correct or not.   No plea  was  taken on behalf of the defendants either  in  the trial  court  or in the High Court that  the  plaintiff  was entitled  only to a decree for joint possession  because  of his being a co-sharer and not to a decree for exclusive possession of the property in dispute.  As no such plea  was taken  in the trial court and the High Court, we are of  the

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opinion  that the appellants should not be allowed  to  take this plea for the first time in this Court.  In arriving  at this conclusion, we have taken into account the (1) [1894] 16. B 67.     (2) [1032] K. B. 412 (3)AIR 1929 Cal. 28.     (4) AIR 1935 Cal.. 646 (5) AIR 1967 Cal. 116.   (6) AIR 1942 Patna 397. (7)  AIR 1951 Patna 315. 195 various,  facts  and circumstances of the  case.   One  such circumstance  is that the above plea is now being set up  by persons  who  admittedly had no, relationship  with  Chandan Singh,  Shamsher  Singh  or  his  widow  Dayali  Devi.   The appellants,-  as already mentioned, base their claim upon  a will  which, according to them, was executed by Dayali  Devi two lays before her death. A very important circumstance, which has weighed with us, is that  the,  suit giving rise to this appeal  was  instituted more  than  16 years ago on February 1,  1958.   During  the entire  period of more than 14 years that the case  remained pending in the trial court and the High Court, the plea  now sought to be raised was never taken.  The suit instituted in 1958  was the off shoot of a litigation between the  parties which started in December 1946 when an application was filed by  Capt.  Mitra for the grant of a probate of the  will  of Shamsher Singh.  Although the probate proceedings ended as a result of the dismissal of the appeal of Dayali Devi against the  order  granting  probate  the  litigation  between  the parties  continued and showed no sign of  abatement  because Dayali Devi filed in 1952 a suit for declaration in  respect of  the  property  left by Shamsher Singh.   It  would  thus appear  that  we  have reached the culminating  point  of  a litigation  which arose out of a will executed in  the  last century and which has been pending in one court or the other since  before  the dawn of independence.   The  question  is whether  we  should  call  a halt and put  an  end  to  this litigation or whether we should allow the litigation to take a  further meandering course which must necessarily  be  the case if we allow the new plea to be raised in this Court. it has  already been mentioned that the trial court  held  that Shamsher  Singh  had acquired full ownership rights  in  the assets  left  by Chandan Singh.  The High Court did  not  go into this aspect of the matter as the need for doing so  did not arise in the light of the contentions advanced on behalf of  the  appellants  before the High  Court.   In  case  the appellants  are now allowed to take the new plea,  the  case would have to be remanded to the High Court for dealing with and  recording a finding on the above aspect of the  matter. The High Court shall have also in that event to go into  the question  as to whether Dayali Devi could deny the title  of Shamsher Singh to the entire property in dispute in view  of the  fact  that she herself had set up a  will  of  Shamsher Singh  on the assumption that he was the full owner  of  the property in dispute.  The High Court did not fully deal with this aspect of. The matter beyond observing that Dayali Devi was approbating and reprobating.  Deva Devi and Dayali Devi, who claimed rights and interest in the property in  dispute, are  now  no  more.  So is Capt.  Mitra who  was  the  party arrayed  against  the two ladies in the litigation.   It  is time, in our opinion, that we draw the final curtain on this long  drawn litigation and not allow its embers to  shoulder for  a  further length of time, more so when  the  principal contestants  have  all  departed bowing as it  were  to  the inexorable law of nature.  One is tempted in this context to refer  to the observations of Chief Justice Crowe in a  case concerning peerage claim made after the death without  issue

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of the Earl of Oxford.  Said the learned Chief Justice :               "Time.  bath its revolutions; there must be  a               period  and an end to all  temporal  things-an               end of names, and dignities               196               and  whatsoever is terrene, and why not of  De               Vere ?  For where is Nohun?  Where is Nowbray?               Where  is  Mortimer?  Why, which is  more  and               most of all, where is Plantagonet ?  They  are               all  entombed  in the urns and  sepulchres  of               mortality.,, What was said about the inevitable and of all mortal beings, however eminent they may be, is equally true of the  affairs of  mortal  beings,  their  disputes  and  conflicts,  their ventures in the field of love and sport, their  achievements and  failures  for  essentiality they all have  a  stamp  of mortality on them. The appeal fails and is dismissed with costs. Appeal dismissed. P.H.P. 197