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PETITIONER: COMMISSIONER OF WEALTH-TAX, BHOPAL

       Vs.

RESPONDENT: ABDUL HUSSAIN MULLA MUHAMMAD ALI (DEAD) BY L.Rs.

DATE OF JUDGMENT09/05/1988

BENCH: VENKATACHALLIAH, M.N. (J) BENCH: VENKATACHALLIAH, M.N. (J) PATHAK, R.S. (CJ)

CITATION:  1988 AIR 1417            1988 SCR  Supl. (1) 227  1988 SCC  (3) 562        JT 1988 (2)   487  1988 SCALE  (1)1112

ACT:      Wealth Tax  Act, 1957-Sections  5 and 27-Loan-Termed by assessee as  ’Quaraza-e-hasana’ held includible as wealth of assessee and liable to tax.      Words and Phrases: ’Quaraza-e-Hasana’-Meaning of.

HEADNOTE:      The  assessee-respondent   had  advanced   a   sum   of Rs.4,00,000 to his partner Faizullabhai Mandlawala which sum was employed  as a  part of  Mandlawala’s capital  in  their partnership firm.  The assessee  sought to have the value of that loan  excluded from  his wealth  on the claim that this loan was what was known to Muslim Law as ’Quaraza-e-Hasana’- a debt  of good faith and goodwill carrying with it no legal obligation  on   the  part   of  the  debtor  to  repay  and correspondingly, no right on the part of assessee to expect, much less  enforce a  repayment. This claim was supported by debtor’s declaration  that  the  sum  was  received  by  him ’without any obligation and without any rate of interest and without any consideration.’      The Wealth  Tax Officer  and  the  Appellate  Assistant Commissioner found  it difficult  to accept  this claim. The Appellate Tribunal,  however, accepting the assessee’s claim held that  the loan  partook of the character of ’Quaraza-e- Hasana’ with  its special  incidents as known to Muslim Law; that the  transaction was one of good faith and goodwill and lacked the  concomitants of  a legally enforceable claim for repayment and that, therefore, the amount was not a debt due to the assessee. The High Court upheld this view.      It was  contended on behalf of the Revenue (1) that the Tribunal as  well as the High Court erroneously accepted the hypothetical incidents  of a supposedly peculiar institution of the  personal law  of the  Muslims, any  rule or tenet of Muslim Law respecting which had not having been established; (2) that both the Tribunal and the High Court, while rightly noticing that  the special  incidents  of  what  was  called ’Quaraza-e-Hasana’  had   not  been  established,  gave  the benefit of doubt as to the 228 very existence  of this institution of ’Quaraza-e-Hasana’ to the assessee, and (3) that the reliance by the High Court on

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the  incidents   of  ’Hiba-ba-shart-ul-iwaz’,   a  form   of Mussalman gift, was misplaced as this kind of gift expressly stipulated contemporaneous liability for a return.      Counsel  for   the  assessee,  sought  to  support  the conclusions  of   the  High  Court  on  an  alternative  and independent ground  that, at  all events,  by entering  into this transaction  the parties  must  be  held  not  to  have intended to create a legal obligation between them and that, therefore, the  debt remained  a  debt  of  honour.  It  was contended that  an agreement  would not,  by  itself,  yield legal obligations  unless it  was one which could reasonably be regarded as having been made in contemplation of creating legal consequences,  and that  in this case the parties must be  held   to  have  excluded  the  contemplation  of  legal consequences flowing from the transaction.      Allowing the appeal it was, ^      HELD: (1) As no authoritative text nor any principle or precedent recognised in Muslim Law was cited before the High Court or  this Court,  establishing the  nature, content and incidents of  the institution  of ’Quaraza-e-Hasana’, it was not possible  to say,  one way  or the other, whether Courts could recognise  and act upon such a rule of Muslim Law much less afford  relief to  the proponent of that rule. [232G-H; 233A-B]      (2) If the concept of ’Qard Hasan’ was the same as that of ’Quaraza-e-Hasana’,  the obligation  on the  part of  the debtor of the loan to repay nor the right of the creditor to repayment were  excluded. The  only incident  appeared to be that it was ’interest-free’. [234C]      (3) The  reliance by  the High  Court on the concept of mussalman gift  ’Hiba-ba-shart-ul-Iwaz’  did  not  help  the assessee because  this kind of gift stipulated liability for return. [232E-F]      (4) The  debt, though a ’passive debt’ would require to be treated  as due  and payable  to the assessee. It was not the assessee’s case that the debt was bad and irrecoverable. The debtor’s  declaration itself  established its existence. [235B]      (5) Where, as in the instant case, the tax implications of large  financial obligations were sought to be put an end to, the  burden as  heavy on  the assessee to establish that what  would   otherwise  be   the  usual  incidents  of  the transaction were excluded from contemplation by 229 the parties.  Here, one  partner had lent a large sum to the other to  be utilized as capital in the partnership venture. The transaction  was in the context of a commercial venture. The presumption  therefore, was  that legal obligations were intended. The  onus was on the parties asserting the absence of legal  obligations. The  test was  not subjective  to the parties, but an objective one. [236E-F]      (6) The non-enforceability of debt was pleaded not as a part of  what was  permissible  in  law  of  contracts,  but specifically as  some inexorable  incident of  a  particular tenet peculiar  to and characteristic of the personal law of the Muslims.  That not  having been  established, no  appeal could  be   made  to  the  principle  of  permissibility  of exclusion of  legal obligations  in the law of contracts. In the instant  case, the  admitted existence of a debt implied an obligation  to repay.  No legal  bar of  the  remedy  was pleaded. What  was set  up, and was unsubstantiated, was the non-existence of the remedy itself. The loan would therefore become includible in the wealth of the assessee. [238C-E]      Rose and  Franc Co.  v. J.R.  Crompton and  Bros. Ltd.,

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[1923] 2  K.B. 261; Edwards v. Skyways, [1964] 1 W.L.R. 340; Bahamas Oil  Refining Co.  v. Kristiansands  Tankraderie A/s and others  and  Shell  International  Marine  Ltd.,  [1978] Lloyds Law Reports 211, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal Nos. 740 to 743 of 1975.      From the Judgment and Order dated 30.8.1974 of the High Court of  Madhya Pradesh in Miscellaneous Civil Case No. 352 of 1971.      B.B. Ahuja,  Ms. A.  Subhashini and  K.C. Dua  for  the Appellant.      T.A. Ramachandran,  Vinek Gambhir,  Sanjay  Sareen  and S.K. Gambhir for the Respondents.      The Judgment of the Court was delivered by      VENKATACHALIAH, J.  These appeals, by special leave, by the Commissioner  of Wealth-tax,  Bhopal, arise  out of  the opinion rendered  by  the  High  Court  of  Madhya  Pradesh, Bhopal,  in  fourconsolidated  wealth-tax  references  under Section 27(1)  of the  Wealth-tax Act,  1957. They  raise  a short but interesting question touching the 230 incidents of  what is  described as  the  ’Quaraza-e-Hasana’ said to  be a  transaction known  in  and  peculiar  to  the personal law of the muslims.      2. The  matters arise out of the proceedings concerning the  assessment  to  wealth-tax  of  the  respondent,  Abdul Hussain Mulla  Mohammad Ali  (’the assessee’)  for the  four assessment-years 1957-58 to 1960-61.      In the original-returns for the assessment year 1957-58 relevant to the valuation date 31.3.1957, the assessee filed a return  of net  wealth of Rs.8,57,910 which included a sum of Rs.4,00,000  representing the principal value of the loan advanced  by   the  assessee   to  a   certain  Faizullabhai Mandlawala,  Sidhpur.   Both  the   assessee  and  the  said Faizullabhai Mandlawala  were partners of a firm carrying on business under  the name  and style  ’Rising Sun Flour & Oil Mills’ at Ujjain. The borrower had employed this sum as part of his  capital in the firm. In the revised return, filed by him, the assessee, however, sought to have the value of that loan excluded  from his  wealth, on the claim that this loan was what  was known  to Muslim  Law as  ’Quaraza-e-Hasana’-a debt of  good faith  and goodwill  carrying with it no legal obligation  on   the  part   of  the  debtor  to  repay  and correspondingly, no  right on  the part  of the  assessee to expect, much  less enforce  a repayment.  The claim  for the non-inclusion of  this asset  in the  wealth of the assessee was  sought   to  be  supported  by  the  declaration  dated 26.3.1965 furnished  by the debtor that the sum was received by him  ’without any  obligation and  without  any  rate  of interest and  without any  consideration’. Reliance was also placed on  some extracts of the Quran said to relate to this transaction.      Both the Wealth-tax Officer and the Appellate Assistant Commissioner in the appeal found it difficult to accept this claim and,  accordingly, brought  this sum of Rs.4,00,000 to tax on the respective valuation dates.      However,  the  Income-tax  Appellate  Tribunal,  Indore Bench, accepting  the assessee’s  appeals held that the loan partook of  the character  of  ’Quaraza-e-Hasana’  with  its special  incidents   as  known   to  Muslim  Law;  that  the transaction was  one of  good faith  and goodwill and lacked

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the  concomitants   of  a   legally  enforceable  claim  for repayment and that, therefore, the amount was not a debt due to the assessee.      3. The  High Court  before which  the Tribunal,  at the instance of 231 the Revenue, stated a case and referred two questions of law for opinion upheld the view that had commended itself to the Tribunal and answered the questions against the Revenue. The two questions so referred were:           (1)  "Whether   on    the   facts   and   in   the                circumstances of  the case,  the Tribunal was                justified in  holding that the amount of Rs.4                lakhs cannot  be included in the total assets                of the assessee?"           (2)  "Whether   on    the   facts   and   in   the                circumstances of  the case  the Tribunal  was                justified in  accepting that  the  amount  of                Rs.4 lakhs  was in  the nature of ’Quaraza-e-                Hasana’ particularly  when Rs.1,21,500 out of                Rs.4 lakhs has been repaid?"      4. Shri  B.B. Ahuja,  learned counsel  for the Revenue, contended that  the Tribunal  as well as the High Court fell into a serious error in their acceptance of the hypothetical incidents  of  a  supposedly  peculiar  institution  of  the personal  law  of  the  muslims,  respecting  which  nothing tangible by way of evidence as to the existence of such rule or tenet  of muslim  law was  forthcoming.  Learned  counsel invited  our   particular   attention   to   the   following observations of the Tribunal:           "The  learned   counsel  for   the  assessee,  Mr.           Chitale, has also stated before us that he has not           come across  any  judicial  decision  defining  or           describing  the   exact  characteristics   of  the           expression  ’Quaraza-e-Hasana’   nor  has   become           across any discussion on this matter in any of the           treaties on  Mohammedan Law.  We  are,  therefore,           satisfied that  on the  facts and circumstances of           this case,  the amount  of Rs.4  lakhs  cannot  be           treated as a debt due to the assessee and the same           cannot be  included in  the  total  asset  of  the           assessee." Learned counsel  submitted that the inference drawn does not only  not  flow  from  the  premise  but  would  clearly  be antithetical. If  the concept  of ’Quaraza-e-Hasana’ and the peculiar incidents attributed to it are not established, the plea that  there is a debt but yet there is no obligation to repay becomes  mutually  contradictory.  In  regard  to  the subsidiary or  supporting reasons  for the acceptance by the Tribunal to  hold that there was no debt which could be said to be  due and  owing to  the assessee,  the learned counsel invited our  attention to  the following  reasoning  of  the Tribunal: 232           ".......Faizullabhai  in   a   declaration   dated           26.3.1965 has stated that this amount was received           by him without any obligation and without any rate           of  interest   and  without   any   consideration.           Therefore,   the    question   that   arises   for           consideration  is   whether  under  this  peculiar           circumstance it  can be said that this sum of Rs.4           lakhs  which   was  given   by  the   assessee  to           Faizullabhai prior  to 1950  for which there is no           document and  for which  there is no obligation to           repay  can  be  treated  as  a  debt  due  to  the

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         assessee........      Learned counsel submitted that neither the circumstance that the  loan was  advanced prior  to 1950  nor  the  self- serving declaration  by  the  borrower;  nor  even  that  no repayment had  been made  during  the  accounting  years  or earlier would, by themselves, detract from the existence and incidents of  a debt which was, otherwise, admitted. Learned counsel pointed out that, admittedly, on 24.7.1961, a sum of Rs.1,21,821 had been repaid by the borrower to the assessee.      Learned counsel  said that  both the  Tribunal and  the High  Court,   while  rightly   noticing  that  the  special incidents of what was called ’Quaraza-e-Hasana’ had not been established, however,  by excluding the sum from the wealth, gave the  benefit of  this doubt as to the very existence of this institution of ’Quaraza-e-Hasana’ to the assessee.      5. Referring  to the  reliance by the High Court on the incidents ’Hiba-ba-shart-ul-evaz’  learned counsel submitted that the reasoning of the High Court based on this form of a mussalman  gift  was  destructive  of  the  assessee’s  case inasmuch as  the kind of gift envisaged by ’Hiba-ba-Shart-Ul Evaz’ expressly  stipulated contemporaneous  liability for a return.      Shri Ramachandran,  learned counsel  for the  assessee, sought to  support the  conlusion of  the  High  Court  also another independent  ground that, at all events, by entering into this transaction the parties did not intend to create a legal obligations between them and that, therefore, the debt remained a  debt of  honour. We  will presently refer to the possibilities of this contention in the facts of this case.      6.  No   authoritative  texts   nor  any  principle  or precedent recognised in Muslim Law was cited before the High Court  to  show  that  a  transaction  of  this  nature  and incidents is  known to and recognised by the personal law of the Muslims.  As no  material was  placed  before  the  High Court, or  before us, to establish the content and incidents of this 233 idea of  what is  referred to  ’Quaraza-e-Husana’ it  is not possible to  say, one  way or  the other, whether Courts can recognise and  act upon  such a rule of Muslim Law much less afford relief to the proponent of that rule.      Indeed literature  on the Principles of Islamic Banking "Unlawful gain  and legitimate profit in Islamic Law" (Nibil A. Saleh,  Cambridge University Press, 1986) does not appear though we do not want to be understood to have pronounced on the subject  finally to  support the particular incidents of the non-existence  of the element of repayability attributed to this  kind of  loans. Learned  author  says  that  Sharia distinguishes between  two types  of loans:  one the ’Ariya’ the ’loan  for use’  which transfers  the  usufruct  of  the property temporarily and gratuitously while ownership of the loaned-object remains  with the  lender; and the second, the ’qard’. In  regard to  this second  type of loan, the ’qard’ the author says (at pages 35 and 36):           "The second  type of loan recognished by Sharia is           the qard,  which ’involves  the loan  of  fungible           commodities; that is, goods which may be estimated           and  replaced  according  to  weight,  measure  or           number. In  this case,  the borrower undertakes to           return the  equivalent or  likes of  that  he  has           received but  without any premium on the property,           which would,  of course, be construed as interest.           The most  likely object  of a  qard loan  would be           currency or other standard means of exchage."                                          (emphasis supplied)

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On the  question whether the lender of ’Qard’ is entitled to derive any  advantage from  it, the learned author refers to the  views   of  the   different  schools  namely,  Hanafia, Hanbalis, Malikis,  Shafi and  Ibadis. (See pages 41 to 43). Again, the learned author refers to ’Qard-Hasan’ as interest free loan. Explaining its incidents the author says:           "Qard Hasan  means an interest-free loan, which is           the only  loan permitted  by Sharia principles. We           have seen  previously that  not only  can interest           not  be  charged  on  the  lent  capital,  but  no           advantage whatsoever  should  be  derived  by  the           lender from  the loan.  Of course,  each school of           law has its own interpretation of what constitutes           ’advantage’ and  that  we  have  already  seen  in           detail ........                One  may   wonder  how  lending  could  be  a           business 234                proposition  once   interest   is   abolished           ........."                                          (emphasis supplied)                                                (see page 89) The  learned   author  also   proceeds  to   enumerate   the circumstances in  which the  Islamic Financial  Institutions are advised to make use of ’Qard Hasan’.      7.  From   what  is   gatherable  from   the   author’s observations-of course,  if the  concept of  ’Qard Hasan’ is the same  as that  ’Quaraza-e-Hasana’-the obligation  on the part of the debtor of the loan to repay nor the right of the creditor  to  repayment  are  excluded.  The  only  incident appears to be that it is ’interest-free’.      However, we  do not  want  to  be  understood  to  have pronounced on  this question  finally as  neither  side  has produced nor  relied upon  any literature  of Islamic Law on the point.  The extracts  of the  Quran relied  upon  merely calls some loan a beatific loan which blesses the giver. The incidents of the transactions are not found in the passages.      8. Nor  does the reliance by the High Court on the well recognised institution  in Muslim  Law, of Hiba-ba-Shart-ul- Iwaz’ advance  the case  of the  assessee  any  further.  In Principles of  Mohammadan Law (Mulla, 16th Edition page 165) this kind of gift is explained:           "Where a  gift is  made with a stipulation (shart)           for a  return, it  is called  hibaba-shart-ul-iwaz           .......... The  main distinction between Hiba-bil-           Iwaz as  defined by  older  jurists  and  Hiba-ba-           shart-ul-Iwaz is  that in the former iwaz proceeds           voluntarily from  the donee  of the  gift while in           the latter  it is expressly stipulated for between           the parties."      Referring  to  what  distinguishes  Hiba-bil-Iwaz  from Hiba-ba-shart-ul-Iwaz, the  learned author,  Syed Ameer Ali, in ’Mahommadan Law’ (4th Edition), Vol. I, p. 158 excerpting from Fatawai Alamgiri, says:           Iwaz or  consideration was of two kinds: one which           was subsequent  to the  contract  (of  gift),  the           other which was conditioned in it."           "In  the   other  kind,   the  consideration   was           expressly stipu- 235           lated in  the  contract,  and  when  once  it  was           received  the   transaction  acquired   the  legal           character of  a sale. The modern hiba-ba-shart-ul-           iwaz has unquestionably sprung from the above."      Then, in  the last  analysis what  follows as a logical

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consequence is  that the debt, though a ’passive debt’ would require to be treated as due and payable to the assessee. It was not  the assessee’s  case that  the debt  was a  bad and irrecoverable debt.  The declaration  of the  debtor  itself establishes its existence.      9.  But,  then,  Shri  Ramachandran,  anticipating  the inherent infirmity  of the claim based on ’Quaraza-e-Hasana’ sought to  treat us  to  a  resourceful  argument  that  the conclusion of  the High Court is, at all events, supportable on an  independent ground  that an  agreement will  not,  by itself, yield  legal obligations  unless it is one which can reasonably be  regarded as  having  been  made  between  the parties in  contemplation of  legal consequences and that in the present  case the parties had excluded the contemplation of legal  consequence flowing  from the  transactions.  This proposition is  stated in  ’Chitty on  Contracts’ (25th Edn. Volume I para 123) thus:           "An agreement,  even though  it  is  supported  by           consideration, is  not binding as a contract if it           was made  without any  intention of creating legal           relations. Of  course, in  the  case  of  ordinary           commercial  transactions   it  is   not   normally           necessary  to  prove  that  the  parties  in  fact           intended to create legal relations."                                          (emphasis supplied) Learned counsel cited certain cases to illustrate the point. In Rose  and Frank  Co. v.  J.R. Crompton  and  Bros.  Ltd., [1923] 2 K.B. 261 Sccutton, LJ, said:           "..... Now  it is  quite possible  for parties  to           come to  an agreement by accepting a proposal with           the result  that the  agreement concluded does not           give rise  to legal  relations. The reason of this           is that  the parties  do  not  intend  that  their           agreement shall give rise to legal relations. This           intention may  be implied  from the subject matter           of the  agreement, but it may also be expressed by           the parties.  In social  and family relations such           an intention is readily implied, while 236           in business  matters  the  opposite  result  would           ordinarily follow ...." At page 293, Atkin, LJ, said:           "..... To create a contract there must be a common           intention of  the  parties  to  enter  into  legal           obligations, mutually  communicated  expressly  or           impliedly." The novelty  of the  clause in  the contract  relied upon in that case  did not  miss  the  learned  Judge’s  notice.  He observed:           "...... I  have never  seen such  a clause before,           but I  see nothing  necessarily absurd in business           men seeking  to regulate  their business relations           by mutual  promises  which  fall  short  of  legal           obligations, and  rest on  obligations  of  either           honour or self-interest, or perhaps both ...." This contention  of Shri Ramachandran was not, in this form, urged before  the High  Court. It  was not  the case  of the parties that,  apart altogether  from the Rule of Muslim Law relied upon,  they had  agreed otherwise  also that no legal obligation should arise.      10. The  contention has,  no doubt,  its possibilities. But where,  as here, the tax implications of large financial obligations are  sought to  be put  an end to, the burden is heavy on the assessee to establish that what would otherwise be the  incidents of  the  transaction  were  excluded  from

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contemplation by  the parties.  Here, one partner has lent a large sum  to the  other to  be utilised  as capital  in the partnership venture.  The transaction is in the context of a commercial  venture.   The   presumption   is   that   legal obligations  are  intended.  The  onus  is  on  the  parties asserting the  absence of  legal obligations and the test is not subjective  to the  parties; but  is an  objective  one. Chitty says (para 123, supra):           "..... The  onus of proving that there was no such           intention ’is  on the  party who  asserts that  no           legal effect  is intended, and the onus is a heavy           one. Where  such evidence  is adduced,  the Courts           normally apply an objective test."                                          (emphasis supplied) The observations  of Atkin,  LJ in the case cited by counsel are also worth recalling: 237           "....... Such  an  intention  ordinarily  will  be           inferred when  parties  enter  into  an  agreement           which in  other respects  conforms to the rules of           law as  to the  formation of  contracts. It may be           negatived impliedly  by the  nature of  the agreed           promise or  promises, as  in the case of offer and           acceptance of  hospitality, or  of some agreements           made in  the course of family life between members           of a  family as in Balfour v. Balfour, [1919] 2 KB           571 ....." In Edwards v. Skyways, [1964] 1 WLR 340 at 355 Megaw J said:           "In the  present case,  the subject  matter of the           agreement is  business relations,  not  social  or           domestic matters.  There was a meeting of minds-an           intention  to   agree.  There   was,   admittedly,           consideration for  the company’s promise. I accept           the propositions of counsel for the plaintiff that           in a  case of this nature the onus is on the party           who asserts that no legal effect was intended, and           the onus is a heavy one."      Again, in  Bahamas Oil  Refining Co.  v.  Kristiansands Tankrederie A/S  and Others  and Shell  International Marine Ltd., [1978] Lloyds Law Reports 211 it was said:           "...... In  deciding whether  or not there was any           animus  contrabendi   in  relation  to  a  certain           transaction, or  whether or  not sufficient notice           of a  certain term  was given,  the law applies an           objective and not a subjective test ......"           "...... In  the absence  of such evidence, how can           the Court  assume, even if it might be relevant in           law, that  the master did not intend to enter into           a contract ......"      11. The  arguments of  learned counsel  proceeds on the general proposition  that in addition to the existence of an agreement and  the presence of consideration there is also a third contractual  element in  the form  of intention of the parties to  create legal relations. This proposition, though accepted in  English Law,  has not  passed unchallenged.  In Cheshire and  Fifoot’s Law  of Contract,  10th Edn.,  it  is said:           "......the  criticism  of  it  made  by  Professor           Williston demands attention, not only as emanating           from  a  distinguished  American  jurist,  but  as           illuminating   the   whole   subject   now   under           discussion. In his opinion, the separate 238           element of intention is foreign to the common law,           imported from the Continent by academic influences

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         in the  nineteenth  century  and  useful  only  in           systems which  lack the  test of  consideration to           enable  them   to  determine   the  boundaries  of           contract ......"                                                 (at page 97) Be that as it may, the point, however, to note and emphasise is that this intention not to create legal obligation is not inferable from  the application  of any  objective text. The non-enforceability of debt was pleaded not as a part of what is permissible in law of contracts, but specifically as some inexorable incident  of a  particular tenet  peculiar to and characteristic of  the personal law of the Muslims. That not having been established, no appeal, in our opinion, could be made to  the principle  of permissibility  of  exclusion  of legal obligations  in the  law of  contracts. We  are afraid both the  Tribunal and  the High  Court  accepted,  somewhat liberally  perhaps,   what  was   at  best  an  argument  of hypothetical probabilities. The admitted existence of a debt implies an  obligation to  repay. No legal bar of the remedy is pleaded.  What was  set up,  and unsubstantiated, was the non-existence of the remedy itself.      12.  Accordingly,  the  appeals  are  allowed  and,  in reversal of  the view taken by the High Court, the questions referred for  opinion, are  answered in  the negative and in favour of  the Revenue,  with the attendant implication that the loan  would become  includible  in  the  wealth  of  the assessee  for   the  relevant   assessment  years.   In  the circumstances of the case, we make no order as to costs. R.S.S.                                      Appeals allowed. 239