BHAJYA S/0 SHYAMA KANBI versus GOPIKABAI AND ANR. ETC.

BHAJYA S/0 SHYAMA KANBI

GOPIKABAI AND ANR. ETC.

April 4, 1978

[R. S. SARKARIA, N. L. UNTWALIA AND P. S. KAILASAM, JJ.]

Madhya Pradesh Land Revenue Code, (Code II of 1955), 1954 Section 151 rfw S. 4(2) of Hindu Succession Act (Act 30), 1956-Interpretation of the words 'subject to his personal law' in Section 151, which provides "subject to his personal law, the interest of tenure holder shall, on his death, pass by inheritance, su1vivorship or bequest as the case may be"--Whether referable to Hindu Succession Act, 1956-Legislation by referential incorporation-Cate-gories of such legislation-"Personal law" includes Hindu Succession Act-Hindu Succes~ion Act, 1956, Sections 8, 15 & 16.

The suit land which originally belonged to Ghusya, who died before the Set-tlement of 1918, came into the possession of his son Punjya. On Punjya death in the year 1936, the holding devolved on his widow Smt. Sarji who continued in possession of the same till her death on 6-11-1956. On the death of Sarij the defendants entered into wrongful possession of the land. Smt. Gopikabai, claim-ing inheritance to the Bhumidari interest of Smt. Sarji deceased, as the daughter of the sister of the last male holder. Punjya, filed suit for possession ot the suit land and also for the value of the crop. The d<>fetid~nt~ ,.,..n+<>.;;tec-1 the suit claiming that they were Sapindas of the last male holder, Punjya (being his father's brother's son's son), and as such were under the Hindu Law as prevailing on the date of Punjya's death, entitled to succeed to the interest of the deceased renure holder by virtne of Section 151 of the M.P. Land Revenue Code 1954, the operation of which had been saved by Section 4(2) of the Hindu Succession Act, 1956 .

The Trial Court decreed the suit; but on appeal the Additional District Judge set aside the decree of the trial Court and dismissed the suit. The High Court, in Second Appeal, restored the trial Court's decree holding that the plaintiff came under Clause (b) of Section 8 of the Hindu Succession Act, and a8 such, was entitled to succeed in preference to the defendants who are agna-tic relatives coming under clause (c) of that Section.

Dismissing the appeal by special leave the Court

HELD: (I) From the conspectus of Ss. 2(7), 2(19), 2(20) and Ss. 145, 147, 148, 151, 168, 172 of Madhya Pradesh Land Revenue Code, 1954, the following points emerge clear: (i) 'tenure-holder' and 'tenant' have been separately and distinctly defined in clauses (20) and (19) of s. 2 of the 1954 Code. 'tenant' according to the definition, holds land from tenure-holder. but a. 'ten~re-holder' holds and directly from the State. (ii) bhumiswami/ Bhum.idhan pays land revenue to the State and not rr>nt; (iii) Tenancv rights and rights of Bhumiswami/Bhumidhari are dealt with in separare Chaprers of the Code. Bhumiswami/Bhumidharies have permanent heritable and trans-ferable rights in the land which cannot be taken away, except in certain cases. [565 G, 566 E-FJ (2) Even on the assumption, that S. 151 of the 1954 Code is law for devolution of tenancy rights in agricultural holdings, the section itself, in terms, makes personal law by general reference applicable in the matter of the devolution of the interest of deceased tenure holder (i.e. Bhumiswami and Bhumidhar).

S1nt. lndubai v. Vyankati Vithoba Sawadhu and Ors .. A.I.'R. 1966 Born. 64 'Kumarf Ramlali v. Mst. Bhagunti Bai ana Ors. A.I.R. 1968, M.P. 247 and i"l«ft11r 1111rus1ngh and Ors. v. Mst. Duka/him & Ors., A.I.R. 1974 M.P. 141 referred to.

(3) (a) There are no words in section 151 or elsewhere in the Code which Jiu1it th.~ scope of the expression "personal law'' to that prevailing on February 5, 1955. On the contrary the words "on his death" used in s. 151 clearly show

that the legislative intent was that "personal law" as amended upto the date on which the devolution of the tenure holders interest is to be determined, shall to the rule of decision. [567 H, 568 A]

(b) The Legislature can legislate on subject by referential incorporation, if that subject is constitutionally within its legislative competence. Section 151 is an instance of legislation by such method. The State Legislature enacted the 1954 Code in exercise of its power under Entry V in the Concurrent List. The 1954 Code had also received the assent of the President under Art. 254(2) of the Constitution. [567 E-GJ

(c) Broadly speaking legislation by referential incorporation falls in two categories : First, where statute by specific reference incorporates the provi-sions of another statute "' of the time of adoption. SecOnd, where statute incorporates by general reference the law concerning parucular subject, as genus. In the case of the former, the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. Jn the case of latter category, it may be presumed that the legislative intent Yias to include all the subsequent amendments also, made from time to time in the generic law on Lhe subject adopted by general reference. [568 B-C] (b) Construed in accordance with the above principle, the expression "per-sonal law'' referred to in Section 151 of the Code, comprehends the Hindu Succession Act, 1956, which will undoubtedly govern the inheritance to the 'estate' of Smt. Sarji who died on November 6, 1956, much after the coming into force of that Act. f568F·G) Smt. lndubai v. Vyankati Vithaba Sawadha and Ors., A.LR. 1966 Born. 64, Kuman· l?amlalt v. Mst. Bhagunti Bai and Ors., A.l.R. 1968 M.P. 247 and Nahar Hirasingh and Ors. v. Mst. Duka!hin and Ors .. A.I.R. 1974 M.P. 141; apprc.ved. (4) Reading Section 15 with 1ule 3, set out in s. 16, the instant case will fall under Cl. (b) Sub-s. (2) of s. 15 because Shrirnati Sarji died issueless and intestate. The interest in the suit property was inherited by her from her husband. The suit land will, therefore, under Cl.(b) go to the heirs of her husband, Punjya. [569 G-H]

(5) The expression "heirs" of the husband used in S. 15 is to be construed with reference to the date on which the succession opens out and not with reference to the date of the husband's death. Once it is found that the case falls under s. 15(2)(b) of the Hindu Succession Act, the fiction envisaged in Rule 3 of Section 16 is attracted, according to whk:h, for the purpose of ascertaining the order of devolution it is to be deemed as if the husband had died intestate inimediately after the female intestate's death. [569 A, E, 570 B]

(6) Section 8 of the Act provides that the property of male Hindu dying intestate shall devolve according to the provisions of this chapter :-

(a) Firstly. upon the heirs, being the relatives specified in Class I of the Schedule;

(b) Secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule;

(c) Thirdly, if there is no heir of any of the two cla~ses then upoii the agnates of the deceased and,

Lastly, if there is no agnate, then upon the cognates of the deceased."

Now, Smt. Gopikabai, Respondent No. 1 is admittedly the daughter of the sister of the last male holder, Punjya; whereas the appellants are his remote agnates. Neither party falls under Class I of the Schedule. 'Sister's daughter' is Item 4 of Entry V in Class II of the Schedule; while agnates do not figure anywhere in Class III. Thus, Smt. Gopikabai's case will come in Clause (b); Secondly, of S. 8 and, as such, she _will be preferential heir of the husband of Smt. Sarji, if he_ had died the moment after her death on No:remb~r 6, 1956. Jn this view. she would exclude the defendants-agnates from 1n~entance even

according to 'personal law' which, within the contemplation of s. 1~1 of the Code, will include the Hindu Succession Act, 1956, in force at the time when Smt. Sarji died and succession opened out. [570 C-F]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2415 of 1968.

Appeal by Special Leave from the Judgment and Decree dated 10-7-68 of the Madhya Pradesh High Court in Second Appeal No. 3773 of 1962. V. K. Sanghi, A. G. Ratnaparkhi and G. L. Sanghi, for th Appel-Jant.

U. R. La/it, V. N. Ganpule and Veena Devii (Mrs.) Khanna, for the Respoudent No. 1.

The Judgment of the Court was delivered by

SARKARIA, J.-This appeal is directed against judgment of the Hi¥11 Court of Madhya Pradesh.

The following is the genealogy of the parties :

Dewaji --------------

Smt. Gopikabai wife of Mukundrao, shown in the above pedigree-table, filed suit in the Conrt of the Civil Judge, Multai, against the defendant-appellant, Bhajya, and Sonu, re·spondent 2, for possession of Bhumiswami rights in the land comprised in Khasra Nos. 31 and 166 in the area of Village Kuthkhedi, Tehsil Multai, Di~trict Betul, Madhya Pradesh.

The suit land originally belonged to Ghusya son of Dewaji. Ghusya died before the Settlement of 1918 and thereafter, this land was held by his son, Punjya, who died in the year 1936. On Punjya's death, the holding devolved on Punjya's widow, Smt. Sarji. Smt. Sarji died on November 6, 1956, and thereupon this dispute about the in-heritance to the land left behind by Smt. Sarji, has arisen between the parties. Both the parties claim on the basis of Hindu Law. The plaintiff-respondent, Smt. Gopikabai, claims that she being the daughter of Smt. Turji, sister of the last male holder, Punjya, is an heir under Section 15 read with Section 2(11) (4) (iv) of the Schedule referred to in Section 8 of the Hindu Succession Act, 19 5 6, whereas the defendants claim as sapindas of the last male holder under Mitakshra Law.

It is alleged by the plaintiff that Bhajya and Sonn, defendants, took forcible possession of the suit land after the death of Smt. Sarji.

Apart from possession, the plaintiff claimed Rs. 180/- as damages for the crop removed by the defendants.

The defendants' case, as laid in the written statement was that the suit property being an agricultural holding, in view of 'section 4(2) of the Hindu Succession Act, the inheritance to the estate of Smt. Sarji who died on November 6, 1956, will not be governed by the provi-B sions of that _Act, but by Mitakshra School of Hindu Law, according to which the defendant-sapindas are entitled to suit land to the exclusion of the last male holder's sister's daughter, the plaintiff.

The trial court decreed Smt. Gopikabai's claim. On appeal, the Additional District Judge set aside the decree of the trial court and dismissed the respondent's suit.

In second appeal by the plaintiff, the High Cou.rt following its earlier decision in Kumari Ramlali v. Mst. Bhagunti Bai('), held "that Bhumiswami and Bhumidhari rights are not tenancy rights and Section 151 of the Madhya Pradesh Land Revenue Code, 1954, which deals with the devolution of interest of Bhumiswami or Bhumidhari tenure-holder, cannot be regarded as provision dealing with the devolution of tenancy rights. Section 4(2) of the Hindu Succession Act, 1956, in no way saves Section 151 of the Madhya Pradesh Land Revenue Code and it cannot be held that Section 14 of the Hindu Succession Act does not affect the personal law according to which the devolution of the interest of tenure-holder passes under Section 151 of the Code." The High Court further held that the expression "heirs of the husband" in Section 15(1) (b), as also in Section 15(2)(b), refers to the heirs of the deceased husband, who would have succeeded under the provisions of the Hindu Succession Act, 1956, if the husband had died on the date on which the female intes-tate actually died. On these premises, the High Court held that the plaintiff, Smt. Gopikabai, falls within clause (b) of Section 8, and,. as such, is entitled to succeed in preference to the defendant-agnates coming under clause (c) of that Section. In the result, the plain-tiff's appeal was allowed and the decree of the trial court was restor-ed.

Hence, this appeal by special leave.

The contentions canvassed before us by Mr. Sanghi, learned coun-sel for the appellants, are as under :

( i) Section '151 of the Madhya Pradesh Land Revenue Code, 1954 (in short, the Code) was law for the devolution of tenancy rights in agricultural holdings, because under the scheme of the Code, Bhumiswamis and Bhumidaris were tenure-holders who could be. included in the term "tenants". [Nahar Harl Singh v. Dukallun([2]) and Sitabai v. Kothulal([2 ]) were cited].

(ii) In view of the position stated at no. (i), Section 4(2) of the Hindu Succession Act, 1956, (for short called 't!u: Act') saved

(l) L.P.A. 6 of 1965 decided on April 20, 1968.

(2) A.I.R. 1974 M.P. 141 (F.B.).

(3) A.LR. 1959 Born. 78.

Section 151 of the Code. Therefore, devolution of the agricultural holding left behind by the deceased tenure-holder, will .be governed by Section 151 of the Code and not by anytlung provided m the Act. )

(iii) The expression 'Personal Law' in Section 151 of the Code means the Hindu law which was in force before the enactment of the Act, when the Code was enacted on February 5, 1955, because the words "any law for the time being in force" in sub-section (2) of Section 4 of the Act cannot be construed to mean any law which came into force subsequently.

(iv) In view of no. (iii), under Mitakshra Law (Sans the Act) the respondent being the daughter of the sister of the last male-holder, will be e:>cluded from succession by the appellants who are agnates of the husband of Smt. Sarji, deceased.

( v) Even if the Act applies, the expression "heirs of the husband" in Section 15, means heirs in accordance with the general Hindu law in force when the husband died, and not the heirs ascertained under Section 8 by fictionally postponing Punjya's death of 6th November, 1956, when Smt. Sarji died (Kampiah v. Girigamme(') relied upon).

As against this, Mr. Lalit submits that-

( a) Section 151 of the Code is not law dealing with devolution of tenancy rights in agricultural holding.. and, as such, is not covered by the saving clause in Section 4(2) of the Act. Section 151 is confined to the devolution of the interest of 'tenure-holder', the concept of which under the scheme of the Code, is different and dist-inct from 'tenant'. Chapter XI of the Code deals with 'tenants', while Chapter XII (in which Section 151 is placed) deals with 'tenure-holders' .

(b) Even if 'tenure-holder' includes 'tenant', then also, Section 151 of the Code by reference makes the devolution of the interest of deceased tenure holder "subject to his personal law" as on his death. Since Smt. Sarji died on November 6, 1956, the 'personal law' which will govern the inheritance to her estate, is Hindu law as modified by the Hindu Succession Act, 1956. Under Section 15 read with Section 8 of the Act, Respondent no. 1 being preferential heir, will exclude the appellants from inheritance to the estate of Smt. Sarji.

Before dealing with these contentions, it will be profitable to have look at the relevant provisions of the Madhya Pradesh Land Revenue Code, 1954.

Section 2(7) of the Code defined 'Holding' to mean, inter alia, "a parcel of land separately assessed to land revenue". Section 2(20) defined 'Tenure-holder' as "a person holding land from the State Government as Bhumiswami or Bhumidhari". Section 2(19) defined 'Tenant' as "a person holding land from tenure-holder as an ordinary or an occupancy tenant under Chapter XIV".

Chanter XIl dealt with tenure-holders. In 145 provided that there shall be two classes of

In that Chapter, Section of tenure-holders of

(I) A.T.R. 19~6 Mysore 189.

land~ held from the State, namely, (i) Bhumiswami and (ii) Bhumi-dhan: Sections 14.6 an~ 147 indicat~ ~e persons who could be descnbed as Bhum1Swa~1s and Bh~1dharis. Section 148 provided that every person becoming Bhum1swami or Bhumidhari, shall pay as land revenue-

( a) if he was paying land revenue in respect of the lands held by him-such land revenue,

(b) if he was paying rent in respect of the land held by him-an amount equal to such rent.

It may be noted that Chapter XII of the Code further contains provisions for transfer of Bhumiswami or Bhumidhari rights and partition of Bhumiswami and Bhumidhari holdings when there are more than one tenure holder. Tenancy rights are not dealt with in this Chapter, but separately in Chapter XIV Sections 168 and 172 in Cb.apter XIV deal with the devolution of rights of an ordinary tenant and an occupancy tenant. Those rights also pass on the death o{ tenant in accordance with the personal law of the deceased.

Section 151, which is in Chapter XII, runs thus :

"Subject to his personal law, the interest of tenure-

holder shall on his death pass by inheritance, survivorship or bequest, as the case may be."

From the above conspectus, the following points emerge clear :

( i) 'tenure-holder' and 'tenant' have been separately and distinctly defined in clauses (20) and (19) of Section 2 of the 1954 Code. 'tenant' according to the definition, holds land from tenure-holder, but 'tenure-holder' holds land directly from the State.

(ii) Bhumiswami/Bhumidhari pays land revenue to the State and not rent.

(iii) Tenancy rights and rights of Bhumiswami/Bhumidhari are dealt with in separate Chapters of the Code. Bhumiswamis/Bhumi-F dharies have pennanent heritable and transferable rights in the land which cannot be taken away, except in certain cases.

There is conflict of judicial opinion as to whether Chapter XII in general and Section 151 in particular, is law "for the devolution of tenancy rights in respect of agricultural holdings" within the saving clause in Section 4(2) of the Hindu Succession Act, 1956.

Division Bench of the Bombay High Court (at Nagpur) in Smt. lndubai v. Vyankati Vithoba Sawadha & Ors.('), held that the aforesaid provisions in the 1954 Code are not such law and the exception made in Section 4(2) of the Act, cannot apply to them.

In view of the distinctive features of the rights of tenure-holder, Division Bench of the Madhya Pradesh High Court, also, in Kumar1 Ramlali v. Mst. Bhagunti Bai & Ors.('), took the same view, and held that Section 151 of the Code, which deals with devolution of

(I) A.LR. 1966 Born. 64.

(2) A.LR. 1963 M. P. 247.

the interest of Bhumiswami or Bhumidhari tenure-holder, is not provision dealing with 'devolution of tenancy rights' within the con-templation of Section 4(2) of the Act.

Full Bench of the Madhya Pradesh High Court in Nahar Elirasi11gh & Ors. v. Mst. Dukalhin & Ors.('), by majority of two against one, however, over-ruled on this point, the decision in Kumari Ramlali v. Mst. Bhagunti (ibid) and dissented from the Bombay view. But the Full Bench was not concerned with the interpretation of Section 151 of the 1954 Code. The provision, the interpretation of which was in question before the Full Bench, was Section 164 of the Madhya Pradesh Land Revenue Code 1959 as it stood before its amendment in 1961. Whereas Section 151 of the 1954 Code, in terms, provided that personal law would be applicable in the matter of the devolution of the interest of tenure holder (i.e. Bhumiswami and Bhumidhari), Section 164 of the Code of 1959 (which had repealed and replaced the Code of 1954), as it stood at the material time, commenced not only with non-obstante clause militating against the application of personal law, but also provided its own list of heirs and order of succession, which was different from that laid down in the Hindu Succession Act, 1956.

Be that as it !)lay, for the purpose of deciding the case before us, it is not necessarj'I. to pronounce one way or the other, on the ques-tion whether Section 151 of the 1954 Code is law for devolution of tenancy rights in agricultural holdings, because even on the assump-tion that it is such law, Section 151 of the 1954 Code, itself, in terms, makes personal law applicable in the matter of the devolution of the interest of deceased tenure holder. Well then, does the expression "personal law" mentioned in Section 151, in the case of Hindus, mean-as is contended by Mr. Sanghi-Hindu law as obtaining on February 5, 1955 when the 1954 Code came into force? Or, does it mean Hindu law, as amended bv the Hindu Succession Act, prevailing on November 6, 1956, when Smt. Sarji died?

1t is well known that Legislature can !Cglslate '1n rnbject by referential incorporation, if that subject is constitutionally within its legislative competence. Section 151 is an instance of legislation by such method. The State Legislature enacted the 1954 Code in exercise of its power under Entry 5, in the Concurrent List (i.e. List III), which reads as under :

"5. Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; ioint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Consti-tution subject to their personal law."

The 1954 Code had also received the assent of the President under Article 254(2) of the Constitution.

The question• posed above turn on an interpretation of the langu-age of Section 151. There are no words in that Section or elsewhere

in the Code, which limit the scope of the expression ''personal law" to that prevailing on February 5, 1955. On the contrary, the words "on his death" used in Section 151, clearly show that the legislative intent was that 'personal law' as amended upto the date on which the devolution of the tenure holder's interest is to be determined, shall be the rule of decision.

Broadly speaking, legislation by referential incorporation falls in two categories : First, where statute by specific reference incorpo-rates the provisions of another statute as of the time of adoption. Second, where statute incorporates by general reference the law concerning particular subject, as genus. In the case of the former, the subsequent amendments made in the referred statute can-not automatically be read into the adopting statute. In the case of latter category, it may be presumed that the legislative intent was to include all the subsequent amendments also, made from time to time in the generic law on the subject adopted by general reference. This principle of construction of reference statute has been neatly summed up by Sutherland, thus :

"A statute which refers to the law of subject generally adopts the law on the subject as of the time the law is invoked. This will include all the amendments and modifi-cations of the law subsequent to the time the reference statute was enacted."

(Vidc, Sutherland's Statutory Construction, Third Edition, Article 5208, page 5208). ·.

Corpus Juris Secundum also enunciates the same principle in these terms:

" .... Where the reference in an adopting statute is to the law generally which governs the particular subject, and not to any specific statute or part thereof, ....... the refer-ence will be held to include the law as it stands at the time it is sought to be applied, with all the changes made from time to time, at least as far as the changes are consistent with the purpose of the adopting statute."

Construed in accordance with the above principle, the expression "personal law" referred to in Section 151 of the Code, comprehends the Hindu Snccession Act 1956, which will undoubtedly govern the inheritance to the 'estate' of Smt. Sarji who died on November 6, 1956, much after the coming into force of that Act. If we can say so with dne deference, the view taken on this point by the Bombay High Court in Smt. lndubafs case (ibid) and by the Madhya Pradesh High Court in Kumari Ramlali's case (supra) and by Tare C.J. in Nahar Hirasingh's case (ibid) is correct.

The further question to be considered is : which of the parties is entitled to succeed to the interest of Smt. Sarji deceased nnder the Hindu Succession Act, 1956?

This Section should be read along with the Rules set out in Section 16, the material part of which runs as under :

"The order of succession among the heirs referred to in Section 15 shall be, and the distribution of the intestate's property among those heirs shall take place according to the following rules, namely :-

"Rule 1 ............... .

Rule 2 ............. .

Rule 3.-The devolution of the property of the intestate on the heirs referred to in clauses (b) , ( d) and ( e) of sub-section (1) and in sub-section (2) of Section 15 shall be in the same order and according to the same rules as would have applied if the property had · been the father's or the husband's as the case may be, and such person had died intestate in respect thereof immediately after the intestate's death."

(Emphasis supplied)

The instant case will fall under clause (b), sub-section (2) of Section L5, because Smt. Sarji died issneless and intestate. The inter-H est in the snit property was inherited by her from her husband. The snit land will, therefore, under clause (b) , go to the heirs of her husband, Punjya. 2-31-SSCI/78

The next question is, whether "the heirs of the husband" in Section 15 are to be ascertained with reference to the date of Punjya's demise in 1936, or with reference to the date of Shrimati Sarji's death on November 6, 1956, when succession op~ned out.

husband" in

There appears to be some divergence of opinion .among the High Courts on this point. We are however of opinion that once it is found that the case falls under Section 15(2)(h), the fiction envisaged in Rule 3 of Section 16 is attracted, according to which, for the purpose of ascertaining the order of devolution, it is to be deemed as if the husband had died intestate immediately after the female intes-tate's death. Bearing this fiction in mind we have then to go to the Schedule under Section 8 of the Act to find out as to who would be the heirs. of Smt. Sarji's husband on the date of her death. Section 8 of the Act provides that the property of male Hindu dying intes-tate shall devolve according to the provisions of this Chapter :-

" (a) Firstly, upon the heirs, being the relatives specified in Class I of the Schedule;

(b) Secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule; ·

( c) Thirdly, if there is no heir of any of the two classes then upon the agnates of the deceased; and

Lastly, if there is no agnate, then upon the cognates of the deceased."

Now, Smt. Gopikabai, Respondent 1 is admittedly the daughter of the sister of the last male holder, Punjya; whereas the appellants are his remote agnates. Neither party falls under Class I of the Schedule. 'Sister's daughter' is Item 4 of Entry IV in Class II of the Schedule; while agnates do not figure anywhere in Class II. Thus, Smt. Gopikabai's case will come in clause '(b) Secondly', of Section 8 and, as such, she will be preferential heir of the husband of Smt. Sarji, if he had died the moment after her death on November 6, 1956. In this view, she would exclnde the defendants-agnates from inheritance even according to 'personal law' which, within the contem-plation of Section 151 of the Code, will include the Hindu Succession Act, 1956, in force at the time when Smt. Sarji died and succession opened out. i · . I

i · . I

In the result, we affirm the judgment and decree of the High Court and dismiss this appeal with costs.

Appeal dismissed.