Nandi Bai vs Shyamubai and Another

A.M. Sapre, J.—Two Courts have non-suited the plaintiff when her suit for declaration came to be dismissed by the Trial Court and then upheld by the First Appellate Court in first appeal filed by the plaintiff. It is against this concurrent dismissal, the plaintiff has come up in second appeal u/s 100 of C.P. Code contending that appeal involves substantial question of law within the meaning of Section 100 ibid. It arises out of judgment/decree, dated 27.11.2002, passed by learned IVth Additional District Judge Ratlam, in C. A. No. 45-A of 2002, which in turn arises out of Civil Suit No. 185-A of 1996, decided by 1st Civil Judge, Class I, Ratlam, on 4.3.2002.

Heard Mr. D.M. Shah, learned Counsel for the appellant on the question of admission.

Having heard learned Counsel for the appellant and having perused record of the case. I find no merit in the appeal. In other words, the appeal does not involve any substantial question of law and hence, it deserves to he dismissed in limine.

When two Courts have dismissed plaintiff''s suit for declaration then such finding becomes finding of fact and being concurrently recorded, does not call for any interference. It is in fact binding on the second Appellate Court and has to be respected rather than to upset.

It was a suit for declaration seeking a prayer that a FDR standing in the name of plaintiff''s mother and sister (defendant) in joint name is illegal and bad in law. It was claimed that the entire money belongs to mother of plaintiff and she had in fact given to plaintiff and defendant in equal share amounting to Rs. 14,000/- but the defendant got her name included in the said FDR alongwith her mother to the exclusion of plaintiff and hence, need to file a suit.

The whole thing is misconceived. When the F.D.R. is issued by the Bank in the name of "A" and "B" in joint name, then they are the holders of the F.D.R., none else except "A" and "B" are the holders. The plaintiff being "C" has no right to challenge the said F.D.R. Even otherwise, what the plaintiff says is that she is not the owner but her mother "A" was the owner and she gave half of the money to plaintiff. The story set up by the plaintiff is oral and is not supported by any documentary evidence. Both the Courts have gone into these issues and dismissed the suit.

I find no merit in the appeal which does not involve any substantial question of law. Appeal, thus, fails and is dismissed in limine.