# [1967] 3 S.C.R. 891 - **Citation:** [1967] 3 S.C.R. 891 - **Court:** Supreme Court of India - **Decided:** 1967-05-03 - **Case number:** Civil Appeal No. 2586 of 1966 - **Bench:** M. Hidayatullah, C. A. Vaidialingam - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1967-3-s-c-r-891-4036 - **Pages:** 10 ## Headnote Madras Hindu Religious and Charitablo Endowments ;Act XIX of I 959, '" 53-respo11de11t claiming to have succeeded as trustee of Math in accordance with procedure under certain agree1nents--other persons also· raising disputes and claiming succession-whether vacancy existed to enable exercise of power by Commissioner under s, 53. After the death of the Mahant of Sri Swami Ha1ibiramji Math, TJCUmalai, Tirueati, in 19471 an agreement was arrived at on October 29, 194 7 resolv1ng certain disputes regarding the suecession to the office of Mabant and laying down a procedure for choosing a suecessor when a vacancy arose. Furthermore, the Akada Panchayat was constituted the supreme authority in such matters. One C.D. became the Mahant in 1958. The respondent challenged the succession by a declaratory suit but eventually there was a compromise and in an agreement dated July 15, 1961, it was agreed that C.D. was entitled to continue as Mabant, and that after his death tlie respondent would succeed him . • :1.·· On the death of C.D. on March 18, 1962, the respondent claimed to have succeeded as Mahant in his own right and the Akada Panchayat approved the succession by a resolution on the same date. However, the Commissioner Hindu Religious and Charitable Endowments Andhra Pradesh. having received a telegram disputing the respondent's clain1, took action under s. 53 of the Madras Hind.u Religious and Charitable E!1dowments Act XIX of 1959 and a5"umed charge of the Math and its property on March 24, 1964. The respondent thereafter filed a suit for a declaration that he was the rightful successor. He als11 filed a revision before the Government challenging the action taken under s. 53 whereupon the Government stayed further proceedings wd the respondent therefore withdrew his suit. On Jooe 5, 1962 the Government issued an order stating that as there were disputes about who was the . rightful successor, unt!I the Civil Court decided this question, it was necessary to make. smtable arrangt;ments for the proper administration of the ~ath and its endowments; 1t therefore appointed the respondent as 1 ~terim Mahant subject to various conditions laid down in the order. In _view 0f the respondent's attitude in the discharge of certain of his drties. on August 22, 1964, the Government passed an order directing him to show cause why the previous order of June 5 1962 should not hf . "'!ncellhed. The respondent filed a Writ Petition 'againsi this order c aim1ng t at h~ had succeeded to the office of Mahant in his own ri ht ?"d ~at no .action ~ul~ be taken by the Government ooder 8, 53 eit:er ·•~pomhng him as mterim Mahan! or cancelling such appointment' th~ Hrfh Court. thereupo!' stayed further proceedings in pursuance of the n~ ice pendmg the drnposal of the writ petition. The State Government t en passed a further order on September 9 1965 framing certa' char~es agains~ the res~onde'!t, calling for hi; explan~tions to them and at t e same. lime .. placing htm under suspension. The respondent filed a, ~~cont~ . writ pellt.'on. challeng)ng this new order whereupon the earlier "'' P1• •IJ?n ~s. d1sm1ssed as mfructuous. The High Court allowed the seconl writ petition. 892 SUPREME COURT REPORTS [1967) 3 S.C.R It was condended on behalf of the appcll:int that (i) on the death or C.D. on l\farch 18, 1962, a vacancy occurred in the office of l\fahant and there was a dispute between the ·respondent and two other persons each of whom claimed the right of succession; suits had been filed by each of those two persons to establish their claims and although these had been dismissed, an appeal was pending in respect of one of them; in view of this the necessary conditions exist'ed for invoking the pO\Vcr under s. fi3 for .the. prop·zr .management of the l\1ath; furthermore, (ii) th:1t inasmuch as the respondent ·had been appointed to m~1nagc the institution i,~, the departm·znt under s. 53 of the Act, and, as hf.'I was continuing in such management by virtue of t ## Text A SECRETARY, HOME (ENDOWMENTS), ANDHRA PRADESH B c D E F G H v. DIGYADARSAM RAJINDRA RAM DASJEE May 3, 1967 [M. HIDAYATULLAH AND C. A. VAIDIALINGAM, JJ.) Madras Hindu Religious and Charitablo Endowments ;Act XIX of I 959, '" 53-respo11de11t claiming to have succeeded as trustee of Math in accordance with procedure under certain agree1nents--other persons also· raising disputes and claiming succession-whether vacancy existed to enable exercise of power by Commissioner under s, 53. After the death of the Mahant of Sri Swami Ha1ibiramji Math, TJCUmalai, Tirueati, in 19471 an agreement was arrived at on October 29, 194 7 resolv1ng certain disputes regarding the suecession to the office of Mabant and laying down a procedure for choosing a suecessor when a vacancy arose. Furthermore, the Akada Panchayat was constituted the supreme authority in such matters. One C.D. became the Mahant in 1958. The respondent challenged the succession by a declaratory suit but eventually there was a compromise and in an agreement dated July 15, 1961, it was agreed that C.D. was entitled to continue as Mabant, and that after his death tlie respondent would succeed him . • :1.·· On the death of C.D. on March 18, 1962, the respondent claimed to have succeeded as Mahant in his own right and the Akada Panchayat approved the succession by a resolution on the same date. However, the Commissioner Hindu Religious and Charitable Endowments Andhra Pradesh. having received a telegram disputing the respondent's clain1, took action under s. 53 of the Madras Hind.u Religious and Charitable E!1dowments Act XIX of 1959 and a5"umed charge of the Math and its property on March 24, 1964. The respondent thereafter filed a suit for a declaration that he was the rightful successor. He als11 filed a revision before the Government challenging the action taken under s. 53 whereupon the Government stayed further proceedings wd the respondent therefore withdrew his suit. On Jooe 5, 1962 the Government issued an order stating that as there were disputes about who was the . rightful successor, unt!I the Civil Court decided this question, it was necessary to make. smtable arrangt;ments for the proper administration of the ~ath and its endowments; 1t therefore appointed the respondent as 1 ~terim Mahant subject to various conditions laid down in the order. In _view 0f the respondent's attitude in the discharge of certain of his drties. on August 22, 1964, the Government passed an order directing him to show cause why the previous order of June 5 1962 should not hf . "'!ncellhed. The respondent filed a Writ Petition 'againsi this order c aim1ng t at h~ had succeeded to the office of Mahant in his own ri ht ?"d ~at no .action ~ul~ be taken by the Government ooder 8, 53 eit:er ·•~pomhng him as mterim Mahan! or cancelling such appointment' th~ Hrfh Court. thereupo!' stayed further proceedings in pursuance of the n~ ice pendmg the drnposal of the writ petition. The State Government t en passed a further order on September 9 1965 framing certa' char~es agains~ the res~onde'!t, calling for hi; explan~tions to them and at t e same. lime .. placing htm under suspension. The respondent filed a, ~~cont~ . writ pellt.'on. challeng)ng this new order whereupon the earlier "'' P1• •IJ?n ~s. d1sm1ssed as mfructuous. The High Court allowed the seconl writ petition. 892 SUPREME COURT REPORTS [1967) 3 S.C.R It was condended on behalf of the appcll:int that (i) on the death or C.D. on l\farch 18, 1962, a vacancy occurred in the office of l\fahant and there was a dispute between the ·respondent and two other persons each of whom claimed the right of succession; suits had been filed by each of those two persons to establish their claims and although these had been dismissed, an appeal was pending in respect of one of them; in view of this the necessary conditions exist'ed for invoking the pO\Vcr under s. fi3 for .the. prop·zr .management of the l\1ath; furthermore, (ii) th:1t inasmuch as the respondent ·had been appointed to m~1nagc the institution i,~, the departm·znt under s. 53 of the Act, and, as hf.'I was continuing in such management by virtue of that appointment, the State bad ampfe jurisdiction to pass orders either of suspending or even dismissing the respondent. HELD : Dismissing .the appeal; The High Court had rightly held that there was no jurisdiction for the exercise of the power under s. 53 of the Act. (i) Before s. 53 can he invo!~cd. two conditions are necessary 1''iz .. (a) a vacancy must have occurred in the office of the trustee of a Math; and (b) there must be a dispute respecting the right of succession to such office. Jn the pre~ sent case although it· was possible to say that there was a dispute res~ pccting the right of SUfCCession to the office of Mahant, the further condition that there must be a vacancy could not be said to have existed and the High Court had rightly accepted the claim of the respondent that by virtue of the Panchayat agreement of October 29, 1947, the compromise agreement of Julv 15, 1961, and the approval given to his succession by the Akada Panchayat, he had succeeded as Mahant on March 18, 1962, on the death of C.D. [898 B-D. HJ (ii) If .the respondent had succeeded as Mahan! on the death of (~ D., in his own right. the mere circumstance that the Govcfnment also passetl an order aptiointing him as interim Mahant, later would not take away the right of the respondent to function as Mahant. Once it is held that he ""'as not holding the office cxclu'!iively on the basis of th'!: order of the Government of June 5, 1962, it follows that the appellant had no jurisdiction to pass an order, placing the respondent under suspension. as that virtually amounted to a removal of the trustee of a Math which could only 'be done in accordance with the provisions of s. 52 of the Act. [899 G-900 Al CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2586 of 1966. Appeals from the judgment dated November 17, 1966 of the Andhra Pradesh High Court in Writ Petition No. 1589 of 1965. P. Ram Reddy and A. V. V. Nair, for the appellants. l. V. Rangacharya, B. Parthasarathy and P. C. B/wrtari. for the respondent. The Judgment of the Court was delivered by Vaidialingam, J. This appeal, by certificate, is directed against the order of the Anclhra. Pradesh High Court, allowing a writ petition, filed by the respondent, under Art. 226 of the Constitution. The facts leading up to the filing of the Writ Petition, by the respondent, may be briefly indicated. In respect of Sri Sw~m i Hathiramji Math. Tirumalai, Tirupati, disputes arose regardm!! c: D G H A B c D It F G H SECAETARY v. RAJINDRA RAM (Valdialingam, J.) 893 the succession to the office of the Mahan't of the Math, after the death, in 1947, of the then Mahan!, Prayag Dossji. An agree~ ment seems to have been arrived at, on October 29, 1947, laying down the procedure for choosing a successor to the office of the Mahant, when a vacancy arises. The Akada Panchayat appears to have been constituted the supreme authority, in such matters. That agreement also provided, as to who, among the respondent, and one Chetham Doss, was to succeed to the office of ·the Mahant, on the death of one Narayan Doss. Narayan Doss died on December 9, 1958, and Chetham Doss succeeded as Mahant. lhe respondent filed O.S. 84 of 1958, in the Subordinate Judge's Court, Chittoor, for a declaration that he is entitled to succeed to the office of Maha:nt. The suit was resisted, by Chetam Dass, on the basis· that under the agreement of October 29, 1947, he was legitimately entitled to succeed as Mahant. Sometime later, the respondent and Chetam Dass, entered into a compromise, by virtue of an agreement, dated July 15, 1961. Both of them agreed that Chetam Das was entitled to' continue as Mahan!, and tllat, after his death, the respondent was to succeed as Mahant. In view of this agreement, the respondent got dismissed, as settled, 0.S. 84 of 1958. Chetam Dass died, on March 18, 1962, and the respondent .claims to have succeeded as Mahant, in his own right. But, according to the appellant, the Commissioner, H.R. & C.E .. Andhra Pradesh, received telegram stating that there was a dispute about the person who was to succeed as Mahant. The Assistant Commissioner, H.R. & C.E., took action, under s. 53 of the Madras Hindu Religious & Charitable Endowments Act, 195 l (Act XIX of 1951), (hereinafter called the Act), which is applicable to the State of Andhra Pradesh, and assumed charge, on March 2-4, 1962, of the Math and its properties. The respondent filed. oil March 26, 1962, 0.S. 24 of 1962, for a declaration that he is the rightful successor to the office of the Mahant of the Institution, in questioi_i. The Commissioner, H.R. & C.E., was made a party to the suit. The respondent also filed a revision before the Government, on April 18, 1962, challenging the a1suminir charge. o~ the Math, under s. 53 of the Act, by the Assistant Com'!J.1Ss10ner. The Government stayed further proceedings: and, m consequence, o.s. 24 of 1962, was withdrawn, by the respondent, on April 24, 1962. The Government also passed an ord.er, on Jun~ 5, 1962, stating that it was necessary to take act1?n, for makmg suitable arrangements for the proper administratmn of the Math and its endowments, till the civil court decided as to "'.ho should succeed to the office of the Mahan!. Tn this connection, the State Government referred to an objection, received, .from one Devendra Dass, stating that he is the proper person entitl~ to succeed to the office of the Mahant. Ultimately, by the S3Jd order, the Government appointed the respondent, as an 894 SUPREME COURT REPORTS [1967] 3 S.C.R interim Mahant, subject to the various conditions, laid down therein. Devendra Dass filed writ petition No. 602 of 1962, on June 21, 1962, in the High Court, challenging this order of the State Government, dated June 5, 1962. That writ petition was, dismissed on August 27, 1962. In the meanwhile, Devendrn Dass, who was a minor, had instituted two suits, O.S. Nos. 50 of 1962 and 57 of 1962, to declare him as the person entitled to succeed to the office of the Mahan!, on the death of Chetam Dass. In the first suit he was represented, by one Mukundd Doss, as next friend, an\i in the second suit he was represented by one Bhagwant Doss, as the next friend. When Devendra Doss attained majority, later on, he preferred to continue 0.S. 50 of 1962, and therefore 0.S. 57 of 1962 was dismissed, as unnecessary. Ou August 22, 1964, the Government passed an order, directing the respondent to show cause why its previous order, dated June 5, 1962, appointing the respondent, as interim Mahant. should not be cancelled. This appears to have been issued, by the State Government, in view of the fact that the respondent was taking a particular attitude regarding the pada ka'1ikkas received by him. In the said order, the Government also proceeded, on the basis that it has no jurisdiction to appoint an interim Mahan! when action is taken, under s. 53 of the Act. On receipt of this ,.notice, the respondent filed writ petitio11 No. 1534 of 1964, challenging the said order. His claim appear; to have been. tha.t he had succeeded to· the office of Mahan!. in his own right, after the death of Chetam Dass, and that no action can be taken, under s. 53 of .the Act, and therefore, the question of the Government, either appointing him as interim Mahant. or .taking any action to cancel such an order, does not arise. It is seen that further proceedings; in pursuance of the notice, issued by the Government, were stayed, by the High Court, pending the disposal of the writ petition. The State Government ~passed an order, on September 9, 1965,-.framing certain charges, as against the respondent, and directing. him to furnish his explanation. regarding the same, aJ!GI; .. at the same time, placed him under suspension. The respondent filed, writ petition no. 1589 of 1965. challenging this order of the Government, placing him under suspension. In view of this writ petition, the earlier writ petition no. 1534 of 1964, was dismissed, as infructuous, on. April 14. 1966. In the meanwhile, Bhagwant Doss, who had originally institutB c D E F G ed O.S. no, 57' of 1962, as the next friend of Devendra Dass, and which suit was;got dismissed by the minor, after attaining majoH Tity, instituted•another suit, O.S. n9. 69 of 1965 on S~ptember 29 1965 clainiing in his own right to be the person en!ltled to sue- . , ceed 1to the office of Mahant. This suit appears to be still pend- A B c E F G H SECRETARY v. RAJINDRA RAM (Vaidialingam, !.) 895 Ing. But O.S. 50 of 1962, which was decided to be continued, by Devendra Doss, was contested by the respondent and, ultimately, dismissed, on April 28, 1966. It is stated that an appeal, A.S. No. 476 of 1966, has been filed, on November 17, 1966, against this decree and it is still pending. The main contention, taken by the respondent, in writ petition no. 1589 of 1965, was that he had already in law succeeded as Mahant, on March 18, 1962, when the presiding Mahant, Chetam Doss, died. Therefore, according to him, there was no vacancy which can be aid to have occurred,. in the office of the trustee of the Math, so as to give jurisdiction to the Assistant Commissioner, or the Commissioner, H.R. & C.E., to take action, under s. 53 of the Act. The respondent also relied upon the circumstance that the suit filed by Devendra Doss, 0.S. 50 of 1962, had been dismissed and the Court had accepted his title to hold the office of the Mahan!, on the basis of the Panchayat Agreement, dated October 29, 1947, as well as the agreement, dated July 15, 1961, entered into between him and the then Mahan!, Chetam Dass. The respondent also relied upon the circumstance that his assumption of office, as Mahant, on the death of Chetam Dass, has been approved, on March 18, 1962, by the supreme authority, namely, the Akada Panchayat. The appellant resisted the claim of the respondent, on the ground that when Chetam Doss died, and the respondent attempted to take charge as Mahant, a claim was made, by one Devendra Doss, that he was the person, lawfully entitled to succeed to the office of the Mahant. On the death of Chetam Doss, on March 18, 1962, a vacancy occurred, in the office of the trustee of the math, and there is also a dispute, between the respondent amt Devendra Doss, regarding the right of succession to such office. In view of the fact· that the necessary conditions, for invoking s. 53 exist, the assumptiQn of management of the Math was taken over, by the Assistant Commissioner, H.R. & C.E., for the proper management of the institution. It was also pointed out that the suit instituted, by Bhagwant Doss, O.S. no. 69 of 1965 claimino in himself th,!! right to succeed, as a trustee, was still pe~ding and that also shows there is a dispute, regarding succession to the office <;>f the trustee. The appellant has also urged, that in any event, masmuch as the respondent has been appointed to manaoe the institution, by the department, under s. 53 of the Act, and, ~s he was continuing in such m~na.gei:iie?t by virtue of such appointment, the State had ample 1unsd1ct10n to pass orders either of suspending, or even dismissing the respondent. The learned Judges of the High Court have held that the respondent has succeeded as Mahant, on March 18 1962 on the death of Chetam Dass, by virtue of the Panchayat' Agree:nent of October 29, 1947, and the compromise agreement, dated July 'ls, 896 SUPREME COURT REPORTS [1967) 3 SC.R. l 961. Therefore, it cannot be said that there was any vacancy in the oflice of the trustee of the Math, so as to enable the appellant to take action, under s. 53 of the Act. The High Court has, in this connection, referred to the findings recorded, by the Subordinate Judge's Court, in favour of the respondent, in O.S. 50 of 1962. The mere circumstance that after a person has succeeded to the office of the trustee, other people lay claims to that office, and institute litigation for that purpose, will not, according to the High Court, give jurisdiction to the appellants to take action, under s. 53 of the Act. The High Court is further of the view that the appellant's action, in placinl( the respondent under suspension. is contrary to the directions given by the High Court, on April 9, 1965, pending the disposal of the writ petition. The High Court is further of the view that the stand, taken by the appellants, is quite contrary to the earlier stand, taken in their order, dated June 5, 1962, whereit~ they had categorically stated that the civil Court's decision will be conclusive and final, regarding the succession to the office of the Mahant. This reason, is given by the High Court, as it was of the view that the appellant should give due respect to the decision, in 0.S. 50 of 1962. On these grounds the High Court quashed the order passed, by the State Government, dated September 9, 1966, placing the petitioner, under suspension. Mr. Ram Reddy, learned counsel appearing for the appellants. has raised the same contentions that were taken, before the High Court. In addition, counsel has also pointed out that the deci· sion, in O.S. 50 of 1962, has not become final, inasmuch as Dcvendra Doss, who lost that litigation, has filed A.S. No. 476 of 1966, which is still pending. Counsel further points out that, in view of the dispute raised, by Devendra Doss, by making a claim for the trusteeship of the Math, before the Gover.nment, the writ petition, No. 602 of I 962, filed by the said party, as well as the various suits, referred to above, will clearly show that there is a dispute regarding the succession to the office of the trustee of the Math, when a vacancy occurred, on the death of Chetam Dass, on March 18, 1962. Therefore, action taken by the appellant, in the interests of the institution, was perfectly valid. Counsel also urged that inasmuch as the respondent is functionin!! as Manager of the institution, by virtue of his appointment, on June 5, 1962, by the Government, subject to the conditions mentioned therein, the Government was competent to take disciplinary action, as against the respondent, for breach of those conditions. Mr. r. V. Rangacharya, learned counsel for the respondeni, fully supports the reasons, given by the learned Judges of the High Court, for accepting the claim made by his client. in the writ petition. B c D E F G H B c D E F G H SECRETARY"· RAJINDRA RAM (Vat' Math, on March 18, 1962, when Chctam Dass died. On the other hand, according to the respondent, there was no vacancy in the office cif the Mahant, at that time. because, on the death of Chetam Dass, the respondent succeeded· to the office of the Mahan!. Therefore, the point t<1 he considered is, as to whether a vacancy has occurred, in the ofiice of the trustee of the Math, on March 18, 1962. That 1here must be an actual vacancy, un-filled, is clear, from the wording of s. 53.( l), when it deals with two different contingencies. providing for the assumption of management. Under the first contingency, a vacancy should have occurred in the office of a trustee of a Math, and there is a dispute in respect of the succession to such office. That is, the office has not been filled in. by anybody having a prima facie legal, right to assume management. Similarly, the second contingency, contemplated under '· 53 (1). when assumption of management can be made by th~ Department, is when a vacancy· occurs in the office of a trustee of a Math and when such vacancy cannot be filled up immediately. This clearly shows that there must be a vacancy, as a fact, in the sense that nobody with any legal right has assumed ,1fficc of the trustee of a Math. In this case, as we have pointed out earlier, the High Courl has accepted the claim of the respondent that by virtue of the Panchayat agreement dated October 29, 1947, and the compromise agreement, dated July 15, 1961, the respondent has succeeded to the office of the trustee of the Math, on March 18. 1962, on the death of Chetam Dass. The supreme authority . . according to the High Court, the Akada Panchayat, has also A B c D E F G H A • B c D E F G II SECRETARY l'. RAJINDRA RAM ( Vaidia/ingam, J.) 899 approved of the said appointment, by resolution of the same date. We do not propose to consider the findings recorded in O.S. 50 of l 962, which are no doubt in favour of the respondent, because that decision is the subject of an appeal, in A.S. no. 476 of 1966. Nor do we propose to consider the claim of Bhagwant Doss in O.S. 69 of 1965, which is still pending adjudication, at the hands of the Court. But even without reference to those litigations, the view of the High Court that there j_s no vacancy in the office of the trustee of the Math which alone will give jurisdiction to the appellant to take action under s. 5 3 ( 1), can be accepted as correct, for the other reasons, mentioned by us, earlier. Mr. Ram Reddy, learned counsel for the appellants, further points out that, in this case, the respondent is in management of the Math, by virtue of the appointment made, by the State Government, on June 5, 1962, and therefore tile State Government is entitled to take disciplinary action against him for breach of conditions, under which he was holding that ofllce. Counsel also invited our attention to the averments made by the respondent himself, in Writ Petition No. 602 of 1962, that the State Government has appoin'ted him as interim Mahan!. The stand taken by the respondent, in writ petition no. 602 of 1962, cannot assist the appellant, because he was interested then in fighting the claim made by Devendra Dass, in the said writ petition. In resisting such claim, he has, no doubt, made reference to the fact that hi' right to function, as Mahant, cannot be disturbed, as the State Government has appointed him as interim mahant. Therefore. the stand taken by the respondent, in the said writ petition, must be understood in the said context. No. doubt, normally. if it is established that the respondent\ o.nty nght to fu~ction as Manager of this institution, is cxclu- "vely o.n the basis of the Government order, dated June 5, 1962. there will be considerable force in the contention of learned counsel for th~ app7llant th~t the State Govemment has got jurisdiction to ta~e d1sc1phnary action, against the respondent. But the fact> m this ca.se show that the position is entirely different. If tile ;cspondent, as held by the High Court-with which view we nrc m agreement-has succeeded to the office of the trustee of th~ Math .. on the death ~f Chetam Dass, on March 18, 1962, in hi' own right, the !11e.re c1r~umstance that the Government also passc< ar:i order appomtmg him as interim Mahant or Manager ht,,. will not take away the right of the respondent to functlo1; "a~ trustee, on the basis of his original right. Once it is held that t~c respondent i~ not holding the office of the Mahant. exclu- " vely ~n the basis of the order of the Government, dated June 5. 1962, 11 fo!lows that the appellant has no jurisdiction to pass an order, placing the respondent under suspension, as that \irtually a111ounts to a removal of the trustee of a Math. The removal of 900 SUPREME COURT REPORTS (1967) 3 S.C.R a trustee of a Math can be done only in the manner, and in the circumstances, mentioned in s. 52 of the Act. Therefore, the view of the High Court that the order of the Government, placing the respondent under suspension, is not valid, is correct. · The result is, that the appeal fails, and is dismissed.. In the circumstances of the case, there will be no order as to costs. R.K.P.S. Appeal dismisui. A 8 • -,-, • '