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Judgment
R.M.S. Khandeparkar, J.—The following substantial questions of law arise for determination in this appeal:-
(i) In a suit for specific performance, whether the averment concerning ''readiness and willingness'' is a mere technicality or the same forms a part of substantive law, thereby going to the root of the maintainability of the suit?
(ii) Whether the First Appellate Court could have refused to adjudicate on the issue of suit being undervalued merely on the basis of concession by the Advocate for the party, inspite of the fact that the Trial Court had rejected the plaint on the said ground.
The undisputed facts in the case are that on 19th December, 1984 the original defendants by name Gopi Baban Naik and Kalyan Gopi Naik executed an agreement for sale with the respondent/plaintiff thereby agreeing to sell to the respondent an area of 24,200 sq. mts. of the property known as ''Vazem'' situated at Shiroda bearing Survey Nos. 464/1 and 464/2 paying Rs. 10,000/- Rupees ten thousand only) as earnest money out of the total consideration payable under the agreement. In terms of the said agreement, the respondent was required to pay the balance amount and the original defendants were required to execute the Sale Deed within a period of six months from the date of the agreement.
It is the contention of the respondent that inspite of various attempts on the part of the respondent to approach the original defendants for execution of the sale deed in terms of the said agreement, there was no positive response in that regard and therefore the respondent was compelled to file the suit for specific performance of the said agreement. It is the contention of the respondent that prior to filling of the suit he had also attempted to serve notice dated 19.3.85 for necessary execution of the sale deed. However, the same was returned unserved. The suit was filed on 15th April, 1985. The defendants contested the suit denying the claim of the respondent that they were approached by the respondent for execution of the Sale Deed prior to the filing of the suit as also having shown readiness at any time to pay the balance amount under the agreement. Thereupon the plaint was sought to be amended by including the statement of fact in relation to readiness on the part of the respondent to perform his obligation under the said Agreement. The amendment was carried out on 20th January, 1988. Thereafter on 19th October, 1988 the defendants filed additional written statement specifically stating therein that the suit was bad for want of necessary averment pertaining to the willingness of the respondent to perform his part of the contract.
The respondent examined himself as P.W. 1 and one Arjun Naik as P.W. 2 in support of his case, whereas the appellants examined appellant No. 1 as D.W.I in support of their defence. The Trial Court dismissed the suit holding that the respondent himself was avoiding to perform his part of the contract by not paying the balance amount as the payment of balance amount was condition precedent for execution of the Sale Deed, that though by way of amendment the respondent has averred about his readiness to perform his part of the contract, he had failed to aver about his willingness to perform the obligations under the said agreement, that the suit ought to have been valued in terms of Section 7(x)(a) of the Court Fees Act and having not done so, the suit was undervalued and that the execution of the Sale Deed being demanded before payment of balance amount, there was no cause of action for filing the suit and therefore the suit was premature.
The First Appellate Court however reversed the judgment of the Trial Court, holding that there is no difference between the expression ''readiness'' and ''willingness'' and the respondent having pleaded readiness to perform the agreement, there was sufficient compliance of the provisions of Section 16(8) of the Specific Relief Act and very fact that the suit was filed within six months from the execution of the agreement, there was willingness exhibited to perform his obligations under the agreement by the respondent and mere non-payment of the balance amount would not disentitle the respondent from seeking specific performance of the agreement. Considering the fact that the appellants were not willing to execute the Sale Deed, the Lower Appellate Court has held that the suit could not have been said to be premature. It has been further held that the evidence on record clearly established readiness and willingness to perform his part of the obligations under the contract by the respondent. As regards the point of under valuation, the Lower Appellate Court has held that the respondent herein has filed an application dated 4th September, 1995 waiving the issue of valuation and therefore it is stated that the said issue does not survive for consideration.
As regards the first substantial question of law, Shri Pangam, learned Advocate appearing for the appellant, while assailing the impugned judgment and decree submitted that Section 16(c) of the Specific Relief Act read with Explanation 2 thereto clearly requires the plaintiff to specifically plead about readiness and willingness on his part to perform the obligations under the agreement of which the specific performance is sought for and failure to plead so should warrant the penalty of dismissal of the suit. He further submitted that considering the pleadings in the plaint and more particularly in paras 6 and 8 thereof, it is clear that the respondent had nowhere pleaded willingness on his part to perform the obligations under the said agreement and therefore it cannot be said that the plaint is in compliance with the provisions contained in Section 16(c) of the Specific Relief Act and on that count alone the Lower Appellate Court erred in interfering with the judgment of the Trial Court. Drawing my attention to the various findings arrived at by the Lower Appellate Court as well as by the Trial Court in their judgments, he further submitted that the assessment of the evidence on record disclose that it was the respondent himself who was responsible for failure to perform the agreement as the finding of the Trial Court in that regard clearly disclose that it was the respondent himself who tried to avoid performance of the said agreement on the ground of incorrect entries in the survey records in relation to the property which is subject matter of the agreement between the parties. Drawing my attention to the agreement in question, he submitted that the agreement nowhere requires the entries in the survey record in respect of the suit property to be corrected prior to the execution of the Sale Deed and entries in survey record cannot be said to be document of title in respect of the suit property and therefore the respondent was not entitled to take shelter of Section 55 of the Transfer of Property Act to avoid execution of the Sale Deed within the specified agreed period. Considering these facts, and findings arrived at by the Trial Court, the Lower Appellate Court erred in setting aside the judgment and decree of the Trial Court. According to the learned Advocate the very expression "ready and willing" in Section 16(c) clearly brings out the difference between the words ''ready'' and ''willing'' and the Lower Appellate Court having totally ignored the same, has acted with material irregularity while interfering with the judgment of the Trial Court. In support of his contention, he sought to rely upon the judgments in the matter of Suman Parmananddas Mundhada and Ors. v. Saroj Screens Private Ltd. and Ors. 1992 Mh. L.J. 1460 Mohan Lal (Deceased) through his Lrs. Kachru and Others Vs. Mirza Abdul Gaffar and Another, and Abdul Khader Rowther Vs. P.K. Sara Bai and Others, .
On the other hand, Shri F.M. Reis, learned Advocate, appearing for the respondent, submitted that there is no dispute between the parties regarding the fact that the agreement dated 19.12.85 was entered into between the parties and in terms of the said agreement, the Deed of Sale was to be executed within the period of six months as also the balance amount was to be paid within the same period and that the sale was to be free from encumbrances. It is also an undisputed fact that a sum of Rs. 100/- was paid under the said agreement as an earnest money and thereafter in March, 1985 a notice demanding execution of the Sale Deed was issued by the respondent to the original defendants. It is an admitted fact that the notice was returned unserved. There was specific reference to this fact in the plaint and the plaint disclosed the readiness to pay the balance amount by the respondent. Considering the fact that the agreement for sale did not contain any other obligation upon the respondent except the payment of the balance amount at the time of execution of the sale deed and there being clear averment in that regard by the respondent in the plaint and the evidence produced in support thereof, no fault can be found with the impugned judgment of the Lower Appellate Court decreeing the suit for specific performance. It was not the case of the respondent in the plaint that the execution of the Sale Deed was subject to correction of the entries in the survey record nor the respondent had made any such demand for the due performance of the said agreement. Referring to Section 55 of the Transfer of Property Act the learned Advocate submitted that it is a matter of right of every purchaser to solicit information from the seller regarding all relevant questions in relation to the property which is subject-matter of the agreement for sale and in that context inquiry relating to the entries in the survey record cannot be construed as failure on the part of the respondent to comply with his obligations under the said agreement. He further submitted that there was neither any declaration or direction sought for by the respondent in relation to correction of entries in survey record in respect of the property in question prior to execution of the sale deed and being so, the observation by the Trial Court regarding the suit being premature was clearly uncalled for. The very fact that the suit was filed within the period of six months from the date of execution of the said agreement, discloses that the respondent was ready and willing to perform his part of the agreement. However, the tenor of the written statement filed by the appellant disclose hesitance on their part to comply with their obligations and being so the suit was not premature and there was a cause of action in favour of the respondent to file the suit. In support of his contention, he sought to rely upon the decisions in the matter of Sukhbir Singh and others Vs. Brij Pal Singh and others, ; Damodhar s/o Vishwanath Deshbhratar and Anr. v. Vijay s/o Murari Meshram 1996 (2) Mh. L.R. 413; Shri Lakhi Ram (Dead) Through Lrs. Vs. Shri Trikha Ram and Others, Nambarukandi Marakkar v. Nallithodi Thavalaparambil Appu and Anr. AIR 1999 Ker. 1 and Narayan Nagorao Vs. Amrit Haribhau, .
As regards the provisions contained in Section 16(c) of the Specific Relief Act, there can be no doubt that a party seeking specific performance of an agreement has to disclose the facts relating to readiness and willingness on his part to perform the essential terms of the agreement which is sought to be specifically enforced. Section 16(c) in no uncertain terms requires that the specific performance of a contract cannot be granted in favour of a person who fails to aver and prove that he has performed or he has always been ready and willing to perform the essential terms of the contract which are required to be performed by him, other than those terms the performance of which has been prevented or waived by the opposite party. Indeed the Apex Court in Mohan Lal�s case has clearly held that u/s 16(c) of the Specific Relief Act the plaintiff must plead in the plaint, his readiness and willingness from the date of the contract till the date of the decree and the plaintiff who seeks enforcement of the agreement is enjoined to establish the same. The Division Bench of this Court in the matter of Suman Parmananddas has also clearly observed that it is settled law that in a suit for specific performance of an agreement the plaintiff has not only to aver that he is ready and willing to perform his part of the contract from the date of the contract to the time of hearing the suit, but he has also to prove the same if that averment is controverted.
Considering the well settled law in relation to the necessity to plead and prove the readiness and willingness on the part of the plaintiff to perform his obligations under the agreement which is sought to be specifically enforced, the question which arises is whether such requirement necessitates the plaintiff to reproduce in verbatim the provisions contained in Section 16(c) and on failure to do so whether it would warrant penalty of dismissal of the suit. In this regard, the learned Single Judge of this Court in the matter of Damodhar Deshbhratar v. Vijay Murari Meshram (supra) after referring to various decisions of the Apex Court as well as by various High Courts, has held that:-
Not pleading the exact words as contemplated in Form 47 is not a defect fatal to the suit and if the plaintiff has substantially complied with that requirement of Section 16(c) of the Specific Relief Act and if for such other averments of the plaint, readiness and willingness of the plaintiff is spelt out, the specific performance can be granted.
On similar lines is the judgment of the learned Single Judge of the Kerala High Court in the matter of Nambarukandi Marakkar (supra) wherein it has been held:-
The averments in a plaint should be read as an indivisible whole to understand the correct meaning and scope of the averments, and the pleadings should not be dissected and accepted in part and rejected in the remainder, but they must be taken as a whole, that the pleadings should not be construed in a pedantic manner and have to be interpreted not with formalistic rigour but with softness.
Placing reliance upon the Judgment of the Apex Court in the matter of Abdul Khader Rowther (supra), the learned Advocate for the appellants has submitted that the Apex Court therein has clearly held that in the absence of compliance of requirement of Forms 47 and 48 of Appendix A of the C.P.C. being satisfied, it cannot be said that there is compliance of the mandatory requirement regarding the pleadings as provided u/s 16(c) of the Specific Relief Act, Drawing my attention to paras 10, 11 and 12 of the judgment of the Apex Court, the learned Advocate has submitted that the apart from the need of verbatim reproduction of the expression ''willingness and readiness'', the plaintiff has to plead the facts constituting readiness and willingness and prove the same in order to succeed in a suit for specific performance of an agreement. It is true that the headnote of the said decision appearing in the issue of the Supreme Court Cases Vol. 4 of 1989 at p. 313 indicates the decision of the Apex Court to be to the effect as submitted by the learned Advocate for the appellants. However, proper reading of the said judgment discloses that the ratio of the said judgment is to the effect that a plaint in a suit for specific performance has to disclose the requisite pleadings necessary to obtain decree for specific performance. It is true that the Apex Court in the said decision, referring to its earlier decision, in the matter of Ouseph Varghese Vs. Joseph Aley and Others, refused to interfere with the findings of the Kerala High Court from whose Judgment the said appeal had arisen before the Apex Court. Therein from the passage of the judgment of the Kerala High Court reproduced in the judgment of the Apex Court, it is evident that the Kerala High Court had observed thus:-
Even by putting a liberal construction on the various statements contained in the plaint, it is difficult to hold that there has been even a faint attempt to make it to conform to the requirements prescribed in Forms 47 and 48 of the First Schedule in the Civil Procedure Code, that the plaintiff had applied to the defendants specifically to perform the agreement and that he had been and is still ready and willing to specifically perform his part of the agreement....
The Apex Court has approved the said conclusion arrived at by the Kerala High Court considering the fact that it was the case of the plaintiff therein that the documents in question passed neither possession nor title from the plaintiff to the defendants and no consideration was paid thereunder, and that though the Trial Court had rejected the contention and had accepted the contention of the defendants that the possession and title had passed under the documents and stipulated consideration had been fully paid to the plaintiff, yet the plaintiff had not challenged the said findings in answer to the defendants appeal to the High Court and that the sole contention of the plaintiff in defence of the impugned judgment of the High Court was that the Trial Court had rightly held that the plaintiff was entitled to a decree for specific performance of the convenant for reconveyance. In those facts and circumstances of the case, the Apex Court has observed that it was clear that the plaintiff had sought the specific performance of a contract stated to be evidenced by an allegedly sham document which had not come into effect and the plaint did not contain necessary pleadings. It is to be noted that the Apex Court had approved the conclusions arrived at by the Kerala High Court, which conclusions were arrived at by the High Court after "putting a liberal construction on the various statements contained in the plaint". Being so, the said decision of the Apex Court was in the peculiar facts of that case and does not lay down any broad proposition of law to the effect that a party seeking specific performance of an agreement has to reproduce in verbatim the provisions of Section 16(c) in the pleadings. On the contrary, what is required is that the averments in the plaint should substantially conform to the requirements of the pleadings as contemplated u/s 16(c) of the Specific Relief Act. This is further clear from the decision of the Apex Court in a recent judgment in the matter of Syed Dastagir Vs. T.R. Gopalakrishnasetty, wherein it has been held thus:-
In construing a plea in any pleading, Courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one''s case for a relief. Such an expression may be pointed, precise sometimes vague but still could be gathered what he wants to convey through only by reading the whole pleading, depends on the person drafting a plea.... Where a statute requires any fact to be pleaded then that has to be pleaded may be in any form. Same plea may be stated by different persons through different words then how could it be constricted to be only in any particular nomenclature or word. Unless statute specifically require for a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of Readiness and willingness'' has to be in spirit and substance and not in letter and form. So to insist for mechanical production of the exact words of an statute is to insist for the form rather than essence. So absence of form cannot dissolve an essence if already pleaded.
It is therefore clear that the provisions contained in Section 16(c) of the Specific Relief Act do not require any specific phraseology to be used in the plaint, but the pleadings should only disclose the facts constituting readiness and willingness on the part of the plaintiff to perform his part of the agreement.
Undisputedly, the pleadings in the plaint disclose the fact that the Sale Deed was required to be executed within a period of six months from the date of the agreement and that the balance amount was to be paid by the plaintiff/respondent within the same period. Indeed the recent decision of the Apex Court in the matter of Lakhi Ram v. Trikha Ram (supra) is clear to the effect that in a suit for specific performance of a contract for sale, in case of failure on the part of the plaintiff to make necessary averments regarding readiness and willingness, the plaintiff should be allowed to amend the plaint if he so desires as such an amendment would not amount to change in cause of action. While holding so, the Apex Court has placed reliance on its earlier decision in the matter of Gajanan Jaikishan Joshi Vs. Prabhakar Mohanlal Kalwar, .
As rightly submitted by the learned Advocate for the respondent, the correction in the entries of survey record was neither pleaded as precondition for compliance of obligation of the plaintiff under the agreement nor any relief in that regard was sought for by the respondent in the plaint while seeking the relief of specific performance of the agreement by the appellants. The agreement on the face of it also does not disclose any such pre-condition for specific performance of the agreement for sale of the suit property. As far as the respondent is concerned it is his obligation to pay the balance to get the property conveyed in his favour. It was not the case of the appellants in the pleadings in the written statement that the respondent was not willing to pay the balance and/or that he had intentionally delayed the payment of the balance amount. Perhaps such defence was not available to the appellants in view of the fact that the suit for specific performance was filed within a period of six months from the date of agreement i.e. within the period stipulated for execution of the Sale Deed by virtue of Clause (3) of the said Agreement. Considering the fact that the plaintiff had clearly averred in the plaint that the plaintiff was ready to perform his part of the contract and the suit was filed within six months from the date of the Agreement, it clearly established the willingness on the part of the plaintiff to perform his obligation under the Agreement in relation to the payment of the balance amount.
Considering the decision of the Apex Court in the matter of Syed Dastagir (supra) it is to be held that the pleadings concerning readiness and willingness in a suit for specific performance is not a mere technicality, but at the same time it cannot be forgotten that the compliance of the requirement has to be in spirit and substance and not in letter and form and therefore there cannot be insistence for mechanical production of the exact words of a statute in Section 16(c) of the Specific Relief Act and substantial compliance of the said provisions would meet the necessary requirements regarding the pleadings in terms of Section 16(c) of the Specific Relief Act.
As regards the second substantial question of law, it is the contention of the learned Advocate for the appellants that valuation of the suit is a matter of legal requirement for a party to comply with and merely because the opposite party waives right in that behalf that would not absolve the Court from adjudicating such issue relating to valuation and it would not absolve the party from necessity of payment of Court fee based on the valuation of the subject-matter of the suit. Referring to the finding of the Trial Court in that regard and the relevant provisions of the Court Fee Act, learned Advocate for the appellants submitted that irrespective of such a concession made by the Advocate before the First Appellate Court in view of the ruling of the Apex Court in the matter of B.S. Bajwa and Another Vs. State of Punjab and Others, the appellants are entitled to raise such point regarding valuation and seek indulgence of this Court in exercise of the powers u/s 100 of the C.P.C.
On the other hand, learned Advocate for the respondent, submitted that merely because the suit was not properly valued, that would not be justification to non-suit the respondent at this stage and the respondent can very well be directed to re-value the subject-matter and to pay proper Court fee thereon. He further submitted that the respondent would abide by any order passed by this Court in that regard. He also sought to rely upon the decision of the Apex Court in the matter of The Bahrein Petroleum Co. Ltd. Vs. P.J. Pappu and Another, .
The judgments passed by the Courts below and the plaint filed by the respondent clearly disclose that the suit was for the purpose of specific performance of the agreement in relation to immovable property. In terms of Section 7(x)(a) of the Court Fees Act, 1870, in suits for specific performance of a contract of sale, the Court fee payable is to be computed on the amount of consideration disclosed in the agreement for sale. Accordingly, the suit ought to have been valued on the basis of the total consideration payable under the agreement for sale of the property in respect of which the specific performance was sought for and therefore ad valorem Court fee as provided in the Schedule to the Court Fees Act ought to have been paid. Similar Court fee was payable along with the first appeal.
It is true that the Lower Appellate Court in the impugned judgment has held that in view of waiver of issue on valuation pursuant to the application dated 4th September, 1985 by the appellants herein, the issue regarding valuation does not survive for its consideration. Order 7, Rule 1(i) clearly requires the plaint to contain a statement of the value of the subject-matter of the suit for the purpose of jurisdiction and Court fees. Rule 11 thereof requires that the plaint shall be rejected in case the relief is undervalued and the plaintiff, on being required by the Court to correct the valuation within the time specified, he fails to do so. Considering the well settled law relating to the valuation of the suit and Court fee payable by the parties for approaching the Court, it cannot be said that the issue in relation to the valuation and Court fee is not much of importance or that the Court can ignore the issue merely on concession by the parties to the proceedings or their representatives. Under the law it is the duty of the Court to see that the suit is properly valued and if not, then necessary order is to be made in that regard directing the concerned party to disclose proper valuation of the suit and to pay the proper Court fees accordingly. Any concession in that regard by any of the parties or their representatives would not absolve the Court from its obligation in such matter. It is certainly the duty of the Court to see to it that the parties do not undervalue the suit. In the case in hand, the Trial Court had clearly held that the suit being for specific performance of the agreement for sale, the provisions attracted in the matter are contained in Section 7(x)(a) of the Court Fees Act. Inspite of such a clear finding in that regard, it was highly improper for the Lower Appellate Court to hold that the issue of valuation does not survive merely on the basis of the application filed by the appellants on 4th September, 1995. The Lower Appellate Court in that regard has clearly acted contrary to law and with no application of mind to the matter in issue. The Lower Appellate Court could not have refused to adjudicate the issue regarding the under valuation more particularly in view of the fact that the Trial Court had pointed out the infraction of Section 7(x)(a) of the Court Fees Act by the respondent while filing the suit. The decision of the Apex Court in the matter of Baherein Petroleum (supra) however is of no assistance to the case in hand. That was a case pertaining to the objection relating to the territorial jurisdiction and not pecuniary jurisdiction. Learned Advocate for the appellant is however justified in placing reliance in the matter of B.S. Bajwa (supra) wherein it has been clearly held that the concession made by the learned Additional Advocate General on the point of law cannot bind the State. The concession made before the Lower Appellate Court by the party on the point of law relating to valuation of the subject-matter and the Court fee payable thereon cannot bind the party and cannot prohibit the party from raising the said point in this appeal. The finding arrived at by the Lower Appellate Court on the point of valuation, therefore, cannot be sustained. However, that would not automatically result in dismissal of the suit. In that regard, the learned Advocate for the respondent is justified in contending that improper valuation and consequent deficit payment of Court fee cannot non-suit the respondent at this stage and the respondent can be directed to pay the deficit Court fee and in case of failure to comply with such direction the plaint can be rejected. As regards valuation, there can be no dispute about the amount of valuation since the suit is for specific performance of the agreement and the same shall be equivalent to the total consideration payable under the agreement. Therefore the Court fee payable thereon shall be ad valorem Court fee in terms of the Schedule in the Court Fees Act. Similar amount of Court fee was to be paid at the stage of first appeal by the respondent. Considering the fact that the suit was filed in April, 1985, it will be necessary for the respondent to pay interest at the rate of 10% per annum on the said amount of Court fee from April, 1985 till the date of payment of the Court fee. Similarly, 10% per annum interest on the amount of Court fee payable with first appeal before the First Appellate Court could be from the date of filing of the appeal i.e. from December, 1992 till the date of payment. The respondent therefore shall pay the amount of Court fee payable on the plaint as well as on the first appeal. The respondent shall also pay interest at the rate of 10% per annum from the date of filing of the plaint and the first appeal on the respective amount of court fees payable thereon. The deficit Court fee and interest amount should be paid within five weeks from today in order to avoid rejection of the plaint in terms of Order 7, Rule 11 of the C.P.C. In case of failure to pay the deficit Court fee, the respondent will certainly warrant the penalty of rejection of the plaint.
Before concluding, it is to be noted that the appellants also did try to raise the point regarding abatement of the suit during the pendency of the suit itself before the Trial Court, on the ground that the original defendant Kalyan died during the pendency of the suit leaving behind her some of the legal representatives in addition to the appellants herein. It is contended that apart from the appellants herein, there are more legal representatives of the said Kalyan who have not been brought on record and some of them are minor in age. Undisputedly, no such issue was raised either before the Trial Court or First Appellate Court. Whether deceased Kalyan had left behind her any more legal representatives besides the appellants herein or not is a mixed question of fact and law to be established by placing proper materials before the Court. It is not the case that Kalyan expired during the pendency of second appeal before this Court. Besides, it is the contention of learned Advocate for the respondent that the estate of Kalyan is sufficiently represented by the appellants. In any case the said issue having not been raised before the Courts below, it is too late for the appellants to raise any such issue in the second appeal. Besides, there is no foundation laid in the records of the proceedings to adjudicate upon such issue and therefore the same does not call for any adjudication by this Court while dealing with the matter in exercise of powers u/s 100 of the C.P.C.
In the result, therefore, the appeal partly succeeds. The decree for grant of specific performance of the agreement shall be subject to payment of the deficit Court fee by the respondent. In case of failure to pay the deficit Court fee the plaint shall stand rejected in terms of Order 7, Rule 11(b) of the Code of Civil Procedure. The respondent shall therefore pay the deficit Court fee and the interest thereon as specified hereinabove to give effect to the decree of specific performance granted by the Lower Appellate Court. The deficit Court fee and the interest thereon shall be paid within a period of five weeks from today. The amount of interest on the deficit Court fee shall also be payable in the form of Court fee stamps. The decree passed by the Lower Appellate Court therefore stands modified accordingly. There shall be no order as to costs.