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Kasturi Lakshmibayamma Vs. Sabnivis Venkoba Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 377 of 1964
Judge
Reported inAIR1970AP440
ActsHindu Law; Code of Civil Procedure (CPC), 1908 - Order 6, Rule 4 - Order 7, Rule 6; Limitation Act, 1908 - Sections 8 and 18 - Schedule - Article 44
AppellantKasturi Lakshmibayamma
RespondentSabnivis Venkoba Rao and ors.
Appellant AdvocateI.V. Narasimha Rao, Adv.
Respondent AdvocateP. Satyanarayana and ;P.V. Seshayya, Advs.
Excerpt:
- - the father is charged with having acted in bad faith and the sale proceeds had not been accounted for. the tenant appears to have complained in a post-card ex. 697: with regard to fraud, if there be any principle which is perfectly will settled it is that general allegations however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any court ought to take notice. 11. the next complaint that we find in the pleading is that the ist defendant took undue advantage of the minority of the petitioner and abused his fiduciary capacity and failed to account 'for the moneys realised by him. the allegation is very vague and is not in conformity with the requirements of rule 6 of order 7. it is well settled that in order to make.....parthasarathi, j. 1. the main question for decision in this appeal relates to a plea of limitation , which along with other defences, was successfully urged in the trial court to non-suit the plaintiff. the plaintiff, and the 12th defendant who tool no part in the proceeding, are sisters and their father is the ist defendant in this action. their mother died in 1932. at a time when both the daughters were still minors, the ist defendant conveyed on 11-7-1938 under six separate deeds, the property belonging to them to the defendants 4 to 9. he purported to act on their behalf as guardian though by that time both of them were married. the plaintiff, who is younger in age, was however still living with her father, the consummation of the marriage apparently not having taken place, by the.....
Judgment:

Parthasarathi, J.

1. The main question for decision in this appeal relates to a plea of limitation , which along with other defences, was successfully urged in the trial Court to non-suit the plaintiff. The plaintiff, and the 12th defendant who tool no part in the proceeding, are sisters and their father is the Ist defendant in this action. Their mother died in 1932. At a time when both the daughters were still minors, the Ist defendant conveyed on 11-7-1938 under six separate deeds, the property belonging to them to the defendants 4 to 9. He purported to act on their behalf as guardian though by that time both of them were married. The plaintiff, who is younger in age, was however still living with her father, the consummation of the marriage apparently not having taken place, by the date of the sales. They are impugned on the ground that they were not justified by necessity. Nor were they effected for the benefit of the minor or for proper price. The father is charged with having acted in bad faith and the sale proceeds had not been accounted for.

2. The sales that are impeached were effected in 1938 and this action in forma pauper is was commenced on April 20, 1954. the age of the plaintiff was given as 27 years as on the date of the plaint. That would imply that she attained the age of majority in 1945. The plaintiff avers that the several acts relating to management by the Ist defendant and the nature of her title were concealed form her knowledge and that the plaintiff was told when she questioned her father that there was no property of her mother. The plea advanced in the pleading is that by reason of the fraud and deception practiced by her father, she was kept in the dark as to her right to sue and she came to know about her right only about the middle of the year 1947. The suit is thus said to be saved form the bar of limitation. No relief for setting aside of the sales is prayed for and the plaintiff asked for partition and possession of her half share of the property. Her sister did not join in the suit. Nor did she support the case of the plaintiff by appearance at the trial or participation in the proceedings.

The Ist defendant denied the charges of fraud and deception. He asserted that the sales were effected with the approval and knowledge of the plaintiff's husband and father-in-law and the price realised was adequate. The sales were effected because it was beneficial to sell the property. The moiety of sale proceeds of the plaintiff was paid over to the plaintiff's father-in-law and husband. The alliances filed a separate pleading and resisted the suit.

3. The Subordinate Judge, Ongole, who tried the suit held that the suit is barred by limitation. The learned Judge also held that the sales in dispute were effected by the Ist defendant as guardian of the plaintiff and the 12th defendant and that the transactions are valid and binding on the plaintiff . The learned Judge also found that there was a deliberate over-valuation of the suit property by the plaintiff and that at the time of the institution of the suit, the market value of the property was about Rs. 500/- per acre.

4. The plaintiff has preferred this appeal and the main point for determination is, whether the suit was brought within the time allowed by law.

5. It is necessary to set out certain relevant facts before considering the argument of the learned counsel for the appellant. The elder sister of the plaintiff, who is impleaded as the 12th defendant, refused to join the plaintiff in the institution of the suit. Nor did the 12th defendant, raise any dispute at any time questioning the validity of the alienation's effected by her father. The 12th defendant did not participate at the trial and chose to remain ex parte. The dispute relates to the sale of about 13 acres of dry land comprised in S. No. 6 and situate at Manidipalem village in Ongole Taluk. The lands were admittedly held by the plaintiff's mother, who, it appears acquired title to them under a will made by her grandmother, Kolluri Chenchamma on the 24th of July, 1924. The plaintiff's mother granted a lease under Ex. B-4 on the 17th of June, 1927 under which the rent reserved for the entire extent of land was Rs. 70/- per year. The tenant appears to have complained in a post-card Ex. B-5 addressed by him to the Ist defendant on 15th May, 1931 that the rent was exorbitant.

6. The 12th defendant is stated to have been born in 1921; and it would, therefore, appear that shortly after the sales, she attained majority. In the pleading of the Ist defendant, he gives the date of birth of the plaintiff as 11-11-1924. The Ist defendant was a clerk serving under the District Board and was not a resident of the village where the lands were situate. The Ist defendant also pointed out in his pleading that the testatrix, who made the will in 1924, had only a woman's estate and there was thus a could on the title, because of the incompetence of the testatrix. If that were the correct position, the will would be inoperative and by the date of the death of the plaintiff's mother in 1932, she did not prescribe for title by adverse possession. This flaw in the title was one of the consideration that weighed with the Ist defendant in effecting the sales. The income was not regularly released and it was never more than Rs. 70/- per year. They were dry lands of poor quality and only 3 acres out of the total extent was stated to be of comparatively better quality. The rest of the extent was of saline soil.

7. The plaintiff's father-in-law was not a stranger to the Is defendant. The two families were related to each other even prior to the plaintiff's marriage, and it was not a distant relationship either. The plaintiff's father-in-law was no other than the Ist defendant's sister's husband.

8. In paragraph 4 of the plaint, it is alleged, inter alia, that the document of title relating to the property were never made available to the plaintiff and they were in fact suppressed by the Ist defendant who is charged with having taken undue advantage of the minority of the plaintiff by abusing the fiduciary capacity in which he was placed. it is also said that the moneys realised by the sales were never accounted for. The plaintiff avers that till 1947,, she never knew and could never know on account of the deception and fraud practiced by the Ist defendant that her mother died possessed of the properties. The sales were effected without any necessity therefore. The plaintiff was not apprised of the sales and was kept in the dark about them. They were effected for very low amounts. it is necessary to set out a few sentences from the paragraph;

'The petitioner was also being told by the Ist respondent that he had no property and that the petitioner's mother had not property and it was very difficult fro him to get on with his petty salary. The petitioner, believed the said representations. The non-disclosure of the several alienations made by the Ist respondent and the deliberate false representations that the plaintiff's mother had no property made by the Ist respondent are tantamount to fraud in the eye of law.' When fraud is alleged against the defendant, it is an acknowledged rule of pleading that the plaintiff must set forth the particulars of the fraud which he alleges. In the present case, fraud is alleged as a ground upon which the plaintiff justifies the institution of the suit long after the expiry of the period normally allowed for the institution of the suit. Though no specific reference to the provisions of Section 18 of the Limitation Act is made in the plaint, its manifest that the pleading proceeds upon the hypothesis that the right to institute the suit has been kept from the knowledge of the plaintiff by means of fraud practiced on her. The requirements of Rule 6 of Order 7, Civil Procedure Code, are clear. it is necessary that the plaint should show the ground upon which the exemption from the normal period of limitation is claimed. The question is whether the plaint fin this case fulfills the requirement of law.

9. As observed by Lord Selborne in Wallingford v. Mutual Society, (1880) 5 AC 685 to p. 697:

'With regard to fraud, if there be any principle which is perfectly will settled it is that general allegations however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice.'

It is not the mere use of general words such as 'fraud' or 'collusion' that can serve as the foundation for the plea. Such expressions are quite ineffective to give the legal basis in the absence of particular statements of fact which alone can furnish the requisite basis for the action. in the present case, it is necessary to scrutinise the averments in the plaint minutely in order to ascertain whether the particulars constitution the fraud are set out with reasonable precision. If the general word, of which we find there is a superfluity, are omitted, what is it that remains in the pleading of the plaintiff?

10. The first averment is to the effect that the documents of title relating to the property were never made available to the petitioner and that they were suppressed by her father. Assuming that this allegation is correct, does it establish fraud. The fact that the documents of title in the hands of the Ist defendant were not handed over to the plaintiff, does not necessarily indicate a fraudulent purpose. It is obvious that when the property was sold, he title deeds, if any, would be made over to the purchasers. That apart, in the case on hand, the Ist defendant purposed to convey the property only on the basis that it belonged to the plaintiff and the Ist defendant and not on any other footing. when the impugned sales themselves proceeded on the basis that the property that was conveyed belonged to the minors that there was no need to prove the title of the minors and absence of title deeds was no impediment to the plaintiff or persons interested in her in taking action to challenge the validity of the alienations. It is clear that the omission to deliver the documents of title, even if those documents were with the Ist defendant, would not amount to fraud, because the sales was made explicitly on the footing that it was the property of the minors alone that was sold.

11. The next complaint that we find in the pleading is that the Ist defendant took undue advantage of the minority of the petitioner and abused his fiduciary capacity and failed to account 'for the moneys realised by him. None of these charges can have any bearing on the question whether the plaintiff is entitled to the extension of time under Section 18 of the Limitation Act. It will be readily appreciated that all these complaints, even if true, do not make out that the plaintiff was kept in the dark about her right of suit.

12. The next grievance that is set out is that the sales were effected without necessity and without accounting for the profits realised by the Ist defendant. This averment against has no bearing on the point in issue. it is next said that the plaintiff was not informed about the sales. We do not conceive it tot be the duty of the guardian to notify the ward about the sales either during minority or after the ward attains majority. There is no such obligation cast on the guardian under law, and the omission to apprise the plaintiff of the sales does not in so facto assume a fraudulent colour. The plaintiff herself was not very positive in her averment as to fraud. In the passage extracted above, after referring to certain features, the plaintiff only described them as being tantamount to fraud in the eye of law. it is obvious that none of the features mentioned by the plaintiff with the exception of the alleged false representations can constitute fraud.

13. It is no doubt alleged that there were deliberate false representations made by the Ist defendant that the mother left no property. But no particulars are given as to when such representations were made. The allegation is very vague and is not in conformity with the requirements of Rule 6 of Order 7. It is well settled that in order to make out extension of time for the institution of suit on the ground of fraud, it should relate to the active concealment of the right of the plaintiff to institute the action. It is necessary to make out that as a result of the fraudulent design, the plaintiff has been prevented from exercising the right to sue in respect of the particular property. A mere allegation that the Ist defendant that the mother had no property, is inadequate to make out that there was any concealment, by fraudulent design, form the plaintiff becoming aware of her right to impeach the alienations in question. it may be that the assertion that there was no property of the mother was made in the sense that after the sales there was no further property of the mother in the hands of the Ist defendant. The averment is highly dubious and equivocal. There is nothing to sustain the plea that there were fraudulent representations so as to prevent the plaintiff having knowledge of her right to challenge the alienations in question. It is an accepted principle that charges of fraud must be clear and specific and should contain detailed particulars. A general allegation that there had been a misrepresentation, without specifying the time when it was made, the occasion for the query and the answer, and the precise representation that is said to have been made cannot be of any avail when the provisions of Section 18 of Limitation Act are sought to be invoked. There is nothing to show that there has been a design or a conspiracy to conceal the particulars relating to the sales. Mere silence or a passive attitude on the part of the Ist defendant or that the Ist defendant withheld the information as to the sale, are insufficient because what is required under Section 18 is that the person having a right to institute the suit has been kept form gaining the knowledge of such right.

14. Another drawback in the plaint is that no fraud or wilful concealment of facts is attributed to the defendants 4 to 9 against whom alone the claim for partition is to be proved. Nowhere in the plaint is there nay indication that the defendants 4 to 9 were accessory to the fraud, committed or practiced by the Ist defendant. There is consequently no basis for the enlargement of the period of limitation so far as the defendants 4 to 9 are concerned. The right to partition is claimed against them and it is they who are said to be in unlawful possession of the property. The fraud that is relevant to sustain the claim against them can only be a fraudulent design of concealment on their part; or, alternatively, it must be made out that they were accessory to the fraud committed by the Ist defendant or that they are not transferees in good faith and for valuable consideration. The plaint does not disclose any act or omission on their part to show that they are guilty of fraud or accessory thereto. No is it the case of the plaintiff that there was no consideration at all for the sale. We are accordingly of opinion that even on the basis of the averments in the plaint, no case for the application of the provisions of Section 18 has been made out. In any case, so far as the defendants 4 to 9 are concerned there is a conspicuous absence on the part of the plaintiff of nay averment to entitle her to the benefit of the provisions of Section 18 against them.

15. We are of opinion that the appeal should fail even on this short ground. But as the other questions also had been argued, we shall deal with them too.

16. It is admitted by the plaintiff that verified copes of the sale deeds were obtained in or about July 1947. It follows that whatever may have been the position prior to July 1947, after that date, the plaintiff did not suffer from any disability occasioned by the fraud of the Ist defendant. it is stated in paragraph 9 of the plaint, that after the plaintiff came to learn of the transactions, notices were caused to be issued early in 1948. The reference, apparently, is to Ex. B-6 dated 6th January, 1948. the plaintiff admitted that she could not pursue promptly her remedies because her father-in-laws passed away after 1948 and the family was thrown in debt. The question that arises for consideration is, whether the inaction of the plaintiff form July 1947 till April, 1945 irrespective of any other facts does not render this action time-barred. This would depend upon ht provision of the Limitation Act which is applicable to the case. It was contended before us by the learned counsel for the appellant that by the date of the sales, the plaintiff had been married and therefore the legal guardian was the husband. It is pointed out that as a consequence of the marriage, the Ist defendant could no longer effect the alienations as the legal guardian and therefore, the sales are void and do not come within the purview of Art. 44 of the Limitation Act, 1908.

17. It was pressed before us that the case is governed by the ratio of the decision in Ethilavulu Ammal v. Pethakkal, : AIR1950Mad390 , Satyanarayana Rao, J., was in that case dealing with a surrender made on behalf of a minor Hindu widow by the father as her guardian. The learned Judge applied the principal well known to Hindu law, that a surrender by a widow is not a transfer. She simply withdraws herself form the ownership and the succession is accelerated by her voluntary effacement. A surrender does to achieve or being about a transfer of property. Moreover, it must be a voluntary act of the limited owner herself and not of any other person. The decision to efface her interest in the estate is to be of the widow alone. It was these consideration that impleaded the learned Judge to hold that there was no transfer of property at al and the case would not attract the provision of Article 44 of the Limitation Act. After expressing his decision on this principal the learned Judge nevertheless proceeded to state that the father was, if at all, only a de facto guardian of the widowed daughter and a transfer effected by such a person would not bring the case within the scope of Article 44. When the decision was reached that there was no transfer of property at all, the further question whether a de facto guardian's transfer is one within the meaning of Article 44 at all did not call for any decisions. The observations on this aspect made by the learned Judge, cannot be considered to be the ratio decidendi of that case.

18. The learned Judge was not unmindful of the language of Article 44 which revised for the setting aside of alienations by guardian. No distinction is made in Article 44 between de facto or lawful guardians. There is no warrant for reading the provisions of Article 44 so as to restrict its operation to transfers effected only by lawful guardians other than de facto nes. The expression used by the legislature is 'guardian' simplicities. It admits of no doubt that a de facto guardian has competence, in certain circumstances to convey the ward's estate. Ever since the early decision in Hanuman Pershad's case, Courts have always recognised the validity of alienations made by a de factor guardian. we are unable to accept the reasoning of the learned Judge in support of his observation that a de facto guardian's sale is outside the purview of Article 44. Nor are we persuaded that the reliance placed by him on the decision in Chennapa v. Onkarappa, ILR 1940 Mad 358 = (AIR 1940 Mad 33) (FB) is apposite. cases relating to the power of acknowledgment of a debt, rest on a different basis and do not furnish an acceptable analogy. The observations of the Federal Courts in Sriramulu v. Pundarikakshayya, 1950-1 Mad LJ 586 =(AIR 1949 FC 218) go to show that the reasoning of Satyanarayana Rao, J. in his obiter dicta, runs counter to the settled proposition as to legal competence of a de facto guardian. At pages 604-605, the Federal Court observed:

'The dealings of such a guardian with regard to the estate of the infant would, in Hindu Law, be not regarded as void altogether but would be voidable only; and the same tests would be applied in determining the validity of such acts as are applied in the case of a de jure guardian. To this extent and this extent only, a de facto guardian is to be treated as having the same position as a de jure guardian in Hindu law.'

19. There is a long and unbroken current of authority to sustain the view that the Hindu Law recognises the power of a de facto guardian to deal with the property of a minor in cases of necessity. Courts have repeatedly held that alienations by such guardians are only voidable in the same manner as alienations made by a de jure guardian. See Seetharamanna v. Appiah, ILR 49 Mad 768 = (AIR 1926 Mad 457) and Muthukumara Chetty v. Anthony Udayan, ILR 38 Mad 867 = (AIR 1915 Mad 296).

20. There are, however, some decisions which laid down that Article 44 is inapplicable to alienations made by de facto guardians and they were relied upon by Satyanarayana Rao, J. Mention may be made of the decisions in Thayammal v. Kuppanna Koundan, ILR 38 Mad 1125 = (AIR 1915 Mad 659 (2) ) and Ramaswamy v. Kasinatha Iyer, AIR 1928 Mad 226 (2). It is difficult to sustain the ratio of these decisions. The reliance placed by the learned Judges who decided ILR 38 Mad 1125= (AIR 1915 Mad 659) (supra) on the Privy Council decision in Mata din v. Ahmed Ali, ILR (1912) 34 All 213 is based upon a faulty appreciation of the effect of the decision of the Privy Council. The Privy Council had to deal with a case under Muhammadan law, where the acts of a de facto guardian are held to be completely unauthorised or void. The application of that principle to the position of a de facto guardian in Hindu Law is misconceived and is opposed to a long current of authority. The subsequent decision in AIR 1928 Mad 226 (2) (supra) and : AIR1950Mad390 (supra) have merely adopted the ruling in ILR 38 Mad 1125 = (AIR 1915 Mad 659) (supra) without reference to the erroneous premises on which it rested.

21. The alienation made by a de facto guardian are on a par with those made by a de jure guardian. if they lack justification, they are in both cases voidabel. And, when they are voidable, the application of Article 44 is an inescapable corollary. To hold that the alienations made by de facto guardian are voidable but at the same time they are voidable, the application of Article 44 is an alienations made by a de facto guardian are voidable but at the same time they are outside the purview of Article 44, is to take up an inconsistent position. This incongruity was not justified in the above cases by reference to any provision of law or principle.

22. It is, however, unnecessary for us to labour the point further, in view of the distinguishing feature of the case on hand. In respect of the property now in dispute, there was no doubt that the Ist defendant was allowed by the lawful guardians of the two married daughters to make the alienations to the defendants 4 to 9 . The position virtually is that the lawful guardians themselves effected the sales. We see no reason to depart form the conclusion of the trial Court that the Ist defendant acted with the consent of the lawful guardian.

23. In ILR 38 Mad 867 = (AIR 1915 Mad 296) (supra) while the father of a minor son and his lawful guardian was alive, the mother effected a sale of the property of the minor son. The property was settled jointly on the minor and his mother and the minor was described in the deed of settlement as being under her protection. the learned Judges observed at page 875:

'The son was to live with his mother. It may be that the Zamindar did not part with his guardianship altogether and that the mother's power as guardian was restricted to the property but there can be no doubt that she did become his guardian under Ex. N. with respect to the properties comprised in it.'

24. The position in this case is similar, that, in so far as the alienations are concerned, the de facto guardian was authorised by the lawful guardians to act in the manner that he did. we see no reason to differ from the finding of the lower court that the Ist defendant had acted with the concurrence of the lawful guardians before he effected the sales.

25. This conclusion is rendered irresistible by some significant but unexplained features in this case. Firstly, there is the indisputable fact that the 12th defendant never felt aggrieved by the sales. She was aged 17 at the time and was mature enough to judge for herself the property of her father's act. It is hardly likely that she and her husband would have refrained form taking action if the father's dealings were vitiated by any sinister or improper conduct or if she was not in receipt of her share of the realised price. Secondly, there is the clinching circumstance that in the lawyer's notice Ex. B-6 dated 6-1-1948, issued under the instructions of the plaintiff's father-in-law, nothing was said in disparagement of the sales. No dispute was raised about them and the notice was confined to a claim to another item of property. It is necessary to bear in mind that the plaintiff's father-in-law was a clerk in the District Court, Rajahmundry. He did not lack the means of judging the propriety of the transaction and was intimately associated with the Ist defendant by reason of antecedent relationship. He could not have been handicapped by lack of competent legal advice, which he could have for the mere asking. Nor did he labour under nay ignorance of the essential facts of the transaction. Even after the copes of the sale deeds were obtained and a notice was issued by a lawyer, he did not chose to assail the transactions of sale. There is the further circumstance that the plaintiff's husband does not choose to give evidence denying his approval of the sales, though the Ist defendant urged the plea in this pleading. The cumulative effect of all these facts or omissions is decisive and we have no reason to reject the case of the Ist defendant that the sales were made by him in his name because he was authorised to effect them by the sons-in-law and daughters.

26. The sales are, in substance, though not in form, alienations made by the dejure guardians. In a recent decision of the Madras High Court in Mayilasami Chettiar v. Kalimaal, 1969-1 Mad LJ 177 the consent of the lawful guardian was expressed in the form of an attestation of the deed executed by a de facto guardian. It was deemed sufficient to assimilate the transaction to an alienation made by the former. After reviewing some of the earlier authorities, the learned Judge observed:

'Thus, it is amply clear that even where there is a legal guardian in existence, any alienation of minor's property by a de facto guardian would be valid if it is for necessity.'

27. In the case on hand, the alienation was not for necessity but it was made because it was adjudged to be beneficial to the interests of the minor. The annual income which was not steady for constant was only Rs. 70/-. The lands were of poor qualify. The plaintiff's husband was in the East Godavari District, whereas the 12th defendant's husband was employed in the Hyderabad State. The Ist defendant himself was in service in a different place. The lands, if not wholly unproductive, were manifestly of inferior quality. The sales were consequently binding on the minors in the circumstances of the case. We are of opinion that the provision of the Limitation Act that is applicable in Article 44.

28. It is a matter of admission that there was no question of the plaintiff having been kept in ignorance of her right after July, 1947. The suit should have been instituted before the end of July, 1950 but it was actually laid on April 20, 1954. If Article 44 is applicable and in our opinion that is the true position, the suit cannot be said to be saved from the bar of limitation even if the plaintiff's story as to fraudulent misrepresentation or omission is accepted as true. this is because the maximum length of time for which extension is possible is only three years form July 1947.

29. In this view of the question, it is not necessary to determine the correctness of the approach made by the lower Court. it only remains to a point out that the plaintiff having been a minor on the date of sales, the criterion really should be whether the period of limitation to challenge or set aside the sales did not begin to run form the date of sales, and to consider whether there was any supervening fraud that held that cause of action in abeyance. Normally speaking, there could not have been any question of the plaintiff having been defrauded till she attained the competence to sue. It should be borne in mind, that the plaintiffs case is that the right to sue was kept concealed form her. It is obvious that the relevant point of time is when she had the competence to sue; and the test should be whether she was entitled to extension of time by reason of fraud practiced on her at the relevant point of time. According to the Is defendant, the plaintiff attained majority in 1942. In the absence of a specific plea that there was any fraudulent representation in 1942n or thereafter, no question of the extension of time under Section 18, can really arise. Neither of the contesting parties defined the position correctly and the lower Court also had not clarified it and had not formulated the question precisely. We are of opinion that in any view of the matter, the suit is barred by time.

30. In the result, the appeal fails and is dismissed with costs. The appellant will pay to the State the Court-fee due on the memorandum of appeal.

31. Appeal dismissed.


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