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Kassim Hassan Vs. Hazra Begum - Court Judgment

LegalCrystal Citation
Decided On
Reported in60Ind.Cas.165
AppellantKassim Hassan
RespondentHazra Begum
Cases ReferredSecretary of State v. Mohiuddin Ahmad
muhammadan law - mutwali, succession to office of--title to office, whether can be acquired by prescription--claim to office and to property appurtenant thereto, whether can be barred by limitation--limitation act (ix of 908), schedule i, article 10, i--trusteeship with power to appoint successor, whether recognised by law--woman, whether competent to hold office of mutwalli--pleadings--adverse possession, title by, whether can be pleaded in appeal--sajjadanashin when can be appointed. - hold the office of mutwalli. mr. justice phear found that ahmad shah had succeeded nadir shah as mutwalli arid held that, as he had exercised undisturbed the right of mutwalli for nearly fifteen years, he might be presumed to have been lawfully appointed. as regards vilayet, however, mr. justice phear held that is admittedly he had no title by actual appointment, he could not maintain the suit as framed in his character as mutwalli; nor had he a right to enjoy the property as secular property by right of inheritance. the plaintiff was, in these circumstances, given leave to amend the plaint, but what followed does not appear from the record. the fact remains, however, that, although the effort of vilayet hossain to restore to the endowment, property alienated by his predecessor.....

Asutosh Mookerjee, Acting C.J.

1. The subject-matter of the litigation which has led up to this appeal is a dargah (mausoleum or shrine of a Moslem saint) situated, in clive Street in this City. The case for the plaintiff is that she was in possession as mutwalli for many year?, till the defendant, her son-in-law, after the death of his wife, wrongfully interfered with the performance of her duties on or about the 18th May 1918, She accordingly instituted the present suit on the 30th May 1918, for declaration that the defendant was in wrongful possession of the dargah, for recovery of possession from him, and for incidental reliefs. The defendant resisted the claim on the allegations that the plaintiff had renounced the mutwallship it favour of her husband who had been installed as the soaiianashin, and had performed his duties as such till his death in 1911, that thereafter the defendant had been installed as sajjadanashin; and that he wag lawfully in possession of the dargah at the date of the institution of the suit. Mr. Justice Greaves has dear end the suit on the ground that the plaintiff was lawfully in possession as mutualli and that the defendant, even if selected sajjadanashin, by the fakirs, could not successfully resist her claim to recover possession as mutwalli. The defendant has appealed against this decree. Before we deal with the questions raised before us, it is necessary to Bet out the history of this endowment so fur as it can be gathered from the materials on the record.

2. In 1834, the property was in the possession of one Jutty Shah who described himself as the khodim and mutwalli of the holy shrine of Hazrat Joomma Sbah. On the 19th October 1834, he executed a testamentary instrument which recites that his ancestors had, from generation to generation, acted as mutwalli of the shrine and that he himself had for a period of about sixty years performed the duties of the office, according to the former rules and long-established usages.' By this document, Jutty Shah appointed his infant son, Sheikh Mehtur, to succeed him as mutwalli after his death, and nominated several Moslem gentlemen to perform the duties appertaining to the holy shrine till his son should attain years of discretion; a set of detailed less for the management of the endowment was appended to the instrument. On the death of Jutty Shah, his son (called Mehtur or Nadir) held the office of mutwalli till his death in 1858. The mutwalship thereupon passed to Ahmed Shah (said to be a nephew of Jutty Shah), but under what exact circumstances this happened cannot be ascertained at this distance of time. Ahmed Shah held possession as mutwalli till his death, which took place on the 12th May 1873. We find that on the very next day, the 13th May 1873, Korban bhah, the son of Ahmed Shab, executed a deed in favour of his son, Vilayet Bossain, whom he appointed as mutwalli and trustee of the Will of Jutty Shah. The reasons for this appointment cannot be discovered, but it appears from the document that cobra had lost his wife and the deed enjoined Vilayet Hossain to perform ceremonies, according to orthodox Moslem ouatoms and usages, at the grave of his mother Amina Bibi. Vilayet Hossain continued to hold, the office of mutwalli till his death, which happened on the 16th August 1880, Daring his term of office as mutwalli, Vilayet Hossain instituted a suit in 1875, on the Original Side of this Court, against one choonee Bibi who was in possession of a portion of the trust properties on the strength of a purchase from the previous mutwalli, Ahmed Shah, in 1867. The result was that the purchaser defendant disputed the title of Vilayet Hossain to hold the office of mutwalli. Mr. Justice Phear found that Ahmad Shah had succeeded Nadir Shah as mutwalli arid held that, as he had exercised undisturbed the right of mutwalli for nearly fifteen years, he might be presumed to have been lawfully appointed. As regards Vilayet, however, Mr. Justice Phear held that is admittedly he had no title by actual appointment, he could not maintain the suit as framed in his character as mutwalli; nor had he a right to enjoy the property as secular property by right of inheritance. The plaintiff was, in these circumstances, given leave to amend the plaint, but what followed does not appear from the record. The fact remains, however, that, although the effort of Vilayet Hossain to restore to the endowment, property alienated by his predecessor thus proved ineffectual, he continued to hold the office of mutwalli, and, previous to his death, he made a testamentary disposition on the 4th September 1879. At the time of his death, he left him surviving his widow Imamunnessa (daughter of one Mahomed Musa) and his own daughter by her, Hazra Bibi (who is plaintiff in the present litigation). Vilayet Hossain, by his Will, appointed his daughter Hazra Bibee as mutwalli of what he described as 'Jutty Shah's Imambara and dargah in clive Street' and all properties moveable and immoveable appointment thereto. During the, minority of his daughter, however, the management was vested in his widow Imamunnessa, The Will further provided that the widow would case to hold the appointment if she took a second husband or lost her virtue; m either of these events, Mahommed Musa the father-in-law of the testator, would diseharge the duties of mutwalli during the minority of Hazra Bibi. Disputes broke out shortly after the death of Vilayet Hossain, and we find that two suits were instituted in 1881 and 1885 by Mahommed Maa for proof of his Will in solemn form, for its construction, and for ascertainment of the rights of the parties there under. On the 28th August 1883, Mr. Justice Morris appointed a Receiver of the estate in the suits mentioned and directed the payment of Rs. 170 a month to Imamunnessa as also the expenses of the religious ceremonies. Imamunnessa died in 1896, before the termination of the suits. On the 16th January 1902, Mr. Justice Sale made a consent decree on the basic of terms of settlement which were ordered to be carried out. The premises now in dispute were declared to be trust properties trappable of partition and division; at the same time, Hazra Bibi was appointed mitUealli of the trust properties and was? authorised to conduct and carry out the religious trust according to an approved saheme. The decree thus made in 1902 terminated the dispute as to the succession to the office of mutwalli, and Hazra Bibi, who had been married to one Jalil Shch, continued peace-fully to perform her duties till the defendant appeared on the seen. Hazra Bibi had a daughter, chahaty Bibi, who was given in marriage to the defendant Kassim Hossain. There can be little doubt that the defendant was firss allowed to take up his residence at the Imambara as the son in-law of the mutwalli Hazra Bibi, and the evidence shows unmistakably that he lived there amicably for five or six years after his marriage, which took place in 1911 or 1912, chahaty Bibi, however, unluckily for all parties concerned, died towards the end of the year 1917, and, as might be anticipated, her death affected a considerable change in the position of the defendant. Feelings gradually became strained, and the defendant ultimately set up a title to the disputed properties on the allegation that he had been elected sajjadanashin by the fakirs and other worshippers who congregate in the dargah Suah, in outline, was the position of the parties when the controversy between item was brought into Court for determination. The questions which emerge for consideration from the arguments addressed to us may be formulated under two heads as follows, namely, from, had the plaintiff title to the office of mutwalli of the disputed properties I at the date of the institution of the suit; and, secondly, was the defendant appointed as sajiadanashin; if so, did such appointment affect the title of the plaintiff as mutwalli.

3. As regards the first attention, namely, whether the plaintiff had a valid title to the office of mutwalli at the date of commencement of this litigation, we must not overlook two outstanding features of this case. In the first place, it is plain that the office of mutwalli has been held successively by members of the family. The testament of duty Shah executed in 1834 recites that he had teen in possession as mutwalli for sixty years in succession to his ancestors, who had successively held the office and discharged its duties from generation to generation. After Jutty Shab, the office was held successively by his son Nadir and his nephew Ahmed, and, thereafter, by Korban (the son of Ahmed), by Vilayet (the son of Korban), and by Hazra (the daughter of Vilayet). In the second place, each incumbent has taken it upon himself to nominate his successor in the office of mutwalli. It is not for us to determine now, whether such appointments could or could not have been validly made; but, notwithstanding the general rule enunciated in the cases of Atimonnessa Bibi v. Abdul Sobhan 32 Ind. Cas. 21 C. 467 : 22 C.L.J. 577 : 20 C.W.N. 113 and Phatma v. Abdulla Musa Sait 21 Ind. Cas. 964 : 38 M. 491 : 14 M.L.T. 568 : (1914) M.W.N. 75 : 26 M.L.J. 115, that no right of inheritance attaches to the of mutwalli, the question may well arise whether the uniformity which characterize the successive appointments for nearly a century may not improbably indicate that the practice had a lawful origin in the directions given by the original founder, though they can no longer be traced with certainty from the lapse of time. Apart from this, what is of vital importance to the case of the plaintiff is that her great grandfather, Ahmed Shab, held the office of mutwalli for fifteen years from 1858 to 1873 and that thereafter, by virtue of the deed executed by her grandfather Korban Shah in favour of her father Vilayet Hossain, the latter held the office for seven years from 18'3 to 1880. Thereafter, the plaintiff herself has held the office, without interruption, as we shah presently sep, from 1880 to 1916. The testament of Vilayet Hoseain vested the office of mutwalli in his daughter from the time of his death, subject to the reservation that during her minority the management would be carried out by his widow Imanunnessa, or, in certain event, by his father-in law Mahoronied Mnsa, Such possession of the office of mutwalli, whether by Imamunnessa or by Mahommed Musa, would plainly be on behalf and for the benefit of Hazra Bibi. We are not unmindful that by the decree of Mr. Justice Norrisce the 28th August 1883, the properties were planed in take hands of a Receiver; but in view of subsequent events, this did not operate to interrupt the possession of the office of mutwalli by Bazra Bibi, It is significant that the order for appointment of Receiver included a direction for the payment of a fixed sum to Imamunnessa on whom was cast the duty of management of the was estate by the Will of her husband during the minority of her daughter. Besides this, the decree ultimately made by Mr. Justice ale on the 16th January 1902, confirmed the appointment of Hazra Bibi as mutwalli of the trust properties. In our opinion, it is indisputable that the office of mutwalli has been vested in Hazra. Bibi by the Will of her father and has been Held by her without interruption from the time of his death in 1880 till 1902 when her appointment was confirmed by an order of this Court. It is in on the evidence that after 1102, Hazra Bibi held the office of mutwalli, till her title was questioned and her possession was disturbed by the defendant, immediately before the unit. We are in agreement with Mr. Justice Greaves when we hold that we cannot possibly accept as well founded the assertion of the defendant in his written statement that Hazra Bibi renounced the office of mutwalli so as to allow her husband to instal himself as the sajjadanashin. In our opinion, it is fuliy established by evidence that Hazra Bibi has held the of muticalli from 1880 and has been in possession the of by performance of the duties attached thereto, either herself or through her deputies, for a period of not less than thirty-six years. What, then, is the legal effect of such possession of the office, even if we assume for a moment that her nomination to the office of mutwalli was not validly made or was not confirmed by kati or by a judicial officer of equivalent status P The obvious answer is, that the plaintiff baa acquired a good title to the office of mutwalli by reason of her possession thereof for the statutory period. The principles applicable in snob circumstances were explained in the case of Salimulla v. Abdul Khayer Mohammad Mustafa 3 Ind. Cas. 419 : 37 C.W.N. 497 : 11 C.L.J. 304 It is indisputable that a claim to office and to property appurtenant thereto may be barred by limitation. The decisions in Balwant Rao v. Puran Mai 6 A. 1 : 10 I.A. 90 : 13 C.L.R. 39 : 4 Sar. P.C.J. 435 : 3 Ind.Dec. (N.S.) 352 Jagan Nath Das v. Birbhadra Das 19 C. 776 : 9 Ind. Dec. (N.S.) 960 Kidambi Bagava Chariar v. Tiiumalai Asari Nallur Baghava-chariar 26 M. 113 show that if the office is not hereditary, Article 120 of the Schedule to the Indian Limitation Act is applicable. If, on the other hand, the office is hereditary, Article 124 governs the matter; Nila anrlani. Padma-nabha 14 M. 153 : 5 Ind. Dec. (N.S.) 108 Alagirisami Naiekar v. Bundareswara Ayyar 21 M. 278 : 7 Ind. Dec. (N.S.) 552 Gnanasambanda Pandata Sannadhi'v. Vein Pandrram 23 M. 271 (P.C.) : 27 I.A. 69 : 4 C.W.N. 329 : 2 Bom. L.R. 597 : 10 M.L.J. 29 : 7 Sar. P.C.J. 671 : 8 Ind. Dec. (N.S.) 501 Annasami Pillai v. Bamakrishna Mudaliar 24 M. 219 : 11 M.L.J. 1, Bamanathan Chetty v. Murugappa Chetiy 27 M. 192 : 13 M.L.J. 341 affirmed on appeal to the Judicial Committee: Bamanathan chetti v. Murugappa chetti 29 M. 283 : 10 C.W.N. 825 (P.C.) : 33 I.A. 139 : 1 M.L.T. 327 : 3 A.L.J. 707 : 4 C.L.J. 189 : 16 M.L.J. 265 : 8 Bom. L.R. 498 and Lilabati Misrain v. Bishun chobey 6 C.L.J. 621 The sub stance of these decisions is that a trusteeship with power to appoint a successor is well-known to and recognised by law and may be prescribed for; in the case before UP, it is immaterial whether Article 120 or 121 or 144 is held applicable. When title has been so acquired by statutory operation, it is plain that the title of the true owner is not revived by re-entry, in other words', 'even if the lawful owner should re acquire possession, he is not thereby remitted to his original title. This view is supported by the decisions in Brindabun chunder chowdhury v. Taraehand Bindopadhyx 11 B.L.R. 237 : 20 W.R. 114, Dalip Bai v. DechiRai 21 A. 204 : A.W.N. (1899) 36 : 9 Ind. Dec. (N.S.) 840,Vasudeva Padhi v. Magutti Devan 24 M. 387 : 28 I.A. 81 : 3 Bom. L.R. 303 : 5 C.W.N. 545 : 7 Sar. P.C.J. 819 Lilabati Misrain v. Bishun chobey 6 C.L.J. 612 which accord with the rule recognised in Basting-ton v. Llewellyn (1858) 1 F & F 27 : 27 L.J. Ex. 297 : 114 R.R. 1038 Bryan v. lowdal 24 M. 387 : 28 I.A. 81 : 3 Bom. L.R. 303 : 5 C.W.N. 545 : 7 Sar. P.C.J. 819, Jolly,Inre, cnthercole v. Norfolk (1900) 2 Ch. 616 : 69 L.J. Ch. 661 : 83 L.T. 118 : 48 W.R. 657 : 16 T.L.R. 521 Dawlins v. Penrhyn (Lord)(1878) 4 App. Cas 51 at p. 59 : 48 L.J. Ch. 304 : 39 L.T. 583 : 27 W.R. 178 Beamish v. Whithey (1908) 1 Ir. R. 38 : 10 Lr. L.R. 19 and Beamish v. WhiThey (1909) 1 Lr. R. 360 : 10 Lr.L.R. 747 The validity of these principles has not been questioned, but the argument has been put forward that the plaintiff was disqualified, by reason of her sex, from appointment to the office of mutwtUi and Could not, consequently, be deemed to have acquired title to such office by prescription, on the analogy of the rule recognised by the Judicial Committee in Bhaiai Thafcur v. Jharula Das 24 Ind. Cas. 501 : 42 C. 244 : 20 C.L.J. 360 : 18 C.W.N. 1029 : 27 M.L.J. 100 : 1 L.W. 549 : 16 M.L.T. 210 : (1014) : M.W.N. 636 : 12 A.L.J. 1176 : 16 Bom. L.R. 845 (P.C.) which reversed tye decision of this Court in Jhaiula Das v. Jalandhar Thakur 14 Ind. Cas. 142 : 39 C. 887 This contention is fallacious, as it is based on the erroneous assumption that a woman is incompetent, under the Mnham-madan Law, to hold the office of mutwalli. The true rule on the subject was enunciated by Mr. Justice Abdur Rahim and Mr. Justice Seahagiri Aiyar in Munnavaru Begam v. Mir Mahapalli 51 Ind. Cas. 489 : 41 M. 1033. A religious office can be held by a woman under the Muhammadan Law, unless there are duties of a religious nature attached to the office, which she cannot perform in person or by deputy, and the burden of establishing that a woman is precluded from holding a particular office is on those who plead the exclusion. The decision of the Judicial Committee in Shahoo Banoo v. Aga M ah med Jatfer Binianeem 34 C. 118 : 5 C.L.J. 134 : 4 A.L.J. 30 (P.C.) 11 C.W.N. 297 : 9 Bom. L.R. 85 : 2 M.L.T. 49 : 17 M.L.J. 52 : 4 L.B.R. 66 : 34 I.A. 46 takes the same view and shows that if the religious duties connected with a religions office are such that a woman cannot properly discharge in person or by deputy, then she cannot be appointed to that office. This doctrine is based on the fundamental distinction between the temporal affairs of a mosque and the spiritual functions connected with it; Hussain Beebes v. Hussain Sherif 4 M.H.C.R. 23 Imam, Bee v. Molla Khasim Sahib 37 Ind. Cas. 889 : 5 L.W. 226 Mujavar Tbrambibi v. Mujaar Hussain Sherif 3 M. 95 : 5 Ind. Jur. 190 : 1 Ind. Dec. (N.S.) 623 A similar distinction has been recognised also in the case of Hindu endowments; Dhuncooverbai v. Advocate-General 1 Bom. L.R. 743, MohanLalaji v. Madhusudan 6 Ind. Cas. 77 : 32 A. 46 : 7 A.L.J. 430 We cannot, consequently, accept the contention of the defendant that the plaintiff is incompetent to hold the office of mutwalli. It has next been argued that the plaintiff should not be allowed to succeed on the basis of prescriptive title to the of the of mutwalli when such a case was not expressly made in the plaint. There is clearly no substance in thin contention. The relevant facts were fully set out in the plaint and the plaintiff asked for a declaration, not that she was mutwalli by appointment or by hereditary succession, but that on the facts stated the defendant was in wrongful possession and should, consequently, be ordered to deliver up quiet and peaceful possession to her. There is no room for suggestion that the defendant has been taken by surprise and he has thus no foundation for a grievance. As ruled by this Court in Sundari Dassee v. Mudhoo chunder Sircar 14 C. 529 : 7 Ind. Dec. (N.S.) 392 a plaintiff may be allowed to sncaeed on a title by adverse possession, pleaded even for the first time in the Court of Appeal, provided such a case arises on the facts stated in the plaint and the defendant is not taken by surprise. It was pointed out in the case of Bam, Chandra Sil v. Ramanmani Dasi 36 Ind. Cas. 890 : 20 C.W.N. 773 at P. 785 that this view is supported by a distum of Lord Davey in Vasudeva Padhi v. Maguni Devan 24 M. 387 : 28 I.A. 81 : 3 Bom. L.R. 303 : 5 C.W.N. 545 : 7 Sar. P.C.J. 819 though the contrary opinion has sometimes been maintained. The same rule was adopted in the cases of Nepen Bala Debi v. Siti Kanta Banerjee 8 ind. Cas. 41 : 12 C.L.J. 459 : C.L.J. 158 and Lilabati Misrain v.Bishun chobey 6 C.L.J. 621. We hold, accordingly, that at the time of institution of this suit, the office of mutwalli was legally vested in the plaintiff and on that basis she was entitled to possession of the trust estate.

4. As regards the second question, we have to determine whether the defendant was appointed a sijjadanashin, and, if so, what was the effect of such appointment upon the title of the plaintiff as mutwalli. It may be conceded that there is some evidence to show that the defendant got himself elected as sajjadanashin; but this is not sufficient to enable him to resist the claim of the plaintiff for there is no satisfactory evidence of a custom for the appointment of a saijadanashin in this religious endowment in addition to a mutxalli. Even if we accept as reliable the evidence adduced by the defendant to make out the alleged election of his father in law and of himself as sajjadanashin in 1904 and 1912, respectively, that does not establish the existence of a custom for the appointment of a sajjadanashin. The undoubted fact remains that although, according to the recital in the Will of Jutty Shah, the endowment has been in existence for at least a century and a half, there is protrace of a siijadanashin before the alleged election of Jalil Shah in 1904. The true position and functions of a sajjadanashin will be found explained in the judgment of Mr. Justice Amir Ali in Piran v. Abdool Karim 19 C. 203 at PP. 220, 221 : 9 Ind. Dec. which was followed in Mahiud-din v. Sayiduddin 20 C. 810 aaaaaaat PP. 822, 823 : 10 Ind. Dec. N.S.) 545:

The sanadanashin has certain spiritual functions to perform. He is not only a mutwalli, but also a spiritual preceptor. He is the curator of the dargah where his ancestor is buried, and in him is supposed to continue the spiritual line silsilla. As is well known, these dargahs are the tombs of celebrated dervishes, who in their lifetime were regarded as saints. Some of these men had established khankahs where they lived and their disciples congregated. Many of them never rose to the importance of a khankah, and when hay died their mausclea became shrines or dargahs. These dervishes professed esoteric doctrines and distinct systems of initiation, They were either sufis or the disciples of Miaa Roushan Bayezid, who flourished about the time of Akbar, and who had founded an independent esoteric brotherhood, in which the chief occupied a peculary distinctive position. They called themselves fakirs, on the hypothesis that they had abjured the world, and were humble servitors of God :, by their followers they were honoured with the title of Shah or King. Horklot (Ganoon-elslara, 1832, Chapter XXVIII) gives a detailed account of the different brotherhoods and the rales of initiation in force among that. The preceptor is called the pir, the discipla the murid. On the death of the pir, his successor assumes the privilege of initiating the disciples into the mysteries of dervishes or autism. This privilege of initiation, of making murders, of imparting to them spiritual knowledge, is one of the functions which the sajjadanashin performs or is supposed to perform, Titan v. Abiool Karim 19 C. 203 at PP. 220, 221 : 9 Ind. Dec. (N.S.) 581.

5. So long as has lived the founder himself was the sajjadanashin, the one seated on the prayer mat; in other words, the chief or superior. After his death some one among his heirs, indicated by him as qualifiled to initiate the murids into the mysteries of the till that or holy path, succeeds him in his office of sajadanashin. He is not only a mutwalli but also a spiritual preceptor, 'and in him is supposed to continue the spirtual line (silsilla). There are abundant indications on this record that this is exactly the case with the khankah of Sasseram, Shah Kabir was, as his title show, a dervish, and from the evidence of the defendant it is clear that the doctrines supposed to be inculcated by these men are, as he all it, of tassaw or suftsm. We have dwelt to far on the character of the institution, in order to show how materially it is connected with the personality of the sajjadanashin or superior. He is an integral part of the institution and the central figure, so to speak, therein. Its existence depends on his personality. This is evident from the very terms of the grant in question. The grant no doubt is to the khankah, but the enjoyment is given to the dervish and his descendants, generation after generation. The works they have to perform, and the disaiples they have to maintain, are all part and parcel of their own selves. These are the fateh as, etc., are of their deceased ancestors. 'Mohiuddin v. Sayiduddin 20 C. 810 at PP. 822, 823 : 10 Ind. Dec. (N.S.) 545 See also Secretary of State v. Mohiuddin Ahmad 27 C. 674 : 14 Ind. Dec. (N.S.) 443.

6. The substance then is that the sajjadanashin maintains unbroken the spiritual line from the original preceptor. In the case before us, however, there never was a sajjadanashin, before 1904; there is no room-for a theory that the original founder expressly directed that a sajjadanashin should be appointed from time to time. There is also no custom indicative of his wishes in the matter. There has not been a line of spiritual preemptor, an apostolic succession of spiritual curators. In such circumstance ', it is impossible to hold that a person in the position of the defendant, can by the device' of an election by fakirs and other work papers force himself on the institution as sajjadanashin. The essence of the matter that there is no office of sajjadanashin in this institution to which the defendant could have been lawfully elected; for, such an office could exist only by virtue of the direction of the spiritual founder or by a valid custom. It is, consequently, plain that the defendant has acquired no legal status which can possibly enable him to defeat the claim of the plaintiff as mutwalli.

7. The result is that the decree made by Mr. Justice Greaves is confirmed and this appeal dismissed with costs.

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