in the high court of karnataka at bengaluru · dated this the 21 st day of october, 2019 present...
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF OCTOBER, 2019
PRESENT
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
M.F.A. NO.2079 OF 2019 (ISA) BETWEEN:
K S NATRAJ S/O LATE K M SOMASHEKAR
AGED ABOUT 74 YEARS RESIDENT OF NO.M-10
TOWNSEND, AVALAHALLI DODABALLAPUR ROAD BENGALURU-560064 ... APPELLANT
(BY SRI.S. VIVEKANANDA, ADVOCATE)
AND:
NIL ... RESPONDENT
*****
THIS APPEAL IS FILED UNDER SECTION 384 OF THE INDIAN SUCCESSION ACT, AGAINST THE ORDER DATED
10/01/2019 PASSED IN P & SC NO.209 OF 2018, ON THE FILE OF THE X ADDITIONAL CITY CIVIL & SESSIONS JUDGE,
BENGALURU (CCH-26), DISMISSING THE PETITION FILED UNDER SECTION 372 OF INDIAN SUCCESSION ACT, 1925.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, SURAJ GOVINDARAJ. J., DELIVERED THE FOLLOWING:
®
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JUDGMENT
1. The appellant had filed the proceeding under Section
372 of the Indian Succession Act, 1925 (hereinafter
referred to as the ‘Succession Act’ for the sake of
brevity) for issuance of a Succession Certificate
which came to be numbered as P&SC No.209/2018.
The said P&SC No.209/2018 came to be dismissed
by X Addl. City Civil and Sessions Judge, Bengaluru,
by way of its order dated 10.01.2019. Being
aggrieved, this appeal has been preferred.
2. The appellant has stated that he is the son of late
Sri. K.M.Somashekar, who was holding equity shares
in M/s Titan Watches Limited (now Titan Company
Limited), as also several movable and immovable
properties.
3. Late K.M.Somashekar was married to Smt.
Deviramma and they had two sons and a daughter
(including the appellant). Late K.M.Somashekar
expired in the year 1998, Smt. Deviramma also
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expired subsequently. He states that his sister and
daughter of late K.M.Somshekar, Smt.Bhagya had
predeceased her father leaving behind two sons. He
has further stated that late K.M.Somashekar did not
leave behind any Will. After his death, his widow,
two sons and two sons of deceased daughter
together partitioned his assets under a registered
partition deed dated 7.11.2002.
4. As per the registered partition deed dated
7.11.2002, K.S.Prakash, youngest son of late
K.M.Somashekar was allotted immovable property
and the shares were allotted to the appellant.
5. In pursuance of the said partition deed, the
Appellant had requested the Registrar of M/s Titan
Company Limited to transfer the shares into his
name on 26.10.2017. When the said Authority
insisted on the petitioner obtaining a Succession
Certificate, appellant had issued a legal notice on
2.05.2018 once again calling upon the Registrar to
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transfer the shares. Registrar again reiterated his
stand requesting the appellant to obtain a
Succession Certificate. Hence, the appellant filed
P&SC No.209/2018 seeking for a Succession
Certificate.
6. Following the procedure, after filing such a petition,
the trial Court directed the appellant to take out a
paper publication which was published on
21.06.2018 calling upon the general public to submit
objections, if any, to the grant of Succession
Certificate in favour of the appellant. Though the
said publication was taken, none appeared nor were
objections received to such grant.
7. Appellant examined himself as PW-1 and got Exs.P1
to P11 marked and thereafter, when the matter was
posted for arguments, addressed his arguments and
also filed written submissions.
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8. The trial Court framed the following points for its
determination based on the evidence on record and
arguments:
i) Whether Succession Certificate can be
issued in favour of the petitioner?
ii) What order?
9. The trial Court answered in the negative to the first
point on the ground that the signatories to the
partition deed were not made parties to the petition,
the trial Court also observed that it was not known
whether those signatories were alive or dead and if
dead, then, participation of their legal heirs would be
necessary to avoid multiplicity of proceedings. The
trial Court also observed that the appellant had failed
to examine any of the attesting witnesses to the
partition deed or other parties to it, so as to prove
the execution thereof. While observing that the
partition deed was to be proved, the trial court held
that it is not possible to hold that the petitioner alone
was entitled for the Succession Certificate so as to
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claim rights over the movable shares. The trial court
further observed that merely because notice was
taken through paper publication and none appeared
would not mean that nobody is having an interest in
the litigation.
10. On the above grounds, the trial court was of the
opinion that the petition was not maintainable and
hence, answered point No.1 in the negative and
therefore, dismissed the petition filed by the
appellant under Section 372 of the Act vide order
dated 10.01.2019.
11. Aggrieved by this Order dated 10.01.2019 passed in
P&SC No.209/2018, the appellant has filed the
present appeal impugning the said order by stating
that the trial court has not taken into consideration
the facts and materials placed on record; that the
trial Court has erred in holding that other legal heirs
are to be made parties to the petition; that there
was no requirement to examine any attesting
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witnesses to prove the execution of a registered
partition deed; law does not contemplate
examination of attesting witnesses to such a
document; it only contemplates such examination in
respect of compulsorily attestable documents; that
the trial Court failed to take note of the fact that a
paper publication inviting objections was published,
however, none objected. If at all anyone had any
objections, they would have appeared. There was no
need to serve notices on individual family members,
especially when they do not have any right over the
shares and hence, on the basis of the said
statements made in the appeal memorandum which
were reiterated during the course of arguments, the
appellant has sought for setting aside the order
dated 10.01.2019 passed in P&SC No.209/2018 by
the trial Court and consequently, he has submitted
that the petition as filed by the appellant has to be
allowed and Succession Certificate has to be granted
in his favour.
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12. As aforesaid stated, since the proceedings are for
grant of Succession Certificate, there are no
respondents in the proceedings before the trial Court
or before this Court. Public notice inviting
objections, if any, had already been published,
despite which there was no objection which was
received by the trial Court.
13. We have, therefore, heard learned counsel for the
Appellant and on the basis of the averments made in
the appeal memorandum and submissions made
during arguments, the points that arise for
determination by this Court are:
i) Whether it is necessary to examine
the parties to a registered partition
deed in a proceeding for grant of
Succession Certificate?
ii) Whether it is necessary to examine
the attesting witnesses to a registered
partition deed in proceedings for grant
of Succession Certificate?
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iii) Whether it is necessary for service of
notices to the parties to a registered
partition deed where the property has
been allocated to the person seeking
for Succession Certificate?
iv) What order?
POINT Nos.1 and 2:
14. Admittedly, the partition deed is a registered
document and is registered with the Registrar of
Assurances and all the requirements for such
registration under the Registration Act have been
complied with.
15. A registered partition deed is a public document
under Section 74 of the Indian Evidence Act, 1872
(‘Evidence Act’ for brevity). There is no requirement
to examine the witnesses to a registered partition
deed in terms of the proviso to Section 68 of the
Evidence Act. When a partition deed is registered
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under the applicable law by following due procedure,
which results in a presumption of its validity.
16. Ex-P11 is a certified copy of the partition deed
produced after obtaining the same in terms of
Section 76 of the Evidence Act. An examination of
the said certified copy of the partition deed indicates
that the said certified copy has been issued in
accordance with law and therefore, in terms of
Section 72 of the Evidence Act, there is a
presumption as to the genuineness of such certified
copies.
17. It was this certified copy of the partition deed which
was produced at Ex.P11, which was relied upon by
the appellant in P&SC No.209/2018, in respect of his
claim for issuance of a Succession Certificate in his
favour as regards the shares allotted to him in the
said deed. The document being registered and a
certified copy having been produced is sufficient
proof of the said document having been executed
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and registered and therefore, the document which
was exhibited ought to have been taken as proved
by the appellant.
18. Coming to the finding of the trial Court that the other
signatories to the partition deed had either to be
examined or an affidavit on their behalf had to be
filed in the proceedings indicating their ‘no objection’
to the issuance of Succession Certificate in the name
of the appellant, in our considered view, no such
requirement is contemplated, more so, when even in
relation to issuance of public notice inviting
objections, none appeared or objected to the
issuance of Succession Certificate. The very purpose
of issuance of public notice in matters relating to
issuance of Succession Certificate is to enable any
one having any objection to submit the same before
the Court seized of the matter. If the fact of no
objections having been filed to the said public notice
is ignored, then, there would be no purpose for
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issuance of public notice itself. Therefore, there is
no requirement either to examine either signatories
to the partition deed or an affidavit on their behalf to
be filed in support of the petition seeking for
issuance of Succession Certificate.
19. At this stage, the purpose of registering a document
under the Registration Act could be discussed. The
purpose of registering a document under the
Registration Act, 1908 (hereinafter for brevity
‘Registration Act’) is as under:
i) To provide information to the general
public and/or a specific person who
may deal with the property as to the
nature and extent of rights which a
person claiming under registered
document may have, affecting that
property;
ii) to enable the general public and/or a
specific person who may deal with the
property to find out whether any
particular property with which they may
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be concerned, is subject to any legal
obligation;
iii) To prevent forgeries and procurement
of transfers by fraud or undue
influence.
20. The most important purpose of registration is to
secure that persons dealing with the property, where
such dealings require registration, may rely upon the
statements contained in the register of the Registrar
of Assurances with confidence that the full and
complete account of all transactions relating to or
affecting the property is covered in such register.
21. The Hon’ble Apex Court in Suraj Lamps And
Industries Private Limited –v- State of
Haryana and Another, reported in AIR 2012 SC
206 has very succinctly captured the purpose of
registration of documents in paragraph 10 which
reads as under:
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“10. In the earlier order dated 15.5.2009, the
objects and benefits of registration were explained and
we extract them for ready reference:
"The Registration Act, 1908, was enacted with the
intention of providing orderliness, discipline and public
notice in regard to transactions relating to immovable
property and protection from fraud and forgery of
documents of transfer. This is achieved by requiring
compulsory registration of certain types of documents
and providing for consequences of non-registration.
Section 17 of the Registration Act clearly provides
that any document (other than testamentary
instruments) which purports or operates to create,
declare, assign, limit or extinguish whether in present or
in future "any right, title or interest" whether vested or
contingent of the value of Rs. 100 and upwards to or in
immovable property.
Section 49 of the said Act provides that no
document required by Section 17 to be registered shall,
affect any immovable property comprised therein or
received as evidence of any transaction affected such
property, unless it has been registered. Registration of a
document gives notice to the world that such a
document has been executed. Registration provides
safety and security to transactions relating to immovable
property, even if the document is lost or destroyed. It
gives publicity and public exposure to documents
thereby preventing forgeries and frauds in regard to
transactions and execution of documents. Registration
provides information to people who may deal with a
property, as to the nature and extent of the rights which
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persons may have, affecting that property. In other
words, it enables people to find out whether any
particular property with which they are concerned, has
been subjected to any legal obligation or liability and
who is or are the person/s presently having right, title,
and interest in the property. It gives solemnity of form
and perpetuate documents which are of legal importance
or relevance by recording them, where people may see
the record and enquire and ascertain what the
particulars are and as far as land is concerned what
obligations exist with regard to them. It ensures that
every person dealing with immovable property can rely
with confidence upon the statements contained in the
registers (maintained under the said Act) as a full and
complete account of all transactions by which the title to
the property may be affected and secure extracts/copies
duly certified."
Registration of documents makes the process of
verification and certification of title easier and simpler. It
reduces disputes and litigations to a large extent.”
22. There is a presumptive value to a registered
document. In that, once a document is registered, it
is presumed that the transaction is genuine and
binding on the parties to the registered document.
In the case of Vimal Chand Ghevarchand Jain &
Ors vs Ramakant Eknath Jajoo, reported in
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(2009)5 SCC 713, it has been held that the
registered deed of sale carries a presumption that
the transaction was a genuine one. If the execution
of a sale deed is proved, onus is on the person
alleging otherwise to prove that the deed was not
executed and it was a sham transaction. Thus, the
burden to prove that it is not genuine lies on the
person who alleges that it is not so.
23. It would also be apposite to refer to the decision of
the Hon’ble Supreme Court in Vishwanath Bapurao
Sabale vs Shalinibai Nagappa Sabale &
Others, (2009) 12 SCC 101 wherein it was held as
under:
“27. There is a presumption that a
registered document is validly executed.
A registered document, therefore, prima
facie would be valid in law. The onus of
proof, thus, would be on a person who
leads evidence to rebut the presumption.
In the instant case, Respondent 1 has
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not been able to rebut the said
presumption.”
24. In view of Section 60 of the Registration Act, the
endorsement made by a Registering Officer of such
document has a presumptive value regarding its
validity in terms of Section 60(2) of Registration Act.
Once a certificate is issued, sealed and dated by the
Registering Officer, such a certified copy would be
admissible in evidence for the purpose of proving
that the document has been duly registered in the
manner provided for by the Registration Act. Such a
registration is prima facie binding on the executants
of the document. There would be no need therefore
to examine the executants unless the execution of
the said document is denied by any one of the
executants.
25. Further Section 3 being the interpretation clause
under the Transfer of Property Act, 1882, defines
‘attested’ as under:
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“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 acknowledgement
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;
26. Attestation essentially is bearing witness to the
execution of a document. Popularly when one signs
as a witness to a Will, such a person is called the
‘Attestor’ and when one signs as a witness to any
other document is called a ‘Witness’, though both
Attestor and witness, by whatever name called,
perform the same role of attesting the signature of
the executor to a document.
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27. In Ishwar Dass Jain –v- Sohanlal (dead) by LRs,
reported in AIR 2000 SC 426, the Hon’ble
Supreme Court had an occasion to deal with the
requirement of examining an Attestor where the
document not being a Will, was registered. The
Hon’ble Supreme Court while referring to Section 68
of the Indian Evidence Act 1872 (hereinafter for
brevity ‘Evidence Act’) has held thus:
“POINT 2: We shall first deal with the proof of
the certified copy of the deed of mortgage. So
far as the mortgage deed is concerned, the
plaintiff filed a certified copy and called upon the
defendant to file the original. The defendant
refused to do so. The plaintiff, therefore,
proceeded to file the certified copy as secondary
evidence under sub-clause (a) of Section 65 of
the Evidence Act. This was certainly permissible.
The mortgage is a document required to be
attested by two attestors under Section 59 of
the Transfer of Property Act and in this case it is
attested by two attestors. The mode of proof of
documents required to be attested is contained
in Section 68 to 71 of the Evidence Act.
Under Section 68, if the execution of a
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document required to be attested is to be
proved, it will be necessary to call an attesting
witness, if alive and subject to the process of
Court and is capable of giving evidence. But in
case the document is registered- then except in
the case of a will - it is not necessary to call an
attesting witness, unless the execution has been
specifically denied by the person by whom it
purports to have been executed. This is clear
from Section 68 of the Evidence Act. It reads as
follows:
"Section 68: If a document is required by law
to be attested, it shall not be used as evidence
until one attesting witness atleast 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
evidence:
Provided that it shall not be necessary to call
an attesting witness in proof of the execution of
any document, not being a will, which has been
registered in accordance with the provisions of
the Indian Registration Act, 1908, unless its
execution by the person by whom it purports to
have been executed is specifically denied."
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In the present case, though it was stated
in the written statement that there was no
relationship between the parties as mortgagor
and mortgagee, the defendant admitted in his
additional pleas in the same written statement
that the mortgage deed was executed but he
contended that it was executed to circumvent
the Rent Control legislation. In fact, in his
evidence as DW2 the defendant admitted the
execution of the mortgage. It must therefore be
taken that there was no specific denial of
execution. Hence it was not necessary for the
plaintiff to call the attestor into the witness box,
this not being a will. The plaintiff could therefore
not be faulted for not examining any of the
attestors. Hence the mortgage stood proved by
the certified copy. The Courts below were right
in accepting that the deed was proved. Point 2 is
decided in favour of plaintiffs- appellants.”
28. Section 68 of the Evidence Act deals with proof of
execution of document required by law to be
attested. Proviso to Section 68 of the Evidence Act
deals with documents otherwise than a Will. A
perusal of the proviso to Section 68 of the Evidence
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Act referred hereinabove categorically indicates that
it would not be necessary to call an attesting witness
to prove the execution of any document if it is not a
Will, if it is not registered under the provisions of the
Indian Registration Act, 1908, unless such execution
is denied. Thus, the examination of an Attestor
would be required if the documents sought to be
proved is a Will, irrespective of whether it is denied
or not. In case of documents otherwise than in case
of a Will, there is no requirement to examine the
attesting witness to any registered document unless
the execution thereof is called in question. Thus,
until the execution of a registered document,
otherwise than a will is called in question, there is no
need to examine the witnesses to such registered
document.
29. In the instant case, the appellant had produced a
certified copy of the registered partition deed in
order to assert his case. Such certified copy is a
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public document in terms of Section 74 of the
Evidence Act. The manner of obtaining a certified
copy of a public document is as stated in Section 76
and Section 77 of the Evidence Act. A certified copy
may be produced in proof of contents of the public
document and there is a presumption as to
genuiness of certified copies in terms of Section 79
of the Evidence Act.
Applying the above to the present case, there being
no objection whatsoever received, the presumption
is in favour of the validity of the certified copy of the
registered partition deed. There is, therefore, no
need to examine the executants or
witnesses/attestors to such a registered document as
there was no controversy with regard to the valid
execution of the document.
Point Nos.1 and 2 are related and answered in
the negative and in favour of the appellant herein.
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Point No.3:
30. In terms of Ex.P11 i.e., registered partition deed, it
is found that the subject shares have been allotted
to the appellant herein. The Succession Certificate
sought for is limited to those shares. The trial Court
ought to have taken into consideration the said
allotment being made by the parties by mutual
consent and the same having been acknowledged to
be final and conclusive amongst them. It is also
noted in the partition deed, that the same shall not
be revoked by any party. The fact of the appellant
being a legal heir and being a party to the partition
deed is not in dispute. Hence, the trial Court ought
to have considered these aspects and not insisted
upon service of notice to the parties to a registered
partition deed where the property has been allocated
to the person seeking for Succession Certificate.
31. A Succession Certificate is issued to the legal heirs of
a deceased person to establish the authenticity of
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the heirs and give them authority to inherit or
prosecute debts, securities and/or other assets of the
deceased. The purpose of Succession Certificate is
limited to such debts and securities which the
deceased was entitled to and facilitates collection of
debt on succession and affords the protection to the
parties paying a debt to such recognized Succession
Certificate holders against any claim by third parties.
It is well known that most of the companies would
request for a Succession Certificate before
transferring any security in the name of a person
claiming to be an heir of the deceased. It is for this
reason that the appellant has sought for issuance of
a Succession Certificate in order to obtain transfer of
shares and securities held by the deceased in the
name of the appellant.
32. The procedure for consideration of an application for
Succession Certificate is prescribed in terms of
Section 373 of the Succession Act. In the event the
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District Judge being of the opinion that any other
person ought to be served with notice in the matter,
he should order so. In the present matter, the
District Judge could not have placed the said onus on
the appellant if he had any doubt. In fact, a perusal
of the impugned order does not indicate any doubt
but only requires an examination of the signatories
to the partition deed by abundant caution. The
Succession Certificate could have also been issued in
terms of Section 375 of the Succession Act by calling
upon the appellant to execute an indemnity bond in
the event of anyone else claiming the shares, subject
matter of the petition.
33. The trial Court held that the other signatories to the
partition deed had either to be examined or an
affidavit on their behalf had to be filed in the
proceedings indicating their ‘no objection’ to the
issuance of Succession Certificate in the name of the
appellant. In our considered view, and as discussed
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above, no such requirement is contemplated, more
so, when even after issuance of a public notice
inviting objections, none appeared or objected to the
issuance of Succession Certificate. The very purpose
of issuance of a public notice in matters relating to
issuance of Succession Certificate is to enable
anyone having any objections to submit the same
before the Court seized of the matter. If the fact of
no objection having been filed to the said public
notice is ignored, then, there would be no purpose
for issuance of public notice itself. Therefore, there
is no requirement either to examine either of the
signatories to the partition deed or an affidavit on
their behalf to be filed in support of the petition
seeking for issuance of Succession Certificate when
they have not objected to the public notice issued
through court. The public notice itself being a
general notice inviting any member of the general
public to object if they so desire, there is no
requirement to once again issue a specific notice to
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the other executants of the registered document.
Point No. 3 is hence answered in the negative.
34. In view of the above, we hold that the order dated
10.01.2019 passed by the X Addl. City Civil and
Sessions Judge, Bangalore in P&SC No.209/2018 is
not in accordance with law and hence, is set-aside.
35. In terms of section 371 of the Indian Succession Act,
which is reproduced hereunder, the District Court
has the power to issue succession certificate/s.
“371. Court having jurisdiction to grant certificate.—The District Judge
within whose jurisdiction the deceased ordinarily resided at the time of his death,
or, if at that time he had no fixed place of residence, the District Judge, within whose
jurisdiction any part of the property of the deceased may be found, may grant a
certificate under this Part.”
36. Since the power to grant Succession Certificate is
vested in the District Court, the matter is remanded
to the District Judge to consider the petition filed by
the appellant in accordance with law and in terms of
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the observations hereinabove made expeditiously at
any rate within a period of two months from the
date of receipt of certified copy of this order. For this
purpose the appellant to appear before the Court
below on 02/01/2020 without any further notice
from the said Court.
The appeal is disposed of accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
ln