1. The suit from which this appeal arises was brought by the appellant to avoid a sale of a house at Nasik which was effected by his guardians with the sanction of the District Court given under the Guardians and Wards Act on 8th March 1922. The plaintiff was left considerable property by the will of his granduncle Ganesh Jagannath. The will, which was made in 1911 when the plaintiff was seven years old, appointed his mother Radhabai and the testator's daughter Kondubai trustees to manage the estate during their lifetime. It provided that the trustees were to provide for the maintenance of the plaintiff and themselves and other relations of the testator. For the purpose of maintenance a provision of Rs. 500 a year was specified and authority was given for spending other sums on the plaintiff's thread ceremony and marriage and on pilgrimages by Kondubai and other purposes. The estate consisted for the most part of shares in the Tata Iron Company and other concerns and of amounts deposited in the Indian Specie Bank. There were three parcels of land amounting in area to about seven acres together, of the value of Rs. 1,350 out of the total amount of Rs. 30,571-2-8 at which the estate was valued in the will.
2. The house in suit was purchased by the plaintiff's mother on 28tb August 1914. It appears that about this time the shares in the Tata Company were sold for Rs. 8,000 and the suit house at Nasik and also some lands at Makhamalabad, Khanur and Bhadane were purchased out of the sale proceeds. The purchase price of the suit house was Rs. 6,000. Out of this amount Rs. 2,000 had to be borrowed and the house was mortgaged to secure that debt. Soon after the purchase, the trustees proceeded to enlarge the building and erected a three storeyed building on a portion of the land. A house was also erected on some open land which had been purchased at Nasik. In October 1916 the suit house was mortgaged by the plaintiff's mother Radhabai purporting to act for the plaintiff and for herself to defendant 1. The consideration for the mortgage was stated to be Rs. 7,000, which was made up of the following items: Rs. 700 on account of a promissory note executed nine days before the mortgage; a hundred rupees paid in cash; Rs. 3,700 cash paid before the Sub-Re-gistrar, and the balance of Rs. 2,500 was to be advanced by the mortgagee for the purpose of the new building which was being constructed from time to time as required.
3. In August 1920, Kondubai, who was then the sole surviving trustee, Radhabai having died in May 1918, applied to the District Court to be appointed guardian of the person and property of the plaintiff. It was mentioned in the application that the reason for approaching the Court was that a necessity had arisen for selling part of the estate. Kondubai and the Deputy Nazir were appointed joint guardians in November 1920. In June 1921, Kondubai applied for permission to sell the suit house in order to pay off the debt due under the mortgage and other debts. In February 1922 she submitted another application for the sale of the house to defendant 1, which in the meantime she had privately negotiated. The sale was sanctioned by the District Judge and took place, as I have mentioned, in March 1922. The plaintiff having attained majority in September 1925, received possession of the estate, apart from the house in suit, in October 1925, and brought the suit from which this appeal arises in October 1928. Shortly stated, the basis of the suit is that there was no legal necessity for the mortgage of the house by Radhabai nor for the debts incurred by Kondubai. These transactions were not binding on the plaintiff and as the permission of the Court had been granted without inquiry the order of the Court did not validate the alienation.
4. The learned trial Judge has found that both the mortgage of October, 1916, and the sale in March 1922, were justified by necessity and also benefited the plaintiff. He found that defendant 1 had made inquiries into the necessity for the loan before the mortgage was executed, and he also found that all the facts were properly placed before the District Judge, so that, apart from any other consideration, the alienee is protected by the Court's order. Accordingly the suit was dismissed. In this appeal the learned counsel for the appellant has contended that Radhabai and Kondubai, the trustees appointed under the will, had no power to purchase land or buildings or to spend money on buildings; that Radhabai had no power to mortgage the house in suit; that there was no necessity to erect a large building on it or to borrow money for the purpose; and that there was ample income available to provide for all necessary expenditure. He has also contended that the debts in respect of which the mortgage was executed were not really incurred for the purpose of building the house in suit nor the other house at Nasik, but that the necessity for. borrowing money arose owing to losses in a timber business which the trustees were carrying on together with Keshav, the plaintiff's uncle. This business, according to the learned counsel, was financed by defendant 1, and the appointment of Kondubai as guardian was merely a dishonest and collusive arrangement to bring about the sale to him.
5. If this had been an action against the trustees to make them liable for breach of trust, and no sanction of the Court had been obtained for the sale of the house, there might perhaps have been a good case for holding that the purchase of lands and the erection of buildings were not within the powers of the trustees under the will, and that the mortgage and the subsequent sale were neither necessary nor for the benefit of the plaintiff's estate. Strictly speaking the moneys left by the testator ought to have been invested in trustee securities and there should have been no expenditure beyond the available income. Strictly speaking, again, Radhabai had no power to mortgage the property without the concurrence in the transaction of her co trustee.
6. At the same time, even if it had been a suit of that nature, a number of difficult questions would have arisen for consideration. Although the estate was valued in the will at Rs. 30,000, a good many of the shares bequeathed to the plaintiff appear to have been worthless or of little value. The Indian Specie Bank failed and went into liquidation, and in place of Rs. 18,000 which was the amount of the fixed deposits mentioned in the will, the trustees actually received a little over Rupees 12,000 only in two instalments in 1916 and 1917. There is no evidence produced in this suit to show what the income available to the trustees was before the purchase of the immoveable property in which they invested part of the capital. No attempt has been made to show what the necessary expenditure amounted to. The testator left no house. Something obviously had to be done to provide a home for the various beneficiaries under the will and to provide a regular source of income. It is at least arguable, I think, that Section 36, Trusts Act, might permit of the investment of part of the capital in lands and buildings, and it is not clear that such use of the money would be contrary to the principles enunciated in Hemraj Dattubuva v. Nathu 1935 Bom 295. It is true that where there are two or more trustees they are bound to act together: Section 48 of the Act. But in Agnew's Law of Trust in British India, p. 246, Edn. 2, cases are cited to show that an act done by one trustee may be subsequently approved by the other. It is quite clear that Kondubai approved of this mortgage and indeed she was one of the persons who attested it. In any case, the plaintiff could not be allowed to approbate and reprobate. He could not retain the properties acquired for him and repudiate all the liabilities incurred in acquiring them. If the transactions themselves could be set aside, he would have to restore the property or pay compensation in so far as his estate had benefited. The plaintiff has been maintained for all these years and has apparently had a good education. No accounts have been produced to show what moneys have been expended on this or whence the money was obtained. In fact, no accounts have been produced about anything, and no explanation of this has been offered in the evidence. The plaintiff's uncle Keshav has deposed that he kept detailed accounts and handed them over to the plaintiff. It is by no means clear that the plaintiff's conduct in this respect has been altogether straightforward.
7. The trial Judge has found after examining the evidence that the mortgage of October 1916 was executed in respect of moneys borrowed for building the house in suit and the other house which was built on the open site at Nasik. This finding appears to me to be correct. It is true that Radhabai and Kondubai did take part in a timber business which was carried on by Keshav. Defendant 1 has admitted in his evidence that he advanced Rs. 2,000-3,000 to Radhabai in connection with his business in 1916-17 and that he also advanced large amounts to one Yamaji who was one of the partners in the business. He states, however, that this business was not going on; at any rate, he advanced no money in connection with it, until after the mortgage, and that the moneys for which the mortgage was effected were all lent for building the houses. There are on record a number of promissory notes executed by Kondubai between the years 1916 and 1921, and some of the debts which were paid off out of the purchase money, after the sale of the house in suit, were, it appears, debts contracted for the purpose of the timber business. But of course defendant 1 was not responsible for the application of the moneys by the Deputy Nazir after the sale had been sanctioned. There is nothing except the evidence of the plaintiff's uncle Keshav to contradict defendant l's statements as to the nature of the mortgage debt. Keshav has no doubt alleged that the building work was financed with the money received from the Tata Iron shares and from the Indian Specie Bank, and that the moneys borrowed from defendant 1 were all required for the business. But I think it would be unsafe to rely on the evidence of this man who comes forward, years after the event, professing to make a clean breast of his own turpitude as guardian-(he admits that he was helping in the management of the plaintiff's estate)-in order to help his nephew to repudiate the liabilities incurred on his behalf. If he had produced the detailed accounts which he says he kept, and if they had supported his story, it would have been a different matter. But, as I say, these accounts are not forthcoming. However, in this case we are not concerned, at any rate directly, with any question of the trustees' powers under the will or with the necessity for the mortgage of October 1916. Kondubai was appointed guardian by the Court along with the Deputy Nazir, and the sale sanctioned by the Court prima facie conveyed a good title to defendant 1. He is protected by the Court's order of sanction, unless it is shown that it was obtained fraudulently or by underhand dealing in some way. The leading case on this point is Gungapershad Sahu v. Maharani Bibi (1885) 11 Cal 379, where the Judicial Committee observed (p. 49):
Their Lordships think that when an order of the Court has been made authorizing the guardian of an infant to raise a loan on the security of the infant's estate, the lender of the money is entitled to trust to that order, and that he is not bound to inquire as to the expediency or necessity of the loan for the benefit of the infant's estate. If any fraud or underhand dealing is brought home to him that would be a different matter; but apart from any charge of that kind their Lordships think he is entitled to rest upon the order. Therefore, as regards the principal of this loan, it is sufficient for the plaintiff to say: 'I have got the order of the Court.
8. It is quite true, as the learned advocate for the appellant says, that the actual point which their Lordships had to decide in that case was whether interest should be allowed at twelve per cent or eighteen per cent, and also that it was a case of a mortgage and not of a sale. But, in my opinion, there is no distinction in principle between one kind of alienation and the other for the present purpose, and the observation of their Lordships, which I have quoted, was made by way of criticizm of an expression of opinion by one of the learned Judges of the High Court suggesting that in spite of the Court's orders of sanction, it was necessary for the alienee to prove that the transaction was in the interest of the minor. In Venkatasami v. Viranna 1922 Mad 135 a Bench of the Madras High Court held that the only effect of the District Court's sanction to an alienation under the Guardians and Wards Act is to shift the burden of proof from the alienee to the minor seeking to impugn the transaction. But in a later case, Raman Chettiar v. Tirugnanasambandam Pillai 1927 Mad 233, this ruling was dissented from and it was held that:
Where an alienation by way of mortgage or sale has been made by the guardian of a minor, appointed under the Guardians and Wards Act, with the sanction of the District Court, the alienee can rely upon it, and the alienation must be upheld unless the alienee has been a party to a fraud or collusion or has been guilty of any underhand dealing.
9. After referring to Gungapershad's case (2), Venkatasubba Rao, J. says (p. 220):
These words are clear and unequivocal. Let us look at the reason of the thing. The legislature has coast upon the Court the duty of enquiring whether the transaction is beneficial to the minor. No sanction can be granted unless the Court is satisfied that it is. The lender or the purchaser is no longer harassed by doubts as to the character of the transaction. He looks at the order authorizing the mortgage or the sale. An order of a competent Court is produced to him and is he not entitled to act upon it? The very object of the sections to which I have referred is to safeguard the interests of the minor. A transaction is not authorized unless the Court comes to the conclusion that it is for his benefit. From the point of view of the guardian again, if he honestly and frankly tells the Court the circumstances which have led to his application, he will have performed his duty, and as he does not trust to his own judgment but to the judgment of the Court, he can rely upon the sanction in any proceedings that may be taken at some future time against him. From the point of view of the purchaser, his title to the property stands on a better footing than if there had been no sanction, as the question of the beneficial nature of the transaction cannot be re-opened. This incidentally benefits the minor, as a fair price can be obtained for his property. I understand this to be the principle underlying the sections to which I have referred, and the decision of the Privy Council [Gungapershad Sahu v. Maharani Bibi (1885) 11 Cal 379] unambiguously declares that this is the effect of those sections. It is quite a different matter, of course, if the alienee is proved to be a party to any fraud or collusion and the proposition contained in the judgment of the Privy Council is made expressly subject to this reservation.
10. A similar view has been taken by the High Court of Patna in Mahabir Das v. Jamuna Prasad Sahu 928 Pat 543. In my opinion the judgments in these cases place the proper construction upon the Privy Council case, and are also correct on general principles. We were referred to a judgment of Kania, J. in re Dattatraya Govind 932 Bom 537, where he refers (p. 116l) to certain observations of their Lordships of the Privy Council in Ram Krishna v. Ratan Chand 1931 P C 136, and says that these observations suggest that, in spite of the Court passing an order of sanction, the purchaser is not absolved from his liability to make the necessary inquiries, and in the event of the minor challenging the transaction, even after an order of the Court is obtained, the mortgagee will have to prove that he had made independent inquiries. With all deference to the learned Judge, however, I am unable to agree that there is anything in the judgment of their Lordships in Ram Krishna v. Ratan Chand 1931 P C 136 which throws any doubt on the principles laid down in Gungapershad's case (2) and the other cases to which I have referred.
11. I must now briefly refer to the facts in connexion with the various applications to the District Judge. Kondubai applied to be appointed guardian in August 1920. The District Judge examinad her. In his order he said that she seemed to be a capable woman and mentioned that the minor who was then sixteen years of age approved of the appointment. The second application, in which permission was asked for sale of the house, was not made until June 1921. This is hardly consistent with the suggestion that the whole of the proceedings were merely an excuse for getting the property transferred to defendant 1. Kondubai then asked that the house should be sold or such portion of it as was necessary to satisfy the debts, and suggested that this should be done after public notice. In her original application (Ex. 96) she had set out the history of the family and mentioned the provisions of the will. She also referred to the money which had been realised out of the Tata shares and the deposit in the Specie Bank, and stated that these moneys had been expended on the purchase of immoveable property and that debts amounting to Rs. 19,000 had been incurred on repairs to this property and on erecting more buildings with a view to increasing the income of the minor.
12. In the application in June 1921, details were given of the debts amounting to Rs. 18,712, that is to say, the amounts of the debt were given item by item and the names of the creditors. Full details were also given of the minor's property. On receipt of this application a public notice was published in the Kesari newspaper at Kondubai's request. It was mentioned in the application that one of the creditors had obtained a decree and had attached and was about to sell the house which had been built on the open site. The Deputy Nazir took proceedings to get this darkhast postponed. The house in suit was actually put up for sale, but as the highest bid was Rs. 10,000, the sale was not sanctioned. Then, in February 1922, Kondubai submitted her third application in which she asked for permission to sell the house to defendant 1. The Deputy Nazir was ordered to inquire into this application and on his reporting in favour of it, the District Judge on 13th February 1922 ordered as follows: 'After perusing the report of the joint guardian (Deputy Nazir) I accept the offer of Rs. 15,000 made by Kashinath Gopal Lawhate (i. e., defendant 1) for the house.' He then proceeded to give directions as to the application of the sale proceeds and the execution of a sale deed with a condition of reconveyance. (I should have mentioned that within ten years on payment of the purchase price plus interest but after allowance for rent received in the interval.) Strictly speaking, the learned District Judge's order, in order to comply with the provisions of Section 31 Guardians and Wards Act, ought to have recited the necessity for the sale or the advantage to be derived from it, but the omission to do this is only an irregularity, and cannot invalidate the order. It was so held in the eases already cited, Raman Chettiar v. Tirugnanasambandam Pillai 1927 Mad 233, and Mahabir Das v. Jamuna Prasad Sahu 928 Pat 543.
13. The Deputy Nazir was examined as a witness in the ease and he has stated in his evidence that Kondubai did not inform him about the business which she had carried on or about the debts incurred in that connexion. It is also a fact that some portion of the money realized by the sale was used in payment of business debts for which the plaintiff was not liable. After the sale had been effected Kondubai made an application (Ex. 111) on 19th July 1922, in which she referred to the timber business started for the benefit of the minor and stated that in that connexion money was due from Keshav which he had no present means of paying. She suggested, therefore, that the Court should sanction a promissory note in favour of the creditor and that a Court bailiff should be employed for collection of arrears due to Keshav. The Deputy Nazir reported that this was an unwarrantable attempt to throw the burden of Keshav's debts on the minor and the District Judge refused Kondubai's request.
14. I think it may reasonably be said that there should have been a fuller inquiry than appears to have been made into the nature of the debts mentioned by Kondubai in her application and into the question of plaintiff's liability for them, and Kondubai ought to have given fuller details than she did in this connexion. Whether the Court would or should have refused to sanction the sale in that case seems to me to be by no means clear. There certainly was pressure on the estate. The other house had been attached and was in danger of being sold. Refusal to sanction the conditional sale of this house would undoubtedly have meant litigation the result of which could not be foretold with any certainty. Moreover, even if the mortgage were repudiated, the plaintiff could not be allowed to retain the building without repaying what had been spent upon it.
15. But, in any ease, it has to be shown that the District Judge's order of sanction was obtained by fraud or underhand dealing, and in my opinion it has not been shown that it was. Kondubai did give particulars of the creditors and the amounts owing to them. There is no reason to suppose that she deliberately kept back any information from the Court. In the particulars which she gave of the minor's estate in her first application she included an item of Rs. 1,000 as the value of timber. In all probability Kondubai considered that all the debts were equally binding on the plaintiff. Nor would proof of fraud on Kondubai's part deprive defendant 1, the alienee, of the protection of the Court's order unless it was shown that he was in some way privy to it. In my opinion no fraud or underhand dealing has been brought home to defendant 1, and the suggestion that the proceedings under the Act were a mere exouse put forward by a dishonest guardian in collusion with defendant 1 to bring about the sale to him, cannot be said to be supported by any evidence. I have already referred to the omission to produce the accounts which were said to have been kept and which would probably have thrown a good deal of light on the circumstances of the case. I may also mention that Kondubai, although she put in a statement supporting the plaintiff's claim, has not been put into the witness box to support her allegations by evidence. In my opinion there is no sufficient ground for differing from the view taken by the trial Court, and the appeal must, therefore, be dismissed with costs.
16. The plaintiff sues for a declaration that a sale deed dated 8th March 1922 (when the plaintiff was a minor), affecting the property specified in the schedule to the plaint, is not binding on him, and for recovering possession thereof. The main defence is based on a sale deed conveying the property to the defendant. The dead was executed by the guardian of the plaintiff appointed under the Guardians and Wards Act, 8 of 1890, with the permission of the Court obtained under the Act. The defendant contends that none of the reasons for which a sale so authorized may be avoided exists: Section 30.
17. The Guardians and Wards Act, Section 30, provides in effect that a disposal of immoveable property by a guardian is voidable at the instance of any other person affected thereby provided that it is in contravention of Section 28 or Section 29. The first of these two sections Section 28 deals with cases where a guardian has been appointed by a will or other instrument; and his powers to transfer immoveable property are subjected by the section to the restrictions imposed by the will or other instrument appointing him the guardian. In such cases however he may be declared a guardian under the Act, and then, notwithstanding the restrictions in the will or other instrument, the Court which makes the declaration may permit him, by an order in writing, to make a disposal of the immoveable property in a manner permitted by the order, even though it be in disregard of the said restrictions. The other section, contravention of which makes the sale voidable Section 29 deals with cases where the Court appoints or declares a guardian. This section excepts from its operation cases where the person so appointed or declared is a Collector or a guardian appointed by a will or other instrument. In other cases Section 29 provides that a guardian appointed or declared by the Court shall not without previous permission of the Court make the transfers referred to in the section, which include sales.
18. It is not in dispute that the sale upon which the defendant relies was with the permission of the Court. The Guardians and Wards Act itself does not refer to any cases or circumstances in which a disposal of immoveable property, though made with the permission of the Court, by a person appointed or declared guardian under the Act, shall be deemed to be in contravention of Sections 28 and 29, so as to make it voidable under Section 30. It does not state in which cases or circumstances the permission shall be ineffectual. The general principle governing such cases may be taken from Gungapershad Sahu v. Maharani Bibi (1885) 11 Cal 379 to be that where an order of the Court authorizes the guardian to enter into a sale, the transferee can rely upon the order of the Court unless any fraud or underhand dealing is brought home to him. Similarly under the Evidence Act, Section 44-though that section is not in terms applicable- judgments, orders or decrees referred to therein (including judgments that a person is absolutely entitled to a legal character or to a property) and proved by the adverse party may be shown (a) to have been delivered by a Court not competent to deliver them, or (b) to have been obtained by fraud, or (c) by collusion. It is admitted by the defendant that if fraud or collusion or underhand dealing is proved, the permission of the Court will not protect the sale. The plaintiff however did not take upon himself the burden to prove want of competence in the Court or fraud or collusion. I shall deal under two heads with the various forms in which the plaintiff's case was put.
19. First, it was argued in accordance with Venkatasami v. Viranna 1922 Mad 135 that the sanction of the Court is only prima facie evidence that the transaction was a good one, but that when the evidence on both sides is before the Court, the Court may come to the conclusion that the sale was improper and not for the benefit of the minor; and that if the Court concludes that it was not for purposes binding upon the minor, the sale may be set aside; that to give effect to the policy of the Guardians and Wards Act, S, 31, it is enough to hold that the burden of proof is shifted to the plaintiff; and that for impeaching the transaction it is not necessary to say that fraud has been made out on the part of the purchaser. This case has been expressly dissented from in Raman Chettiar v. Tirugnanasambandam Pillai 1927 Mad 233, for reasons that, with deference, I accept. The Guardians and Wards Act does not speak of any shifting of the burden of proof, but of the sale being permitted by an order of the Court. The question is in what oases such an order made by a Court competent to make it must be deemed to be ineffectual. The effect that an order under the Guardians and Wards Act, Section 28 or Section 29, permitting a sale ought to have, must depend upon a construction of the particular order, controlled by the extent and nature of the jurisdiction conferred by Section 28 or Section 29 on the Court making the order. That question is different from the question whether the order may be treated as having no effect-as if it had not been made at all.
20. The plaintiff wishes the order to be considered as not made at all, not because of fraud or collusion which are admitted as having power to deprive the order of its effectuality; but because he suggests that the order ought not to have been made without further inquiry; that the materials, which so far as can be discovered, had been placed before the Court are insufficient to support the order. The decision of the Privy Council in Gungapershad Sahu v. Maharani Bibi (1885) 11 Cal 379 (which requires fraud or underhand dealing before the protection granted by the Court can be nullified), is sought to be distinguished on the grounds: (1) that the particular remarks bearing on this question were obiter; (2) that the Privy Council was dealing with a mortgage, and in the present case we have to deal with a sale. As to (1), the observations were a part of the reasoning of their Lordships and cannot be treated as obiter. They enunciate the general principle which is also indicated by the Evidence Act, Section 44. As to (2), there is no reason to distinguish a sale from a mortgage in regard to the applicability of this rule. No authority is needed for this proposition, but an express authority has been cited to us: Sri Krishna Das v. Nathu Ram 1927 P.C 37.
21. Secondly, other cases relied upon are rather in the nature of cautions against orders authorizing such disposals being lightly made. They do not deal with the effect of the order after it has been made, nor with the means of taking away all effect from the order. So far as these cases are in the nature of such caution, the reasoning on which they are based may be unhesitatingly adopted. But we are not at the stage at which the powers of the Court to permit or to decline to permit a sale have to be exercised. Nor are we sitting in appeal over the Court empowered to exercise those powers in the first instance. The decision of the Court entrusted with the duty of deciding whether or not to permit the guardian to enter into the sale has already been given. It cannot be treated as having some effect other than that laid down in the Act under which the permission is given, nor is there any ground shown why it should be ignored.
22. The terms of Section 31, Guardians and Wards Act as well as several decisions were referred to. The section is very detailed. It lays down with great care in what circumstances the Court ought to grant permission to the guardian to do the acts mentioned in Section 29. But Section 31 is not mentioned amongst the sections contravention of which shall render sales voidable. Contravention of Sections 28 and 29 is alone referred to as rendering the sale voidable. No reference is made to the necessity of the Court having observed in detail and followed out all the provisions of Section 31. It would therefore be going out of our province to consider in this case whether if we had to review or reconsider the order permitting the guardian to enter into the sale which is the subject of litigation, we should have considered that the Court had exercised its discretion wisely or unwisely. I say so as I wish to associate myself with the remarks of my learned brother with reference to the order passed in this case. But I wish to add that there must have been circumstances of which there would be no evidence before us. It is as likely as not that those circumstances would indicate that the order was better justified than now appears. In any case, the order is not before us by way of appeal.
23. No serious attempt was made, as I have already said, to prove fraud or collusion in the present case. Certain circumstances of suspicion do appear. Perhaps everything was not done exactly in the manner in which it may be admitted that a ward is entitled to expect that the guardian should deal with the ward's property. To that extent I sympathize with the plaintiff. But I do not see how that takes us any further. The plaintiff must recognize that he is a beneficiary under a will. He must take the will as a whole. Under the will the properties given to him were given subject to the trusteeship of two named persons. If those persons were not as wise in safeguarding his interests as they might have been, the plaintiff cannot demand benefits under the will freed from conditions, which have now turned out to be burdens, but which the testator considered as necessary conditions to his bounty. I agree that the appeal must be dismissed with costs.