Ram Lal Sah v. Birendra Kamar — 1985 DIGILAW 333 (PAT)

JUDGMENT P.S. Mishra, J. A probate granted to the propounder plaintiff by the Additional District Judge III, Patna has been questioned by appellant. Chandan Sah the testator executed a will on 1.2.1961 He was however, admitted in the Patna Medical College Hospital on 12.2.1961 for treatment where the died on 14.2.1961. 2. The testator has in the said will bequeathed his moveable and immoveable properties to his widow Mosmt Murat Kuer and after her death to the propounder and his two broth en Surendra Kumar and Satyapal Gupta as absolute owners. The propounder has specified the properties bequeathed in the will in schedule of his application and allege that the will was duly, executed, attested and signed, Nandlal Sah and Ramlal Sah, two sons of the testator (described hereinafter as caveators) filed caveat alleging that the will was a forgery that the testator had no sound mind and disposing capacity on 6.2.1961, who died at the age of 83 on 14.2.1961. The testator suffered various ailments of idney, high blood-pressure etc. and was invalid for all practical purpose since about a year before his death. 3. Ramlal Sah lived mostly, at village Sargaon in Shahabad district, Nandlal Sah also resided in his village home Sargaon. Ramlgan Sah the propounder'r father however, lived with his parents at mohalla Bikerganj, Patna. He was, due to the ailment of their father Ghandsn Sah, looking after the affairs of the joint family business. He however, abruptly closed the said business and started a new one in his own name, purchased a house at Bakerganj in the name of his wife and thus, disrupted the joint family. This gave rise to a dispute of partition, ultimately deviding the properties between the brothers and a share left to the parents. Ramlagan Sah however, got a Deed of gift dated 10.7.1956 executed in the name of his son with regard to the house allotted to the father Chandan Sah and later obtained the will which is a forgery. 4. Caveators alleged inter alia that the propounders obtained the will form their father when he was in an unconscious state by taking his thumb impression on blank sheets of paper in the hospital, getting the contents forged and described accordingly and also forging Chandan sah’s signature the same besides the thumb impression. 5. 4. Caveators alleged inter alia that the propounders obtained the will form their father when he was in an unconscious state by taking his thumb impression on blank sheets of paper in the hospital, getting the contents forged and described accordingly and also forging Chandan sah’s signature the same besides the thumb impression. 5. Learned Additional District Judge has held that there are no suspicious circumstances surrounding the execution of the will by Chandan Sah, The propounder has proved the will in accordance with the law and the caveators have failed to disprove the execution of the wilt and or their case that the testator had no capacity to dispose of the properties in question by excuting the will. The caveators there after have preferred this appeal, During the pendency of the appeal however. Nandlal Sah died. An application for substituting his heirs and legal representatives after expunging his name wall flied on behalf of the appellant. The said application however, was heard and disposed of by a Bench of this Court on 21.4.1984 by a speaking order. The application for substituting the heirs of appellant no. 1 after expunging the name has been rejected by this Court on 11.4.1984. As a result of the dismissal of the petition for substitution the appeal has been hold to have abated in so far as the heirs and legal representatives of Nandlal Sah (appellant no.1) was concerned. A petition however, has been filed by the heirs and legal representatives of Nandlal Sah, stating that they should be added as parties and permitted to contest the probate as appellants. Mr. Mazmudar learned counsel for the appellant has contended that in this case, notwithstanding the dismissal of the petition for substitution on 11.4.1984, the right of the heirs and legal representatives of Nandlal Sah to object to the grant of probate to the propounder cannot be denied. He has submitted that death of Nandlal Sah and non-substitution of his heirs and legal representatives after expunging his name should not affect the right of Ramlal Sah appellant no.2 to continue to contest as the sole appellant. He has submitted that death of Nandlal Sah and non-substitution of his heirs and legal representatives after expunging his name should not affect the right of Ramlal Sah appellant no.2 to continue to contest as the sole appellant. His contention besides one as the question of competency of the appeal, is that the learned Additional District Judge has fallen in error both of law and facts and failed to appreciate the evidence showing that Chandan Sah on 6.2.1961 had no testamentary capacity and the Will is not genuine. 6. Mr. Tara Kant Jha, learned Counsel for the respondent however has refuted the contention of Mr. Mazumdar both on the competency of the appeal and the merit and submitted that the appeal should fail on the ground that it is not maintainable as also on the ground that the caveators have failed to prove their case. He has submitted that the propounder has complied with the requirements of law and laid cogent evidence to prove his case. 7. I shall advert to the above said contentions of the learned Counsel of the parties. But before doing so, I propose to dispose of a minor contention. A position for probate has to conform to the requirements of section 276 of the Indian Succession Act. Section 280 however, save that the petition for probate or letters of administration shall in all cases be subscribed by the petitioner and has pleader if any and shall be verified by the petitioner in the following manner namely, "1 (A.B.) the petitioner in the above petition, declare that what is stated therein is true to the best of my information and belief.” Section 281 says : "Where the application is for probate, the petition shall also be verified by at least one of the witnesses to the will (when procurable) in the manner or to the effect following namely : "I (C.D.) one of the witnesses to the last will and testament of the testator mentioned in the above petition declare that I was present and saw the said testator affix his signature (or mark thereto for that the said testator acknowledged the writings annexed to the above petition to be his last will and testament in my presence)." 8. It is not disputed that the petition has been verified by the petitioner (the propounder). Mr. It is not disputed that the petition has been verified by the petitioner (the propounder). Mr. Mazomdar has however, drawn my attention to the fact that verification by atleast one witness to the will as required under section 281 of the Act, has not been done. This according to him is a fatal defect and the probate application has to be rejected on the said ground. The requirements envisaged under section 280 and section 281 of the Act, show that the legislature has intended the petition for probate to be as exhaustive as to leave nothing required by the Act, to prove a valid disposition by a will, Section 63 in sub-section (c) of the Act, says : “The will shall be attested by two or more witnesses, each of whom has been the testator sign or affix his mark to the will or has been some other person sign the will, in the pretence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark or the signature or such other person; and each of such other person; and each of the witnesses shall sign the will in the presence or the testator, but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary.” 9. This introduce a special requirement for the proof of the execution of unprivileged will. The mode of proving a will does not ordinarily differ from that proving any other document except as to the special requirement of attestation prescribed in the case of a will by section 63 of the act. Section 281 requires one of the witnesses to the last will and testament of the testator to declare that he was present and saw the said testator affix his signature (or mark) there to (or that) the said testator acknowledged the writing of the will to be his last will and testimony in his presence. Section 282 provides or punishment for false avernment in petition or declaration. A witness verifying as required under section 281 of the Act, shall accordingly be responsible for the statement that he makes in the verification and if the statement is untrue in any part he may be subjected to the punishment as prescribed under section 282 of the act. Section 282 provides or punishment for false avernment in petition or declaration. A witness verifying as required under section 281 of the Act, shall accordingly be responsible for the statement that he makes in the verification and if the statement is untrue in any part he may be subjected to the punishment as prescribed under section 282 of the act. All these however don’t make the default or non-compliance with the requirements of section 281 of the Act, a defeat making the petition for probate or letters of administration incompetent, it is not possible to read the provision under section 281 of the Act, as imperative and mandatory. A petitioner can do what he is to do and procure if the witness is available. But section 281 itself inhibits the import of the requirements thereof by saying that the application for probate shall also be verified by atleast one of the witnesses to the will (when procurble). There is no consequence prescribed in the Act, of the failure of the petitioner in procuring the verification of atleast one witness to the Will, All that the Act, says about it is provided under section 275 of the Act, which says : "The application for probate or letters of administration, it' made and verified in the manner hereinafter provided, shall be conclusive for the purpose of authorising the grant of probate or administration; and no such grant shall be impeached by reason only that the tastator or intestate bad no fixed place of abode or no property within the district at the time of his death unless by a proceeding to revoke the grant if obtained by a fraud upon the Court," 10. The golden rule of interpretation of Statute is that a provision of law even though couched in imperative language is read al directory and not mandatory unless non-compliance or non-observance thereof is made either penal or goes to the root of the action. Mr. Mazumdar has tried to draw a parallel with the provisions in the Bihar Gram Panchayat Election Rules, which similarly speaks of verification of the election petition and the schedule of corrupt practices by the petitioner. This Court has read the requirements of verification under the said Rules as mandatory. Mr. Mazumdar has tried to draw a parallel with the provisions in the Bihar Gram Panchayat Election Rules, which similarly speaks of verification of the election petition and the schedule of corrupt practices by the petitioner. This Court has read the requirements of verification under the said Rules as mandatory. I am afraid the provisions however, under section 281 of the Act, can not be taken that for and non-compliance by the petitioner of the requirements of section 281 cannot result in the dismissal of the application for probate. 11. Unfortunately for the appellant, a Bench of this Court on 11.4.1984 has dismissed the application for expunging the name of the appellant no.1 and substituting in his place his heirs end legal representatives. Mr. Mazumdar his submitted that Order 22 of the Civil Procedure Code has got no application to a proceeding for probate or letters of administration and similarly to an appeal in such a proceeding. He has taken me through various provisions of the Act, emphasising that caveator may be one or may be more and in place of one caveator there may be another and this shall cause no violence to the provisions of law. He has placed reliance upon the judgment or the Supreme Court in the case of Bhagwan Swaroop and Others vs. Mool Chand and Others to emphasise that the laws of procedure are devised for advancing justice and not imposing the same and so the Code or procedure is designed to facilitate justice and further its ends; it is not a penal enactment for punishment not a thing designed to trip people up. His main contention however, is that Order 41 Rule 4 of the Civil Procedure Code leaves it open notwithstanding the rejection of the application for substitution and setting aside abatement and even assuming that the procedure, as engrafted under Order 22 and Order 41 of the Civil Procedure Code has to be applied the principle behind the provisions of rule 4 of Order 41 has to be invoked. This Court should not reject the appeal as incompetent only on the ground that the heirs and legal representatives of the appellant no.1 have been denied substitution in his place. This Court should not reject the appeal as incompetent only on the ground that the heirs and legal representatives of the appellant no.1 have been denied substitution in his place. The Supreme Court in the case of Rameshwar Prasad and other vs. Shambehari Lall Jagannath and another has said : “The principle behind the provisions of R. 4 of O. 41 Civil P.C. seems to be that anyone of the plaintiffs or defendants, in filing an appeal as contemplated by the rule, represents all the other non-appealing plaintiffs or defendants as he wants the reversal or modification of the fact that the original decree proceeded on a ground common to all of them. Where a number of persons have filed an appeal and pending the appeal one of the appellants dies, the surviving appellants cannot be said to have filed the appeal as representing the deceased appellants.” 12. In the case of Ramashwar Pd. also one Kedarnath was alive when the appeal was filed and was actually one of the appellants. He died however, during the pendency of the appeal and the appeal abated. In that very judgment the Supreme Court has said : "No question of the provisions of R. 4 of O. XLI overriding the provisions of R. 9 of O. XXII arises. The two deal with different stages of the appeal and provide for different contingencies. Rule 4 of O. XLI applies to the stale when an appeal id filed and empowers one of the plaintiffs or defendants to the an appeal against the entice decree in certain circumstances. He can take advantage of this provision, but be may not. Once an appeal has been filed by all the plaintiffs the provisions of order XLI Rule 4 become unavailable. Order XXII operates during the pendency or an appeal and not at its institution, It some party dies during the pendency of the appeal his legal representatives have to be brought on the record within the period or limitation. If that is not done, the appeal by the deceased appellant abates and does not proceed any further. There is thus no inconsistency between the provisions of R.9 of O. XXII and those or R. 4 of O. XLI, G.P.C. They operate at different stages and provide for different contingencies. If that is not done, the appeal by the deceased appellant abates and does not proceed any further. There is thus no inconsistency between the provisions of R.9 of O. XXII and those or R. 4 of O. XLI, G.P.C. They operate at different stages and provide for different contingencies. There is nothing common in their provisions which make the provisions of one interfere in any way with those of the other." Proceeding further in that very judgment the Supreme Court has said. “We do not consider it necessary to discuss the cases referred to at the hearing. Suffice it to say that the majority of the High Courts have taken the correct view viz. that the appellate Court has no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under O. XLI, R.4, when the decree proceeds on a ground common to all the plaintiffs or defendants if all the plaintiffs or defendants appeal form the decree and any of them dies and the appeal abates so far as he is concerned.” 13. The pronouncement in the above said two judgments of the Supreme Court indicates in full how the law of procedure should be applied and how shall it help the Court in arriving at a just conclusion, No doubt a court shall not allow the abatement to take precedence in a case, in which substitution is sought for and reasonable explanations are furnished for setting aside the abatement. In the instant case a Bench of this Court has consideration the explanation furnished by appellant and rejected the application for substitution and setting aside abatement. No amount of endeavour of the appellant shall now undo the effect of the rejection of the application for substitution and setting aside abatement. Order, 41 Rule 4 of the Civil Procedure Code shall provide no help to him as the abatement has set in during the pendency of the appeal. It is not a case in which the appellant no. 2 Ram Lal Sah has independently chosen to question the order and decree of the court below so as to set aside the order and the decree alone. 14. Mr. It is not a case in which the appellant no. 2 Ram Lal Sah has independently chosen to question the order and decree of the court below so as to set aside the order and the decree alone. 14. Mr. Mazumdar, however, has contended with some vehemence that tile Civil procedure Code is not applicable to the appeal which has arisen from an order granting probate to the respondent, Section 195 of the Act, lays that in any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Civil Procedure Code, 1908 (5 of 1908), in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant. Section 1299 says "Every order made by a District Judge by virtue of the powers hereby conferred upon shall be subject to appeal to the High Court in accordance with the provisions of the Civil Procedure Code, 1908 (5 of 1908), applicable to appeal," "In the instant case, the appellant had entered caveat and in terms of the provisions made in section 28 of the Act, no proceeding could be taken on the petition for probate or letters of administration without following the procedure prescribed in section 295 of the Act. This view finds further support from section 286 of the Act, which says a District Judge shall not grant probate or letters of administration in any case in which there is contention as to the grant or in which it otherwise appears to him that probate or letters of administration ought not be granted in his court, Contention has been defined to mean the appearance of anyone in person, or by his recognised agent or by a pleader duly appointed to Act, on his behalf to oppose the proceeding. Application of Order 22 of the Code of Civil Procedure can be excluded only if it is shown that it is not possible to apply the rules prescribed therein. Mr. Application of Order 22 of the Code of Civil Procedure can be excluded only if it is shown that it is not possible to apply the rules prescribed therein. Mr. Mazumdar has shown nothing beyond contending that the command in section 286 of the Act, and the procedure in contentious cases prescribed in section 295 thereof should in no way indicate that Order 22 of the Code of Civil Procedure would apply to an appeal ari8ing out of a probate proceeding. Order 22 deals with case of death, marriage and insolvency of parties Procedure in case of death of one of several plaintiffs or of sale plaintiff is prescribed in rule 3 thereof. A time limit b88 been prescribed under the Limitation Act, for making an application by the surviving plaintiff/plaintiffs for substituting the heirs and leagal representatives of the deceased plaintiff. The rule, however, warrants that application for substitution would be required only when the right to sue did not survive. The only way to exclude application of Order 22 in a proceeding therefore, is to show that the death of a co-plaintiff has not affected the right of the surviving plaintiff or plaintiffs to sue. I have already taken into consideration rule 4 of Order 41 of the Code of Civil Procedure. Appellant no. 2 now maintain this appeal in view of the provisions under Order 41 Rule 4 or the Civil Procedure Code, but not, when he alone can not represent the interests of the heirs and legal representatives of the deceased appellant no.1. So far the appellant no.1 is concerned, the appeal has already been recorded to have abated. Since the appeal of the appellant no.1 has abated his heirs and legal representatives cannot, without the abatement being set aside, question the validity of the grant of probate in favour of the respondent. The claim of the appellant no. 2 has always been besides the claim of the appellant no.1, but since the heirs and legal representatives of the appellant no.1 are no longer in a position to assail the impugned judgment, the appellant no. 2 also cannot do so on their behalf. The law laid down in Rameshwar Prasad's case shall be observed in violation if the appeal of the appellant no.2 shall still be entertained. 15. 2 also cannot do so on their behalf. The law laid down in Rameshwar Prasad's case shall be observed in violation if the appeal of the appellant no.2 shall still be entertained. 15. The conclusions above may he sufficient to dispose of the appeal, but I do not propose to do so because I have still my doubts whether the appellant no. 2 independently as a caveator can maintain the appeal or not. I find, however, that it is not possible to interfere with the judgment on merits as the law in this regard has been fully complied with and the propounder has proved the will in accordance with law. The law on the subject is not longer in doubt. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and the signatures of the testator, as required by law is sufficient to discharge the onus. Where, however, there are suspicious circumstances the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where caveator alleges undue influence, fraud and coercion the onus is on him to prove the same. Even where there are no such pleas, but the circumstances give rise to doubts it is for the propounder to satisfy the conscience of the Court. I have considered in some details this aspect of the matter in the case of Laxman Mandal V. Most. Saro Devi & others. The suspicious circumstances may be as to the genuineness of signature of the testator, the condition of the testator's mind, the disposition made in the will being unnatural, improbable or unfair in the light of relvant circumstances or there might be other indications in the will to show that the testator’s mind was not free. Saro Devi & others. The suspicious circumstances may be as to the genuineness of signature of the testator, the condition of the testator's mind, the disposition made in the will being unnatural, improbable or unfair in the light of relvant circumstances or there might be other indications in the will to show that the testator’s mind was not free. In such a case the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator, In Pushpavati & others vs. Chandraja Kadamb and others the Supreme Court has said "Where the signature of the testator is challenged as a forged signature and the Will does not come from the custody of a public authority or a family Solicitor the fact that the disposition made in the will were unnatural, improbable or unfair, would undoubtedly create come doubt about the Will, especially, when the document is unregistered and comes from the custody of a person who is the major beneficiary under the Will." 16. Mr. Majmudar had submitted that in the instant case the document has come from the custody of the respondent who undoubtedly is a major beneficiary as the properties conveyed by the will would revert to him after the demise of the wife of the testator. The signature of the testator on the will has been challenged as the forged signature and dispositions made therein arc unnatural, improbable and unfair. There, according to Mr. Majumdar, are suspicious circumstances, which if not removed, could cast serious doubt to the genuineness of the will. 17. True the will is not has been produced by the according to the caveator's registered and it propounder. But, the testator was confined to bed for some kidney trouble over a year. This case, however, has been given up and they have adduced evidence only to show that Chandan Sah was an old man aged about 80 years and that he had suffered from prostate glands and was in serious condition during the period he was in Patna Medical College Hospital for his treatment, where be died. They have given up their case also about the forgery of the signature of the testator. The will has recited in full about the condition of health of the testator. They have given up their case also about the forgery of the signature of the testator. The will has recited in full about the condition of health of the testator. It is written and ascribed by Parmeshwar Dayal and bears the signature of the testator and his thumb impression on different sheets. It also stands attested by more than two attesting witnesses, It is admitted that Parmeshwar Dayal had died before he could depose in the case. It is also admitted case of the parties that the testator was sufficiently old and was aged about 80 years at the time of his death. P.W. 3, who is an attesting witness, has deposed that the will was scribed by Parmeshwar Dayal as instructed by the testator; after it was scribed he fully understood its contents and signed the will as dictated by him and also signed the pages of the will P.Ws. 4, 5, 7, 10, who are other attesting witnesses, have also said that the will was executed by the testator in sound state of mind and was a voluntary Act, free from any influence. Their evidence goes to show that there was neither say fraud nor any undue influence. Although the caveator has alleged that the testator's thumb impression was obtained on blanksheets of paper while he was lying unconscious in the Patna Medical College Hospital where he was admitted for treatment, no evidence has been adduced on their behalf that the thumb impression was actually obtained in the P.M.C.H. during the unconsciousness of the testator. Some Hospital papers connected with the treatment of the testator during the relevant time have been proved by the D.Ws. 11, 12 and 13. Oral evidence of these witnesses is, however, of no avail to show that thumb impression of the testator was obtained on blank sheets of paper. 18. Learned Additional District Judge has considered the oral evidence on this subject as also documentary evidence and rightly recorded that there is no evidence to show that thumb impression of the testator was obtained while he was unconscious on blank sheets of paper. No evidence of any mental ailment of the testator ball been brought on the record. Hospital papers do not show anything beyond the fact that condition of Chandan Sah was serious when be was admitted in the hospital. Exts. No evidence of any mental ailment of the testator ball been brought on the record. Hospital papers do not show anything beyond the fact that condition of Chandan Sah was serious when be was admitted in the hospital. Exts. K, L, J, B/2 and B/5 go beyond showing that Chandan Sah was aged about 80 years and that he suffered from prostate gland enlargement and was in very serious condition. Section 59 of the Act, says that every person of sound mind not being a minor may dispose of his property by will. Explanations 3 and 4, which are relevant, say that a person who is ordinarily in lane may make a will during interval in which he is of sound mind, but no person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing. A person, who is very feeble and debilitated, but capable of exercising a judgment as to the proper mode of disposing of his property can make a will and his disposition shall not be invalid The test, therefore, whether the testator had testamentary capacity or not is to find out whether be was able to understand the nature of his property, the nature of disposition and understanding that by doing so he had created a right after his death infavour of somebody. Chandan Sah's testamentary capacity on account of his ailment, in my view, cannot be doubted. 19. I have already noticed that the case of fraud or forgery of the signature has been given up by the caveator. No case of undue influence has also been made out by him. To constitute undue influence as defined under section 16 of the Indian Contract Act, some sort of coercion is necessary. Coercion is inferable from the acts of the beneficiaries. Influence of affection has always been recognised as the cause of dispositions by lifts and wills. No case of undue influence has also been made out by him. To constitute undue influence as defined under section 16 of the Indian Contract Act, some sort of coercion is necessary. Coercion is inferable from the acts of the beneficiaries. Influence of affection has always been recognised as the cause of dispositions by lifts and wills. Mere desire of gratifying the wishes of others cannot be branded as undue influence, The caveator has brought the case only with the angle of demonstrating before the Court that the testator had chosen to stay with the propounder and that some litigations followed and there was dishonest appropriation or joint family properties by the propounder the learned Additional District Judge has gone into this aspect of the case in details. He bas taken notice of the evidence in this regard and found that the caveators acts subjected the testator to civil and criminal litigations along with the propounder. I am not dilating into the details of the evidence on this aspect of the case because. I am satisfied that no genuine suspicious circumstance has been brought to my notice upon which I may doubt the genuineness of the will. 20. Mr. Majumdar has taken me through the evidence of D.Ws. 3, 4, 5, 7, 11, 12 and 13. They have all fallen short of deposing on the question of disproving the valid execution of the will. In Laxman Mandal’s case (supra) I have held against the propounder on the grounds, inter alia, that the unregistered will came from the custody or the propounder. the entire estate or the testator was demised to the propounder denying even to the widow or the testator any interest in the property and the creation of the will was preceded by a so called adoption of the propounder by the testator, and several other suspicious circumstances. In the instant case a fact conceded by Mr. Majumdar is quite eloquent showing disposition by the testator of the properties exclusively belonging to him. Prior to the execution of the will it is said that the testator had transferred certain properties by executing a deed of gift. The same is not questioned on any ground. In the instant case a fact conceded by Mr. Majumdar is quite eloquent showing disposition by the testator of the properties exclusively belonging to him. Prior to the execution of the will it is said that the testator had transferred certain properties by executing a deed of gift. The same is not questioned on any ground. Caveator has vacillated and taken no definite stand except alleging that the testator bad grown so weak that he was not in a position to execute the will and that while he was unconscious his thumb impression wall obtained. 21. Having considered all the aspects of the case and the evidence on the record and examined the reasonings in the judgment of the Learned Additional District Judge 3rd Patna, I have no hesitation in holding that there are no suspicious circumstances shrouding the Will and the caveator has failed to disprove the execution of the Will by late Chandan Sah or it was obtained by fraud or under influence. 22. In the result, this appeal is dismissed. There shall, however, be no order as to costs. Appeal dismissed.