Bombay High Court
Jagannath Rangnath Chavan vs Suman Sahebrao Ghawte on 10 September, 2013
Equivalent citations: AIR 2014 (NOC) 491 (BOM.) (AURANGABAD BENCH), 2014 (3) ABR 201
Author: A.B.Chaudhari
Bench: A.B.Chaudhari
sa.296.90
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
...
SECOND APPEAL NO. 296/1990
WITH
CIVIL APPLICATION NO.12580/2010
Jagannath Rangnath Chavan
Aged major, occu: Agril.
R/o Bharanpur, Tq.Newasa
Dist. Ahmednagr. ...
ig ...APPELLANT
(Ori.Defdt.No.6)
v e r s u s
1. Suman Sahebrao Ghawte
R/o Sonai, Tq. Newasa
Dist. Ahmednagar.
2. Shanti alias Vimal Kundlik Gatkul
R/o Antre, Tq.Shevagaon
Dist. Ahmednagar.
3. Janardhan Namdeo Chavan
At & Po: Bharanpur, Tq.Newasa
Dist. Ahmednagar.
(Appeal stands abated
against Res. No.3 vide Addl.
Registrar's order dated 10.4.1991).. ...RESPONDENTS
...........................................................................................................................
Mr .V. D.Hon, Advocate for appellant
Mr. Umakant Deshmukh, Adv. h/for Mr. V.D.Salunke for
respondents
............................................................................................................................
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sa.296.90
2
CORAM: A.B.CHAUDHARI, J.
DATE OF RESERVING: 16.08.2013.
DATE OF PRONOUNCEMENT: 10 .09.2013
JUDGMENT :
Being aggrieved by the judgment and decree dated 2nd January, 1989 passed by learned District Judge, Ahmednagar in Regular Civil Appeal No. 6/1984 by which the decree of dismissal of Regular Civil Suit No. 17/1983 dated 30.11.1983 passed by the learned Civil Judge, Junior Division, Newasa was reversed and the lower Appellate Court passed the decree for partition and separate possession, the original defendant no.1, the appellant herein, had filed the instant Second Appeal in this Court.
FACTS:
2. Nana had three children - the only son by name Tukaram and two daughters-Suman (Plaintiff No.1) and Shanti @ Vimal (Plaintiff No.2).
The two daughters had filed Regular Civil Suit No.17/1983 against the present appellant, who was defendant no.1 and another defendant, challenging the sale deed dated 28.3.1968 executed by their brother Tukaram in favour of the present appellant/defendant no.1 and, in the alternative, for partition and separate possession. Nana had died on 19.07.1967. The plaintiff no.1-Suman was already married and had gone to reside with her husband at her matrimonial place; whereas plaintiff no.2 Shanti @ Vimal was minor, who resided with Tukaram. Apart from other essential rites and ::: Downloaded on - 27/11/2013 20:17:35 ::: sa.296.90 3 rituals to be performed due to the death of Nana, Tukaram had, on his shoulder, the liability of marrying plaintiff no.2 Shanti @ Vimal since there was no other male member in the family except him. Initially Tukaram by conditional sale deed for a period of five years sold 1/3rd of the suit land on 29.12.1967 for a consideration of Rs. 15,000/- in favour of original defendant no.2- Janardhan Chavan. Thereafter, he sold the suit land on 28.3.1968 for Rs. 6,000/- to defendant no.1 after it was repurchased by him. As there was no other source of livelihood/ income to Tukaram, he applied the sale proceeds for performing rituals, maintenance of the family and for performing marriage of Shanti @ Vimal (Plaintiff No.2). Tukaram died on 03.12.1971. After his death, both the sisters had filed the above-
referred Suit on 29.9.1973.
The appellant (defendant no.1) filed his written statement and contested the claim made by the plaintiffs, principally on the ground that Tukaram, after the death of Nana, had became the Karta of the family, being the eldest son remaining in the family due to marriage of plaintiff no.
1 and for legal necessity, he was compelled to sell the suit land and the said transaction of sale was binding on the plaintiffs who could not have questioned the sale deed. The trial Court held that Tukaram was the Karta of the family and the legal necessity was duly proved and, therefore, the sale deed was binding and could not be questioned. As a sequel, the trial ::: Downloaded on - 27/11/2013 20:17:35 ::: sa.296.90 4 Court dismissed the Suit filed by the respondents/plaintiffs. The respondents/plaintiffs filed the Appeal being Regular Civil Appeal No. 6/1984 before the District Judge, Ahmednagar who set aside the judgment and decree of the trial Court and decreed the Suit by making partition and also declaring the sale deed in question to be not binding on the plaintiffs.
Hence this Second Appeal.
3. In support of the Appeal, Mr.V.D. Hon, learned counsel for the appellant made the following submissions :-
(I) The lower Appellate Court committed an error in reversing the well-reasoned judgment made by the trial Court on the questions of fact and the questions of law.
(II) The lower Appellate Court recorded concurrent and clear finding of fact based on the evidence that there was legal necessity for selling the suit field. Despite this, according to Mr. Hon, the lower Appellate Court committed an error of law in holding that the plaintiffs had share in the suit property and the sale even if made for the legal necessity, would not bind the sisters of Tukaram and were entitled to the partition and separate possession which, according to him, constitutes substantial question of law.
(III) The concept of notional partition introduced by the lower ::: Downloaded on - 27/11/2013 20:17:35 ::: sa.296.90 5 Appellate Court with reference to proviso to Explanation 1 to Section 6 of the Hindu Succession Act in case of the minor plaintiff no.2-Shanti @ Vimal, who was living admittedly in mess and estate with Tukaram in joint family, has been mistakenly applied by the lower Appellate Court.
(IV) The parties are governed by Mitakshra Law and, therefore, the elder sister who was married earlier and had gone to reside in a different family could not take the position of Karta or Manager, she not being the coparcener of the family; all the more so because she after marriage, had left the original family of Nana.
Shri Hon relied on the following decisions :
(i) AIR 1940 Madras 530 (Varada Bhaktavatsaladu and another vs. Damojipuapu V. Rao and others);
(ii) (1933) 35 BOMLR 388
(Umakant Balkrishna vs. Martand Keshav )
(iii) AIR 1978 Cal. 157
(Chandradip Prosad vs. Jagannath Agarwalla )
(iv) AIR 1973 Kerala 192 (Abdulla Kunjikkarukutty & another vs. Ayyappan Ravunny and others).
4. Per contra, Mr Umakant D. Deshmukh, Adv.h/for Mr V.D. Salunke appearing on behalf of the respondents, made the following ::: Downloaded on - 27/11/2013 20:17:35 ::: sa.296.90 6 submissions:
(I) The judgment recorded by the learned lower Appellate Court on the premise of Section 6 of the Hindu Succession Act is perfectly, legal, correct and proper and cannot be faulted.
(II) Immediately after the death of Nana, the plaintiff no.1, the elder sister though married, would become the Manager or Karta of the family left by Nana and Tukaram could not act as Karta of the family and effect the sale deed in question. The said sale deed is not binding on the plaintiffs since Tukaram had no authority in law to execute the sale deed of the property left by Nana as the notional partition stood effected and became irrevocable.
(III) In Keshao and another vs. Jagannath reported in AIR 1926 Nagpur 81, the full Bench of Nagpur High Court held that even a widow could become the Manager or Karta of the family. The said decision was followed in the case of Pandurang Dahake vs. Pandurang Gorle (AIR (34) 1947 Nagpur 178) and was again followed by the Division Bench in the case of Commissioner of Income Tax vs. Laxmi Narayan Raghunathdas ( AIR (36) 1949 Nagpur 128) . He also relied on the decisions of the Supreme Court on the aspect of Section 6 of the Hindu ::: Downloaded on - 27/11/2013 20:17:35 ::: sa.296.90 7 Succession Act and the notional partition,namely, Sheosajansingh Ambersingh and others vs. Gokulsingh Bisansingh (AIR (36) 1949 Nagpur 130 and Gurupad Khandappa Magdum vs. Hirabai Magdum : 1978 DGLS (Soft)
140. Mr. Deshmukh, then, argued that even assuming that there was a legal necessity, still the law did not permit Tukaram to sell the suit property in which the plaintiffs have shares after the death of Nana. The question of law has been properly dealt with by the lower Appellate Court and there is no reason to interfere in the present Second Appeal.
CONSIDERATIONS:
5. I have gone through the entire record and proceedings, so also the judgment and orders passed by the Courts below. I have heard learned counsel for the rival parties at length. I have perused the judgments cited before me. At the time of admission, this Court framed Ground Nos. II, III, VII, VIII, IX and XIII from the memo of Appeal as the substantial questions of law. However after hearing the learned counsel for the respective parties and keeping in mind the aforesaid questions framed by this Court earlier, I re-frame the following substantial questions of law:-
(I) Whether the concurrent finding of fact recorded by the Courts below that the sale of property made by Tukaram under the sale deed dated 23.3.1968 (Exh.108) was for legal necessity, is legal, correct and proper?::: Downloaded on - 27/11/2013 20:17:35 :::
sa.296.90 8 ...Yes (II) Whether the plaintiff No.1-Suman, being the eldest daughter, could act as Karta/Manager of the family left by Nana after his death even after her marriage.? ..No (III) Whether after the death of Nana on 19.07.1967 Tukaram, being the only son left in the family along with plaintiff no.2-Shanti, the minor girl child, could act as Karta/Manager of the said family and execute sale deed (Exh.108) and whether the said sale deed would be binding on the plaintiffs ? ..Yes (IV) Whether by operation of Explanation 1 to Section 6 of the Hindu Succession Act, 1956 by necessary fiction and notional partition, the shares of the plaintiffs and Tukaram were actually separated by partition?
..No (V) Whether the decree for partition passed by the lower Appellate Court and further declaration that the sale deed dated 28.3.1968 (Exh.
108) is not binding on the respondents/plaintiffs is legal, correct and
proper? ..No
(VI) What order ? .. Second Appeal is allowed.
6. As regards Question No.(I): Though the learned counsel for the ::: Downloaded on - 27/11/2013 20:17:35 ::: sa.296.90 9 respondents assailed the concurrent finding of fact recorded by the Courts below that there was legal necessity for Tukaram to effect the sale deed in question after having checked the evidence- oral as well as documentary, I am of the firm opinion that the said finding of fact recorded by both the Courts below is legal and correct. The only ground of attack by the learned counsel for the respondents is that defendant did not prove that Tukaram had legal necessity. It is an admitted position that Nana had died on 19.7.1967 and the burden of maintenance of the minor-girl-plaintiff no.2-Shanti and her marriage fell on Tukaram so also for performing rituals upon the death of Nana. Tukaram still made a conditional sale-deed and even repurchased the land but thereafter when the marriage of plaintiff no.2 was to be performed, he had to give in and executed the sale deed (Exh.108) for her marriage.
Obviously there was nobody in the family to look after and maintain them.
Eventually, Tukaram had also died in the year 1971 and the Suit came to be filed two years thereafter by the respondents/plaintiffs. It is because of those sale-proceeds, the marriage of plaintiff no.2 could be performed.
Hence I answer the Question No.(I) in the affirmative.
7. As regards Question No.(II) : Learned counsel for the respondents strenuously contended that after the death of Nana, it was plaintiff no.1 -Suman, though married could represent the estate of Nana, being the eldest daughter of the family. The learned counsel relied on the ::: Downloaded on - 27/11/2013 20:17:35 ::: sa.296.90 10 decisions in the case of (1) AIR 1926 Nagpur 81; (2) AIR (34) 1947 Nagpur 178 ; (3) AIR (36) 1949 Nagpur 128 ; and AIR (36) 1949 Nagpur
130. It is true that in AIR 1926 Nagpur 81, the Full Bench of the Nagpur High Court held that alienation by a widow managing the estate of her minor son and step-son of a part of the immovable property belonging to the estate for necessary purposes is valid and binding on the step-son. The said decision was followed in Pandurang vs. Pandurang AIR (34) 1947 Nagpur 178 and thereafter in Commissioner of Income Tax vs. Laxmi Narayan AIR (36) 1949 Nagpur 128 by the Division Bench. The Nagpur High Court held that though no female member can be a coparcener the right or status of a coparcener is not a sine qua non of competency to become the Manager of Joint Hindu Family of which she is admittedly a Member. However it is seen that Nagpur decisions in the case of Commissioner of Income Tax vs. Laxmi Narayan : AIR (36) 1949 Nag.128 which was followed the earlier judgment cited supra on the said point, stood overruled in AIR 1966 SC page 24 in the case of Commissioner of Income Tax vs. Seth Govindram Sugar Mills. I quote paragraph 10 thereof, which reads thus :
10. The next question is whether after the death of Nandlal a new partnership was entered into between the representatives of the two branches of the families i.e. Nandlal's and Bacchulal's. Before we consider this question it is as well that we advert to incidental questions of law that were raised. One is whether the widow of Nandlal could under Hindu law be karta of the joint ::: Downloaded on - 27/11/2013 20:17:35 ::: sa.296.90 11 Hindu family consisting of three widows and two minors.
There is conflict of view on this question. The Nagpur High Court held that a widow could be a karta; see Commissioner of Income Tax C.P. and Berar v. Laxmi Narayan (1948) 16 ITR 313 : (AIR 1949 Nag 128); Pandurang Vithoba v.
Pandurang Ramchandra , LIR (1947) Nag. 299 : (AIR 1947 Nag. 178). The Calcutta High Court expressed the view that where the male members are minors and their natural guardian is the mother, the mother can represent the Hindu undivided family for the purpose of assessment and recovery of taxes under the Income Tax Act: see Sushila Devi Rampuria vs. Income Tax officer 1960-38 ITR 316:
(AIR 1959 Cal. 697) ; and Sm.Champta Kumari Singhi v. Additional Member, Board of Revenue, West Bengal (1961) 46 ITR 81 (Cal). The said two decisions did not recognise the widow as a karta of the family, but treated her as the guardian of the minors for the purpose of income-tax assessment. The said decisions, therefore, do not touch the question now raised. The Madras and Orissa High Courts held that coparcenership is a necessary qualification for the managership of a joint Hindu family and as a widow is not admittedly a coparcener, she has no legal qualifications to become the manager of a joint Hindu family. The decision of the Orissa High Court in Maqguni Padhano v. Lokananidhi Lingaraj Dora, AIR 1956 Orissa 1, followed the decision of the Madras High Court in Radha Ammal v. Commisisoner of Income Tax Madras (1950) 18 ITR 225, 230, 232, 233: (AIR 1950 Mad 538 as pp. 539,
540), wherein Satyanarayana Rao, J. observed:
"The right to come a manger depends upon the ::: Downloaded on - 27/11/2013 20:17:35 ::: sa.296.90 12 fundamental fact that the person on whom the right
devolved was a coparcener of the joint family..................
Further, the right is confined to the male members of the family as the female members were not treated as coparceners though they may be members of the joint family."
Vishwanatha Sastri J, said:
" The managership of a joint Hindu family is a creature of law and in certain circumstances, could be created by an agreement among the coparceners of the joint family. Coparcenership is a necessary qualification for managership of a joint Hindu family."
Thereafter the learned Judge proceeded to state:
" It will be revolutionary of all accepted principels of Hindu law to suppose that the seniormost female member of a joint Hindu family, even though she has adult sons who are entitled as coparceners to the absolute ownership of the property, could be the manager of the family....................................She would be the guardian of her minor sons till the eldest of them attains majority but she would not be manager of the joint family for she is not a coparcener."
The view expressed by the Madras High Court is in accordance with well settled principles of Hindu law, while that expressed by the Nagpur High Court is in direct conflict with them. We are clearly of the opinion that the Madras view is correct."
::: Downloaded on - 27/11/2013 20:17:35 :::sa.296.90 13 In view of the above pronouncement of legal position, the question needs to be answered in the negative.
8. As regards Question No.(III): There is a concurrent finding of fact recorded by the Courts below that Tukaram was major or adult at the time of the death of Nana and at the time of execution of sale deed.
The said finding of fact is based on oral as well as documentary evidence which has been already discussed by the Courts below and I do not think it is necessary to repeat the discussion about evidence tendered by the parties.
Learned counsel for the respondents did argue that the said finding is wrong and illegal but I do not find any reason to interfere with the said concurrent finding of facts recorded by the Courts below on that issue. The Courts below were required to record the said finding because there was a contest on the issue about attainment of majority of Tukaram. Proceeding further with this preface, I find that only major son in the family after the death of Nana was Tukaram while plaintiff no.1- Suman had already been married and had gone to reside with her husband at a different place. Mr. Hon, learned counsel for the appellant cited the decision in the case of Umakant vs. Martand Keshav (1933) 35 BOMLR 388 decided on 8th November, 1938 authored by Rangnekar, J in the Division Bench with Baker, J. Paragraph 8 of the said decision reads thus :-
"In my opinion there are many points of resemblance between Ankalamma v. Chenchayya and the present case.::: Downloaded on - 27/11/2013 20:17:35 :::
sa.296.90 14 It was held in that case that the principles applicable in the case of co-heirs would also be applicable to the case of coparceners. But I think the real question in this case is whether a discharge given by a junior member of a joint Hindu family amounts to a a valid discharge of a debt due to the family, or whether in order to be binding on the family it must be given by the manager of the family. It has been found by the trial Court, and there is no finding of the District Judge on this point, that Umakant was the manager of the family to the knowledge of the defendants. In the absence of any evidence to the contrary, I think under Hindu law the eldest son of the deceased father would be the karta of the family. According to Manu the father in the case of joint Hindu family is the manager of the family consisting of himself and his descendants and other relations. After the death of the father the eldest son generally becomes the manager or karta of the family, though it is possible that a more capable son may become the manager. The joint family is governed on the principle of subordination and its affairs are managed by one person whose acts within the scope of his authority are binding on the family. Manu says in Chapter IX:-
As a father ( supports ) his sons, so let, the eldest support his younger brothers, and let them also in accordance with the law behave towards their oldest brother as sons ( behave towards their father)." (108). " The eldest alone may take the whole paternal estate, the other shall live under him just as ( they lived) under their father .(105).::: Downloaded on - 27/11/2013 20:17:35 :::
sa.296.90 15 To the same effect is the text of Narada in Chapter XIII- Or the senior brother shall maintain all ( the junior brothers), like a father, if they wish it, or even the youngest brother, if able; the well being of a family depends on the ability ( of its head). " (5). (Sacred Books of the East).
Apart from the finding, therefore , to which I have referred, I think, even under the ordinary Hindu law Umakant would be the karta of the family."
Thereafter there is a decision of Division Bench of Calcutta High Court reported in AIR 1978 Cal.157 in the matter of Chandradip Prosad vs. Jagannath Agarwalla. In paragraph 11, the Calcutta High Court held thus;
" Therefore, unless it is otherwise proved that by a common consent a younger member is appointed karta it would always be reasonable to hold that in the absence of the father the eldest amongst the sons would be the karta of the family if it continues to remain joint. Such was also the view expressed by this Court in the case, of Ganeshmull Surana v. Nagraj Surana , 56 Cal WN 812: (AIR 1953 Cal 294) though the said decision was overruled by the Division Bench on another point in the case of Kedarnath Kanoria v. Khaitan Sons and Co. AIR 1959 Cal.368. "::: Downloaded on - 27/11/2013 20:17:35 :::
sa.296.90 16 It is,thus, clear from the above legal position that a female in normal circumstances and particularly as in the instant case when a male is available is not eligible to become a manager or Karta of the family, he being the son and, as such, it was only Tukaram the major son who was left Karta sui juris in the family. Hence I hold that Tukaram was the only eligible and competent person of the family after the death of Nana to act as Karta/manager. The question No. (III) is, therefore, answered in the affirmative.
9. As regards Question No (IV): Section 6 of Hindu Succession Act, 1956 reads thus :
" 6. Devolution of interest in coparcenery property:
When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenery property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenery and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.::: Downloaded on - 27/11/2013 20:17:36 :::
sa.296.90 17 Explanation 1: For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim or not. Explanation 2: Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein, "
Upon perusal of the above provisions of Section 6 of the Act, it is clear that on the death of coparcener if he survived by a male or female relative as is specified in the proviso to Section 6 by operation of Explanation 1 to that proviso, a notional partition is deemed to have been effected immediately before the death of such coparcener by which the share of the deceased is separated. The share of the deceased so separated, thus, devolves by virtue of the proviso on the personal heirs of the deceased instead of vesting in any other coparcener by survivorship. Thus, the object of providing for notional partition is to give benefit to the personal relatives of the deceased coparcener, whether male or female, who dies rather than to allow such benefit by survivorship to others. The second aspect appears to be that the said concept of notional partition has been ::: Downloaded on - 27/11/2013 20:17:36 ::: sa.296.90 18 evolved by the Legislature merely to ascertain the share of the deceased or the quantum of property that is liable to testamentary or intestate succession under the provisions of the Hindu Succession Act. Thus, it is only for finding out or determining or demarcating the share of the deceased coparcener. But then the fact remains that there is no actual partition nor the actual partition could be even inferred under the said Explanation 1 of Section 6. In other words, the said explanation 1 is a device to find out an answer to the question; had there been actual partition immediately before coparcener died what share he would have got ? This is the only fiction which has been provided for in the said explanation. Once the said object of finding out the the answer to the said question is achieved, the rest of the exercise becomes redundant and no other member actually gets any share and the obvious reason is that no partition actually takes place. The notional partition is not a real partition. It neither effects severance of status nor does it actually delivers any shares.
10. It is necessary to advert to the reasoning adopted by the learned District Judge in this connection. The learned District Judge has carried out an exercise of determining or demarcating the notional partition as per the aforesaid provisions of Section 6 and made arithmetical calculations also.
There is no dispute that the arithmetical calculations made by the learned District Judge are on notional basis. There can be no dispute about the ::: Downloaded on - 27/11/2013 20:17:36 ::: sa.296.90 19 correctness of the determination of shares on notional basis by him. However, the learned District Judge assumed that there was actual partition for passing the decree in question. As earlier held by me, the notional partition is fictional partition and no actual partition had taken place. In the absence of the actual partition having taken place and since the jointness of the family continued, in fact, the son Tukaram was entitled to act as Karta/ Manager of the family for the welfare and benefit of the family. As earlier stated there is a concurrent finding of fact recorded by the Courts below that for the urgent legal necessity Tukaram was required to sell the land.
Therefore, in the absence of actual partition, Tukaram as Karta of the family was entitled to act for the benefit of the family which he did. In this behalf on facts also, it is interesting to note that sale deed was effected on 28.3.1968 (Exh. 108); Tukaram died on 3.12.1971 after performing the marriage of plaintiff no.2 and both the plaintiff-sisters filed the suit two years after his death i.e. 29.9.1973. This conduct of the plaintiff clearly shows that both the sisters had accepted the act of Tukaram as Karta or rather with their consent, the suit property was sold for maintenance etc of the family and for performing marriage of Plaintiff No.2. That apart, the learned District Judge was supposed to determine the notional share only in respect of deceased Nana but in the said exercise he went ahead with determining shares of all shareholders for making arithmetical calculations when that was not called for under the concept of notional partition. Hence I ::: Downloaded on - 27/11/2013 20:17:36 ::: sa.296.90 20 answer this question No.(IV) in negative .
11. As regards Question No.(V) : As a result of answer to the question No.(IV) given by me herein-above, this question will have to be answered in the negative.
The net result of the above discussion is that the instant Second Appeal must succeed. In the result. I make the following order;
ig Order
(1) Second Appeal No. 296/1990 is allowed.
(2) The judgment and decree dated 2nd January, 1989 passed by learned
District Judge, Ahmednagar in Regular Civil Appeal No. 6/1984 is set
aside.
(3) The judgment and decree dated 30.11.1983 passed by learned Civil
Judge, Jr.Dn,, Newasa in Regular Civil Suit No.17/1983 is restored.
(4) No order as to costs.
(5) Civil Application No 12580/2010 does not survive. The same is
disposed off.
sd/-
JUDGE
sahare
Authenticated copy
(BDVADNERE,PS)
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