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PETITIONER: BAVA C. CHOKKAPPA MUDALIAR & ORS.

       Vs.

RESPONDENT: BAVA C. CHOKKAPPA MUDALIAR & ORS.

DATE OF JUDGMENT14/02/1974

BENCH:

ACT: The  Madras  Hindu  Religious Endowments Act,  1926  (II  of 1926)---S.     84(1)--Scope of.

HEADNOTE: Section  84(1) (b) of the Madras Hindu Religious  Endowments Act.  1926 as amended by Act 10 of 1946 provides that  if  a dispute  arises  as  to whether a trustee  is  a  hereditary trustee  as defined in the Act or not such dispute shall  be decided  by the Religious Endowment Board constituted  under the  Act  and  no  court in the  exercise  of  its  original jurisdiction shall take cognizance of such dispute. On the question whether a dispute as to who out of a  number of members of a family was entitled to succeed to an office, admittedly hereditary, fell within sub-cl. (b) of s. 84(1), HELD : that it was not a dispute which could be  entertained by ’the Board. The view expressed in Sastri Ammal v. Pravalavarna  Naicker, 1.L.R. [1957] Madras 631 and A. Krishnaswami Raja v. Krishna Raja, I.L.R. [1967] 3 Madras, 495, approved. [395 A] Gopalaswami Mudaliar v. Thyagaraja Mudaliar, [1951] 1 M.L.J. 248 overruled.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeals Nos.  1792  & 1793 of 1967. Appeals  by special leave from the Judgment and order  dated the  23rd March 1961 of the Madras High Court in Appeal  No. 88 of 1958. M.   Natesan,  T.  V.  Krishnamurthi  Iyer,  K.  L.  Rathee, Ganesan and S.   Balakrishnan, for the appellant (in C.A. 1792) and  for respondent no. 6 (in C.A. 1793). S.T. Desai, V. M. Tarkunde, K. Jayaram and R. Chandrasekhar, for the appellant (in C.A. 1793). A. R. Somnath Iyer and S. Lakshminarasu, for respondent  No. 1 (in     both the appeals). A.  V.  Rangam and A. Subhashini, for respondent No.  4  (in both the  appeals). K.  Jayaram, for respondents nos. 5 & 6 (in C.A. 1992). The Judgment of the Court was delivered by PALEKAR, J.  These two appeals by special leave arise out of a  decision  of the Religious Endowment  Board  (hereinafter called the Board) constituted under Section 10 of the Madras Hindu  Religious Endowments Act, 1926 (Madras Act No. 11  of 1926)  hereinafter  called  the Act.   The  Board  gave  the decision  in  a  dispute in O.A. No. 279  of  1946  and  the principal  contention with which we are concerned  in  these

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appeals is whether the Board bad jurisdiction to decide that dispute.   Other  points were dealt with in  the  course  of litigation, but since the appellants are entitled to succeed on the ground that the 389 Board had no jurisdiction to entertain the dispute, it  will not  be necessary for us to deal with the other points.   We shall, therefore, confine ourselves to the facts which  bear upon the point. The  temple  of Sri Tyagarajaswami at Tiruvarur  in  Tanjore District  is  a  well-known, ancient temple  of  the  South. There  are 13 kattalais attached to the temple-one  of  such kattalais being the Ulthurai kattalai.  This kattalai  looks after  the  worship  and  festivals  in  the  temple.    The management  of  this  Ulthurai kattalai was  vested  in  two Mudaliar  families.  One was the Bava family and  the  other was the Vadapathimangalam family.  The two families held the office  of the trusteeship by hereditary succession.   Prior to 1943, the hereditary trustee representing the Bava family was   one  Vaithilinga  Mudaliar  and  the   other   trustee representing  the  Vadapathimangalam family  was  Thiagaraja Mudaliar.   The  latter is one of the principal  parties  to this litigation but the litigation was really with reference to  the  succession to the office in the Bava  family  after Vaithilinga’s death. Vaithilinga  died in 1943 leaving behind him  surviving  (1) his  widow Pappu Ammal (2) a daughter,, Shivakami Ammal,  by another wife (3) a son of this daughter named Brahadeeswaran (4)  &  (5) two divided brothers  Gopalaswami  Mudaliar  and Panchapakesa Mudaliar. The  office  of the trustee of the temple was an  office  of prestige.   After Vaithilinga’s death  Gopalaswami  Mudaliar tried  to instal himself as the trustee in the place of  his deceased   brother.   But  Thiagaraja  Mudaliar  the   other trustee,  did  not  permit him to work with  him  as  a  co- trustee.   So Gopalaswami complained to the Board by an  ap- plication  dated  April  22, 1944  purporting  to  be  under section 18 of the Act.  Thiagaraja contested the application pointing  out  that Gopalaswami could not  succeed,  as  the hereditary  trustee and that only the widow of  Vaithilinga, viz.   Pappu Ammal, should be regarded as the trustee  after Vaithilinga’s  death.  Thereafter on February 5, 1945  Gopa- laswami applied u/s 42 of the Act for his appointment as  an interim  trustee pending the dispute about succession  being resolved  in a Civil Court.  He said be was the senior  most male  member in the Bava family and was in every way  a  fit and  proper person to be appointed an interim  trustee  till his succession to the trusteeship is declared by the  Court. This  application  u/s 42 also was contested  by  Thiagaraja Mudaliar and Pappu Ammal, and on November 13, 1945 the Board dismissed his application u/s 42 pointing out that since the right  to succession to Vaithilinga Mudaliar was in  dispute the proper course for Gopalaswami was to establish his right in  a  Civil  Court.. The Board also  held  that  there  was already  a  trustee functioning assisted  by  the  executive officer of the Devasthan and hence, it was not necessary  to appoint Gopalaswami as a fit person u/s 42. Thereafter Gopalaswami commenced two proceedings.  On  April 3,  1946  he  filed O.S. No. 117/1946 in the  Court  of  the District Munsif, Tiruvarur for a declaration that after  the death  of  Vaithilinga his brother, he was entitled  to  the office  of  the  hereditary  trustee  to  the  exclusion  of Vaithilinga’s  widow  Pappu Ammal.  To this suit  he  joined Pappu Ammal, his younger brother Panchapakesa and Thiagaraja Mudaliar,  the  other trustee as co-defendants.   The  other

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proceeding 390 was before the Board purporting to be one u/s 84 of the Act. This  application before the, Board was filed on  April  11, 1946.  His contention before the Board may be set out in his own  words  :  "The  last hereditary  trustee  was  Bava  C. Vaithilinga Mudaliar the elder brother of the petitioner and he  died  on  April 6, 1943.  On his  death  the  petitioner (Gopalaswami)  has succeeded to the office and is  the  next hereditary  trustee.  According to the custom prevailing  in the  petitioner’s  family and in the Ulthurai  kattalai  all along  the hereditary trusteeship is only with male  members and  with  the  senior  male  member  thereunder."  To  this application Pappu Ammal and his younger brother Panchapakesa were  made respondents.  The prayer in the  application  was that the Honourable Board should enquire into the matter and declare  that the petitioner Gopalaswami was the  hereditary trustee  of  Ulthurai kattalai in succession  to  late  Bava Vaithilinga Mudaliar. Out  of  these  two proceedings the  suit  in  the  District Munsif’s Court was not proceeded with.  It was permitted  to be  withdrawn  on  April 17, 1947 on  the  ground  that  all necessary parties had not been impleaded.  Liberty to file a fresh suit was reserved. The proceeding u/s 84 before the Board was contested by  the other trustee Thiagaraja and the widow Pappu Ammal.  It  was specifically  contended before the Board that the Board  had no  jurisdiction u/s 84 to entertain the dispute  raised  by Gopalaswami.  The dispute was with regard to the  succession to the vacant office of trusteeship in the Bava family,  and such a dispute was not one falling within section 84(1)  (b) of  the  Act which had been recently amended by  Act  10  of 1946.  The contention was that this was a pure dispute about succession to the office between members of the Bava  family and the only remedy open to Gopalaswami was to, file a  suit and  obtain the necessary declaration.  That contention  was rejected  by  the Board which proceeded to decide,  on  such evidence  as was produced before it, that Gopalaswami  being the eldest male member in the family was entitled to succeed to  the  hereditary trusteeship to the  exclusion  of  Pappu Ammal.   This decision was u/s 84(1).  Section 84(2) gave  a remedy to a person affected by the decision to apply  within six  months to the Court of the District Judge to modify  or set  aside  the decision.  Accordingly  Thiagaraja  Mudaliar tiled O.P. 27/1948 in the court of the District fudge,  East Tanjore  u/s 84(2) of the Act, contending, inter alia,  that the  order of the Board was without jurisdiction  since  u/s 84(1)  (b) the Board had jurisdiction only to determine  the nature  of the office-whether it was hereditary  or  not-but had no jurisdiction to decide the individual claims to here- ditary  trusteeship.   Pappu Ammal was made one of  the  co- respondents.   The point raised was treated by  the  learned Judge  as  a  preliminary  question.   He  formulated   that question in the following way : "A  preliminary  question that arises for  determination  is whether the Hindu Religious Endowment Board has jurisdiction u/s   84(1)  (b)  to  declare  that  the  first   respondent (Gopalaswami)  is  the hereditary trustee  of  the  Ulthurai kettalai  after the death of Bava C. Vaithilinga  Mudaliar." It  appears that Thiagaraja was not willing to concede  that the  office  of trusteeship was vested in  the  Bava  family hereditarily, but for the purpose of the present dispute, he conceded that the Bava family 391 had the right to hereditary trusteeship and the last  holder

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of  the ’Office was Vaithilinga Mudaliar who died  in  1943. So  there was no dispute either before the Board or  in  the District Court as to the nature of office being  hereditary, but  the only question was as to who out of the  members  of the Bava family was entitled to succeed to this office after the  death of Vaithilinga.  After dealing with the point  at some  length the learned District Judge by his judgment  and order dated September 4, 1948 cave his finding as follows "For  the above reasons I agree with the contentions of  the petitioner (Thiagaraja Mudaliar) and hold that the Religious Endowments Board had no right to decide a dispute  regarding succession  to a hereditary trusteeship. 1,  therefore,  set aside  O.A. No. 279/1946 (of the Board) dated September  24, 1947 and allow the petition with costs." As  we shall show in due course this decision  was  correct. After  this  decision, Gopalaswami should have gone  to  the regular Civil Court by way of a civil suit for a declaration of  his right to succeed to the office.  He did not  do  so. He  went  in appeal to the High Court and, in  our  opinion, fought  a  futile  litigation which has  culminated  in  the present  appeals.   We  will  only  briefly  refer  to  that litigation. From  the  order passed by the District Judge,  two  appeals were  filed in the High Court--one filed by Gopalaswami  was A.A.O.  No.  118/1949.  The other was filed  by  the  Board, rather  curiously, and was A.A.O. 223/1949.  The High  Court had to consider only the preliminary question decided by the District  Judge  as to whether the Board had  the  necessary jurisdiction.   The  Bench consisting of Govinda  Menon  and Basheer  Ahmed Sayeed, JJ _was of the view that u/s  84  (1) (b)  of  the  Act,  the Board was  entitled  to  decide  the dispute; and since the District Judge had not dealt with the case  on  merits the High Court remanded the matter  to  the District Judge with the followings directions : "The  District Judge will, in the enquiry that would  ensue, decide  between  the  competing  claims  of  the  heirs   of Vaithilinga  Mudaliar  as to who should  be  the  hereditary trustee.   The  parties  are  at  liberty  to,  adduce  such evidence as they desired." After  the  above remand  Vaithilinga’s  daughter  Shivakami Ammal’ and her son Brahadeeswaran, who had not been added so far  as parties to the litigation, were made parties in  the District Court.  Thereafter Pappu Ammal field a statement in the  District Court relinquishing her rights to the  office. So the District Judge had to decide whether Gopalaswami  had a preferential claim to the office as against  Vaithilinga’s daughter  and daughter’s son.  When the matter came  up  for bearing  before  the learned District  Judge,  the;  learned Judge, rather unaccountably came to the conclusion that  the daughter  and  the  daughter’s son  had  been  impleaded  by oversight.   Their names were, therefore, dropped  from  the proceedings.  This order was passed on 9-2-1952.  Thiagaraja and the daughter and her son filed two appeals A.O.    No. 239/1952 and A.O. 579/52 in the High Court against the, 392 High  Court against the order of the District Judge.   By  a common  judgment  dt.  23-11-1955  the  High  Court  against remanded  the case to the District Judge pointing  out  that the  learned  Judge  was  wrong  in  not  having  heard  the contentions of the daughter and daughter’s son and that  the claim of Gopalaswami must be adjudicated in the presence  of the  daughter  and  daughter’s son  who  were  most  vitally interested in the dispute. Atter  the  above remand the learned District Judge  by  his order dt. 24-12-1956 held that Gopalaswami Mudaliar was  not

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entitled  to  the  trusteeship and  since  Pappu  Ammal  had relinquished her claim the persons properly entitled to  the office  were  the  daughter  Shivakami  Ammal  and  her  son Brahadeeswaran.   Thus  the order of the Board in  O.A.  No. 279/46  declaring Gopalaswami as the hereditary  trustee  in succession  to  Vaithilinga Mudaliar was set  aside  by  the District Judge. It  was  against this judgment of the  District  Judge  that Gopalaswami  filed  appeal no. 88/1958 in  the  High  Court. Pending that appeal he died and his son Kalyansundram and G. Chakkappa   were   brought   on   record   as   his    legal representatives.  The deceased brother Panchapakesa, who was a respondent in that appeal, also got himself transposed  as a co-appellant claiming the right to trusteeship in  himself after  the  death of Gopalaswami.  Panchapakesa  also  died. Thereupon ’his son P. Chakkappa was brought on-record as the legal representative.  Son Kalyansundram died and his  widow Kamal   Ammal  was  brought  on  record.   On   a   detailed consideration  of  the  questions involved  the  High  Court (Rajagopalan  and  Rajagopalan lyyengar,  JJ)  reversed  the finding  of the District Judge and confirmed the finding  of the  Board that Gopalaswami was entitled to succeed  as  the hereditary ’trustee.  The court observed "In this appeal  we are  concerned only with the question whether the  order  of the  Hindu Religious Endowment Board declaring the right  of Bava  Gopalaswami with regard to the Ulthurai  kattalai  was well-founded  or not.  We are of the opinion that  the  said order  of  the  Endowment Board in  O.A.  No,  279/1946  dt. September 24, 1947 is correct and that no grounds have  been made  out  for setting it aside." The judgment of  the  High Court is dt.  March 23, 1961.  The appeals with which we are now  dealing  are  appeals from that  judgment.   The  first namely C.A. 1792/67 is filed by Thiagaraja Mudaliar and  the second  i.e.  C.A. 1793/67 is filed by  the  daughter’s  son Brahadeswaran and Shivakami Ammal. As stated at an earlier stage of the judgment we are of  the view that the Board was not entitled u/s 84 to entertain the dispute and, therefore, the District Judge was right in  his view  taken  by  him  on 4-9-1948  that  the  Board  had  no jurisdiction  to decide the individual claims to  hereditary trusteeship.  That finding was reversed by the High Court on 28-11-1950  and  since  the  appeal  had  not  been  finally decided.  there was no question of an appeal to this  court. As  the question was one of jurisdiction which went  to  the root  of the matter, perhaps, special leave to appeal  might have been granted if one were filed.  But it does not appear that  this  course  was taken.  Therefore, we  have  now  to consider  the  question of jurisdiction and we  regret  very much  that ’all this litigation for so many years  has  been merely a waste.                             393 Section  84 of the Act, amended by Act 10 of 1946 reads  as, follows : "84(1) If any dispute arises as to- (a)  whether  an institution is a math or temple as  defined in this Act, (b)  whether a trustee is a hereditary trustee as defined in this Act or not, or (c)  whether  any  property or money endowed is  a  specific endowment  as defined in this Act or not such dispute  shall be decided by the Board and no Court in the exercise of  its original  jurisdiction  shall take cognizance  of  any  such dispute. (2)  Any person affected by a decision under sub-section (1)  may, within six months, apply to the Court to modify or

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set aside such decision; (3)From every order of a District Judge, on an application under sub-section (2) an appeal shall lie to the High  Court within three months from the date of the order; (4)Subject to the result of an application under sub- section(2)  or  of an appeal under sub-section  (3),  the decision of....the Board shall be final. Sub-Section(1) refers to 3 kinds of disputes which  only the  Board"  has jurisdiction to decide.  The Board  is  the Board constituted by the State Government u/s 10 of the Act. The  jurisdiction of the Civil Court to entertain the  three disputes  is excluded.  Section (2) gives a person  affected by the decision of the Board to apply to the court to modify or  set aside such a decision The court referred to  is  the court  of the District Judge within whose local limits  the- temple  is. situated. (see section 9(3) of the-  Act.)  Sub- section.  (3) provides for an appeal to the High Court  from every order of the District Judge, (in an application  under sub-section   (2).   Sub-section  (4)  provides  that   the, decision of the Board is final subject to the result of  the application under sub-sections (2) and (3). In the present case as already pointed out Gopalaswami  went before  the  Board with a claim that he was  the  hereditary trustee  of the temple after the death of his elder  brother Vaithilinga  to the exclusion of every other member  of  the Bava  family.  He had a younger brother  Panchapakesa.   But Gopalaswami claimed that being the eldest male member of the family he alone was entitled.  Vaithialinga had left be-hind him  a widow, a daughter and daughter’s son.  But  they  too had  to  be  excluded because the  succession  descended  by custom or usage to the eldest male member of the family.  In other  words, Gopalaswami’s claim was a claim to succeed  to the  office  of hereditary trusteeship to the  exclusion  of every  other  member of the Bava family.  No  body  disputed that the office held by Vaithilinga Mudaliar was that of  a. hereditary  trustee.   It appears that  Thiagaraja  Mudaliar had, disputed this at an early stage but for the purpose  of the present dispute he had 394 willingly  conceded  that  the office  held  by  Vaithilinga Mudaliar  was  that of a hereditary trustee.  So  there  was unanimity amongst all the parties that the office was one of a hereditary trustee and the only dispute was who out of the Bava  family, was entitled to succeed to that  office  after Vaithilinga’s  death.  In the normal course any-body  making such  a claim for the exclusion of others would have had  to file  a suit .in the Civil court for a declaration  that  he was entitled to succeed to the office.  In fact, Gopalaswami had done, this by filing a suit in the court of the District Munsif.  But later he withdrew the suit with liberty to file a  fresh suit.  No fresh suit was filed by him,  apparently, because  the Board before whom he went with  this  complaint agreed  to decide the dispute inspite of the  opposition  of the  widow  Pappu  Ammal and the  other  trustee  Thiagaraja Mudaliar.   The question, therefore, is whether the  dispute thus  raised  before the Board was one which  can  be  truly described as a dispute falling under’ sub-clauses (a) (b)  & (c) of section 84(1) of the Act.  Sub-clauses (a) & (c)  had no application.  The contention on behalf of Gopalaswami and his heirs was that it was a dispute falling under sub-clause (b).   That  was contested and we have to see  whether  that contest was justified. Both  the  words  "trustee"  and  "hereditary  trustee"  are defined under the Act.  Trustee is defined in section  9(13) as follows :

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"Trustee  means  a person by whatever designation  known  in whom the administration of religious endowment is vested and includes any person who is liable as if he were a trustee." When  the  Act  came to be amended by Act  10  of  1946  the original definition of "hereditary trustee" given in section 9(6) was recast as follows "Hereditary trustee"-means the trustee of a math, temple  or specific  endowment succession to whose office  devolves  by hereditary right or is regulated by usage or is specifically provided  for by the founder so long as such scheme of  suc- cession is in force." These two definitions were advisedly introduced in the  Act, because the Act wanted to make a clear distinction between a hereditary  trustee and a non-hereditary trustee so  far  as the   Hindu  Religious  endowments  were  concerned.    Non- hereditary  trustees were subject to greater control by  the Board under the Act, whereas the hereditary trustees enjoyed larger  privileges and the control over them was  also  much less.   It was, therefore, expected that when the  Act  came into  force  a  trustee was likely to claim that  he  was  a hereditary  trustee  and if such a dispute was  raised  that dispute  was  to be exclusively decided by  the  Board.   In other words, if a trustee, a$ defined in the Act, wanted  to claim that he is a hereditary trustee also as defined in the Act,  it was necessary for him to approach the Board  for  a decision  of the question and obtain a declaration that  the office  be  held was not just of an ordinary trustee  but  a hereditary trustee.  Such a dispute can never arise when  it is conceded on all hands that the office is of a  hereditary trustee.   In the present case the whole question was as  to who,  out  of a number of members of the  Bava  family   was entitled to succeed to the office of the hereditary trustee. Gopalaswami was not claiming a 395 higher  status  than what he was holding.  Either he  was  a hereditary trustee or nothing.  In our opinion, the  dispute raised by Gopalaswami before the Board was one which did not fall  under sub-clause (b) of section 84(1) and,  therefore, it  was  not a dispute which, could be  entertained  by  the Board. A  similar question had arisen in the Madras High  Court  in Sastri Ammal v. Prayalavarna Naicker(1).  That was under the Madras  Hindu Religious and Charitable Endowments Act 19  of 1951  which  replaced  Act  II of 1927  with  which  we  are dealing.   Section  57(b) of that Act  contained  provisions which  are similar to section 84 of the Act.  Section  57(b) read as follows : "Subject  to the rights of suit or appeal  hereinafter  pro- vided  the Deputy Commissioner shall have power  to  enquire into and decide the following disputes and, matters : (b)Whether a trustee holds or held office as a  hereditary trustee." It was held that a dispute between the claimants to  succeed to  an  office  which,  it is  admitted  on  all  hands,  is hereditary  is not within the scope of section  57(b).   The learned Judge observed at page 636 as follows : "It  is  hot enough to show that the last  holder  held  the office as hereditary trustee.  There can be no dispute about that;  and-there can be no need to determine  that,  because the  dispute  is  only who is entitled  to  succeed  to  the hereditary  office.   Obviously a claim to  succeed  to  the office under such circumstances would fall outside the scope of section 57(b)." It is rather interesting to see that  the High Court’s decision in the present case which was reported in  Gopalaswami  Mudaliar v. Thayagaraja  Mudaliar  (2)  was

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cited  before the court.  But the learned Judge declined  to follow  it on the ground that it was unhelpful  in  deciding the  question  at issue.  Certain  elements  of  distinction between the provisions of section 84 of the Act and  Section 57(b) of the 1951 Act were suggested.  But, with respect, we must  say there is really no difference.  The dispute  about succession  to  an admittedly hereditary office is  as  much outside the scope of section 84(1) of the Act as of  section 57(b)  of the 1951 Act.  Then again In A. Krishnaswami  Raja v. Krishna Raja(3) the same point again        copped up u/s 57(b)  of  Act  19  of 1951 and  the  court  held  that  the jurisdiction of the Deputy Commissioner u/s 57(b) of the Act was confined to a decision whether a trustee held office  as a  hereditary  trustee  The  Deputy  Commissioner  was   not competent to go, into the other question as to which one  of the  competing  claimants  was  the  hereditary  trustee  or whether  the  competing  claimants  were  joint   hereditary trustees.  That had to be worked out in a separate suit.  In our  opinion,  the, view expressed in both  these  cases  is correct  and though they are not directly on the  provisions of section 84(1) (b) of the Act we have no doubt  whatsoever that the same principle applies here. (1) I. L. R. 1957 Madras 631.  (2) 1951 (1) M. L. J. 248. (3)  I. L. R. 1967(3) Madras, 495. 396 While  it may well be that the Board before  exercising  its jurisdiction to determine the character of the  trusteeship- hereditary of other--may have to decide tentatively  whether the petitioner is a stranger without any locus standi or the heir to the last trustee, in this case even that provisional finding on a collateral fact is uncalled for since the issue it had to decide-hereditary trusteeship-was admitted by both sides.   We make it clear that after having got  the  entire proceedings dismissed as without jurisdiction on the  ground that  no  dispute  regarding the hereditary  nature  of  the trusteeship  at all arose it is not open to  the  contestant Thiagaraja  Mudaliar  to  resile from that  stand  in  other proceedings.  It is also obvious that our judgment is  based on  the  Act  as  it was  and  cannot  preclude  action,  if available, under any new or other enactment. It follows, therefore, that the Board had no jurisdiction to decide the dispute of succession.  The jurisdiction was with the  ordinary Civil Courts of the land.   Consequently,  the decision  of the High Court ’in A.S. No. 88/1958 dt.   March 23,  1961 has to be set aside, and the order passed  by  the District  Judge  of  East Tanjore in O.P.  No.  27/1948  dt. September  4,  1948 restored.  Having regard to  the  course this litigation has taken, the proper order as to costs,  in our opinion, would be to direct that the parties shall  bear their own costs throughout. P.B.R. Appeal allowed. 397