Nagalingam v. Ramakrishnan — 1999 DIGILAW 1186 (MAD)

Judgment :- This Second Appeal is directed against the judgment of the learned District Judge, Nagapattinam, in A.S. No. 190 of 1984 confirming the judgment of the learned District Munsif, Nannilam, in O.S. No. 334 of 1983. The plaintiff in the suit is the appellant in the above Second Appeal. 2. The suit was filed by the plaintiff for directing the defendants to surrender the suit property and put the plaintiff in possession of the same and for directing the first defendant to render, account of the suit property for Fasli 1390 onwards till the date of delivery. According to the plaintiff, the property belonged to one Narayana Pillai who had a daughter by name Chinnammal and son by name Ramaiah Pillai. The said Chinnammals husband was one Narayanasamy. The said Narayanasamy had four brothers viz., Muthiah Pillai, Ramaiah Pillai, Muthuvel Pillai and one Chockalingam Pillai. The present plaintiff is the son of Chockalingam Pillai. In other words, the plaintiff is the son of Chinnammals husbands brother. The original owner Narayanasamy Pillais son Ramaiah Pillai died leaving behind his wife Pushpavalli Ammal. The second defendant is the foster son of the said Pushpavalli Ammal. The plaintiff further contended that the original owner Narayanasamy Pillai executed a registered Will on 3.12.1932 in a sound disposing state of mind and as per the terms of the Will a life interest was created in favour of his daughter in law and pursuant to the Will, Pushpavalli Ammal, the daughter-in-law was enjoying the property during her life time. She died on 27.10.1980. Therefore, the testator Narayana Pillais only daughter Chinnammal got vested remainder over the suit properties and she executed a registered Will on 7.3.1944 in a sound and disposing state of mind which was duly executed, attested and registered in accordance with law. In terms of the Will, the properties were absolutely given in favour of the plaintiff. Therefore, the plaintiff being the legatee under the Will had succeeded to the suit property after the death of Pushpavalli Ammal on 27.10.1980. Pushpavalli Ammal being only life interest holder alienated the property in favour of the first defendant a few years ago and the said alienation cannot hold good after the life time of Pushpavalli Ammal. Therefore, the alienation was not valid and not operative after her death. Pushpavalli Ammal being only life interest holder alienated the property in favour of the first defendant a few years ago and the said alienation cannot hold good after the life time of Pushpavalli Ammal. Therefore, the alienation was not valid and not operative after her death. The present plaintiff had become the absolute owner of the suit property on the death of Pushpavalli Ammal. His right to question the alienation arose only on her death. Therefore, the plaintiff issued lawyers notice on 13.2.1981 calling upon the defendants to surrender the suit properties. But the defendants had acknowledged the notice, but had not chosen to give any reply. The defendants have no right or interest over the property. They are bound to surrender the property. The second defendant being the foster son of Pushpava lli Animal was a party to the sale ‘transaction in favour of the first defendant and hence the second defendant was added as a party to the suit. The plaintiff further submitted that the first defendant had realised the fruits of the income for the fasli 1390 and therefore, he was bound to render accounts, to the plaintiff. 3. In the written statement filed by the first defendant, it was contended that he had purchased the suit property in the year 1970 for valuable consideration from Pushpavalli Ammal (and her adopted son Sivanandam) who had obtained the same under a settlement deed executed by her father-in-law in the year 1932 in lieu of her maintenance wherein she had been given a life estate to enjoy the properties for her life and thereafter to be taken by him or by his heir to be nominated. Narayanasamy Pillai predeceased Pushpavalli Ammal and he had not nominated any heir and therefore, after the advent of Hindu Succession Act. 1957. the right given to any female became enlarged into an absolute right. The property given in lieu of maintenance to a female with a limited interest will also enlarge and blossom into an absolute right and title giving a free hand for them to deal with the same. As such the limited right given to Pushpavalli Ammal under the settlement was enlarged into a full right and the sale deed executed in favour of the first defendant for consideration was valid in law and cannot be questioned. 4. As such the limited right given to Pushpavalli Ammal under the settlement was enlarged into a full right and the sale deed executed in favour of the first defendant for consideration was valid in law and cannot be questioned. 4. In the written statement filed by the second defendant, it was contended that Narayansamy Pillais property being ancestral property, he was not competent to Will away the same. After Narayanasamy Pillais death, his daughter-in-law Pushpavalli Ammal was the holder as the vested remainder holder. Even as per the Will life estate was given to Pushpavalli Ammal which had become enlarged into a full estate. The Will alleged to have been executed by Chinnammal was not admitted by the defendants. The second defendant was not the foster son of the deceased Pushpavalli Ammal. He helped her during her last days and she sought help of the second defendant in disposing of the properties and he did not derive any benefit out of it and the entire consideration was received only by Pushpavalli Ammal and she had used it for her own purpose. The predecessors wanted the defendants to join in the sale by way of abundant caution and therefore, he had also signed the document. Therefore, the second defendant was not in any way responsible for the suit claim and that he was not a necessary party. 5. On a consideration of the said pleadings and the evidence, the trial Court held that Ex. A.2 said to be the Will executed by Chinnammal in favour of the plaintiff had not been proved since none of the two witnesses, nor the scribe had been examined as a witness. As far as Ex. A.1 settlement was concerned, it was held that Pushpavalli Ammal had become the absolute owner of the property in terms of Section 14 (1) of the Hindu Succession Act hereinafter called the Act. On appeal also, the appellate Court had confirmed the findings and hence the Second Appeal by the plaintiff. 6. Learned counsel for the appellant Mr. A.1 settlement was concerned, it was held that Pushpavalli Ammal had become the absolute owner of the property in terms of Section 14 (1) of the Hindu Succession Act hereinafter called the Act. On appeal also, the appellate Court had confirmed the findings and hence the Second Appeal by the plaintiff. 6. Learned counsel for the appellant Mr. S. Sounthar seeks to raise the following points:— (1) As far as applicability of Section 14(1) of the Act to the settlement executed by Narayana Pillai in favour of his daughter-in-law was concerned, the Courts below went wrong in assuming that every document purporting to grant a limited interest in favour of a widow would blossom into an absolute right irrespective of the fact that the settlor had no duty to maintain the widow. The Courts below also wrongly assumed that father-in-law had a duty to maintain his daughter-in-law and according to learned Counsel, Hindu Law did not recognise any such obligation in the father-in-law and hence the provisions of Section 14(1) of the Act cannot apply to Ex. A.1. Section 19 of the Hindu Adoption and Maintenance Act clearly laid down that the duty of father-in-law to maintain the daughter-in-law was only to the extent of the joint family property in his hands and in the present case the property in question was the self acquired property of Narayana Pillai. (2) With reference to the finding that Ex. A. 2 executed by Chinnammal was not proved, the appellate Court without considering the evidence and without any discussion had merely confirmed the judgment of the trial Court. Both the Courts did not also properly consider the valid reasons given for non examination of the attestors and the scribe. 7. Mr. C.S. Krishnamoorthy, learned counsel for the respondents contends that several rulings of the Supreme Court had clearly laid down that any property given to a Hindu family for maintenance would be covered by Section 14(1) of the Act. He would further state that there was no finding to the effect that the suit property was the self acquired property of Narayana Pillai. Under Hindu Law father-in-law always had a duty to maintain the spouse and the issues of his sons and as such the father-in-law had a duty and obligation to maintain the daughter-in-law. He would further state that there was no finding to the effect that the suit property was the self acquired property of Narayana Pillai. Under Hindu Law father-in-law always had a duty to maintain the spouse and the issues of his sons and as such the father-in-law had a duty and obligation to maintain the daughter-in-law. Therefore, the property vested with the widow was pursuant to her pre-existing right and therefore, governed by Section 14 (1) of the Act. 8. The following issues arise for consideration in this Second Appeal: (1) Whether under Hindu Law a daughter-in-law was entitled to be maintained by the father-in-law in respect of his self acquired property and if not whether the life estate granted under Ex. A. 1 in favour of the daughter-in-law could ripen into a life estate under Section 14 of the Act. (2) Whether the Will executed by Chinnammal (Ex. A. 2) had been properly proved in accordance with law. 9. With reference to the first issue, learned counsel for the respondents, raised a contention that there was neither any pleading nor any proof of the property dealt with under Ex. A.1 being the self acquired property of Narayana Pillai. It is true that in the plaint there is no specific statement to the effect that the property was the self acquired property of Narayana Pillai. But the recitals in Ex. A.1 clearly shows that the properties had been purchased by Narayana Pillai from and out of his own funds and not only the said fact had not been seriously challenged by either of the parties before the Courts below, but also the Courts have rendered a specific finding that the property was a self acquired property of Narayana Pillai and not a joint family property. The said finding has to be upheld. 10. Before examining the legal issue as mentioned above, it would be relevant to extract the operative portion of Ex. A.1 dealing with the purpose of settlement of life interest in favour of his daughter-in-law and as to how the property was to be dealt with after her life time. Tamil 11. The said finding has to be upheld. 10. Before examining the legal issue as mentioned above, it would be relevant to extract the operative portion of Ex. A.1 dealing with the purpose of settlement of life interest in favour of his daughter-in-law and as to how the property was to be dealt with after her life time. Tamil 11. The crux of the point which is taken by learned counsel for the appellant is that what is contemplated under Section 14(1) of the Act is that only the property coming into jthe hands of the widow in recognition of or pursuant to a preexisting right of the Hindu widow would be covered under the provision and not properties which are not connected with any pre existing right. 12. While interpreting Section 14(1) of the Act, the Supreme Court commencing from its leading decision in Tulasamma v. Sesha Reddi ( AIR 1977 SC 1944 =90 L.W. 89 S.N.) and all the various High Courts have liberally and widely construed the provision. In fact by even supplementing words which are not to be found in the provision, Courts have held that Section 14(1) would apply to all properties granted to a female Hindu by virtue of recognition of the “pre existing right to maintenance”. Even though the expression “preexisting right” is not to be found in the said Section, having regard to the beneficial intent behind the provision, the Courts have supplemented the said expression in order to eliminate narrow or restricted meaning being applied while examining the reasons or motives behind the vesting of limited rights on the widow. The distinction between Section 14(1) and 14(2) of the Act was mainly based on the existence of “preexisting right” or an antecedent right vide the judgment of the Supreme Court in (1) Tulasammas case , cited supra, (2) Gulwant Kaur v. Mohinder Singh ( AIR 1987 SC 2251 -100 L.W.I 131); (3) Ramaswami Gounder Etc. v. Adikesava Gounder & ors. (1995-2-L.W. 810) (SC to name only a few). Therefore, learned counsel for the appellant is right in stating that conversely, if the vesting of life interest had nothing to do with any preexisting-right or antecedent right, then such vesting cannot enlarge into an absolute right. v. Adikesava Gounder & ors. (1995-2-L.W. 810) (SC to name only a few). Therefore, learned counsel for the appellant is right in stating that conversely, if the vesting of life interest had nothing to do with any preexisting-right or antecedent right, then such vesting cannot enlarge into an absolute right. According to him, in the present case, father-in-law is the settlor and the father-in-law not being a person who is legally bound to maintain the daughter-in-law, the limited right cannot get enlarged into an absolute right. 13. In support of his contention that there is no obligation on the part of the father-in-law to maintain a daughter-in-law out of his separate property being his self acquisition, learned counsel refers to Section 19 of the Hindu Adoption & Maintenance Act. 1956. While 19(1) of the said Act holds that a Hindu wife shall be entitled to be maintained after the death of her husband by her father-in-law. Section 19(2) of the Act makes it conditional that such an obligation under Sub-section (1) shall not be enforceable if the father-in-law did not have the means to do so from any co-parcenary property in his possession out of which the daughter-in-law may not have obtained any share. The provision of law as pointed out by learned counsel for the appellant would apply to cases in which succession would have opened after coming into force of the said Act. But in the present case, the death of husband was long prior to the Act and we are also dealing with a document executed and the consequential vesting had also taken place in the year 1932 itself and therefore, we have to be guided only by the law as applicable at that time. 14. With reference to the old Hindu Law reference is made to decision of a Division Bench of this Court in Meenakshi Ammal v. Rama Aiyer (ILR 37, Madras, 396). The Division Bench after examining in detail the various aspects of Hindu Law as could be gathered from various texts and Commentaries, held as follows in two paragraphs at Page Nos. 401 and 402: “The question was fully considered by a Full Bench of the Calcutta High Court in Khetramani Dasi v. Kashinath Das (1869 (2) B.L.R.. (A.C.J.). 15. The Division Bench after examining in detail the various aspects of Hindu Law as could be gathered from various texts and Commentaries, held as follows in two paragraphs at Page Nos. 401 and 402: “The question was fully considered by a Full Bench of the Calcutta High Court in Khetramani Dasi v. Kashinath Das (1869 (2) B.L.R.. (A.C.J.). 15. and the majority came to the conclusion that according to the Hindu Law there was no legal obligation on the part of a father-in-law having no ancestral assets to give maintenance to his daughter-in-law. Even supposing that some ancient sacred texts could be found in support of a contrary conclusion the authority of the Mithakshara is almost paramount in this province. As already observed, the question has to be decided according to equity, justice and good conscience: Would it then be right to uphold the appellants contention as in accordance with the sound equitable rule to be laid down in this case? An adult son has no right to maintenance against his father. How can his wifes right be regarded as standing on a higher footing? The sons marriage may have been performed after he attained his majority. It may have been performed by him of his own Will and perhaps without the fathers advice and consent. How could it be held that his widow is entitled to maintenance against his father in such cases? Again it can hardly be contended that the widow of a son divided from his father in his life-time would have any claim against her father-in-law. A brother has no right to maintenance against a Hindu out of his individual property, at any rate, if he is not an infant and under the guardianship of his brother. The considerations in favour of the appellants’ contention have been summarised in the passage cited above from West and Buhler. But the difficulties in upholding the contention in favour of the li ability of the father-in-law or any other member of the undivided family of a widow are equally, if not more, serious. We cannot but have grave doubts, about the desirability of fettering the inducement to acquire property by burdening the acquirer with the maintenance of persons who take no part in the labour of acquiring. It is natural that we should find conflicting views taken on the question by Hindu Law-givers. We cannot but have grave doubts, about the desirability of fettering the inducement to acquire property by burdening the acquirer with the maintenance of persons who take no part in the labour of acquiring. It is natural that we should find conflicting views taken on the question by Hindu Law-givers. It may also be that in practice many Hindus take the responsibility of maintaining widows whom they may not be bound in law to support. But when we find that so early-as the time of Vignaneswara the view prevailed that there should be no obligation on a person to support any one except his closest relatives, namely, parents, wife and infant children out of his own self-acquisitions or by his own labour, we do not think it will be right to lay down any broad rule that a Hindu is bound to give maintenance to his daughter-in-law out of the fruits of his own industry. 15. The Division Bench after having observed so, went further to hold that there may yet be special circumstances which may be equitable and just in a particular case to uphold such a claim in favour of the widow/daughter-in-law. But the Division Bench had stated in very definite terms that a Hindu father-in-law was not bound to give maintenance to the daughter-in-law out of his own self acquired asset and in the absence of j any joint family assets. 16. Another decision, relied upon on behalf of the appellant, of the SC in K. Satyanarayana v. G. Sithayya ( AIR 1987 SC 353 ) is no assistance. That was a decision which was rendered on the concurrent findings of all the three Courts below holding that the-widow did not acquire any alienable interest in the properties settled by her father-in-law. But no legal issue was decided as to whether the father-in-law had an obligation to maintain his daughter-in-law out of his own earnings. 17. In contrast to the decision rendered by the Division Bench reported in I.L.R. 37. Madras. 396, cited supra, holding that there was no such obligation on the part of father-in-law, none of the decisions relied upon by learned counsel for the respondents is of any help to the respondents. None of these decisions deals with the said legal issue. 18. In contrast to the decision rendered by the Division Bench reported in I.L.R. 37. Madras. 396, cited supra, holding that there was no such obligation on the part of father-in-law, none of the decisions relied upon by learned counsel for the respondents is of any help to the respondents. None of these decisions deals with the said legal issue. 18. In the decision in Narasimhan v. Ponnammal & others ( 1994(2) L.W. 487 ), no such issue arose for consideration: The property in question was the joint family property of one Perumal who settled a portion of the joint family property on his daughter-in-law. The question arose for consideration was as to whether the right of Penimals mother which she had acquired from her husband oh her death could be affected by the settlement which was executed by Perumal. The Division Bench held that the settlement by Perumal could be only in respect of his share and it cannot affect the right of his mother. Therefore, the said decision is of no help to resolve this case. 19. The decision in C. Masilamani Muddtiar 7 ors. v. The Idol of Sri Swaminathaswami Koil (1996 (2) L.W. 63) is a case where the settlor is the husband and the settlee was the wife of the settlor. The right of the wife to be maintained by her husband is imperative and a clear case of preexisting right and hence irrelevant for the present case. 20. The judgment of the SC in Ramaswami Gounder etc. v. Adikesava Gounder & ors. (1995 (2) L.W. 810) is also a case of the husband executing a Will reserving life interest to his wife and to be inherited by others subsequently. The husbands duty to maintain his wife is not open to doubt and hence the said decision has also nor bearing on the present case. 21. The only decision relied upon by learned counsel for the respondent which deals with the father-in-law gifting property in favour of a daughter-in-law is a decision of the Division Bench of this Court in Mahaliamman Temple. Sri. and Vigneswaran Koil v. Vijayammal (97 L.W. 56). This is also the decision on which the Courts below had chosen to rely very much heavily as against the case of the appellant. In my opinion, the Courts below have wrongly understood the scope and applicability of the said ruling. Sri. and Vigneswaran Koil v. Vijayammal (97 L.W. 56). This is also the decision on which the Courts below had chosen to rely very much heavily as against the case of the appellant. In my opinion, the Courts below have wrongly understood the scope and applicability of the said ruling. In that case, the gift in favour of the daughter-in-law by the father-in-law was upheld. But the property in question was claimed to be the joint family property of the father (father-in-law) and his son. Therefore, the Court rightly held that the right of the widow of one of the coparceners was a preexisting right to be maintained and hence the right would get enlarged under Section 14(1) of the Act. The Courts below had erroneously overlooked that the issue which arises for determination in the present case is with reference to the liability of the father-in-law as regards his self acquired property. A perusal of the said decision shows that the nature of the property being either joint family property or the self acquired property of the father-in-law became irrelevant due to the following circumstances: The daughter-in-law had filed an earlier suit for maintenance on the plea that the property in the hands of the father-in-law was the joint family property. In that suit, a compromise was entered into, father-in-law agreeing to pay maintenance. Therefore, even though there was no decision as regards the nature of the property, by virtue of the compromise, the property became liable for the maintenance of the daughter-in-law. In other words, the action of the father-in-law in avoiding a decision on the real nature of the property and conceding his liability for maintenance, led to the consequential result of the property being deemed to be joint family property and bound for maintenance. The Division Bench therefore, rightly concluded that the property in the later suit being one of the subject items in the earlier suit which ended in compromise was liable for claiming the preexisting right for maintenance. It is only in those circumstances the real nature of the property either as of joint family or the self acquired property of the father-in-law became irrelevant. Therefore, the reliance placed upon the said decision by the Courts below cannot be sustained. 22. It is only in those circumstances the real nature of the property either as of joint family or the self acquired property of the father-in-law became irrelevant. Therefore, the reliance placed upon the said decision by the Courts below cannot be sustained. 22. Therefore, we are left with only the decision of the Division Bench in Meenakshi Ammal v. Rama Aiyar (I.L.R. 37 Madras 396) positively holding that the self acquired properties of the father-in-law cannot beheld liable for the maintenance of the daughter-in-law. The decision being that of a Division Bench, is binding on me and hence in the present case. Ex. A. 1 not having been executed in the context of any preexisting right of Pushpavalli Animal, cannot be said to have become enlarged under Section 14(1) of the Act. 23. But notwithstanding the aforesaid conclusion, as it has been pointed out in the very same judgment of the Division Bench, “there may be certain special circumstances which may make it equitable and just in a particular case to uphold such a claim.” In my opinion, the case under appeal does involve the consideration of certain features which would disentitle the daughter of the testator to lay claim over the property as against the daughter-in-law. The following recital in the deed already extracted above, namely. Tamil has created a very uncertain situation as to who is the individual who according to the wish of the testator, should succeed to the property. He has reserved to himself the right to decide in future as to whether he himself should take over the property on the death of his daughter-in-law or the person whom he has to name, to be entitled to the property. It is true that the daughter being the only issue of the testator was the immediate legal representative, but in interpreting the Will, the actual intention of the testator has to prevail. If the testator, had really decided that the property should go to his daughter, he could have said so in clear terms The deliberate omission to name his daughter is significant. The fact that Narayana Pillai had not nominated any one as his heir, has also been pleaded in the written statement and has not been disputed. 24. There is a further peculiar circumstance which this Court has to bear in mind. The fact that Narayana Pillai had not nominated any one as his heir, has also been pleaded in the written statement and has not been disputed. 24. There is a further peculiar circumstance which this Court has to bear in mind. The finding of the Courts below is that Narayana Pillai died in the year 1945 namely after coming into force of the Hindu Womens Rights to Property Act, 1937. In accordance with the provisions of that Act, the daughter-in-law of a pre-deceased son will also be entitled to a share with reference to the self acquired property of the father-in-law vide judgment of the Federal Court in Umayal Achi v. Lakshmi Achi (AIR 1945 F.C. 25). Therefore, as a result of the failure of the father-in-law to specifically name the person who should succeed to his property, the daughter-in-law also becomes a legitimate claimant. This issue appears to have been raised before the trial Court itself. But the trial Court did not go into the issue on the ground that such a plea had not been raised in the pleadings. I am unable to sustain the ground on which the point was rejected. The issue is a legal issue on the basis of admitted facts. The Courts cannot ignore legal consequences of succession and inheritance based on clear statutory provisions. 25. Therefore, there are at least two special circumstances which would weigh in favour of Pushpavalli Ammal, the daughter-in-law namely, the absence of any nomination by the testator and the daughter-in-law herself being one of the persons entitled to a share out of the separate property of the father-in-law by virtue of Hindu Womens Rights to Property Act. 1937. The said circumstances shall be taken note of in her favour, notwithstanding the position that a father-in-law is not obliged in law to maintain his daughter-in-law out of his self acquisitions, and the life estate will not get enlarged under Section 14(1) of the Act. 26. The only other question which arises for consideration is as to whether the Will executed by Chinnammal under Ex. A.2 is proved in accordance with law. Both the Courts held that Ex. A.2 was not properly proved as a result of the non-examination of the attestors and the scribe. 26. The only other question which arises for consideration is as to whether the Will executed by Chinnammal under Ex. A.2 is proved in accordance with law. Both the Courts held that Ex. A.2 was not properly proved as a result of the non-examination of the attestors and the scribe. Learned counsel for the appellant states that reasons for not examining them had been adequately explained and in fact, the trial Court had specifically noted that the scribe as well as both the attestors were not alive. In this context, learned counsel for the appellant relies on a judgment of a Division Bench of the Calcutta High Court in Mahendra Nath Surul v. Netai Charon Ghosh (I.L.R. 1943 (1) Calcutta, 392). In that case, the Division Bench of the Calcutta High Court held that the presumption under Section 90 of the Indian Evidence Act was discretionary and not obligatory and the presumption would apply to Wills as well as to the other documents and the Court may draw presumptions in deciding whether the Will has been properly attested or not. 27. Though the non-examination of the attesting witnesses alone may not be fatal for the proof of the Will, the trial Court has pointed out that even otherwise P.W.I had not identified the signatures of the testator in Ex. A.2. 28. A further criticism which was advanced by learned counsel for the appellant is the manner in which the appellate Court had dealt with the issue in a very summary manner without any discussion and that the appellate Court had mechanically recorded a finding that it was not shown as to why neither the attestors nor the scribe had been examined. There is practically no discussion on the said fact, according to learned counsel for the appellant. 29. As regards the issue relating to the proof of Ex. A.2 apart from the fact that the trial Court had recorded a specific finding that P.W. 1 did not identify the signature of testator, I am inclined to hold that it is unnecessary to go into the said issue since I have held that Pushpavalli Ammal has to be treated as full owner of the property. A.2 apart from the fact that the trial Court had recorded a specific finding that P.W. 1 did not identify the signature of testator, I am inclined to hold that it is unnecessary to go into the said issue since I have held that Pushpavalli Ammal has to be treated as full owner of the property. Further, there being no nomination or bequest in favour of Chinnammal by the testator and as pointed out earlier, as the widow of predeceased son, Pushpavalli Ammal was also entitled to a share in the property of Narayana Pillai, it follows that Chinnammal had no right to deal with the property and hence the Will executed under Ex. A.2 becomes unenforceable. 30. Therefore, I am inclined to agree with the ultimate conclusions arrived at by the Courts below though for different reasons. 31. In the result, the above Second Appeal is liable to be dismissed and accordingly, the same is dismissed. No costs.