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S. Srinivasa Ayyar and anr. Vs. Lakshmi Ammal Alias Yogambal Ammal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported in108Ind.Cas.712; (1928)54MLJ530
AppellantS. Srinivasa Ayyar and anr.
RespondentLakshmi Ammal Alias Yogambal Ammal and ors.
Cases ReferredChandrareka v. Secretary of State
Excerpt:
- - the genuineness of these documents was impeached on behalf of the plaintiffs and a good deal of the judgment of the learned subordinate judge deals with that question. , that if the defendants think it would be better that the widows should live apart from the family, each of them should be given not less than rs. ..exhibits i and ii not having been proved, the defendants' contention based on them must fail as held by the learned subordinate judge. for the purposes of this suit it is unnecessary to find out precisely the average annual income of the family and all that is required is a fair estimate of such income making due allowance, in the case of lands, to good and bad seasons and, in the case of moneys lent, to the risks attendant upon such transactions. the widows of the.....tiruvenkata achariyar, j.1. these appeals are preferred by the same appellants against the decrees passed in three connected suits which were instituted against them by the respondent in each of the appeals. the three suits were tried together and disposed of by a common judgment by the additional subordinate judge of tinnevelly, as the questions involved therein were substantially the same, vis., what provision the court should make for the maintenance of the plaintiff in each suit, as the widow of an undivided brother of the defendants, a question the decision of which rested on substantially the same facts in all the three cases.2. the material facts of the case are as follows: the appellants are the surviving sons of one subbuswamy ayyar who died in or about 1904 leaving considerable.....
Judgment:

Tiruvenkata Achariyar, J.

1. These Appeals are preferred by the same appellants against the decrees passed in three connected suits which were instituted against them by the respondent in each of the appeals. The three suits were tried together and disposed of by a common judgment by the Additional Subordinate Judge of Tinnevelly, as the questions involved therein were substantially the same, vis., what provision the court should make for the maintenance of the plaintiff in each suit, as the widow of an undivided brother of the defendants, a question the decision of which rested on substantially the same facts in all the three cases.

2. The material facts of the case are as follows: The appellants are the surviving sons of one Subbuswamy Ayyar who died in or about 1904 leaving considerable properties moveable and immoveable. They had two other brothers named Subramanya Ayyar and Ramachandra Ayyar ; all the four brothers formed a joint Hindu family who lived together and had a common mess. Ramachandra Ayyar died on the 1st July 1919 without leaving any issue. The plaintiff in O.S. No. 39 of 1924 is his widow Lakshmi, whom he had married in May 1915, Subramanya Ayyar died on the 28th February, 1922, without issue but leaving him surviving two widows, named Kamakshi and Lakshmi. Kamakshi was his first wife whom he had married in 1909. She lived with him for about five years from 1911 to 1916--after which she has been residing in her paternal home on account chiefly of the state of her health. She is the plaintiff in O.S. No. 35 of 1924.... The second wife, Lakshmi, was married on the 3rd June, 1920. She lived in her husband's house for about six months in the latter part of 1921 and she returned to her paternal home about a month prior to her husband's death. At the date of the suit she was a minor but she has since come of age. She is the plaintiff in O.S. No. 2 of 1924.

3. All the three plaintiffs aforesaid sued the defendants in forma pauperis to enforce their right of maintenance against the joint family properties in the hands of the surviving male members of the family, viz.., the defendants 1 and 2. They say that the joint family of which their husbands were members owned considerable properties moveable and immoveable the annual income of which was about Rs. 50,000 and that they are entitled to separate maintenance with arrears from the respective dates of their husbands' death.

4. The widows of Subramanya Ayyar claimed maintenance at Rs. 250 a month for each with arrears at the same rate and also a lump sum of Rs. 3,000 each for performing the various vrithams, pilgrimages and sradhas which they as his widows should perform for the benefit of his. soul. They also prayed that their maintenance should be made a charge upon certain immoveable properties of the family, Lakshmi, the widow of Ramachandra Ayyar, claimed maintenance at a higher rate, viz., at Rs. 300 a month with arrears at the same rate and also a lump sum of Rs. 5,000 for vrithamas, pilgrimages and sradhas which she, as a widow, ought to perform. She also prayed that the maintenance decreed to her should be made a charge on the immoveable properties specified by her.

5. The three suits were strenuously contested by the defendants whose chief pleas were:

(1) That the plaintiffs cannot claim separate maintenance as the defendants offered to maintain them suitably in their home and the plaintiffs were bound to accept the said offer, especially as such was also the wish of their deceased husbands.

(2) That having regard to the style of living of the defendants' family during the lifetime of Subramanaya Ayyar and Ramachandra Ayyar, the plaintiffs, as the widows of the said Subramanya Ayyar and Ramachandra Ayyar, are only entitled to be maintained in the same style and on that basis each of them will not be entitled to more than Rs. 20 a month and as they did not accept the defendants' offer to maintain them in their own home, they are not entitled to the arrears of maintenance claimed by them.

(3) That the amount claimed for performing vrithams, pilgrimages and sradhas is far too excessive, and not more than Rs. 750 should be decreed to them for those purposes.

6. The learned Subordinate Judge overruled the plea that the plaintiffs were not entitled to separate maintenance,. He held, considering all the circumstances of the family, that a sum of Rs. 100 a month would be a fair provision for the maintenance of each of the plaintiffs, and he passed a decree accordingly with arrears at the same rate from the date of the husband's death. He allowed Rs. 100 a year each for clothing ; he also awarded a lump sum of Rs. 2,000 each for the performance of vrithams, pilgrimages and sradhas. He also directed that the maintenance awarded be charged upon the immoveable properties of the family specified in each decree. He further directed that the defendants should bear their costs and also pay to each plaintiff her costs of the suit. The learned Subordinate Judge finally directed that the defendants should pay to the Government the entire court-fee payable for all the three suits.

7. Against the said decrees the defendants have preferred these appeals in which their main objections relate to the rate of maintenance fixed by the lower court for each of the three plaintiffs and to the lump sum for the purpose of vrithams etc., which, the appellants say, are far too excessive. They object also to the direction in the decrees against them as to the costs and court-fees and they also contend that no personal decree should have been passed against them for the maintenance decreed to the plaintiffs.

8. The respondents also have put in memorandum of objections in which they claim that maintenance at a higher rate should have been awarded to them.

9. We shall now deal with the several contentions pressed before us on behalf of the appellants. The first point raised before us is that the plaintiffs are not entitled to separate maintenance, because the defendants were and are prepared to maintain them in their home and that was also the direction of their respective husbands which they are bound to conform to. These contentions form the subject of specific issues in all the three suits and they are also raised in the memorandum of appeals in as many as ten grounds. Exhibits I and II were relied upon in the lower court as containing the directions of Subramanya Ayyar and Ramachandra Ayyar to their respective wives that they should reside in the family house at Tinnevelly and be maintained by the family. The genuineness of these documents was impeached on behalf of the plaintiffs and a good deal of the judgment of the learned Subordinate Judge deals with that question. His finding is, that the defendants have not proved the genuineness of either Exhibit I or Exhibit II. The learned vakil for the appellants hardly attempted to overturn that finding though he referred to them in connection with this question and the question as to the proper rate of maintenance for the respective widows as to which also Exhibit I contained a direction, viz.,

that if the Defendants think it would be better that the widows should live apart from the family, each of them should be given not less than Rs. 15 a month for her expenses.

10. The learned Advocate General who appeared for the Respondent in one of the appeals argued that, though according to the plaintiffs' case Exhibits I and II were spurious documents got up for the defence of these suits, yet he can rely on those documents as showing the attitude of the defendants with regard to the claim for maintenance put forward on behalf of the plaintiffs.... Exhibits I and II not having been proved, the defendants' contention based on them must fail as held by the learned Subordinate Judge. The contention that the plaintiffs can claim separate maintenance only if the defendants are not willing to maintain them in their home is equally untenable.... It is now far too late in the day to raise such a contention. On this point we need refer only to the pronouncement of their Lordshipts of the Privy Council in Raja Pirthee Sing v. Rani Rajkooer (1873) L.R.IndAp (Sup.) 203 : 12 B.L.R. 238, a decision of 1873, which has been followed in all the subsequent cases on that point. At page 243 of the report their Lordships observe as follows:

A Hindu widow is not bound to reside with the relatives of her husband, The relatives of her husband have no right to compel her to live with them and she does not forfeit her right to property or maintenance merely on account of her going and residing with her family, or leaving her husband's residence from any other cause than unchaste or improper purposes.

On behalf of the respondents it is urged that all the plaintiffs are still young and their parental home is the more proper one for their residence than the defendants' family especially as the plaintiffs in O.S. Nos. 2 of 1924 and 39 of 1924 hardly lived with their husbands during their lifetime and the plaintiff in O.S. No. 35 of 1924 had ceased to live with her husband for about six years prior to his death apparently on account of the state of her health. We think these considerations are not without weight. In our opinion the plea that the plaintiffs are not entitled to separate maintenance was rightly overruled.

11. The next question we have to consider is whether the amount which has been awarded by the lower court to each of the widows for her maintenance is a reasonable amount having regard to, all the circumstances of the family. The lower court has awarded maintenance at Rs. 100 a month to each of them besides Rs. 100 a year each for clothing and a lump sum of Rs. 2,000 for performing vrithams, pilgrimages and other special ceremonies which a Hindu widow is enjoined to perform.

12. The defendants contend that the amount awarded is far too execessive and that each of the widows should not be awarded more than Rs. 20 a month for her maintenance besides provision for her residence. The parties are members of a middle class Brahmin family possessed of considerable ancestral properties, the income of which has been estimated by the Subordinate judge at about Rs. 30,000 a year. The respondents attempted to make out that the annual income is much larger. The bulk of the income is derived from investments of the moneys of the family in loans carrying varying rates of interest. Such an income is no doubt subject to fluctuations, to say nothing of the risks involved in such transactions by reason of the security proving insufficient or the debtor in the case of unsecured loans becoming insolvent. For the purposes of this suit it is unnecessary to find out precisely the average annual income of the family and all that is required is a fair estimate of such income making due allowance, in the case of lands, to good and bad seasons and, in the case of moneys lent, to the risks attendant upon such transactions. We think, on the whole, that the estimate arrived at by the Subordinate Judge as to the average annual income of the family from its properties is a fair one. It is with reference to the income of the joint family properties and the interest therein which Ramachandra Ayyar and Subramania Ayyar, respectively, possessed at the time of their death the learned Subordinate judge had fixed the monthly allowance for maintenance for the three widows. The contention before us on behalf of the appellants on this question is that the Subordinate Judge erred in this case in fixing the monthly allowance with reference chiefly to the income of the family. It is contended that though the family had large income they were content to live in a frugal and economical style and that the total expenses of the joint family, when all the four brothers were living, did not exceed in the average more than Rs. 2, 500 or say Rs. 3,000 a year. The widows of the deceased co-parceners cannot claim to live in a better style than their respective husbands and if it had cost the latter only Rs. 20 or Rs 25 a month each for maintenance, their widows cannot in law claim more. It is this contention which was pressed strongly before us by the learned vakil for the Appellants. In our opinion it is based upon a misconception of the respective rights and duties of the wife and the widow. The position of the widow in law is substantially different from that of the wife. A Hindu wife after she attains puberty is according to law and custom bound to reside with her husband in conjugal life and he is also bound to live with her and is under a personal obligation to maintain her suitably quite irrespective of his having any properties, ancestral or self-acquired. A wife under normal circumstances has to share the comforts or disccomforts of her conjugal life with her husband in whatever station of life he may be placed. If he is frugal and economical she must perforce be content to live as he does. If, on the other hand, he lives a life of comfort and luxury she shares that also with him. This is well exemplified in the life of the heroine of the great Hindu Epic ' Ramayana ' who is considered by all Hindus as the ideal wife. So long as the wife is not treated with cruelty or denied the bare necessaries of life while she is living with her husband, she cannot complain. It need secarcely be added that under normal circumstances the wife while living with her husband has also a potent voice in determining their style of living. But in this case, none of the plaintiffs have had that opportunity. If the husband forsakes his wife without any fault on her part, he is according to the texts of Hindu Law penalised by being obliged to give her a third of his property provided that would be sufficient for her maintenance. It will thus be seen that as between the husband and wife the mutual obligations are special and they result from circumstances that they are bound to live together and to attend to each other's comforts. But the position of the widow with reference to her husband's co-parceners or heirs is altogether different. She is not bound to reside with them, nor are they under any personal obligation to maintain her. Their liability to do so arises only if they have taken the assets of her deceased husband either by inheritance or by survivorship. As possession of the assets of her deceased husband is the source of obligation, it is also the chief element to be considered in fixing the widow's maintenance. If the husband had been a divided member of the family or had left self-acquisitions, she would inherit them as his heir and be entitled to enjoy the entire income of such properties.... Where such income is not sufficient to meet her reasonable wants, she may even alienate the corpus of the estate. The rights of the widow of an undivied member whose interests in the joint property have passed by survivorship to the other male members of the family are thus stated in Lingayya v. Kanakamma ILR (1913) Mad. 153 : 28 M.L.J. 260.

The wives of the male co-parceners in a Hindu family are not entitled to equal shares with the males in the family estate, nor do they take their husbands' shares by representation on their death, but in place thereof they are entitled to a portion of their estate for their enjoyment during their lifetime sufficient to maintain them in comfort, according to the means of the family (Italics our own). This is an absolute right due to their membership in the family and does not depend on their necessity arising from their want of other means to support themselves.

The right of the widow to maintenance out of the estate of her deceased husband in the hands of his heir or successor is in the nature of a burden upon the estate subject to which he takes the property and her right is to be maintained in comfort having regard to the extent of the assets of her husband taken over by his successor. The standard of comfort must necessarily vary with the means of the family due regard being also paid to the wants of the other members of the family who also have to be maintained out of the income of the family properties.... Each case has to be decided upon its facts. Where the assets of the husband which have been taken over are comparatively small,, it has been held that the widow may be awarded even the whole of the income from her husband's share as it was at the time of his death. But in other cases there is no fixed ratio between the income derivable from the husband's share and the proportion thereof which should be awarded to her for her maintenance. All that is required is that the allowance ought to be such as to enable her to live in comfort having regard to the means of the family. Such being the rule, it is not in our opinion open to the co-parceners of her deceased husband who have taken his properties by survivorship to prescribe any arbitrary standard as regards the comforts the widow is entitled to have or the style in which she should live. It is not open to them to say though we get a large income from the family properties we prefer to live as frugally as possible and we would go on saving the bulk of our income as the family has been doing heretofore and you should also be content with the barest necessaries of life. In our opinion this contention is entirely unwarranted. We do not think that the sages of the Hindu Law regard the mere hoarding of wealth as a meritorious act, especially in the case of Brahmanas. There is of course nothing to prevent the owner of the property for the time being from living as frugally as he chooses, but he has no right to force his style of living upon other persons who have independent rights in respect of the property. That is where the position of the widow differs from that of the wife. In case of dispute as to what is necessary for the widow to live in comfort, it is for the Court to decide what is reasonable having due regard to all the circumstances of the family and chiefly with reference to the interest which her husband had in the properties which have passed to his successor. We think therefore that the learned Subordinate Judge rightly overruled this contention and that he was right in fixing the monthly allowance which would be requisite for the widow to live in comfort, with reference to the income which her husband was entitled to for his share at the time of his death. The result of the decree is that out of the total annual income of Rs. 3(3,000 which the defendants are getting from the family properties he has awarded Rs. 3,900 only to the three widows of the two deceased brothers who both were entitled to a half-share in the income of the said properties. The defendants and the other members of the family are still left with an annual income of not less than Rs. 25,000 a year with which they can satisfy their wants and according to the defendants* own ideas of living they would be able to save not less than Rs. 20,000 a year for several years to come with the result that the corpus of the family also will swell up year after year and increase the annual income also proportionately. Several cases were cited at the bar to show what maintenance has been decreed to the widows in those cases with reference to the income of the family.... We think it is unnecessary to refer to those cases as each case has to be decided upon its facts. We may however observe that the general principle underlying all those cases including the case in Pushpavalli Thoyarammal v. Raghaviah Chetty (1913) 15 M.L.T. 95, which was relied on by the learned vakil for the appellants as the one most in point so far as the present case is concerned, is that the allowance decreed to the widow should be such as to enable her to live in such comfort as she may be reasonably entitled to, having regard to the means of the family and the claims of the other members thereof. The rate of maintenance allowed to each widow in this case cannot be considered to be excessive in comparison with the amount (Rs. 140 a month) allowed to the widow in Pushpavalli Thoyarammal v. Raghaviah Chetty (1913) 15 M.L.T. 95, relied on by the appellants. The learned Subordinate Judge who is a member of the same community to which the parties belong has gone into the question carefully and has fixed the monthly allowance at Rs. 100 for each widow having regard to all the considerations which ought to weigh in such a case and we see no reason whatever to interfere with the exercise of his discretion.

13. The respondents in their memorandum of objections have claimed a higher rate of maintenance. It follows from what we have stated that their claim for enhancement of the monthly maintenance should also be disallowed.

14. On behalf of the widow of Ramachandra Ayyar in O.S. No. 39 of 1924 it is urged that she as a single widow of Ramachandra Ayyar is entitled to claim maintenance at a higher rate than the joint widows of Subramania Ayyar. In our opinion this contention is also untenable. No widow whether single or joint is entitled to claim any specific share of the income which is attributable to her husband's share and all that she is entitled to is an allowance sufficient for her comfort and on this principle there is no reason to differentiate between the three plaintiffs in this case.

15. The appellants next object to the award of a lump sum of Rs. 2,000 to each of the plaintiffs for performing vrithams, pilgrimages and other ceremonies. The objection is twofold, viz., (1) that more than Rs. 750 should not be awarded and (2) that, the amount required for each vritham or ceremony should be made payable only when such vritham or ceremony is about to be preformed and that the direction ordering a consolidated amount to be paid immediately for all of them is unwarranted. We observe that the only objection raised by the appellants in the lower court with regard to this item is that the amount claimed was excessive. The further objection is raised for the first time before us in these appeals. As regards the amount awarded we see no reason to differ from the learned Subordinate Judge, who has given sufficient reasons in paragraph 67 of his judgment. As regards the objection now raised before us it would. appear that of the several vrithams and ceremonies which the widow is enjoined by the Shastras to perform, only one has to be performed by her at a comparatively late stage in her life but all the other ceremonies may be performed at any time she likes. The objection which after all applies only to one of the ceremonies does not seem to us to be so material that we should now entertain it for the first time and especially as the amount which may have to be allocated for it will at the most be a few hundred rupees, and therefore the order of the lower court for the vrithams and ceremonies will stand.

16. The next objection relates to arrears of maintenance.... The lower court has awarded to each of the widows arrears of maintenance from the date of the death of their respective husbands and at the same rate as fixed for their future maintenance. The objections raised by the appellants are : (1) that arrears of maintenance should not have been awarded for any period prior to the actual demand made by or on behalf of the widows for maintenance ; and (2) that as regards past maintenance the rate should have been lower than that fixed for future maintenance. A further objection is also raised with regard to the minor plaintiff that she cannot claim any arrears of maintenance for the period of her minority.

17. As regards the first objection the authorities are clear that unless there was any waiver or abandonment of her right to maintenance by the widow, she is entitled to maintenance from the death of her husband, the obvious reason being that the property of the husband which devolves on his heir or survivor descends subject to the burden of her maintenance. Such a waiver cannot necessarily be inferred either from the fact that no formal demand was made or from the circumstance that she is living in her parental home. See Pushpavalli Thoyarammal v. Raghaviah Chetty (1913) 15 M.L.T. 95, following Rangathayi Ammal v. Munusawmi Chetty : (1911)21MLJ706 , and Raja Yarlagadda Mallikarjuna Prasada Nayudu v. Raja Yarlagadda Durga Prasada Nayudu .

18. As regards the Second objection we see no reason for interfering with the discretion of the lower court as regards the rate fixed for the arrears of maintenance due to each plaintiff.

19. The third objection which relates to the minor plaintiff (Lakshmi, 2nd wife of Subramania Ayyar) also seems to us to be equally baseless and was rightly overruled by the lower court.

20. The next objection to the decree relates to the question of costs. It is urged on behalf of the appellants that as the claims of the serveral plaintiffs were considerably exaggerated and the lower court decreed to them less than half of what they claimed, the proper order as to costs should have been to direct the parties to pay and receive proportionate costs. The learned Subordinate Judge in the concluding paragraph of his judgment says that as the defendants withheld all the information from the plaintiffs as to the resources of the family the plaintiffs were not in a position to know what the income of the family was and that therefore they cannot be blamed if they proceeded upon an exaggerated view of the income of the family. We observe also that the defendants put forward in the lower court some pleas as to the maintainablility of the suits which were found to be quite vexatious and which the appellants' learned vakil in the exercise of a wise discretion refrained from pressing before us. A good deal of the enquiry before the lower court related to the genuineness of Exhibits I and II which were put forward by the defendants to defeat the plaintiffs' claim to separate maintenance and also to reduce the rate of maintenance to an amount alleged to have been fixed by their husbands. The learned Subordinate Judge after an elaborate enquiry held that Exhibits I and II were not proved to be genuine. That question also, wisely as we think, was not re-opened before us by the appellants' learned vakil. In our opinion the direction that the defendants should not only bear their own costs but pay the plaintiffs' costs also of the suit was in the circumstances of this case a proper one.

21. The next objection relates to the direction as to court-fees. The learned Subordinate Judge has directed that the entire court-fees payable by the plaintiffs to the Government in all the three suits should be borne by the defendants. The appellants contend that this direction is wrong and under Order XXXIII, Rules 10 and 11, Civil Procedure Code, it is not open to the Court to direct the defendants to pay court-fees exceeding the amount which is payable on that portion of the plaintiff's claim which is successful. We think that this contention which is supported by Ganga Dahal Rai v. Mussammat Gaura ILR (1916) All. 469, following Chandrareka v. Secretary of State for India (1890) I.L.R. 14 Mad. 163, should be allowed and that the decree of the lower court in each case should be modified by directing the defendants to pay court-fees only on the amount decreed to the plaintiffs and directing the plaintiff in each case to pay the difference between that amount and the entire court-fee payable by her for each plaint. Any excess paid by the defendants will be set off as against the amounts decreed to the respective plaintiffs.

22. The next and the last objection which has been urged by the appellants against the lower court's decree is that no personal decree should have been passed against the defendants in any of these cases. The contention is that the defendants are under no personal obligation to maintain the plaintiffs and that, as their obligation springs only from their possession of the property of the family, the decree against them should be only for payment out of the assets of the family. We find that even in such cases there are precedents both ways, which is probably due to the fact that in many cases the defendants themselves do not object to a personal decree. We find also that the plaintiffs in O.S. Nos. 2 and 39 of 1924 do not in their plaint ask for any personal decree as regards future maintenance. Though the obligation springs only out of the possession of property, yet if the income for any particular period has been already received by the defendants and not duly accounted for by them, there can be no serious objection to any personal decree being passed in respect of such a period. We are therefore of opinion that the direction in the decree making the defendants personally liable should stand as regards the arrears of maintenance., decreed to the plaintiffs, and the lump sums awarded to each of the plaintiffs for the performance of vrithams etc. and also as to plaintiffs' costs of the suit, but, as regards future maintenance, which has been decreed, the direction in the decree making the defendants personally liable therefor will be amended as follows:

In Para 2 after the word 'defendant' insert the words out of the assets of the joint family and to para 5 add the words except as regards their liability under paragraph 2.

23. As regards the memorandum of objections put in on behalf of the respondents, we have already dealt with the grounds relating to enhancement of the monthly maintenance. The other point which remains to be considered is that which was pressed on behalf of the respondent Lakshmi, the junior widow of Subramanya Ayyar, viz., that the payment of the maintenance should be charged also upon the houses situate in the town of Tinnevelly and other properties. We see no sufficient reason for acceding to this contention. If hereafter it turns out that the properties charged under the decree with the payment of the maintenance to the respective widows do not offer adequate security, it will be open to the respondents to apply to the Court which passed the decree to take into consideration the altered circumstances and modify the decree suitably.

24. Another point raised on behalf of the same plaintiff is that the Judge has omitted to provide for the expenses of the annual shradha of her husband. We do not think so. We think this item is included in the provision made for her future maintenance at Rs. 1, 200 a year. It has also been so understood by the plaintiffs in the other two suits.

25. In the result the decrees of the lower court will be modified in two respects, vis., (1) as regards the payment of court-fees to the Government and (2) the expunging of the direction as to the personal liability of the defendants, as pointed out above. Subject to such modifications all the appeals are dismissed with costs.

26. The memoranda of objections are also dismissed with costs.


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