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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 4490 OF 2017

(ARISING OUT OF SLP (C) No.22148/2013)

Karunanidhi        ….Appellant(s)

VERSUS

Seetharama Naidu & Ors.      …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) Leave granted.

2) This appeal is filed by the legal representative

of the original defendant against the final judgment

and  order  dated  26.07.2012  passed  by  the  High

Court of  Judicature at Madras in S.A. No. 873 of

2003 whereby the  High Court  allowed the  appeal

filed by the respondents  (plaintiffs)  herein in  part

and set aside the judgment and decree passed by

the Trial Court in respect of ‘A’ Schedule properties

and modified the judgment and decree to the effect

that each respondent(plaintiff) was held entitled to

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1/3rd share  in  respect  of  ‘A’  Schedule  property

except  Item  No.2  of  ‘A’  Schedule  and  for

consequential  relief  regarding  mesne  profits  in

respect of 2/3rd share of the respondents(plaintiffs)

in ‘A’ Schedule property and accordingly confirmed

the judgment and decree passed by the Trial Court

in respect of ‘B’ Schedule property.

3) We  herein  set  out  the  facts,  in  detail,  to

appreciate the issues involved in this appeal.

4) The dispute in this appeal is between the heirs

of  one  Perumal  Naidu,  who  was  the  original

ancestor in the family.  The legal heirs of  Perumal

Naidu represent three branches of the family.  

5) The questions, which arise for consideration in

this appeal, are what is the extent of share of each

heir of  Perumal Naidu in his properties;  secondly,

how the devolution of each heir's share would take

place;  and thirdly,  on the death of  any heir,  how

his/her  share  would  devolve  on  his/her  legal

representative in law.  These are broadly the issues

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which arise in this appeal.

6) In order to properly answer the aforementioned

questions, which lie in a narrow compass and based

on more or less undisputed facts, it is necessary to

set out the family genealogy tree.

GENEALOGICAL TREE

Late Perummal Naidu (died in 1924)

Late Subbammal Late Lakshmi Ammal                        Late Pappu Ammal (1st Wife)         (2nd Wife)            (3rd Wife)    

      Late Muthuammal    (daughter)

          Late Alamelu      Ramanujatha No Child              Ammal    Ammal (Defendant)

(daughter) (daughter) (Died in 1987) (died in 2004)

           Late Andal                 Late Vijayalakshmi             Ammal        (daughter)            (daughter) (died as minor)

Seetharama Naidu             Late Sagunthala  (son) (daughter) (Plaintiff No.1) (Plaintiff No.2)                            

7) As  would  be  clear  from the  family  tree,  the

original ancestor of the family was one male Hindu -

Perumal  Naidu.  He  owned  extensive  immovable

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properties  situated  in  Thenkarai  Esanur,

Thiruvaikur Vattam, Nagapattinam Taluk in State of

Tamil  Nadu. The details  of  the properties held by

Perumal Naidu are set out in the plaint and would

hereafter be referred to as  "suit properties".      

8) Perumal  had  three  wives-Subbammal,

Lakshmi Ammal and Pappu Ammal. Out of the first

marriage with Subbammal, one daughter was born -

Muthammal. Out of the wedlock of Muthammal, two

daughters-Andal  Ammal  and  Vijayalakshmi  were

born.  Vijayalakshmi,  however,  died  during  her

minority. Out of the wedlock of Andal Ammal, one

son-Seetharama  Naidu  (plaintiff  No.1)  and  a

daughter- Sagunthala (plaintiff No. 2) were born.

9) Out of Perumal Naidu’s second marriage with

Lakshmi Ammal, two daughters were born-Alamelu

Ammal and Ramanujatha Ammal (defendant). Both

did  not  have  any issue.   Alamelu Ammal  died in

1987 whereas Ramanujatha Ammal died in 2004.

So far as Perumal Naidu’s 3rd wife-Pappu Ammal is

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concerned, she died issueless.

10) On 27.12.1923, Perumal Naidu executed a Will

and  bequeathed  his  immovable  and  movable

properties including the suit properties to his heirs

such as, his 3rd wife,  two daughters from second

wife,  his  granddaughters  from  first  wife  and  his

son-in-law.  The  Will  specified  the  extent  of

properties  bequeathed  to  each  heir  named above.

Soon after the execution of the Will, Perumal Naidu

died in the 1924.

11) The  execution  of  the  Will  by  Perumal  Naidu

gave rise to litigation amongst his heirs.  One suit

being  Civil  Suit  No.13/1924 was  filed  by  his  two

daughters-Alamelu  Ammal  and  Ramanujatha

Ammal.  Since  both  the  daughters  were  minor,

therefore,  the  suit  was  filed  through  their  local

guardian - one Gopalsami Naidu.  

12) In  the  suit,  the  challenge  was  made  to  the

legality and validity of the Will executed by Perumal

Naidu including the extent of properties bequeathed

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to  the  plaintiffs.   According to  the  plaintiffs,  they

were  entitled  to  receive  more  shares  in  the

properties left by their father - Late Perumal Naidu

than what was bequeathed to them in the Will. In

this  suit,  Andal  Ammal-grand-daughter  of  late

Perumal Naidu, who is the mother of the plaintiffs of

this litigation was one of the defendants.

13) Vide  judgment/decree  dated  15.09.1925,  the

Trial Court dismissed the suit. It was, however, held

that the Will executed by Perumal Naidu in favour of

his several heirs was a valid Will. The plaintiffs, felt

aggrieved,  filed  appeal  being  First  Appeal  No.

284/1925 but it was dismissed. The plaintiffs then

filed second appeal, which was also dismissed. This

litigation ended finally as no further appeal was filed

by the plaintiffs after the decision of the High Court

in S.A. No. 234 of 1925.

14) On  29.07.1957,  two  daughters  of  Perumal

Naidu  from  his  second  wife-Alamelu  Ammal  and

Ramanujatha  Ammal  effected  partition  between

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them in relation to the properties which they had

received by Will from their late father.   Both also

got their name mutated in the revenue records as

owner in respect of their respective shares.

15) On  01.10.1987,  Alamelu  Ammal-daughter  of

Perumal Naidu executed a Will of her property and

bequeathed  its  some  portion  to  her  sister-

Ramanujatha  Ammal  and  the  remaining  to  the

appellant  herein.  Alamelu  Ammal,  however,  died

soon after execution of the Will on 29.10.1987.

16) Ramanujatha  Ammal-another  daughter  also

executed  a  Will  dated  25.11.1987  of  her  share,

which consisted of some properties received by her

from  her  father  and  remaining  from  her  sister

-Alamelu  Ammal  by  Will  .By  her  Will,  she

bequeathed her properties  to the appellant  herein

and others.

17) It  is  with  the  aforementioned  factual

background,  second  round  of  litigation  began

between the surviving heirs of Late Perumal Naidu

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out of which the present appeal arises.  

18) The second round of litigation with which we

are concerned here was initiated by two heirs, i.e.,

great-grandson and the great-granddaughter of late

Perumal  Naidu-  Seetharama  Naidu  and

Sagunthala-son/daughter of  Andal Ammal, who is

the daughter of  Muthammal,  who,  in turn,  is  the

daughter  of  Perumal  Naidu  from  his  first  wife

Subbammal.  

19) On  15.12.1987,  Seetharama  Naidu  and

Sagunthala  served  a  legal  notice  to  Ramanujatha

Ammal.  Though in the  notice,  no legal  basis  was

mentioned and nor  any specific  share in  the suit

properties  was  demanded  and  nor  any  factual

foundation was laid as to how and on what basis,

the notice was being sent demanding share in the

properties  held  by  Alamelu  Ammal  and

Ramanujatha  Ammal  except  stating  therein  that

they were entitled to claim right, title, interest and

share  in  the  properties  received  by  Ramanujatha

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Ammal  from  her  late  father  and  sister-Alamelu

Ammal.  In  other  words,  according  to  them,  the

properties received and possessed by Ramanujatha

Ammal had devolved on them by succession on the

death  of  Alamelu  Ammal  in  1987  but  did  not

devolve on Ramanujatha Ammal because they were

heirs through father’s side.  Ramanujatha Ammal,

on receipt of notice, denied the claim by sending her

reply on 23.12.1987.  

20) Seetharama Naidu and Sagunthala then filed a

suit  being  Civil  Suit  No.  26/1988  on  23.03.1988

against  Ramanujatha  Ammal.  The  suit  was  for  a

declaration  of  their  title  and  for  possession  in

relation  to  the  suit  properties.  In  substance,  the

plaintiffs’ case was that the defendant and her late

sister-Alamelu Ammal had only life interest in the

properties  which she had received from their  late

father  Perumal  Naidu through Will  and hence  on

the death of Alamelu Ammal in 1987, the properties

held  by  her  devolved  on  the  plaintiffs  as

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reversioners by succession through Perumal Naidu's

first  wife  as  father’s  heirs.  It  was  averred  that

disposition made by Alamelu Ammal of her share by

Will  executed in favour of  her sister-Ramanujatha

Ammal  was  of  no  avail  because  Alamelu  Ammal

herself  had  life  interest  in  the  properties  and,

therefore, such properties could not be bequeathed

by her through Will to the defendant.  It was averred

that  her  property  could  not  be  devolved  on  the

defendant  also  by  succession  but  could  only  be

devolved in favour of the plaintiffs as father’s heirs

(reversioners).

21) The defendant filed her written statement and

denied  the  plaintiffs’  claim.  According  to  her,  the

Will  executed  by  Perumal  Naidu  (her  father)

conferred “absolute interest” on the defendant and

her  sister-Alamelu  Ammal   in  the  suit  properties

and  not  the  “life  interest”  as  contended  by  the

plaintiffs.  It  was  also  contended  that  since  the

defendant  and  her  sister  Alamelu  Ammal,   got

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“absolute  interest”  in  the  properties,  Alamelu

Ammal  was,  therefore,  competent  to  transfer  her

share in any manner to anyone and which she did

by executing the Will in defendant’s favour. It was

also contended that on the death of Alamelu Ammal

in 1987, her share did not devolve on the plaintiffs

as heirs of Perumal Naidu but it devolved upon the

defendant by virtue of two Wills-one executed by her

father Perumal Naidu and the other executed by her

sister-Alamelu Ammal.

22) The  Trial  Court,  vide  judgment/decree  dated

16.06.1994  dismissed  the  suit.  It  was  held  that

Alamelu  Ammal  and  defendant  had  “absolute

interest” in the properties received by them by Will

from  Perumal  Naidu.  It  was  also  held  that  the

plaintiffs failed to prove that the defendant or/and

Alamelu  Ammal  had  only  life  interest  in  the

properties. It was also held that since the plaintiffs’

mother Andal Ammal (who was grand-daughter of

Late Perumal Naidu) also got one share along with

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the defendant and others in the properties through

same Will of Perumal Naidu and she having enjoyed

“absolute interest” of her share like other heirs, had

no right to challenge the Will nor the plaintiffs, who

are  her  son  and  daughter,  had  any  right  to

challenge the Will.  It was held that it was more so

when  Andal  Ammal  was  party  to  the  earlier  civil

suit, she was bound by the findings recorded in the

said suit.

23) The plaintiffs, felt aggrieved, filed first appeal

being A.S.No. 124/1994 before the District Judge.

By judgment dated 14.08.1995, the District Judge

dismissed  the  appeal  and  affirmed  the

judgment/decree of the Trial Court.

24) The  plaintiffs,  felt  aggrieved,  filed  Second

Appeal  No.  873/2003  before  the  High  Court.

During  the  pendency  of  the  second  appeal,  the

defendant  passed  away  on  29.07.2004.   The

plaintiffs filed C.M.P. No. 8691 of 2006 before the

High  Court  to  implead  the  appellant  herein  as

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respondent  in  the  second  appeal  as  legal

representatives of the defendant.  By its order dated

25.04.2012, the High Court brought the appellant

herein as respondent to represent the estate of the

respondent(defendant).

25) By  impugned  judgment,  the  High  Court

interfered in the judgment/decree of the two courts

below, allowed the appeal in part and while setting

aside the judgment,  decreed the suit  in part.  The

High  Court,  however,  upheld  the  concurrent

findings of the two Courts below and held that the

Will executed by Perumal Naidu in favour of his two

daughters  conferred  "absolute  interest"  in  the

properties and not the “life interest" as claimed by

the  plaintiffs.  The  High  Court  then  proceeded  to

place reliance on Section 15 (2) (a) read with Section

8 and Schedule appended to the Hindu Succession

Act, 1956 (hereinafter referred to as “the Act”) and

held that since the plaintiffs are son and daughter

of  a  pre-deceased  daughter  of  a  pre-deceased

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daughter  and  are  class  I  heir  as  specified  in  the

Schedule  and  hence  by  virtue  of  Section  15(2)(a)

which has overriding effect  on those  categories  of

the  heirs  specified  in  sub-section(1),  would  be

entitled to claim 1/3rd  share in the suit properties

along with defendant, i.e., plaintiff No. 1 would be

entitled to get 1/3rd, plaintiff No. 2 would be entitled

to get 1/3rd, i.e., both would get 2/3rd share whereas

the  defendant  would  be  entitled  to  get  1/3rd  in

relation to the properties specified in schedule  ‘A’

( except one item).

26) It is against this judgment of the High Court,

the  defendant  has  felt  aggrieved  and   filed  this

appeal  by  way  of  special  leave  before  this  Court

questioning its legality and correctness.

27) Having heard learned counsel  for  the parties

and on perusal  of  the  record of  the  case,  we are

inclined to allow the appeal and while setting aside

the  impugned  judgment,  restore  that  of  the  Trial

Court/First  appellate  Court  and,  in  consequence,

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dismiss the suit.

28) Section 15 and Schedule appended to the Act

are  relevant  for  deciding  the  appeal.  It  read  as

under:

“15. General rules of succession in the case of female Hindus (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16-

(a)  firstly,  upon  the  sons  and  daughters (including  the  children  of  any  pre-deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;  

(c) thirdly, upon the mother and father;  

(d) fourthly, upon the heirs of the father; and  

(e) lastly, upon the heirs of the mother.  

(2)  Notwithstanding  anything  contained  in sub-section (1)-  (a) any property inherited by a female Hindu from her father or mother shall  devolve, in the  absence  of  any son  or  daughter  of  the deceased  (including  the  children  of  any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1)  in the  order  specified  therein,  but  upon  the heirs of the father; and  

(b) any property inherited by a female Hindu from her  husband or  from her  father-in-law shall  devolve, in the absence of  any son or daughter  of  the  deceased  (including  the children of any predeceased son or daughter) not  upon  the  other  heirs  referred  to  in sub-section (1) in the order specified therein, but upon the heirs of the husband.”  

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“THE SCHEDULE [Section 8]

HEIRS IN CLASS I AND CLASS II

CLASS I  Son;  daughter;  widow;  mother;  son  of  a pre-deceased son; daughter of a pre-deceased son; son of a predeceased daughter; daughter of  a  pre-deceased  daughter;  widow  of  a pre-deceased son; son of a predeceased son of a  pre-deceased  son;  daughter  of  a pre-deceased  son  of  a  pre-deceased  son; widow  of  a  pre-deceased  son  of  a pre-deceased  son;  [son  of  a  pre-deceased daughter  of  a  pre-deceased  daughter; daughter  of  a  pre-deceased  daughter  of  a pre-deceased  daughter;  daughter  of  a pre-deceased son of a pre-deceased daughter; daughter  of  a  pre-deceased  daughter  of  a pre-deceased son.]*

*added  by  amendment  by  Act  39/2005, section 7(w.e.f.9.9.2005) “

29) Section  15  of  the  Act  applies  to  the  case  of

female  Hindus.   It  specifies  the  general  rules  of

succession and provides the categories of heirs on

whom the property of a female Hindu would devolve

on  her  death.   Sub-section(1)  sets  out  four

categories of heirs specified in clauses (a) to (e) on

whom her property would devolve as per the rules

set out  in Section 16.   Sub-section(2)  is  given an

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overriding  effect  on  the  categories  of  persons

specified in sub-section(1).   So far  as clause(a)  of

sub-section(2)  is  concerned,  it  provides  that  any

property  inherited  by  a  female  Hindu  from  her

father or mother shall devolve upon the heirs of the

father,  if  female  does not  have her  son,  daughter

including the children of any pre-deceased son or

daughter but would not devolve upon the categories

of heirs specified in sub-section(1).

30) So far as Schedule in relation to Class I heirs

is concerned, it was amended by the Parliament by

Act 39/2005 w.e.f. 9.9.2005.  By this amendment,

four  new  categories  of  heirs,  namely,  (1)son  of  a

pre-deceased daughter of a pre-deceased daughter;

(2)daughter  of  a  pre-deceased  daughter  of  a

pre-deceased  daughter;  (3)  daughter  of  a

pre-deceased son of a pre-deceased daughter; and

(4)  daughter  of  a  pre-deceased  daughter  of  a

pre-deceased son, were included in the categories of

Class I heirs.

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31) Now reverting to the facts of this case, in our

considered opinion,  the High Court rightly upheld

all the material findings of the two courts below but

committed one legal error when it placed reliance on

Section 15(2)(a) read with Schedule appended to the

Act  for  granting  relief  to  the  plaintiffs  and  by

recognizing their right in the suit properties against

the defendant.  This finding of the High Court is bad

in law for various reasons mentioned hereinafter.

32) In the first place, such was not the case set up

by  the  plaintiffs  in  the  Trial  Court  or  the  first

appellate  Court  or  even  before  the  High  Court.

Second, no substantial question of law was framed

by the  High Court  on the  applicability  of  Section

15(2)  of  the Act and third,  in the absence of  any

pleading,  issue  and  finding  recorded  by  the  two

courts below on the applicability of Section15(2) of

the  Act,  the  High  Court  had  no  jurisdiction  to

examine  the  case  of  its  own for  the  first  time  in

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second appeal on such issue.   

33) It  is  a  settled  principle  of  law that  the  High

Court  has  jurisdiction  to  hear  the  second  appeal

only  on  the  substantial  question  of  law  framed

under  Section  100(5)  of  the   

Code of Civil  Procedure, 1908 (hereinafter referred

to as “the Code”).  Equally well settled principle of

law is that the High Court  has no jurisdiction to

decide  the  appeal  on  the  question  which  is  not

framed  as  required  under  Section  100(4)  of  the

Code.  

34) It is clear from the record of the case that the

High Court had framed following three substantial

questions  of  law,  which  did  not  include  any

question regarding the applicability of Section 15(2)

of the Act:

“1. Whether the lower appellate Court erred in  law  in  not  drawing  adverse  inference against the defendant for non-production of the  original  of  the  Will  dated  23.12.1923 executed by Perumal  Naidu when the same was produced by them in the earlier suit?

2. Whether the lower appellate Court erred

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in law in receiving in evidence Exs. B3 and B4  in  the  absence  of  any  explanation  for non-production  of  the  original  Will  and without  making  grounds  for  reception  of second evidence?

3.   Whether the lower appellate Court erred in not taking the circumstances prevailing in 1923 at the time of execution of the Will that female heirs were given only life estates and hence the female lagatees of Perumal Naidu as  per  Will  only  got  life  estate  and  not absolute interest?”

35) The  High  Court,  in  our  considered  opinion,

was, therefore,  not right in  suo moto applying the

provisions of Section 15(2)(a) of the Act without even

framing any additional substantial question of law

by taking recourse to Section 100(5) of the Code.  If

it was of the view that such issue was involved in

the case then it was mandatory for the High Court

to have first formulated the specific question on the

applicability of Section 15(2)(a) of the Act either at

the time of admission of the appeal or at the time of

final hearing of the appeal by assigning reasons for

framing such question.  This was not done.  It was,

in our view, a jurisdictional error committed by the

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High Court while deciding the second appeal.

36) That  apart  and  even  otherwise,  in  our

considered opinion, the High Court was not right in

placing reliance on Section 15 of the Act for deciding

the rights of the parties.  It is for the simple reason

that the category of heirs to which the plaintiffs had

belonged, namely, "son of a pre-deceased daughter

of  a  pre-deceased  daughter  and  daughter  of  a

pre-deceased  daughter  of  a  pre-deceased

daughter” was added in the Schedule (class I) only

with effect from 9.9.2005 by amendment by Act No.

39 of 2005.

37) The  plaintiffs,  therefore,  were  not  entitled  in

law to take the benefit of the aforesaid amendment

because even according to them, their right to claim

the  share,  if  any,  in  the  suit  properties  held  by

Alamelu Ammal accrued on the  death of  Alamelu

Ammal in 1987 and they filed civil suit in the year

1988.  In  other  words,  a  right,  if  any,  to  claim

interest by succession in the properties of Alamelu

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Ammal opened in plaintiffs’ favour as an heir from

father's side in 1987 when Alamelu Ammal died. In

this view of the matter, the plaintiffs’ rights as an

heir to claim shares in the suit properties had to be

worked out on the basis of law in force on the date

(1987),  i.e.,  when  succession  opened  for  them to

enforce  such  right  and  when  they  filed  the  suit

(1988).   

38) As mentioned above, the category of an heir to

which the plaintiffs  belonged was not  included in

class I list in the Schedule in 1987 but it was so

included  for  the  first  time  on  09.09.2005  by  Act

39/2005. In this view of the matter, the plaintiffs

had  no  right  on  the  strength  of

succession/devolution to claim any interest in the

properties  of  Alamelu  Ammal  in  1987  as  father’s

heir.  A fortari –  the  devolution  of  interest  in  suit

properties could not  take place in their  favour by

virtue  of  Section  15(2)(a)  of  the  Act.   Since  the

amendment in the Schedule was prospective, it had

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no  application  to  the  case  in  hand  with  its

retrospective  effect  so  as  to  create  any  right  in

plaintiffs’ favour in 1987.  

39) However,  if  Alamelu  Ammal  had  died  after

09.09.2005 then perhaps, the plaintiffs could have

claimed some interest in the suit properties subject

to  however  their  proving  other  conditions.   The

reason  being  the  category  of  heirs  to  which  they

belonged was by that time included in the Schedule.

Such was, however, not the case.

40) Apart  from  what  we  have  held  supra,  the

plaintiffs  had otherwise  no  case on merits  on yet

another ground. It is not in dispute that the Courts

below concurrently  held  and,  in  our  view,  rightly

that Perumal Naidu bequeathed his properties to all

his heirs including his two daughters by conferring

on  them  “absolute  interest” and  not  the  “life

interest” in the properties. A fortiori, Alamelu Ammal

and  the  defendant,  therefore,  acquired  absolute

ownership  rights  in  the  suit  properties  on  the

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strength  of  the  Will.   They,  therefore,  rightly  got

their  names  recorded  in  the  Revenue  Records  in

1957  itself  and  continued  to  exercise  their

ownership rights till 1987 without any interference

from  anyone  including  plaintiffs  or/and  their

predecessor-in-title.  

41) One  cannot  dispute  a  legal  proposition  that

once  a  heir  becomes  the  absolute  owner  of  the

property  by  virtue  of  a  Will  then  as  a  necessary

consequence,  he/she  is  entitled  to  alienate  such

property by any mode  permissible in law to anyone.

Alamelu Ammal did it when she alienated her share

by executing a Will  in favour of the defendant(her

sister). It was legally permissible.

42) If  however,  Courts had held in the plaintiffs’

favour  that  the  heir  got  only  “life  interest”  in  the

property  through  Will  of  Perumal  Naidu  then

perhaps on the death of such heir, her share may

have devolved on the surviving heirs (reversioners)

of father (Perumal Naidu) in terms of  Section 15(2)

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of the Act subject to proving other conditions.  Such

was, however, not the case.

43) In the light of foregoing discussion, we are of

the considered opinion that though the High Court

was right in upholding all the findings of fact of the

two courts below but was not right in relying upon

Section 15(2)(a) of the Act for allowing the plaintiffs’

second appeal by treating them to be Class I heirs

from father’s side and, in consequence, was also not

right  in  decreeing  the  plaintiffs’  suit  in  part  by

granting 1/3rd  share to  each plaintiff  in  the  suit

property.  This  finding,  as  held  above,  is  legally

unsustainable and hence deserves to be set aside. It

is accordingly set aside.      

44) Here we consider it apposite to mention that

we  did  not  consider  it  necessary  to  examine  the

meaning of the words “any property inherited by a

female Hindu from her father or mother” occurring

in Section 15(2)(a) of the Act for deciding a question

as  to  whether  such  expression  would  include  “a

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property received by a female Hindu by  Will from

her father or mother” or it would include only those

properties which are devolved on female by natural

succession on the death of her father or mother.  In

this case, this question need not be decided once we

have  held  that  Section  15(2)  of  the  Act  has  no

application to the facts of this case.

45) As a consequence, the appeal succeeds and is

allowed. The impugned judgment is  set  aside and

that  of  the  trial  Court  is  restored  resulting  in

dismissal of the suit filed by the plaintiffs.

               ………...................................J. [R.K. AGRAWAL]    

...……..................................J. [ABHAY MANOHAR SAPRE]

New Delhi; March 27, 2017  

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