M. Sadanandaswamy, J.
1. The appellants are plaintiffs and the respondents are defendants. The suit was filed for a declaration that the sale deed dated 29-6-1959 executed by the second defendant in favour of the first defendant in respect of the plaint 'B' schedule properties is not binding on them beyond the lifetime of the second defendant. The B Schedule properties originally belonged to the joint family of Papaiah Setty, who died in the year 1937, The geneology is as follows:-
J. Papaiah Setty.
1st wife J. Seethamma (2nd wife.D. 2)
| | | | | |
J. Veeranna Setty J. Seetharama Setty J. Krishna J. Saraswa J. Swarna Vasantha-
(died on 15-11-58) (died in 1942) (D-3) Mohan. Seethamma. laxmi.
1. J. Satyanarayana 1. J. Sakuntalamma (wife D.4).
2. J. Panduranga 2. J. Nalanikantha (D.5).
3. J. Suryanarayana 3. J. Anandkukar (D.6).
4. J. Sulochana 4. J. Leelavathi.
5. J. Lalithamukari
6. J. Sasirekha.
Papaiah Setty had two sons through his first wife, Veeranna Setty who died on 15-11-1958 and Seetharama Setty who died in 1942. The plaintiff's are the children of Veeranna Setty. Seetharama Betty's widow is defendant 4, and defendants 5 and 6 are his sons. The second defendant is the second wife of Papaiah Setty. The third defendant is the son of Papaiah Settv through his second wife, the second defendant. After the death of Papaiah Setty. Seetharama Settv went out of the joint family executing a registered relinquishment deed dated 28-9-1940 in favour of the late Veeranna Setty and defendants 2 and 3. Under the said deed, Seetharama Setty relinquished his rights in the remaining joint family properties excepting his right to a share in the properties to be allotted to the second defendant after her life time. Late Veeranna Setty and defendants 2 and 3 continued as joint family members till 1944. Defendants 2 and 3 filed a suit for partition O. S. 12/45, on the file of the District Court. Bellary. It was transferred to the sub-court and numbered as O. S. 3/1947. The suit was decreed and the parties preferred appeals in A. S. Nos. 739/57 & 758 of 1957 on the file of the High Court of Judicature Madras. The said appeals were disposed of on 21-11-1949. The High Court declared that the second defendant got only a limited estate under the deed dated 25-8-1940. In the final decree proceedings, the second defendant was allotted suit B Schedule properties towards her share among other properties. According to the plaintiffs the properties allotted to the second defendant should revert to the three sons of late Papaiah Setty or their heirs. The plaintiff's father died on 15-11-1958 leaving behind him the plaintiffs as his heirs. Seetharam Setty died in 1942 leaving behind him defendants 4. 5 and 6 as his heirs. The plaintiffs claim that they are entitled to 1/3 share and the defendants 4, 5 and 6 together to 1/3 share in the properties allotted to the second defendant after her life time. The second defendant has executed a registered sale deed of the B Schedule properties on 29-6-1959 in favour of the first defendant for an alleged consideration of Rs. 5,000/-even though she has no right to alienate the properties since she has only a limited right in them. According to the plaintiffs, the sale is not for legal necessity and is not binding on the reversionary rights of the plaintiffs.
2. The first defendant pleaded that the second defendant has a right to alienate the properties. He denied that she had only a limited interest in the properties. He also pleaded that the second defendant has a right to alienate the properties for legal necessity. He further pleaded that the rights of the second defendant have been enlarged by virtue of Section 14 of the Hindu Succession Act, 1946, as she was in possession of the properties at the commencement of the said Act. He also pleaded that the second defendant 'had incurred debts in connection with the marriage of her second daughter, that she was due in a sum of Rs. 5,000/- to one R. S. Rathnamma under a pronote dated 2-5-1951, that he made bona fide enquiries about the existence of the debt and the legal necessity for the said debt and that the second defendant discharged the debt out of the sale consideration paid by him. So, he is a bona fide purchaser for value without any notice of the alleged limited rights of the second defendant or any reversionary rights thereof. He further pleaded that after the sale he had made improvements by spending Rs. 600/-.
3. The second defendant pleaded that in the partition suit and the final decree proceedings she took possession of the E Schedule properties and continued to be in possession till she parted with them under the sale deed dated 29-6-1959 in favour of the first defendant. She contended that she had become the absolute owner and the reversionary rights got extinguished on and after 17-6-1956, and that even if she is held to be entitled to only a limited estate, the sale deed executed in favour of the first defendant is supported by legal necessity and binding on the reversioners. The High Court of Madras, on a true and proper construction of the relinquishment deed held that it conferred on her the rights which she was entitled to under the Hindu Womens' Rights to Property Act, 1937. The High Court also held that she was free to alienate the properties for the marriage expenses of her unmarried daughters. She contended that she entered into possession of the properties in December 1953 and continued to be in possession till 17-6-1956 when the Hindu Succession Act, 1956 came into force, and that under Section 14(1) of the said Act, she became the full owner of the properties. She further stated that she incurred the debt of R. S. Rathnamma for the marriage of her daughter and she gave a dowry of Rs. 10.000/- to her son-in-law and performed the marriage at Bellary on 16-5-1951.
4. The third defendant adopted the written statement filed by the second defendant. The claim against 5th defendant was not pressed. Defendants 4 and 6 remained ex parte.
5. The trial court held that the plaintiffs are reversioners in view of Section 15(11) of the Hindu Succession Act of 1956, that the rights of the second defendant as a limited owner were not enlarged under the Hindu Succession Act, 1956, that the alienation by second defendant in favour of the first defendant Was not for legal necessity, that the plaintiffs are entitled to the declaration prayed for. that the first defendant is not a bona fide purchaser for value and that he has not proved the expenditure of Rs. 600/- on improvements. Accordingly, it decreed the plaintiffs' suit. Defendants 1 and 2 went up in appeal. The lower appellate court held that in the presence of the third defendant who is the nearest reversioner of his stepmother the second defendant, the plaintiffs who are one degree below him are not entitled to file the suit. It also held that there was legal necessity for the alienation by the second defendant in favour of the first defendant. It agreed with the finding of the trial court that the limited estate of second defendant was not enlarged into a full estate under the Hindu Succession Act, 1956. It allowed the appeal and dismissed the suit.
6. The points for consideration in this second Appeal are:-
(1) Whether the plaintiffs are reversioners with respect to the second defendant and could file the suit?
(2) Whether the limited estate which the second defendant had in the suit properties got enlarged into a full estate under Section 14 of the Hindu Succession Act. 1956?
(3) Whether the sale of the suit properties by the second defendant in favour of the first defendant is for legal necessity and therefore binding on the plaintiffs?
7. Under Section 8 of the Hindu Succession Act, the plaintiffs are under clause (1) of the Schedule I to that section the heirs of Papaiah being the children of a predeceased son. Defendants 5 and 6 are also children of a predeceased son, defendant 4 is the widow of a predeceased son. defendant 3 is also a son of predeceased son (sic). Under Clause 9 of the Schedule (sic), plaintiffs and defendants 4, 5 and 6 can take simultaneously along with defendant 3. Hence, if this provision applies, plaintiffs are entitled to file the suit. According to the plaintiffs, the suit having been filed in 1962, it is the Hindu Succession Act which applies for determining the status of plaintiffs as reversioners. According to the defendants, it is the law as it stood on the date of the death of the last male owner which should be considered for the determination of this question. According to them, when Papaiah Setty died in 1937, the only persons entitled to succeed to his estate were his sons and that the plaintiffs are the remote reversioners as defendant 3. one of the sons, was alive on the date of suit. According to them, plaintiffs are not entitled to file the present suit. The question to be determined therefore, is whether Section 8 of the Hindu Succession Act, 1956, is applicable.
8. The appellants relied on the decision in and : 3SCR953 in support of their contention that it is the Hindu Succession Act under which the question whether the plaintiffs are the next reversioners should be determined. The Question for decision before the Full Bench in AIR 1937 Mad 699. (Laxmi v. Anantha-rama) was whether the succession to a Hindu male dying before the passing of Act II of 1929 leaving a female heir and a limited owner under the law who is alive after the Act has come into force, is governed by the provisions of that Act. The last male holder died in 1922. He was succeeded by his mother against whom a suit was brought by the plaintiffs claiming to be presumptive reversioners. The suit was contested by the sister of the deceased and her son who alleged that under the Act, they had preferential right to the succession and that the plaintiffs were not the nearest or presumptive reversioners. Act II of 1929 came into force in 1929. The question for decision was whether the succession to the deceased who died before the Act leaving his mother as his immediate heir, is governed by that Act or by the law in force previously. It was held that
'Under the Hindu law it is the death of the female heir that opens the inheritance to the reversioners who till then possess an inchoate right, generally termed a spes successionis in other words, the male holder is regarded by the Hindu law as having lived upto and died at the moment of the death of the female heir, and that when a female heir intervenes, therefore the fictional death of a Hindu male is something . different from his actual death, the result being that the date of his death is for this postponement the death of the limited owner'.
The observations of the Privy Council in (1880) 7 Ind App 115 to the effect that 'the succession does not open to the heirs of the husband until the termination of the widow's estate and upon the termination of that estate the property descends to those who have been the heirs of the husband, if he had lived upto and died at the moment of her death' was followed.
It was accordingly held that the succession opens to the last male holder on the death of the female heir is therefore governed by the provisions of the Act.
In , (Duni Chand v. Anar Kali) the question for decision was whether the Hindu Law of Inheritance (Amendment) Act. 1929 applies to the case of a Hindu male dying interstate on or after the date it came into operation or it also applies to the case of such a male dying interstate before that date if he was succeeded by a female heir who died after that date. The object of the Act was held to amend the old order of succession among Hindus by introducing some persons as heirs who had no such place according to the ordinary interpretation of Mitakshara Law. The last male owner in that case died in 1922 leaving neither a widow nor a descendant. His mother succeeded as heir taking a Hindu widow's estate. He also left four sisters. The mother died in 1936 after the corning Into force of the Act. One of the sisters of the last male owner filed the suit relying on the provisions of the Act. The contesting defendants claimed that they had succeeded to the properties as heirs of the deceased who died before the Act came into force and that the Act, having no retrospective effect, did not apply to the parties to the suit. It was held that during the lifetime of the widow, the reversioners have no vested interest in the estate, but only a contingent right which may or may not accrue, that the succession would not open out until the widow died, and that the person who would be the next reversioner at that time would succeed to the estate and the alteration in the rule of the Hindu law brought about by the Act would then be in full force. It was further observed as follows:-
'There is no vesting as at the date of the husband's death, and it follows that the questions of who is the nearest reversionary heir or what is the class of reversionary heirs, fall to be settled at the date of the expiry of the ownership for life or lives. The death of a Hindu female owner opens the inheritance to the reversioners, and the one most nearly related at the time to the last full owner becomes entitled to possession. In her lifetime, however, the reversionary right is a mere possibility, or spes successions, but this possibility is common to them all for it cannot be predicated who would be the nearest reversioner at the lime of her death. The Indian Law, however, permits the institution of suits in the lifetime of the female owner to remove a common apprehended injury to the interests of all the reversioners. presumptive and contingent alike. The reversioner's rights during the lifetime of the female heir are merely of a protective character and nothing more, and whenever action is taken by the presumptive reversioner it is in a representative capacity and on behalf of all the reversionary and not on the footing that the person taking the action is in fact the next reversioner at the date of the suit'. It was contended reiving upon the words 'dying interstate' in the Act that they denoted the future tense. But it was held that
'the words are description of the status of the deceased and have no reference and are not intended to have any reference to the time of the death of a Hindu male. The expression merely means 'in the case of intestacy of a Hindu male'. To place this interpretation on the Act is not to give a retrospective effect to its provisions the material point of time being the date when the succession opens, namely, the death of the widow'.
The decision of the Privy Council was followed by the Supreme Court in : 3SCR953 . (Fateh Bibi v. Charan Dass) and it was held that the question as to who is the nearest heir will fall to be settled at the date of expiry of the ownership for life or lives, and that the death of a Hindu female life estate holder opens the inheritance to the reversioners and the one most nearly related at the time to the last full owner becomes entitled to the estate. It was accordingly held that Act I! of 1929 applies also to the case of a Hindu male dying interstate before the Act came into operation and has been succeeded by a female heir who died after that date. The interpretation put by th.e Privy Council on the words 'Hindu male dying interstate' occurring in the preamble to the Act was approved.
9. In : AIR1965AP466 , (Ramulu v. V. Narayana) the question for decision was whether Section 8 of the Hindu Succession Act, 1956 governs the case where the last Hindu male holder died before the commencement of the said Act and he was succeeded by a female having a limited interest, who without becoming an absolute owner died after the Act came into force. The decisions in were relied on and it was held that Section 8 of the Hindu Succession Act would govern the succession and not the old Hindu Law of Succession. The difference in the language used in Section 8 which refers to 'the property of a male Hindu dying interstate' with the language used in Sections 6 and 7 namely, 'where a male Hindu dies after the commencement of the Act' was referred to. and it was held that the Legislature was aware of the fact that succession may open out in certain cases after the Act came into force and that it did not intend to apply the old law in all cases in which the death of the male Hindu occurred before the Act. I am in respectful agreement with the reasoning given in this decision. The words used in Section 8, namely, 'dying interstate' only means 'in the case of intestacy of a Hindu male' as was held by the Privy Council. To place this interpretation on the Act is not to give retrospective effect to its provisions, the material point of time being the date when the succession opens, namely, the death of the widow as observed by the Privy Council. Hence, as held by the Supreme Court, the question as to who is the nearest heir will fall to be settled on the date when the succession opens, i. e., on the death of a Hindu female life estate holder, which opens the inheritance to the reversioners. The lower appellate court relied on the decisions in 1959 37 Mys LJ 332; (1965) 1 Mys LJ 351; AIR 1965 Mys 290 and 38 Mys LJ 476 ; AIR 1960 Mys 2601 in coming to the conclusion that the Hindu Succession Act did not govern the succession to the estate of the deceased Papaiah Setty.
In 1959-37 Mys LJ 332, (Sadashiv Rama Patole v. Balakrishna) one R died in 1922-23 leaving behind a widow and two daughters. In 1927 the widow executed in favour of one H, a divided cousin of R. a release deed. H died in 1944. The widow adopted the plaintiff in 1947. The plaintiff filed a suit in 1949 for recovery of possession from the sons of H. It was held that Section 8 of the Hindu Succession Act did not apply to the property of R who died before the Act came into force and that therefore, the 'widow is not entitled to a share in the properties. It was held that Section 8 is only prospective and not retrospective in operation.
In (1965) 1 Mys LJ 351; AIR 1965 Mys 290 it was held that where a coparcener died before the coming into force of the Hindu Women's Rights Act of 1937, his widow is not entitled to the benefit of the Act.
In 38 Mys LJ 476; AIR 1960 Mys 260 the last male owner died prior to 1948. his widow remarried in the year 1948. The plaintiff claiming to be the reversioner of the deceased, filed a suit in 1959 for possession of the properties alienated by the widow. It was contended that the sister of the deceased was the nearest heir under Section 8 of the Hindu Succession Act. It was held that the succession opened in 1948 when the widow remarried by virtue of the law then in force and the estate vested in the plaintiff and the estate which had already vested, cannot be divested by virtue of the Hindu Succession Act, since the Act was not retrospective in operation.
10. The respondents relied on the decision in AIR 1966 Mys 130 (Veerupanna v. Eramma). One Erannagowda was the last male owner. He had three wives - Eramma. Siddamma and Sharn-amma. By the said Sharnamma he had a son called Basanna, who died in 1936-37, at a time when he was the sole male owner of the properties. After his death, his step-mothers Eramma and Siddamma got into possession of the properties. The appellants were the brothers of Sharnamma, They filed a suit claiming that they are the nearest heirs of Basanna. Erarnma claimed to have adopted the third respondent and Siddamma claimed to have adopted the fourth respondent to her deceased husband. The contentions of both Eramma and Siddamma with regard to adoption were negatived and the appellants' suit was decreed. By the time the decree was executed, the Hindu Succession Act had come into force. The case set up by Eramma was that because the Act has an overriding effect over the rules of Hindu law. Section 8 had to be given retrospective effect and that she must be held to have acquired the right of heirship to the deceased Basannagowda postponing similar right of inheritance conferred on the maternal uncles, the appellants. It was held that Section 8 has no retrospective operation. This decision was approved by the Supreme Court in : 2SCR626 , (Eramma v. Veerupanna). The Supreme Court observed as follows:-
'It is clear from the express language of the section that it applies only to coparcenary property of the male Hindu holder who dies after the commencement of the Act. It is manifest that the language of Section 8 must be construed in the context of Section 6 of the Act. We accordingly hold that the provisions of Section 8 of the Hindu Succession Act are not retrospective in operation and where a male Hindu died before the Act came into force i. e . where succession opened before the Act, Section 8 of the Act will have no application'. (The underlining is mine). It is clear, therefore, that in none of the cases decided by this court, the succession opened after the coming into force of the Hindu Succession Act. These are all cases where the succession opened prior to the coming into force of the Hindu Succession Act. In none of these cases, the estate of a limited owner intervened between the death of the last male owner and the date of coming into force of the Act.
11. In the present case, what has to be considered is whether the succession opens after the coming into force of the Hindu Succession Act. Applying the principle adopted by the Privy Council, holding that the provisions of the Hindu Succession Act applies to the cases of succession which opens after the coming into force of the Hindu Succession Act, will not amount to holding that the Act has a retrospective operation. It is a case of applying the law as it stands on the date when the succession opens. It is urged on behalf of the respondents that the decisions of the Privy Council and the Supreme Court under Act II of 1929 do not apply to this case since the scope of the Hindu Succession Act is different from the scope of the Act II of 1929, But those decisions are based on the principle that the succession to a Hindu male who is succeeded by a female limited owner opens only on the death of the limited owner. Hence, the decision in relied on by the appellants apply to the facts of this case and not the decisions of this court or of the Supreme Court in : 2SCR626 . The decision of the Supreme Court In : 2SCR626 makes it clear that the Hindu Succession Act, 1956 applies in cases where the succession opens after the coming into force of the Act. It has therefore to be held that the plaintiffs along with the defendants 3, 4. 5 and 6 are the next reversioners and that the plaintiffs are entitled to file the present suit.
12. The next question to be considered is whether the limited estate which was conferred on the second defendant became enlarged into a full estate under Section 14 of the Hindu Succession Act. Under Section 3(3) of the Hindu Women's Rights to Property Act, Act 18 of 1937, which came into force from 14-4-1937, since the deceased Papaiah Setty died after that date, the second defendant became entitled to the limited interest with the right of claiming partition. She was given a l/4th share in the entire joint family properties, including the houses which are the subject-matter of this suit, as well as agricultural lands under Exhibit P-l dated 28-8-1940. In a partition suit filed by her, a preliminary decree was passed by the trial court on 11-7-1947 which was confirmed in the High Court on 21-11-1949. During the final decree proceedings, by consent of parties, she was put in possession of the immoveable properties which fell to her share on 23-12-1953. The High Court held that only a limited estate was conferred on her.
In : 2SCR95 , (Badri Pershad v. Kanso Devi) the suit property was allotted to the widow of the deceased under an award which was made the rule of the court. In the award, it was stated that the widow will have a widow's estate in the properties awarded to her. It was also provided that the immoveable properties allotted and awarded to the various parties would be individually and exclusively owned by them and each party would be entitled to take physical or constructive possession of the properties allotted and awarded to his or her share. The award was made in 1950. One of the sons of the deceased filed the suit alleging that his step-mother was a limited owner of the property which had been given to her by the award and that she was trying to alienate the same. It was contended on behalf of the widow that she had interest in all the joint family properties together with the right of partition under the provisions of Hindu Women's Rights to Property Act 1937 (Act XVIII of 1937), and that the property was acquired by her at 'the partition within the terms of the Explanation to Sub-section (1) of Section 14 of the Hindu Succession Act. She contended that as she was in possession of the property at the time the Act came into force, she became the full owner by virtue of Section 14(1) of the Act even though previously she was a limited owner. It was observed as follows:-
'The word 'acquired' In Sub-section (1) has also to be given the widest possible meaning. This would be BO because of the language of the explanation which makes Sub-section (1) applicable to acquisition of property by inheritance or devise or at a partition or in lieu of maintenance or by gift or by a female's own skill or exertion or by purchase or prescription or in any manner whatsoever. Where at the commencement of the Act, a female Hindu has a share in joint properties which are later on partitioned by metes and bounds and she gets possession of the properties allotted to her there can be no manner of doubt that she is not only possessed of that property at the time of the coming into force of the Act but has also acquired the same before its commencement. Sub-section (2) of Section 14 is more in the nature of a proviso or an exception to Sub-section (1). It can come into operation only if acquisition in any of the methods indicated therein is made for the first time without there being any pre-existing right in the female Hindu who is in possession of the property'. In the present case also, the partition deed Exhibit P-l conferred a limited estate on the second defendant. The High Court also held in the partition suit she had a limited estate. It is contended on behalf of the appellants that in that SupremeCourt case, the basis of the claim by the widow was under Act 18 of 1937, whereas in the present case the defendant based her claim on Exhibit P-l and not under the Act. A perusal of the judgment of the High Court, Exhibit P-3. in the partition suit shows that a contention was raised on behalf of the present second defendant that she was entitled to an absolute interest under the terms of Exhibit P-l. The court observed that under the Hindu Women's Rights to Property Act, her interest would be only the limited interest of a Hindu widow. Reference was also made to clauses 5 and 6 of Exhibit P-l wherein it was stated that the properties allotted to her share passed to her according to the 'present Hindu Law in force' and that plaintiffs had recognised her rights under 'the Hindu Law now in force'. These clauses were held by the High Court to refer to the provisions of the Hindu Women's Rights to Property Act. On this ground the High Court held that the parties knew that they were conceding to second defendant only what she was entitled to under the Hindu Women's Rights to Property Act. The reference obviously is to Act 18 of 1937. Hence, this contention of the appellants has no force.
13. It was next contended on behalf of the appellants that on the date of Exhibit P-l, Act 18 of 1937 applied only to properties other than agricultural lands according to the decision in . The suit properties are houses. It is contended on behalf of the appellants that the second defendant was allotted properties much in excess of what she would be entitled to under the Act 18 of 1937 since a l/4th share in agricultural lands also were allotted to her share under Exhibit P-l. Reliance was placed on the decision in : AIR1959Cal338 , (Jaria Devi v. Shyam Sundar) and it is contended that it is Section 14(2) of the Hindu Succession Act which applies and that therefore, the limited estate conferred on the second defendant under Exhibit P-l did not enlarge into a full estate under Section 14(1) of the Hindu Succession Act. In that case, the widow had been allotted a half share whereas admittedly she had only a l/4th share in the joint properties. But in the present case, second defendant has been allotted l/4th share only which she was entitled to. Hence, that decision has no application to the facts of this case. As far as properties other than agricultural lands are concerned the second defendant was entitled to l/4th share under Act 18 of 1937, since the Act applied to properties other than the agricultural lands. Exhibit P-l therefore recognised the pre-existing rights of defendant 2 with respect to the suit properties. In this view of the matter, it is not necessary to consider whether the limited estate in respect of a agricultural lands also enlarged into a full estate by virtue of Madras Act XXVI of 1947 which extended Act 18 of 1937 to agricultural lands also, and which had come into force before the date of the decree of the High Court in the partition suit. Hence, the decision of the Supreme Court in : 2SCR95 applies to the facts of this case.
In : 1SCR476 , (Sukh Ram V. Gouri Shankar) on the death of the last male holder in 1952. his widow acquired by virtue of Section 3 (2) of the Act 18 of 1937 some interest in the property of the joint family which the husband had, which was the Hindu Women's Estate. Though, being, a male member of a Hindu family governed by the Benaras School of Hindu Law, the deceased was subject to restrictions in respect of the alienation of his interest in the joint family property, it was held that this widow who acquired interest in the property by virtue of the Hindu Succession Act. is not subjected to any such restrictions.
In 19671 2 Mys LJ 31. (Commr. of Income-tax v. Roopchand Seshmull) it was held that the estate obtained by a Hindu widow under Section 3 (2) of Act 18 of 1937 is a limited estate and though the share of the widow is not separated from the remaining family property, it is property possessed by her under Section 14 of the Hindu Succession Act which enlarged into a full estate after the coming into force of the Hindu Succession Act. Hence, it has to be held that the limited estate conferred on defendant 2 was enlarged into a full estate on the coming into force of the Hindu Succession Act, 1956.
14. Thus, though the plaintiffs are entitled to bring the suit as next reversioners, they are not entitled to any relief on account of the fact that defendant 2, being a full owner, was entitled to alienate the property in favour of the first defendant under Exhibit p-2 in 1959. In this view of the matter, it is not necessary to go into the question whether the finding of the lower appellate court that Exhibit D-2 was executed for legal necessity can be interfered with in second appeal.
15. The appeal fails and is dismissed with costs.