Full Judgment Text
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PETITIONER:
KALYAN DAS ANR. RAMBIR DAS & ANR.
Vs.
RESPONDENT:
RAMBIR DAS & ANR. KALYAN DAS ANR.
DATE OF JUDGMENT: 19/02/1997
BENCH:
K. R AMASWAMY, S. SAGHIR AHMAD
ACT:
HEADNOTE:
JUDGMENT:
AND
CIVIL APPEAL NO. 4173 OF 1983
O R D E R
C.A. NO. 947 OF 1980
This appeal by special leave arises from the judgment
dated 19th March, 1980 passed by the learned Single Judge
of the High Court of Allahabad in SA No. 1940 of 1977.
The admitted position is that one Hari Das owned
considerable properties situated in the town Khair of
Aligarh District which is part of Schedule ’B’ attached to
the Plaint. He constructed a temple, by name Shri Jugal
Kishoreji Maharaj Mandir. Therein, the principal deity is
Lord Krishna & Radha. he endowed all his properties to the
Mandir. During his life time, he was in-charge of the temple
as de facto trustee and he did seva (service) and pooja to
the deity. After the abolition of the estate under the U.P.
Zamindari Abolition & Land Reforms Act, 1950, bhumidari
right in the properties were conferred on the deity Lord
Krishna and Radha. Hari Dass left behind him four chelas by
name, Narain Dass, Bansi Dass, Monhar Dass and his brother
Har Govind Das are sons of Ram DAss. Bansi Dass, the last
serving chela, had executed a will, Ex. B-19 on 9.2.1955
whereunder he nominated the plaintiff and his brother as
Shebaits of the Mandir. During his life time by Deed of
Adoption dated January 6, 1966, Ex. A-45 cancelled the Will
and adopted defendant Nos. 1 and 2 as his chelas, Bansi Dass
died on February 3, 1969. Thereafter, the disputes arose
between the appellants and the respondents as to who would
be entitled to succeed to the Shebaitship of the Mandir. It
is not necessary to dilate upon the proceedings that went on
in the Criminal Court and in the suit. Suffice it to state
that the appellant had sought a relief of declaration of
succession as a Shebait to the mandir, possession thereof
and consequential perpetual injunction against the
respondents from interfering with his Shebaitship and
possession and enjoyment of the property as a Shebait of the
temple. The trial Court granted the decree. On appeal, it
was confirmed. In the second appeal, the learned single
judge held that the cancellation of the Will in the Adoption
Deed is valid for the reason that Rambir Dass had married
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and thereby he ceased to be a bairagi. His brother Har
Govind Dass having become insane, was disqualified to be a
Shebait. The defendants-respondents being minors, nomination
in that behalf is invalid in law. As a consequence, the
property became escheat; he directed the Advocate-General to
take action for possession of the properties. Thus, this
appeal by special leave and cross appeal.
The primary question for consideration is; whether the
appellant’s claim to be a Shebait of the Mandir is valid and
sustainable in law? In Tagore Law Lectures - 1936 published
in "Hindu Law of Religious and Charitable Trust", Justice
B.K. Mukherjee, the former Chief justice of this court
stated at page 216 as under :
"As shebaitship is property, it
devolves like any other property
according to the ordinary Hindu law
of inheritance. If it remains in
the founder, it follows the line of
founder’s heirs; if it is disposed
of absolutely in favour of a
grantees, it devolves upon the
heirs of the latter in the ordinary
way and if for any reason the line
appointed by donor fails
altogether, shetaiship (g). In the
matter of appointment of a shebait,
the discretion of the founder is
unfettered. No Hindu would indeed
think of appointing a person as
manager of a temple, who is a
follower of a in law which prevents
hi from appointing as shebait, a
person of different or inferior
caste."
It is further stated at page 217
thus:
As succession to shebaitship is
governed by the ordinary law of
inheritance, it scarcely admits of
any doubt that a woman can succeed
to shebaitship, the Supreme Court
of India has held very recently
that shebaitship is ’property’
within the meaning of the Hindu
Women’s Right to Property Act;
consequently in a case to which the
Act applies the widow and son of
the last shebait rights held by the
latter. It has been held further
that even if the expression
’property’ in the Hindu Women’s
right to Property in its common or
accepted sense and is not to be
extended to any special type of
property which ’Shebaitship’
admittedly is, as succession to
shebaitship follows succession to
ordinary secular property the
general law of succession under
Hindu Law to the extent, that it
has been modified by the Hindu
Women’s Right to Property Act would
also be attracted to devolution of
Shebait rights".
At page 227, it is stated thus:
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As there is always an ultimate
reversion to the founder or his
heirs, in case the line of shebaits
is extinct, strictly speaking no
question of escheat arises so far
as the devolution of shebaitship is
concerned. But cases may be
imagined where the founder also has
left no heirs, and in such cases
the founder’s properties may
escheat to the State together with
the endowed property. In
circumstances like these, the
rights of the State would possibly
be the same as those of the founder
himself, and it would be for it to
himself, and it would be for it to
appoint a shebait for the Debutter
property. It cannot be said that
the State receiving a dedicated
property but escheat can put an end
to the trust and treat it as
secular property".
In Mayne’s Hindu Law & Usage [14th Edn.] at page 965,
para 639 on "Entrance into religious order", it is stated as
under :
"One who enters into a religious
order severs his connection with
the members of his natural family.
he is accordingly excluded from
inheritance. Neither he nor his
natural relatives can succeed to
each other’s properties. The person
who are excluded on his ground come
under three heads, viz., the
Vanaprastha, or hermit; the Sanyasi
or Yati, or ascetic; and the
Brahamchri, or perpetual religious
student. In order to bring a person
under these heads, it is necessary
to show an absolute abandonment by
him of all secular abandonment by
him of all secular property, and a
complete and final withdrawal from
earthly affairs.. The mere fact
that a person calls himself a
Hyragi, or religious mendicant, or
indeed that he is such does not of
itself disentitle him to succeed
to property. Nor does any Sunder
come under this disqualification,
unless by usage. This civil death
does not prevent the person who
enters into an order from acquiring
and holding private property which
will devolve, not of course upon
his natural relations, but
according to special rules of
inheritance. But it would be
otherwise if there is no civil
death in the eye of the law, but
only the holding by a man of
certain religious opinions or
professions."
In Baba Kartar Singh Bedi V/s. Dayal Das & Ors.[AIR
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1939 PC 201 AT 207] this Court had held thus:
"It was also argued by the
respondent’s counsel that the word
’chela’ in will meant an adopted
son. This contention too, in their
Lordships’ view, is totally without
foundation. A chela, as is well
knowing India, means a disciple.
His different from an adopted son,
both in the process of his
initiation and in the purpose of
his existence. A chela is generally
nominated by the ruling mahant
during his lifetime to conduct the
affairs of a religious institution,
or if he fails to do so, the chela
is nominated by his principal
followers after his death, who are
connected with the institution.
There could be no analogy between
him and an adopted son, as known to
Hindu Law. In the case of the
latter, it is imperative that on of
his genitive parents must give, and
one of his adoptive parents must
receive him in adoption. Without
such a gift and taking no adoption
can be valid. There are, in
addition, rituals such as the are,
in addition, rituals such as the
sacrificial fire, called "Homa" to
complete ceremonially the
transaction of adoption and lastly
if may be mentioned that the
principal function of a that the
principal function of a adopted son
is to performs periodically
sharaddas, or obsequial rites to
his parents and other souls,
according to salvation of their
souls, according to salvation of
their should according to Hindu
sentiment. None of these incidents
are to be found in the case of a
chela, whose affiliation, if it may
be so described, is mainly for the
purpose of continuing the
traditional obligation of the
institution and holding and
managing its property for purposes
incidental thereto. His main
function is not to perform
obsequial rites for the benefit of
his ancestors, for in most cases, a
sanysasin or a mahant, when he
enters that order, abrogates
(householder), whose future
felicity in a post mortem existence
is the object of solicitude on the
part of his male descendants".
In Parma Nand V/s. Nihal Chand [65 IA 252 at page 257]
Sir Shadi Lal speaking on behalf of the Judicial Committee
held thus :
"In the town of Gujranwala there is
a building variously described as
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Baghichi Thankaran or Gurdwara
Baghichi, and the main issue which
their Lordship have to determine in
this appeal is whether that
buildings, together with the shops
and other property attached to it,
is the subject matter of a trust
for a public purpose of a
charitable or religious nature. The
issue was raised by the defendants
who, claiming to be the
representatives of the Hindu public
made an application to the District
Judge under s.3 of the Charitable
and alleging that he Baghichi
Thakaran was a public endowment for
religious and charitable purpose,
and called upon Mahant Narain Das
who was described by them as the
trustee of the endowment, to
furnish details of the nature and
purposes of the trust, and of the
value of the property belonging to
the trust, and also to render an
account of the income and
expenditure of the trust property.
Their allegation were contested by
Narain Das and the controversy
between the parties led to the
present action, brought by Narain
Das for the purpose of obtaining an
authoritative pronouncement upon
the nature of the trust and of the
property attached to it".
In Krishna Singh V/s. Mathura Ahir & Ors. [AIR 1980 SC
707 at 725] this Court had pointed out in paras 77 and 89,
as regards the rights of a sanyasi, thus:
The learned Civil Judge in his
judgment observes: The fact of
Harsewanand being a sanyasi remains
undoubted’. His finding that he was
not a Hindu sanyasi law mere
’renunciation’ of the world is not
sufficient. Hence, he holds that a
Sudra who renounced the world and
became sanyasi cannot be said to be
a Hindu Sanyasi, as according to
the Hindu Sastras no Sudra can
become a sanyasi. The underlying
fallacy lies in his overs looking
that the question not according to
the orthodox view, but according to
the usage or custom of the
particular sect or fraternity. It
is needless to stress that a
religious denomination or
institution enjoys complete
autonomy in the matter of laying
down the rites and ceremonies which
are essential. We must accordingly
hold that the plaintiff was the
validly initiated chela of Swami
Atmavivekanand and upon his demise
was duly installed as the mahant of
Garwaghat Math according to the
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tenets of his ’Sant Mat’
Sampradaya.
In the instant case, the appellant
himself, of course, without
prejudice to his right to challenge
the right of the original
plaintiff, Harsewanand, to bring
the suit, substituted the
respondent No.1 Harshankarnand, as
his heir and legal representative,
while disputing his claim that he
had been appointed as the mahant,
as he felt that the appeal could
not proceed without substitution of
his name. In his reply, the
respondent No.1 Harshankaranand
alleges that after the demise of
mahant Harsewananad he was duly
installed as the mahant of
Garwaghat Math by the ’Sant Mat’
fraternity. He further asserts that
he was in possession and enjoyment
of the math and its properties.
Thus fact that he is in management
and control of he math properties
is not in dispute. The issue as to
whether he was so installed or not
or whether he has any right to the
office of a mahant, cannot
evidently be decided in the
appeal, but nevertheless, he has a
right to be substituted in place of
the deceased Mahant Hareswanand as
he is a legal representative within
the meaning of S.2 (11), as he
indubitably is intermeddling with
the estate. He has therefore, the
right to come in and prosecute the
appeal on behalf of the math."
In Sri Mahilinga Thambiran Swamigal V/s. His Holisness
Sri La Sri Kasivasi Arulnandi Thambiran Swamigal [(1974) 2
SCR 74 at 88-61], this court had held as under :
"The definition of "Will" in s.2
(h) of the Indian Succession Act,
1925 would show that it is the
legal declaration of the intention
of a testator with respect to his
property which he desires to be
carried into effect after his
death. By exercising the power of
nomination, the head of a Mutt is
not disposing of any property
belonging to him which is to taken
effect after his death. He is
simply exercising a power to which
he is entitled to under the usage
of the institution. A nomination
makes the nominee stand in a
p[eculiar relationship with the
head of the Mutt and the Hindu
community and that relationship
invests him with the capacity to
succeed to the headship of the
Mutt. A nomination takes effect in
presenti. It is the declaration of
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the intention of the head of the
Mutt for the time being as to who
his successor would be; therefore
although it is said that the usage
in the Mutt is that the power of
nomination is exercisable by will,
it is really a misnomer, because, a
will in the genuine sense of the
term can be made by deed or word of
mouth. IN such a case, the
nomination can be made by deed or
word of mouth. In such a case, the
nomination invests the nominee with
a present status. That status gives
him the capacity to succeed to the
headship of the Mutt on the death
of the incumbent for the time
being. If that is the effect of the
nomination when made by deed or
word of mouth, we find it difficult
to say that when a nomination is
made by will, it does not take
effect in presenti, and that it can
be cancelled by executing another
will revoking the former will.
Such, at any rate, does not seem to
be the concept of rate does not
seem to be the concept of
nomination in the law relating to
Hindu Religious Endowments. A
nomination need not partake of the
character of a will in the matter
of its revocability, merely because
of power f nomination is exercised
by a will. In other words, the
nature of character of a nomination
does not depend upon the type of
document under which the power is
exercised. If a nomination is
otherwise irrevocable except for
good cause, it does not become
revocable without good does not
become revocable without good
cause, merely because the power is
exercised by a will. If the power
of nomination is exercised by a
will, it is pro-tanto a non-
testamentary instrument. A document
can be partly testamentary and
partly non-testamentary. In Ram
Nath vs. Ram Nagina [Air 1962 Patna
481], the head of the Mutt for the
time being exercised his power of
nomination more or less in terms
of Exhibit B-1 here, namely, by
making the nomination of a
successor and providing that he of
a successor and providing that the
will be owner of the properties and
charities of the Mutt and also of
the other properties standing n the
name of the head of the Mutt. The
Court held that so far as the
nomination and devolution of the
properties of the Mutt were
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concerned, the will operated as a
non-testamentary instrument. The
Court said that the condition which
must be satisfied before a document
can be called a will is that there
must be some disposition of
property and that the document must
contain a declaration of the
intention of the testator not with
respect to any thing but with
respect to his property. According
to the Court, if there is a
declaration of intention with
respect to his successor, it cannot
constitute a will even if the
document were to state that the
nominee will become the owner of
the properties of the Mutt after
the death of the executant of the
will as that is only a statement of
the legal consequence of the
nomination."
At page 88, this Court, looking from another angle,
held as under :
"Looking at the matter from another
angle, we come to the same
conclusion. We have already said
that the power of nomination must
be exercised not corruptly or for
ulterior reason but bona fide and
in the interest of the Mutt and the
Hindu community. It then stands to
reason to hold that power to
revoke the nomination must also be
exercised bona fide and in the
interest of the institution and the
community. In other words, the
power to revoke can be exercised
nor arbitrarily, but only for good
cause would be good and the
defendant had no case before us
that he revoked that nomination for
a good cause.
We hold that a nomination when made
can be cancelled or revoked only
for a good cause and, as
admittedly, there was no good cause
shown in this case for cancellation
of the nomination by Exhibit B-9,
the cancellation was bad in law.
Therefore, it must be held that the
appellant was holding the status of
the Elavarsu of the Kasi Mutt
during the life time of the
defendant. Normally, a court will
declare only the right of the
parties as they existed on the date
o the institution of the suit. But,
in this case, on account of the
subsequent event, namely, the death
of the defendant, we have to mould
the relief to suit the altered
circumstance. If the defendant had
been alive. it would have been
sufficient if we had declared, as
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the learned single judge has done,
that the appellant was the Elavarsu
of the Kasi Mutt. Now the defendant
is dead, we make a declaration that
the appellant was holding the that
the applellant was holding the
position of the Elavarsu during the
lifetime of the defendant, that the
revocation of the nomination of the
appellant as the Elavarsu by
Exhibit B-9 was bad, and that the
appellant was entitled to succeed
to the headship of the Mutt on the
death of the defendant."
Ms. Rachna Gupta, learned counsel appearing for the
respondents, relied on the passage from Tagore Law Lectures
- 1936 delivered by B.K. Mukherjee as published in Hindu
Law of Religious & Charitable Trusts at page 205, para 5.6A
and 5.6B which read as under :
5.6A. Shebaitship remains in the
founder and his heirs unless
disposed of. When a deity is
installed, the shebaitship remains
in the founder and his heirs.
"According to Hindu Law", thus
observed Lord Hobhouse in Gossamee
Sree Greedhareejee vs. Ruman
Lalljee [L.R. 16 I.A. 137]- and
this observation has been
reiterated i n numerous cases since
then - "when the worship of a
Thakur has been founded, the
shebaitship is held to be vested i
n the heirs of the founder in
default of evidence that the has
disposed of it otherwise, or there
has been some usage, course of
dealing or some circumstances to
slow a different mode of
devolution." Unless, therefore, the
founder has disposed of the
shebaitship in any particular way
and except when an usage or custom
of a different nature is proved to
exist, shebaitship like any other
species of heritable property
follows the line of inheritance
from the founder.
5.6B It devolves like any other
species of heritable property.--
Where the founder of a temple had
died without having appointed a
shebait, it was held that his widow
on whom the right to appoint had
devolved was entitled to appoint a
shebait for the temple, and such
appointment was not open to attach
as an alienation of the office of a
trustee. And the rule that
shebaitship devolves like any other
species of property has been
applied to the office or Archaka as
well, where emoluments were
attached to it."
From the evidence it is clear that the plaintiffs are
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entitled to act as shebaits of the temple because in the
endowment deed at Ex.2 late Sri Hari Dass did not lay down
the line of succession to the office of Shebait. Further his
4 chelas nominated in this deed did not exercise their power
to appoint some shebait and as such it was not open for late
Bansi Dass to appoint 2 chelas belonging to another family
of his own desire. Since Bansi Dass heirs of Ram Dass
because Ram Dass and Bansi Dass were real brothers.
The trial Court decreed the suit holding that the
plaintiffs are shebaits or sarbarkars to the temple Sri
Thakur Jugal Kishorji Maharaj Birajman Mandir (Marhi) in
town Khair and its debutter property as shown in schedule
’B’ of the plaint and for possession over the said property
and also for a permanent injunction restraining the
defendant from interfering in the plaintiffs possession over
the said property. The defendants are given one month’s time
to deliver vacant possession of the disputed property to the
plaintiffs failing which the plaintiffs would be entitled to
get possession through court.
On appeal, the appellate Curt recorded the findings
thus:
"Hari Dass, the original founder of
the trust had not specified any
direction in the waqf deed of
1.4.20 with regard to future
Shebaitship or Sarbarkarship after
the death of the four chelas
nominated by him. The four chelas
were also not given any authority
to nominate future shebaits or
sarbarkars after their death and as
such that office of Shebaitship of
Sarbakarship devolved on the
plaintiffs as sons of Ram Dass and
Bansi Dass though they were also
the disciples of Bansi Dass.
Defendant Nos.1 and 2 were minors
and as such they could neither act
as chelas of Bansi Dass nor could
entitled themselves to act as
shebatits or sarbarkars in law on
any account and the directions
given in the adoption deed dated
6.6.66 were illegal and void ab
initio Defendants 4 and 4 had got
fraudulent and fictitious entires
made in Revenue papers in their
favour in collusion with lekhpal as
sub-tenant over certain area of the
temple land though they had no
interest or title at all and as
such Hoti Lal and Kishore Lal, the
respective fathers and guardians of
the defendants 1 and 2 had no right
to claim the property against the
interests of the deity".
It would, thus, be seen that there is no controversy as
to whether Rambir Dass became entitled to succeed the temple
a shebait as could be seen from the evidence; in the light
of the above legal position, Hari Dass had not laid down
any line of succession to his chelas to administer the
debutter estate of the temple. He left behind him four
chelas and admittedly one of the chelas, Ram Dass, and
married. The appellant and his brother, are the progenies of
Ram Dass. Bansi Dass, the last chela had executed a Will
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under Which he nominated Rambir Dass and his brother as
Shebait. Admittedly, he did not reserve any right to cancel
their nomination in the Will. He cancelled the Will while
executing an Adoption Deed in favour of the defendants. The
question is: whether he had the competence to cancel the
Will having duly nominated the appellant and his brother as
Sehbaits? Since the brother of the appellant became insane,
it is not necessary to go into the question whether he would
succeed after Rambir Dass. The Will in the normal
connotation, takes effect after the demise of the testator.
But in the case of nomination of a shebait, the nomination
takes effect from the date of its execution though it is
styled as will. Once it takes effect, the nominee becomes
entitled to go into the office as a shebait after the demise
of the last chela of Hari Dass. Under these circumstances,
the shebaitship being a property, vests in Rambir Dass and
he could administer the property and manage the temple for
the purpose of spiritual and other purpose with which Hari
Dass, the original founder had endowed the property to Lord
Krishna and Radha.
The Next question is; whether Bansi Dass has power to
adopt defendants 1 and 2 and deprive the appellant of his
right of shebaitship? Having seen that Bansi Dass did not
reserve any right to cancel the nomination and that too for
valid reasons, the Will became operative as soon as it was
executed. Thereby, he had no more any power to cancel it and
thereby the right of adoption would not be approved of by
this Court as valid in law, as he is a Bairagi and he could
not adopt anyone except nominating a chela who follows the
principles and precepts the founder had laid for being
observed. Unfortunately, there is no plea in this behalf
nor is any power in that behalf. The only ground on which
the cancellation came to be made was that Rambir Dass had
married and thereby he became disentitled to be a Bairagi to
administer the debutter estate as a shebait. There is no
pleading that the married bairagi cannot hold the property
nor that he becomes a shebait to administer the debutter
estate endowed to the Mandir. It is to be seen that the
property stands vested in the deity, Lord Krishna and Radha
and that anyone who administers the property, does so as a
shebait and administers as trustee for and on behalf of the
deity. It is true that the High court has disallowed the
Well and held that neither party is entitled to shebaitship,
The view taken by the High Court is clearly illegal. It is
not the case that the appellant was not nominate under the
Will executed by Bansi Dass, in the first instance and
thereby he was vested with the right to manage, as a Shebait
of the debutter estate belonging to the deity, Lord Krishna
and Radha. There is no plea nor proof that a married person
is not entitled to be the shebait. Therefore, the view of
the High Court that the became disentitled on account of the
marriage is clearly illegal. A chela cannot be adopted be
adopted but can be nominated. As a consequence, the adoption
of defendants 1 and 2 by Bansi Dass as chelas is also not
legal for the reason that they were minors as on the date
when the claims to have adopted them elas. Chela nominated
must be one who is independent and capable to renounce the
worldly affairs or capable to adopt himself as Bairagi. He
cannot adopt anyone as his successor by application of the
general principles of law.
Under these circumstances, though for different reason, the
adoption deed executed by Bansi Dass in clearly illegal. In
consequence, the estate does not become an estate but it
continues to remain vested in the deity and the shebait
remains incharge of management of the erty. The right of
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management should go either in the order of succession given
by the original founder or, in its absence, in the line of
intestate succession. It is seen that Ram Dass one of the
chelas was married and he left behind his son Rambir Dass,
the appellant; another chela, Bansi Dass having died without
nominating any chela, necessarily, the succession would go
to the heirs of one of the chelas. In the absence of line of
succession indicated by the founder, admittedly, Rambir Dass
became entitled to succeed by inheritance the debutter
estate as shebait to manage the temple on behalf of the
deity Lord Krishna and Radha and he remains to be the
trustee and is entitled to get possession of the properties
and manage the same for the purpose for which and in the
manner in which, it was Hari Dass, If there is any
dereliction of the duty in that behalf by the appellant,
appropriate action would be taken by Endowment Department of
Uttar Pradesh Government in accordance with law. But so long
as he maintains and administers the property for the benefit
and for the purpose for which they were endowed, he is
entitled to manage as a shebait for and on behalf of the
deity, Lord Krishna and Radha.
The appeal is accordingly allowed. The judgment and
decree of the High Court stands set aside and that of the
trial Court stands restored. But, in the circumstances,
without costs.
CA No. 4173 of 1983
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In view of the above order, the appeal is dismissed. No
costs.