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Ganga Bakhsh, r. Dalip Singh, F. C. A., No. 90 of 1902 ... 95

Hub All, V. Eazim Hnsain Khan, F. 0. A., No. 22 of 1881 ... 99

Imtiazun-nissa v. Cbandu Lai, S. C. A., No. 180 of 1902 153,154

Kalka Bakhsh, v. Jawahir Singh, F. C. A.. No. 79 of 1903 154,156

Kusuia Koer, v. Ram Sanxp, S. C. A., No. 261 of 1903 278,283

Lachhman Prashad v, Ramnzan, S. 0. A., No. 516 of 1897 ... 4

Lachmi Narain, v. Gur Bakhsh, Mis. Appeal, No. 87 of 1888 ... 3

Lachmi Narain, v. Raghanath, S. 0. A., No. 652 of 1885 ... 62,63

Mahmud Khan, v. Tulsi Ram, S. 0. A., No. 186 of 1903 ... 183

Muzaffar Husain, v. Abida Begam, F. 0. A., No. 29 of 1892 ... 179

Parbha v, Parmeshur, S. C. A., No. 68 of 1903 154,156

Raghubans Kuar, v. Raunak Ali, F. C. A., No. 31 of 1901 ... 154

Bam Fakir r. Raja Rampal Singh, S. 0. A., No. 229 of 1897 ... 188

Bam Lai v. Bachanu, S. 0. A., No. 342 of 1901 ,., 181



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xu



REEEEEIfCES CITED.



3 B. L. B., (F. B.) 423



301



Fyzabad Settlement Report, para. 1710 ... 135

I. L. R., 1 AU., 688 (p. 706) .. 1^



8 All., 70 (p. 76)



190



16 AU., 401 - 154

21 Bom., 609 (p. 616) ... ISO

21 Bom., 516 - 376

28 Bom., 153 - 247

- 27 Cal., 166 - ^^



156 (P. 0.)



376

833 (P. 0.) - 3*^

30 Cal. 639 (P. C.) ••• ^^^

> 26 Mad., 507, Cp. 611) - ^^

Leake on Contracts, 3rd Ed. p. 9 ... ^^

Maxwell on the Interpretation of Statutes, 3rd Ed. pp. 172-173, ... ^^

Pollock on Contracts, 7th Ed. p. 9 ... 1^2

Bent Act BuUng No. 59 dated March 1891 — 341

Second CivU Appeal No. 212 of 1901, ••• ^36

388 of 1903 ••• 268

Select Case No. 42 92,98,95,225



122



277



140 , ... 276

177 ' ... 277



240



271



270 837, 364



272

282
299



297
271
215



Trevelyan oil Minors, Chapters XVII and XXI ... ^^^

8 and 4 Will, IV. c. 42 ... ^20

Stroud's Judicial Dictionary S. V. "Town" ..• ^^



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THE OUDH CASES.

DECIDED BY

THE COURT OF THE JUDICIAL COMMISSIONER OP OUDH.



SECOND CIVIL APPEALS Nos. 487 AND 488 OF 1902.



Before Mr. Cluxmier,



Dalip Singh (Plaintif) v. Sheo Nandan (Defendant). ^^',



Pre-emption^ ^uit for — Indian Limitation Act^ sch, «'., art^
120 — Decree for pre-emption^ obtained bi/ a person in a suit to
which plaintiff in the second suit is not a party — Partition^ part
of land remaining joint after ^ ^ect of as to right of pre-emption —
Village community^ members of — Oudh Law4 Act, s, 9. cl, (3),



A certain Tillage was in 1883 partitioned between eight sets of co-sharers
and was dirided into eight separate mahals. Certain lands such as graveyards
were thrown into a ninth mahal which remaiaed joint and was not separately
assessed to revenue. Upon this partition the vendor obtained one of the eight
mahals. In 1886 he mortgaged a one anna share in his mahal to O the father
of the second defendant. In March 1898 6f obtained a conditional decree for
foreclosure and an order absolute was made on November 29th, 1899. The first
defendant brought a suit for pre-emption and obtained a decree on 8thApril 190K
To that suit the plaintif! was not made a party. The plaintiff instituted his suit for

* Against the decree of W. F. Kirton Esq., Offg. District Judge, Hardoi,
dated Srd December 1902, reversing the decree of M, Mohammad Asgha^^
Subordinate Judge of Unao, dated 22nd May 1902.



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THE OUDH CASES. [Vol. VIL



Dalip Singh pre-emption on the hasis of the foreclosure deci'ee obtained by the father of the

^^' . second defendant and impleaded the first defendant.
Sheo Nandan. ^

Held^ that the suit was governed by art. 120, Ech. ii of the Indian
Limitation Act and was within time.

The right of a person to pre-emption cannot be defeated by a decree obtain,
ed by another person in a suit to which the plaintiff in the second suit is not *
party. Held therefore, that the plaintifiTs suit was maintainable.

Held further, that under sec. 9 clause (3) of the Oudh Laws Act, the
Tender, the plaintiff, and the first defendant in the present case were all mem-
bers of the same village community.



For Appellant. — Mr. Nahiullah.
For Respondent. — B. Basdeo Lai

Chamier, -A. J. C. — These are appeals by the plaintiff in a
suit for pre-emption. The first Court decided that the plaintiff
and the first defendant were equally entitled to pre-empt and
that therefore lots should be drawn. Both sides appealed to the
District Judge who held that the plaintiff had no right to pre-
empt under any of the clauses of s. 9 of the Oudh Laws Act.
The facts are that mauza Pakra Buzurg was in 1883 partitioned
between the then co-sharers. There were eight sets of co-sharers'
and the village was divided into eight separate mahals. Certain
lands such as graveyards which by their nature were incapable
of perfect partition were thrown into a ninth mahal which remain-
ed joint and was not separately assessed to revenue. Upon thb
partition the vendor Zalim Singh obtained one of the eight
mahals. In 1886 he mortgaged a one anna share in his mahal
to Gaya Pershad the father of the second defendant. In March
1898 Gaya Pershad obtained a conditional decree for foreclosure
and an order absolute was made on November 29th 1899. The
first defendant immediately brought a suit for pre-emption and
obtained a decree on'April 8th 1901. To that suit the plaintiff
in the present suit was not mado a party. The present suit was
instituted on August 28th 1901. A number of defences were



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Vol. VIL] THE OUDH OASES 3

set up. First, it was contended that there was misjoinder of Dalip Singh
parties and causes of action. This plea is obviously untenable SaeoNandan.
and^was notjpressed in this Court. The second defence was tha^
the suit is barred by limitation not having been brought within
one year from either of the dates specified in art. 10, sch. ii,
of the Indian Limitation Act. This plea must be rejected.
The property sold being a share in an undivided zemindari
mahal is not susceptible of physical possession; therefore the first
part of the third column does not apply and it has been held by
their Lordships of the Privy Council that the second part also
does not apply to a case of this kind, see liatul Begam v.
Manmr Ali Khan (1). The suit is governed by art. 120 and is
clearly within limitation. The third defence was that the suit
is not maintainable because it is founded upon the decree obtain-
ed by the first defendant against the father of the second defend-
ant and that a decree cannot form the basis of a suit for pre-
emption. The case of Abdur Razzaq v. Mumtaz Ilusain (2)
was relied upon but it is obvious that that case differs widely
from, the present case. There the suit was based on
the previous decree for pre-emption. Here that is not so. The
present suit is based upon the foreclosure decree obtained by the
father of the second defendant, and the first defendant is implead,
ed because he has obtained a decree under which he has secured
possession of the property and also because he claims to have a
better right than the plaintiff to pre-empt. I Was also referred
to a decision of Mr. Young, Judicial Commissioner, in the case
of Lachmi Narain v. Gur Bakhsh (3). In that case it was no
doubt held that the plaintiff's suit was not maintainable because
before it was brought the defendant had succeeded in obtaining
a decree for pre-emption against the vendor and vendee. No
reasons are given in the judgment and I find myself unable to
agree with it. It seems to me impossible to hold that the righ^
of a person to pre-empt can be defeated by a decree obtained by

(1) I. L. B.,24 AU., 17.

(2) I. L. R., 26 All. 334.

(3) Misc. Appl. No. b7 of 1888 decided on Htb May 1889.



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4 THEOUDH OASES. [Vol. VII.

Dalip Singh another person in a suit to which the'plaintiff in the second sai|;

Sheo Nandan. is not a party. For these treasons I hold that the present snit
is maintainable. The fourth defence was that the first defend"
ant had a better right than the plaintiff to pre-empt because he
is the purchaser in possession of the share of Cbandi a brother
of the vendor Zalim Singh. Upon this it is sufficient to say
that Chandi's share was not in Zalim Singh's mahal and even
Chaudi himself would have had no better right to pre-empt than
the plaintiflE has. The fifth defence was that the plaintiff is not
a member of the same village community as Zalim Singh. This
is the ground upon which the lower appellate Court has dismiss-
ed the suit. It is clear that if the plaintiff has a right to pre-
empt it must be^ under the 3rd clause of s. 9 of the Oudh Laws
Act as a member of the village community. The defendant'^
contention is that the plaintiff and the vendor ceased upon the
partition of 1883 to be meniljers of the same village community.
This view was maintained in the case of Bai Jainte
Par shad v. Sheikh Mir Muliammad (1), and other cases
mentioned in the judgment in that case. In the case of Lachhr-
man Prasad v. Ramzan (2) where, as here, a portion of the
village had remained joint, I held that the plaintiff and the
vendor had not ceased to be members of the same village com-
munity. In Driffbijai Singh v. Courts of Wards (3) both Mr.
Scott and Mr. Spankie dissented from the view taken by Mr.
Young iu the case of Rai Jainte Parshad v. Sheikh Mir Muham -
mad (1). They considered that Mr. Young had attached too
much importance to the words " and whether proprietary, or
under-proprietary" in s. 7 of the Ondh Laws Act and that the
unit for pre-emption was the village " however constituted."
Mr. Scott pointed out the difficulty of supposing that the
existence of two distinct village communities in the same village.
The point upon which the learned Judges differed in that casg
does not arise here. Both the judgments show that they dis-
approved of the decision in Rat Jainte Parshad v. Sheikh Mir

(1) Jwala Pershad's Oudh Hulings, App. p. Tii.

(2) S. C. A. No. 516 of 1897 decided on the 10th October 1898.

(3) 5 Oudh Cases, 266.



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Vol. VIL] THE OUUH CASES. 5

Muhafnniad. In the case which I decided in 1898 I pointed ^al^P^-^'off^*

out that it was impossible to hold that the parties were members Sheo Nandan.

oE the same village community as regards the joint mahal but

were not members o£ the same village community as regards the

lands lying in the same village outside the area which remained

joint. In my opinion the vendor, the plaintiff, and the first

defendant in the present case were all members of the same

village community. The vendor has since died but that does not

affect the case. The result is that the plaintiff and the first

defendant are equally entitled to pre-empt and they must

draw lots.

Lots are drawn an d the first defendant is found to be en-
titled to pre-empt. Therefore both appeals are dismissed. As the
suit was rightly brought but was founded upon an allegation
that the plaintiff had a superior rig ht, not that both parties had
an equal right, and as the defence completely failed, I direct
that the parties pay their own costs in all three Courts.



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THE OUDH OASES. [Vol. VIL

SECOND CIVIL APPEAL, No. 263,OF 1902.*



Before Mr. Chamier,



1903. MusAMMAT Jafri Bbgam (Plaintiff) v. Musammat Gulab

Nov. 18. 2;uAB and another {Defendants).



Pre-emption^ suit for^Relationship of vendee and\ vendor^
plea of — Oudh Laws Act^ s. 9.



In a suit for pre-emption the plaintiff alleged; i that she, the xendor, and
the yendee held shares in the same mahal and that she and the vendee were
both equally entitled to pre-empt. The yendee defendant's answer was that he
was related to the vendor and the plaintiff was not, and that therefore he the
yendee had a preferential right of pre-emption. The vendor was the widow of
one Jl whose father was a first cousin of the vendee.

Meld^ that the vendee had no preferential right to pre-empt as against the
plaintiff. The kind of relationship contemplate by s. 9, Oudh Laws Act of
1876 is consanguinity from a common stock.



For Appellant. — Mr. Samiullah Beg.
For Respondent. — Mr. Mumtaz Ilusain.

Chamieb, a. J. C. — This is an appeal in a suit for pre-
emption. The plaintifiE-appellant, the vendor, and the vendee
all hold shares in the same mahal. It was the case of the plaint-
ifiE in the Court below that the mahal had been divided into
several pattis and that her own and the vendor's shares were in
the same patti while the share of the vendee was in another patti.
On this ground the plaintiflE claimed to be entitled to pre-
emption as against the vendee. The lower appellate Court has

* Against the decree of B. Ram Pershad, Subordinate Judge, Kheri, dated
24th April 1902, confirming the decree of M. Mohammad Ismail, Munsif, Kheri,
dated 28th September 1901.



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Vol. Vll.l



THEOUDfl CASES.



7



decided that no such sub-division into pattis has taken place.
The plaintiff now contends that if there has been no sub-division
into pattis, she and the vendee are both equally entitled to pre-
empt and therefore lots should be drawn.

The vendee respondent's answer to this is that he is related
to the vendor and the plaintiff is not, therefore he the respond-
ent has a preferential right of pre-emption. The vendor is the
widow of one Raghubar Singh whose father was a first cousin
oE ihe vendee. There b therefore no blood relationship between
the vendor and vendee ; they are only- somewhat remotely con-
nected with each other by marriage.

In Mohamed Taki Ali Khan v. Mohamed Alt (I) and again
in Karam Hossein v. Raghubar Dayal (2) it was held that the
kind of relationship contemplated by s. 9 of the Oudh Laws
Act 1876 is consanguinity from a common stock. Following
these decisions I hold that the vendee in the present case has no
better right to pre-empt than has the plaintiff. They must there-
fore draw lots. If the lot falls to the plaintiff-appellant issues must
be remitted to the lower appellate Court as to the terms on
which the plaintiff-appellant is entitled to pre-emption. If the
lot falls to the respondent vendee the appeal must be dismissed*

Lots having been drawn the plaintiff-appellant is found to
be entitled to pre-empt.

Under 0. 566, Civil Procedure Code, I return the record to
the lower appellate Court for findings upon the third and fourth
points stated in the judgment of the lower appellate Court. As
the issues were not properly framed in the first Court the parties
may adduce further evidence.

On return of the findings, which should be within one montbf
ion days will be allowed for objections.

(1) Jwala Perehad's Select Cases, App. p. yii,

(2) 4 Oudh Cases, 397.



Musammat
Jal'ri Bcgam

r.
Mnsaminat
Gulab Kuar
and another.



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8 THE OUDH CASES. [Vol. VII.

SECOND CIVIL APPEAL, No. 481 OF 1901.*



Before Mr. Macleod and Mr. Chamier.



1903. Kaghunath Parshad {Plaintiff) v. Ram Dayal and

Deo. 10. others (Defendants).



Pre-emption^ suit for — Physical possession — Indian Limit"
ation Acty sch. ii., arts. 10 and 120.



The first respondent held a mortgage by conditional sale on the shares
of the remaining respondents. They remained in possession of the property
until the 15th April 1896 when the first respondent was put in possession
by the Court under a decree for foreclosure which had been made absolute
on the 28th March 1896. The appellant's suit for pre-emption was filed on
the 28th January 1901. Held^ that the suit was goTemed not by art. 10
but by art. 20, sch. ii, Indian Limitation Act and was within time.

The words " physical possession'' in article 10 mean a personal and imme-
diate possession and exclude any notion of oonstructiye possession by a
landlord through his tenants. Held therefore, that the property which
was the subject of the foreclosure decree obtained by the first req>ondent
did not admit of physical possession.



For: Appellant. — Mr. J. S. Misra.
For Respondent. — B. Ishwari Dayal.

Maolbod, a. J. C, and Chamier, A. J. C. — ^This is an
appeal from a decree of the District Judge of Hardoi affirming
a decree of the Subordinate Judge of Unao dismissing the

* Against the decree of A. Sabonadiere Esq., District Judge, Hardoi
dated 20th August 1901 upholding the decree of M. Abdul Salam Khan,
8uboi*dinate Judge, Unao, dated 6th July 1901.



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Vol. Vn.1



THE OUDH CASES.



appellant's salt for pre-emption on the ground that it is Bagbunath
barred by article 10 of the second schedule of the Indian v.

Limitation Act, 1877. 2!d'<,?h^

The first respondent is a stranger who held a mortgage
by conditional sale on the shares of the remaining respondents
and other persons since dead. The mortgagors remained in
possession of the property until the first respondent was put in
possession by the Court on the 15th April 1896 after having
obtained a decree for foreclosure which was made absolute on
the 28th March 1896.

The appellant's suit for pre-emption was filed on the 28th
January 1901. If art. 10 applies it was barred by limitation,
if art. 120 applies it was within time. It is contended on
behalf of the appellant that the latter article applies on the
ground that the whole of the property did not admit of
physical possession within the meaning of art. 10. The share
in question is a patti in a mahal in which imperfect partition
had taken place prior to the foreclosure decree, the only things
remaining the joint property of the whole mahal being some
tanks and a temple. The cultivated land in the patti other
than the sir is admittedly held by tenants. The learned Dis-
trict Judge dissenting from the ruling in the case of Batul
Begam v. Manmr Alt Khan (1) held that the first respondent
was in physical possession of the property and that possession
by tenants constituted physical possession on his part. That
case however went up to the Privy Council in appeal and
their Lordships have entirely approved of the view taken
byithe Allahabad High Court — Batul Begam y. Manmr Alt
Khan (2). The question of what constitutes physical possession
is dealt with at p. 24. Their Lordships say, " The word
" physical is of itself a strong word, highly restrictive of the
" kind of possession indicated," and they go on to say that what
is meant by physical possession is a "personal and immediate
possession." This clearly excludes any notion of constructive

(1) I. li. E., aO AIL, 315. (2) l.L. R., 24AU., 17.



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10



THE OUDH OASES.



[Vol. VXI,



Baghunath
Parshad

V,

Ram Da jal
and others*



possession by a landlord through his tenants. The persons in
^' personal and immediate " possession in snch a case are the
tenants and the landlord cannot in any way be described as
being in ** personal and immediate " possession, whatever other
kind of possession he may have. This ruling by their Lord-
ships of the Privy Council disposes of the question of phy-
sical possession in the present case and it must be held that
the property which was the subject of the foreclosure decree
obtained by the first respondent did not admit of physical
possession.

The result i» that art. 10 does not apply and that the suit
is governed by art. 120 and that it i» therefore within timer
The appeal is allowed and the appellant will get a* decree
for possession of the property on payment at Bs. 1,3^4-12-0
within three months. The appellant will get his costs in all
three CourU.



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Vol. VIL] THE OUDH CASES. 11

SECOND CIVIL APPEAL, No. 277 OF 1902.*



Before Mr. Cliamier.

Ram Parshad (Defendant) t>. Umrao (Plaintif). 1903.
Nov. 24.

Mortgage^ suit for recovery of money due on — Anomalous

mortgage — Interest^ claim for recovery of by sale of mortgaged

property — Damages — Indian Limitation Act^ sch. «, art. 116.

The plaintiff sued the defendant for the rccoTery of certain sums of money
as principal and interest alleged to be due upon a mortgage executed by the
latter in faTonr of the former on December 11th 1888. He claimed to be
entitled to recover these sums by sale of the mortgaged property.

Held, that having regard to the terms of the deed the mortgage was an
anomaloos mortgage, that the parties did not intend that the mortgagee shoald
in any event be entitled to a decree for sale in respect of the interest, that
he was entitled by way of damages to interest for six years previous to the
suit under article 116, sch. ii of the Indian Limitation Act, and that under
the drcumstanoes the interest awarded as damages could not be held to be a
charge on the land.



For Appellant. — B. Ishwari Parshad.

For Respondent. — S. Wazir Hasan.

CflAMiER, A. J. C. — ^This was a suit for the recovery of
Rs. 450 principal and Rs. 463-5-6 interest alleged to be due
upon a mortgage executed by the defendant in favour of the
plaintiff on December 7th 1.888. The plaintiff claimed to be
entitled to recover these sums by sale of the mortgaged pro-
perty. The principal portions of the mortgage-deed may be
summarized as follows : — " I have borrowed Rs. 450 from
Umrao (the plaintiff-respondent here) at 12 per cent, per
mensem. I promise to repay the above sum, namely the prin-
cipal, in Jeth 1301 Fasli and for the interest I have made over
possession of 16 bighas the rental of which is Rs. 53 per annum ;
let the mortgagee recover the interest from the tenants year
by year. Ue shall have no claim against me for the interest.
When at any time after 1301 Fasli I pay the principal sum let
him return the mortgage-deed and until the principal is paid

Against the decree of M. Muhammad Afzal All, Subordinate Judge, Bah-
raicb, dated 13th May 1902, oonflrming the decree of B. Eajendra Nath
Bannerjf. Munrif, Kaisarganj, dated 3lst January 1902.



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A>2 THE OUDH CASE.?. [Vol. VII.

Ram Parshad ^jj^ ]^q^ ^jjj remain in possession of the mortgagee. Be it known
Umrao. that from the date of the deed till 1297 Fasli the mortgagee will
receive his interest in cash from me aild will give a receipt.
But from the beginning of 1298 Fasli when he takes possession
of the property he will recover his interest therefrom. There-
fore I have written these few lines as a mortgage-deed" etc.
The first question is whether the mortgage is an anomalon's
mortgage or is a combination of a simple mortgage and a usu-
fructuary mortgage. In Tikam Singh v. Makrand Singh (1)
it was held that a mortgage could not be deemed tq be a com^
bination of a simple mortgage and a usufructuary mortgage
unless the mortgage was both a simple mortgage and a usufruct-
uary mortgage from the commencement. I am disposed tq
-think that this view is correct. If it were not so there could
scarcely be anomalous mortgages at all. I hold that the mortgage
in this case is an anomalous mortgage. Therefore the rights
and liabilities of the parties must be determined by their cout
tract as evidenced in the deed and -so far as such contract does
not extend by local usage. In this case no local usage is
pleaded and I have therefore to deal only with the deed. It is
not disputed that the plaintiff-mortgagee is entitled under this
deed to a decree for sale of the property for the recovery of the
■principal sum. The question is whether he is entitled to such a
decree in respect of the interest. It was suggested that s. 68
of tlie Transfer of Property Act justified a suit for recovery of
•both principal and interest by sale of the property because
within the meaning of clause (c) of that section, the mortgagor
had " failed to deliver" possession to the mortgagee. Assuming
•that section 68 applies to an anomalous mortgage I cannot hold
that that section necessarily justifies a suit for sale in the cases there-
in mentioned. The question whether a suit for sale can be main-
tained or not depends upon the terms of the mortgage. Having
examined the deed carefully I have come to the conclusion that
the parties did not intend that the mortgagee should in any
event be entitled to a decree for sale in respect of the interer t.
It seems to me quite plain that there was no such intention. I

•'. (1) 6 0. C. 1G7. "



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Vol. VIL] TUE OUDH CASES. 13

think however that inasmuch as the deed contains an express con- ^"^ Parehad
tract to pay the principal sum in Jeth 1301 Fasli, the mort- Umrao.
gagee is entitled to damages for non-payment o£ that sum. It
has been, held in several cases that the period oE limitation for
such a claim is that provided by art. 116, sch. ii of the Limit-



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