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C. Sankara Viswanadha Sarma Vs. C. Ramalakshamma and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 301 of 1968 and C.M.P. No. 2496 of 1971
Judge
Reported inAIR1972AP270
ActsHindu Law
AppellantC. Sankara Viswanadha Sarma
RespondentC. Ramalakshamma and anr.
Appellant AdvocateS.V. Kondapi and ;B. Jagannadha Sastry, Advs.
Respondent AdvocateV. Joggayya Sarma, Adv.
Excerpt:
.....by deceased husband for adoption - such widow liable consult all 'sapindas' before effecting adoption - consent of majority of 'sapindas' irrelevant - failure to consult and get consent of two 'sapindas' invalidated adoption - held, suit relying on vitiated adoption not maintainable. - - 1 further pleaded that the appellant is the only son of cheemalakonda ganapati sastry and she had brought him upto only out of love and affection. bala surya prasada rao, air 1918 pc 97, wherein it was held that the absence of consent on the part of the nearest sapindas cannot be made good by the authorisation of distinct relatives whose assent is more likely to be influenced by improper motives. the consent required is that of a substantial majority of those agnates nearest in relationship..........sastry also was in bodapadu then. as eldest and head of the family, he was the manager. he consulted dikshitulu in madras about four or five months before the date of ex. a-1. the story of consultation with dikshtulu and padmanabha sastry is not at all convincing. if in fact this witness had consulted the two sapindas, this definitely would have found place in ex. a-1. both dishitulu and padmanabha sastry were alive at that time but they were not examined by the appellant.17. the leaned advocate for the appellant further argues that there was a family council which permitted the ist respondent to adopt and this family council consisted of the three sapindas. the learned advocate contends that 'family council' means all the relatives both the sapindas and the relatives from the.....
Judgment:

Muktadar, J.

1. This appeal is preferred against the judgment and decree dated 13th March, 1967 of the Subordinate Judge, Kakinada in O. S. No. 25/65. The plaintiff is the appellant before us. He has filed this suit in forma pauperis against the respondents for declaration of title and recovery of possession of 'A' and 'B' plain-schedule properties. His allegations are that he was validly adopted by the Ist respondent on 10-6-1948. It is asserted in the plaint that the appellant was the natural son of Cheemala Konda Ganapati and name of Peda Adwita Parabharama Sastry and after the said adoption he was renamed as Sankara Viswanadha Sarma; and that money of the appellant was celebrated at Rajahmundry. Since the appellate was hardly five years' old at the time of adoption he was staying with his natural father and was late educated mostly at pentapadu village. Respondent No. 1 was now and then sending money to the natural father towards the upkeep of the appellant. The appellant after passing the S. S.L.C. examination wanted to continue his studies but the Ist respondent having been influenced by the 2nd respondent and other relatives neglect the appellant, as a consequence of which he could not pursue his studies above the P.U.C. course. The appellant attained majority on 9-8-1961. In spite of the appellant's respect for his adoptive mother, respondent No. 1 not only adopted a hostile attitude towards the appellant but she was influenced to gift away the properties to defendant No. 2 to the detriment of the interests of the appellant. It is further alleged in the plaint that on adoption, the suit properties became vested in the appellant immediately but it was agreed to between the appellant's natural father and respondent No. 1 that the properties would continue to be in the management of respondent No. 1 till the appellant attained majority. The hostile attitude of respondent No. 1 compelled the appellant to issue a notice dated 8-5-1964 which is Ex. B-1 in the suit. Respondent No. 1 replied on 12-601964 denying the adoption of the appellant. The appellant having regard to the strained relationship with respondent No. 1 does not want the Ist respondent no continue the management of the suit properties; hence he prayed for possession of the plaints 'A' and 'B' schedule properties. Respondent No. 2 is impleaded as such because it is alleged that he has obtained a vested remainder right in some of the suit properties.

2. In the written statement, respondent No. 1 took the plea that the appellant is not her adopted son. The alleged adoption on 10-6-1948 never took placer. She had no authority to adopt either from her deceased husband or any other person. She merely brought up the appellant as Abhimana Putra. It is stated in the written statement that the Ist respondent's husband died nearly 50 years ago leaving a son named Suryapadmanabham who also died in or about 1926. Respondent No. 1 succeeded to the properties as heir of her deceased son and was enjoying the sea in her own right. Respondent No. 1 further pleaded that the appellant is the only son of Cheemalakonda Ganapati Sastry and she had brought him upto only out of love and affection. In fact, she even executed a registered will (Ex. B-3) dated 11-5-`963 wherein she had made provisions for the appellant by be queathing to him the upstairs portion of the building in the plaint 'B' Schedule property and also six acres of wet land out of the plaint 'a' Schedule property for his life with remainder to his sons. She further stated that she had gifted some property to respondent No 1 herself sold the said property to a third party but, she alone received the entire consideration. In the additional written statement. Respondent No. 1 raised the plea of limitation and denied the alleged date of the appellant's attaining majority. She further pleaded adverse possession from 1926 onwards when her own son died. Respondent No. 2 remained ex parte.

3. On the pleadings, the trial Court framed the following issues:------

'1. Is the adoption pleaded by the plaintiff true and valid?

2. Is the Ist defendant the owner of the suit property and is the plaintiff not entitled thereto, even assuming that he adoption is true and valid?

3. Are the defendants liable to render an account o the profits to the plaintiff?

4. To what relief?

Additional issues were framed on 3-12-1966:

1. Whether suit is in time?

2. Whether plaintiff attained majority by 9-8-1961?

3. Whether Ist defendant acquired title by averse possession?'

4. The trial Court after considering the evidence both documentary and oral, dismissed the suit of the appellant.

5. The trial Court found Issue No. 1 in favour of the appellant to the extent that the appellant was adopted by respondent No. 1, and regarding the validity of the adoption, the trial Court help that it was not a valid adoption. The trial Court found Issue No. 2 and Additional Issues Nos. 1 to 3 against respondent No. 1 and Additional Issues Nos. 1 to 3 against respondent No. 1 and judgment of the trial Court, the plaintiff has preferred this appeal.

6. So far as the factum of adoption is concerned, it is to be noted that the trial Court found in favour of the appellant that the adoption had taken place. Mr. Jogayya Sarma, the leaned advocate for the respondent does not seriously contest this aspect of the case. He faintly referred to the discrepancies in the evidence for the plaintiff and contended that neither the adoption deed nor the photograph has been produced in the case. The discrepancies pointed out by the learned advocate are also not of such a serious nature which would influence us to come to a different conclusion from that of the trial Court. P.W. 1 is the natural father of the appellant. He has deposed regarding the ceremony of adoption in detail. His evidence is corroborated by the statement of P. W. 23 who is the material grandfather of the appellant. He identifies Ex. A-2 which was the invitation card to attend the adoption ceremony. He also identifies Ex. A-15 a post-card written by M. Sambasiva Rao, Pleader in Rajahmundry. P.W. 5 is the scribe of the adoption deed. He also attended the adoption ceremony and wrote the adoption deed and gave it to defendant No. 1 P.W. 6 who is one of the Sapindas speaks about the adoption although he had not attended it. He admits to have received the invitation card. In addition to the oral evidence, there is the documentary evidence. Exts. A-4 and A-05 testify to the change of the name of the appellant from pedda Adwaita Parabrahma Sastry to Sankara Viswanatha Sarma. In fact, the major portion of the documentary evidence goes to prove the factum of adoption. From the evidence of P. W. 1 P. W. 3 and P. W. 5 it is proved that Homam was performed, and the appellant was given by the natural parents and received by the adoptive mother. Added to this, the Upanayanam ceremony, and the conduct of defendant No. 1 with regard to the treatment of the plaintiff after adoption, all go to show that in fact adoption had taken place. We, therefore, hold that the respondent herein took the appellant in adoption on 10-6-1948 after going through the necessary formatters.

7. The important point for our consideration in this appeal is regarding the consent of the Sapindas for adopting the plaintiff-appellant.

8. Mr. Kondapi, the leaned advocate for the appellant argues that the consent of the majority of Sapindas has been obtained by the Ist respondent; as such, it should be found that the adoption is legal. The learned advocate further argues that there is evidence to show that P. W. 6 had consulted all the Sapindas and three of them had consented. In the alternative he argues that it is not necessary to consult all the Sapindas when a majority of them had agreed to the adoption. The learned advocate contain that the evidence of P. W. 6 read with ex. A-1 and the evidence of P,. W. 1 would show that the consent of the other two Sapindas viz. Dikshitulu and Padmanabham had been obtained.

9. In Order to appreciate the contentions of the leaned advocate, it is necessary a the outset to note the admitted facts which are these:

(1) Admittedly Respondent No. 1 had no authority from her husband to adopt.

(2) There were admittedly five Sapindas whose names are, (a) Rama Murthy Brahmanandam, (d) Dikshitulu, and (e) Padmanabha Sastry.

(3) The three Sapindas viz., P. W. 1 , P. W. 6 and V. Brahmanandam gave their consent to the adoption.

10. At this stage it would be convenient to notice the law on the subject as it would facilitate the application of the accepted principles to the facts of the case. The law on this point is fairly settled, and we do not think there is any scope for altering the view that a widow who had not obtained the permission of her deceased husband should consult all the Sapindas before she takes a person in adoption.

11. So far as South India is concerned, the starting point relating to he doctrine of consent of the Sapindas was first enunciated by the Privy Council in what is popularly known as Ramanand case. It was developed by means of several decisions both of the Judicial Committee of the Privy Council and the Madura s High Court, and finally culminated in the decision of the Supreme Court in Tahsil Naidu v. Kulla Naidu. : [1970]2SCR499 . In Collector of Madura v. Mootoo Ramalinga, (1867) 12 Moo Ind App 397 (PC), it was for the first time laid down by the Judicial Committee of the Privy Council that when a husband dies without giving authority to his wife to adopt a person, the consent of the father-in-law of the widow would be sufficient. In case the father-in-law also is dead, the consent of kinsmen would be necessary to show that the act of adoption by the widow is done in the proper and bona fide performance f a religious duty. The scope of the consent of the Sapindas was further elaborate by the Privy Council in Vellanki Venkata Krishna Rao v. Venkataramalakshmi (1976) ILR 1 Mad 174 (PC) and a new concept of family council was introduced. This concept was clarified in Veera Basavaraju v. Bala Surya Prasada Rao, AIR 1918 PC 97, wherein it was held that the absence of consent on the part of the nearest Sapindas cannot be made good by the authorisation of distinct relatives whose assent is more likely to be influenced by improper motives. In Krishnayya v. Lakshmipathi, Air 1920 PC 4, a further question as to what would be the position if the nearer Sapindas refuse to gave the consent on improper grounds was decided. In that case, there were five next reversions but the adoption was admittedly made with the assent of only one of them and some of the remoter Sapindas. Both the Courts found that the widow never consulted the remaining next four reversions for their consent, and held that the adoption was invalid. Viscount Cava in Delivering the judgment of the Board of Privy Council observed:

'The consent required is that of a substantial majority of those agnates nearest in relationship who are capable of forming an intelligent and honest judgment on the mater. It must, however, be added that save in exceptional cases such as those mentioned above the consent of the nearest Sapindas must be asked, and if it is not asked, it is no excuse to say that they would certainly have refused.

This decision establishes the principle that all the Sapindas who are in equal degree must be consulted bore adoption can take must be consulted before adoption can take place. Then in Murahara Brahma Sastri v. Sumitramma, Air 1934 Mad 191, after citing the relevant passages from the Judicial Committee in Air 1918 PC 97, the learned Judge observed: 'These passages which form the basis of the law on the point, read together, do not make it obligatory that a family council of the agnates should be called by the widow to consider the property of the adoption or even that all the reversioner should be consulted before the adoption is made. The nearest Sapindas of course should be consulted but when it becomes necessary to consult the reversions all that is wanted is that there should be such evidence of consent as would show that the widow in making the adoption is not acting improperly or capriciously or from a corrupt motive.'

In Krishnayya Rao v. Surya Rao Bahadur Garu,(1935), 69 Mad LJ 388 = (AIR 1935 PC 190), admittedly there were two Sapindas whose consent was necessary. They were not formally asked by Defendant No. 1 in that case. One of the Sapindas I. e, the respondent therein refused to give his consent; the other Sapind Ramakrishna after some hesitation consented. The respondent's refusal was ignored and the adoption was made. The question before their Lordships of the Judicial Committee was whether in such circumstance. The adoption was valid. Their Lordships relying on (1876) ILR 1 Mad 174 (PC); held that the Sapindas should be regarded as a family council because they are the natural guardian of the widow and the protectors f her interest. In giving or withholding their consent, it was their duty to form an honest and intelligent judgment on the advisability or otherwise of the proposed adoption. It will be observed that there were two Sapindas and both of them were consulted. While one Sapinda refused, the other gave his consent. In Subbarao v. Venkata Satyanarayana, : AIR1953Mad755 , Subba Road Ramaswami, JJ. after elaborately discussing the development of this doctrine of consent of on 1972 Andh Pra /18 IX G 20 Sapindas held that the nearest Sapinda or Sapindas must be consulted before the widows adopts a boy. Circumstances might occur where their advice might not be available. The where about of one or more of the Sapindas may not be known; or that they may refuse to give consent on unjustifiable grounds; or that one of them may have left the country to foreign parts with no prospects o rely return. Their Lordships opined that the instances were not exhaustive and there might be other instances where a nearest Sapinda was not available for consultation and proceeded to state:

' ......................In the final analysis, it is a question of fact in each case for the Court to come to the conclusion whether the consent of the Sapindas is sufficient to validate the adoption having regard to the conditions laid down in the aforesaid decisions.'

Finally we have the latest pronouncement of the Supreme Court in : [1970]2SCR499 , where their Lordships opined:

'In our opinion, he consent of the majority would be sufficient to satisfy the requirement that a widow, in making the adoption should consult the nearest Sapindas. It is not essential that the consent should have been obtained from all the three particularly when Umavadan was at least partially incapacitated as being dumb.'

In that case, the fact, were that one Kothandaraman had died without giving any authority to his wife. Nagarathinammal to adopt a son. The claim on behalf of the plaintiffs was that even in the absence of authority from her husband, plaintiff No. 2 was entitled to adopt a son (Plaintiff No. 1) after obtaining the consent of the nearest Sapindas of her husband. She gave notice to Jayammal (Defendant No. 2) who was the mother and guardian of Kullan (Defendant No. 1 ) to give their consent to the adoption of Plaintiff No. 1. However, without waiting for any consent being given by Jayammal, Plaintiff No. 2 being given by Jayammal, Plaintiff No. 2 proceeded with the adoption after obtaining the consent of the next three Sapindas viz., Rangappa Naidu, Devarajulu and Umavadan. This suit was resisted on behalf of the defendants challenging the validity of the adoption the two grounds, firstly; that in fact, the consent to the adoption was not obtained from Rangappa Naidu, Devarajulu and Umavadan as pleaded on behalf of the Plaintiffs, and in any case, if he consent was obtained, it was not property given by these Sapindas after exercising their independent judgment as required. Their Lordships found that the consent of Rangappa Naidu and Devarajulu was obtained by Plaintiff No. 2. So far as Umavadan was concerned, their Lordships disregarded the consent given by him ten days after the adoption. Their Lordships held that the majority of the Sapindas having given the consent, the adoption was valid. Their Lordships never specifically stated that all the nearest Sapindas need not be consulted. On the contrary, it was found that all the Sapindas were consulted, but the consent of Umadavan was disregarded by the Court.

12. Lastly we have the decision D/- 23-2-1971 of Bench of this Court in C. C. C. A. No. 94 of 1965 (Andh Pra) to which one of us was a party to the judgment. In that case, the development o the doctrine of the consent of the Sapindas to adoption by a widow was exhaustively traced and discussed, and it was held that the widow must consult all the Sapindas who are situated in the same degree, and if after consultation, the majority of Sapindas agree, then she is entitled to take the person in adoption validly. In that case, Shakuntalamma,. who was the widow of Veerayya, with the intention of obtaining spiritual benefit for her husband and to perpetuate his line, intended to adopt a boy and she chose the plaintiff for that purpose. She asked the Ist defendant who was her husband's elder brother who refused to give his approval to the adoption of the plaintiff. Then she approached Defendants Nos. 1 to 4 who were then the undivided sons of the Ist defendant. She sought their consent but it was refused. She knew that defendants Nos. 3 and 4 had by then, sons who were majors. However, she did not consult or approach them in regard to the proposed adoption. Even by the time she sent her notice to Defendants Nos. 2 to 4 seeking their consent. she had obtained the consent of Anjayya on 16-1-54 thinking that he was the adopted son of Ramalingam. Latter realising the mistake that Anjayya was not the adopted son but P. W. 10 was adopted son of Ramalingam she obtained this consent on 12-2-1954. She did not even attempt to approach the other Sapindas and ignored the other three members of the coparcenary and obtained the sole consent Inasmuch as three major members of the coparcenary were not even consulted and there is no consent by a majority of the Sapindas, the adoption of the plaintiff was held to be not valid.

13. In spite of the exhaustive treatment of the subject in : AIR1953Mad755 and in C. C. C. A. No. 94 of 1965 (Andh Pra), we have once again traced the development of the doctrine in a sufficient form and hold that a widow who has not obtained the consent of her husband, must consult all the Sapindas who are nearest and placed in equal degree before she can validly adopted a person to her deceased husband.

14. Bearing the aforesaid principle in mind, we shall now turn to the merits of this case as to whether all the Sapindas had been consulted and the they had given their consent. From the evidence on record, we find that all the five Sapindas were not consulted but only three had been consulted and they had consented to the adoption. It is to be noted that the adoption of the appellant had taken place on 10-6-1948. Ex. A-1 dated 25-5-48 is the consent deed. A perusal of this document would show that it was executed by the three Sapindas viz., Rama Murthy, Ganapthi and Brahmanandam. It is not mentioned therein that Rama Murthy was the Kartha of the family nor is it mentioned that Rama Murthy had consulted the other two Sapindas viz., Dikshitulu and Padnambabham. It will thus be seen that Padnambham. It will thus be seen that the two adoptions of the appellant. There is no other documentary evidence with regard to the consultation and the consent of the other two Sapindas. The two material witnesses are P. W. 1 and 6.

15. P. w. 1 who is the natural father of the appellant states that the Ist respondent asked his consent to adopt a boy, that she also asked Rama Murthy and G Brahmanandam for their consent to adopt, and that it was given by them. When course-examined, this witness stated that Dikshitulu and Padmanabha Sastry were alive but the Ist respondent obtained consent from elder persons like Rama Murthy. This witness categorically states that the Ist respondent did not ask for the consent of Dikshitulu and Padmanabha Sastry because they were in far off places. So, Ist respondent thought it sufficient to take the consent of Rama Murthy. By 'far off placers'. he meant that Padmanabh Sastry was in 'Thadigooda and Dikshitulu, an advocate wash in Madras. He further admitted that he did not know whether the Ist respondent asked for the consent of Dikshitulu and Padmanabha Sastry. From the evidence of this witness, it could easily be deduced that the two Sapindas viz., Dikshitulu and Padmanabha Sastry were not at all consulted in spite of the fact that they were living at that time and were not residing in far off places.

16. In contrast to the evidence of P. W. 1 Ramamurthy (P. W. 6) has been examined. With regard to this witness, from the docket-sheet of the trial Court is found that the final arguments were heard and the case was reserved for Judgment on 12-1-1967. The appellant filed an application to reopen the case on 24-1-1967, and thereafter on 3-3-1967 P. W. 6 as examined Mr. Jogayya Sarma, the learned advocate for the respondent lays stress on this aspect of the case and argues that P. w. 1 had admitted that Respondent No. 1 did not consult the two Sapindas. This lacuna having been noticed by the appellant, it was considered that Pl W. 6 should be examined to file up the deficiency, and hence P. W. 6 was examined at the fagend of the case. As such, his evidence should not be given any weight to P. W. 6, as mentioned above, gives a different version to that of P. W. 1. He states:

'I have 2 brothers. They are C. V. Dikshitulu and Padmanabha Sastry. I am the eldest .................I gave her (D-1) consent to adopt . I gave consent for myself and my two brothers. Myself P. W. 1 and Chimalakonda Brahmanandam executed a consent deed under original of A-1 in favour of D-1 to adopt a boy. On the date of Ex. A-1 Myself and my brothers were living together as members of Hindu Joint Family. I was manage of my family. After Sanskranti Festival was over, D-1 asked us to give consent to adopt. I consulted my brothers C, V. Dikshitulu and Padmanabha Sastry. They said I am the elder person and it is enough if I executed the consent deed. My brothers agreed to D-1 adopting a boy. C. V/ Dikshitulu said it is enough if I execute on behalf of our brothers.'

He admits that there were no other agnates nearer than themselves. This witnesses further stated that Dikshitulu had set up practice in Madras at the time of adoption. He came to the village and was staying for some time. Padmanabha Sastry also was in Bodapadu then. As eldest and head of the family, he was the manager. He consulted Dikshitulu in Madras about four or five months before the date of Ex. A-1. The story of consultation with Dikshtulu and Padmanabha Sastry is not at all convincing. If in fact this witness had consulted the two Sapindas, this definitely would have found place in Ex. A-1. Both Dishitulu and Padmanabha Sastry were alive at that time but they were not examined by the appellant.

17. The leaned advocate for the appellant further argues that there was a family council which permitted the Ist respondent to adopt and this family council consisted of the three Sapindas. The learned advocate contends that 'family council' means all the relatives both the Sapindas and the relatives from the adoptive mother's side. This argument is not at all tenable because 'family council' means a council of Sapindas, and paternal and maternal side of the widow have no place in the council. From the evidence on record, we find that the two Sapindas viz., Diskshitulu and Padmanabha Sastry were not consulted. Instead, the three Sapindas who had given their consent were consulted by the Ist respondent. We are not in a position to believe the testimony of P. W. 6 having regard to the fact that Ex. A-1 does not mention that P. W. 6 had obtained the view of his two brothers who were absent. In the light of the evidence of P. W. 1, who is no other than the natural father of he appellant, and who very categorically states that Respondent No. 1 did not consult Dishitulu and Padmanabha Sastry, we find that of the five Sapindas, only three were consulted, and the two sapinas, who were absent, were not even approached either by P. W. 6 or by the Ist respondent.

18. It is next contended by the learned advocate for the appellant that the consent of the three Sapindas is enough to validate the adoption because it is the consent of the majority of the Sapindas that is essential, and it is not necessary to consult all the sapinas. In support of his argument, he relies upon the decision of the Supreme Court in : [1970]2SCR499 . We have already referred to this decision and have distinguished it from the facts of this case. In the case before the Supreme Court, all the three Sapindas were consult but the Supreme Court had disregarded the consent of Umavadan and held that in such circumstances, the consent of the majority was sufficient.

19. A regards the question as to whether the consent of the Sapindas could be in general terms or a particular person who could be adopted by the widow should be specified. the trial Court came to the conclusion that the consent given by the Sapindas in this case to the Ist respondent to adopt any boy was too general and the Sapindas who had given their consent did not have the opportunity to consider the fitness of the boy to be adopted before they had given their consent; as such, the requisite consent to validate the adoption of the appellant was not obtained. We do not agree with this convulsion of the learned trial Judge because when the authority given by a husband could be in general terms, there is no reason why the Sapindas could not do likewise. In Vasireddy Venkayya v. Gopu Sreeramulu, Air 1941 Mad 935, a Full Bench of the Madras High Court, relying on the ruling reported in (1914) 1 Mad LW 511 = (AIR 1914 Mad 77), held that when a widow has received authority from her husband, the widow is at liberty to adopt whomsoever she likes as a son to her deceased husband. Why should not the Sapindas the take the place of the decreased also leave the choice entirely to the widow? Their Lordships did not see any justification for the proposition that the Sapindas must name the boy to be adopted especially when the ancient text were silent on this point.

20. Having found against the appellant on the main issue, we do not think it necessary to dwell upon the other points for consideration in this appeal. We, however, do not agree with the judgment of the trial Court to the extent that the general consent given by the Sapindas is incorrect. On the contrary, we hold that it is not necessary for the sapindas to specify the name of the person who should be adopted by the widow.

21. Hence the appeal is accordingly with costs. The appellant shall pay the Court-fee.

C. M. P. No. 2496 of 1971.

22. The respondent has filed this petition under Order 41, Rule 27, C. P. C. to admit the sale-deed dated 1-2-1947 executed by late Cheemalakonda Venkata Dikshitulu in order to prove that P. W. 6 and Dikshitulu were members of a divided family. Having regard to what we have mentioned above regarding the main point in issue, we do not think it necessary to admit this document as additional evidence.

23. Consequently, the petition is dismissed.

24. Order accordingly.


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