Raghavendra Swami Mutt vs Board of Commissioners, Hindu Religious Endowments

Chandra Reddy, J.—I Agree with the con-elusions of my learned brother. The relevant facts are set out in his judgment and it is not necessary to recapitulate them here. The subject-matter of this appeal a petition u/s 84 (2), Madras Hindu Religious Endowments Act filed by Sri Raghavendraswami Mutt by its head Sri Swayamindra Thirta Sri Padangalavaru by power of attorney holder Ritti Kriahtamachar in the Court of the District Judge, Bellary to set aside an order passed by the Board of Commissioners for the Hindu Religious Endowments, Madras, declaring the institution as a mutt as declined in the Madras Religious Endowments Act. The Petitioner being unsuccessful there has brought this appeal.

Mr. Kuppuswamy appearing in support of this appeal urged two main contentions, that the institution is not a mutt but only a tomb of a saint known as Sri Raghavendraswaniy who was the predecessor of the'' present Matadhipathi or at any rate it is only a branch of the main mutt situated at Nanjangud and that the decision rendered previously by the same Board in the year 1928 operates as a bar to the present order and that the Hindu Religious Endowments Act (hereinafter called the Act) was not applicable to the mutt as its headquarters was not within the Madras Presidency but at Nanjangud in the Mysore Presidency, was final and could not be reopened.

The first part of the contention is based upon the case that there is a mutt founded by a follower of Madvachari the expounder of the Dwaita system of philosophy at a place called Nanjangud, Mysore State, that in the 17th century one of the heads of the mutt by name Sri Raghayendraswamy who was regarded as a very holy person happened to visit a place called Mantralaya in Bellary district and entered Samadhi in or about the year 1670. A tomb was constructed in his memory and pooja is performed at the tomb every day and also public worship at the tomb and in reality there is no mutt at all.

This submission is without any relation to the pleadings and the facts as emerge from the evidence let in by the Appellant. The attitude now adopted by the counsel scorns to be the result of an after thought. Throughout the proceedings in the Court below and before the Hindu Keligious Endowments Board, the parties proceeded on the basis that it was a mutt but only a branch of the Raghayendraswamy Mutt situated at Nanjangud. It was so described in the petition presented in the Court of the District Judge out of which this appeal arises. Even in the earlier enquiry in 1928 before the Hindu Religious Endowments Board, its character as a Mutt was not in question, the only issue raised being whether the Act would apply to endowments attached to institutions outside the Presidency. In the cause title to this appeal, the Appellant is described as Sri Raghavendraswamy Mutt having its headquarters at Nanjangud.

The various documents filed by both sides in support of their respective cases also describe this institution as a mutt. It is, therefore, futile to contend that there is no mutt at all at Mantralaya. Dehors these admissions contained in the pleadings, the material on record does not leave any room for doubt. Some of the witnesses examined for the Appellant have given a clear account of the nature of the institution at Mantralaya and the activities of the Matadbipatbi at that place. P. W. 5 son of the present Swamiji, deposes that at the shrine at Mantralaya there is puja performed for the tomb every day and every year there is Visosha puja on the'' day of the death of the Swamiji. There are archaluis to maintain daily puja and arrange for worship of the public there. At the Brmdavanams or shrinos at Mantralaya, about 5,000 or 6,000 people are fed by the mutt. Foe the abovesaid festivals, people from all over India gather. There is also a car festival on the Avadhuna oacasion. Arohana is done every day at the shrines of Mantralaya. There is a golden Mandapam at Mantralaya. Ho had also admitted that the present head of the Mutt has been staying at Mantralaya, that arrangements are being made at Mantralaya for his meditation and puja, that teachings, religious lectures and discourses are conducted by Matadhipathi at Mantralaya. It is also an admitted fact that at least 2,000 or 8,000 acres of land in Bellary district were endowed to this institution. P. "W. 7 had to admit that the institution at Mantralaya is called Mantralaya Mutt. There is also an office at Mantralaya and accounts are maintained there. The admission of P. w. 6 is significant in this regard.

As Swamiji is at Mantralaya we call it a Mutt at Mantralaya. Wherever Swamiji is, it is a mutt. There are two shrines at Brlndavanam in one room and two In Anr. room at Mantralaya. There is also a Sanskrit college at the mutt at Mantralaya.

Every day people going to the mutt at Mantralaya for worship are fed by the mutt. There is a silver chariot owned by the mutt at Mantralaya worth about Rs. 50,000.

The testimony of the witnesses for the Petitioner clearly establish the existence of a mutt.

Mutts are established for inculcating particular religious doctrines, and instructions in the tenets and observances of a particular system of'' philosophy are imparted to the disciples, They are centres of theological learning, A mutt is presided over by an ascetic who exercises or claims to exercise headship over a body of disciples, and a spiritual fraternity would eventually grow up. So, the presence of a preceptor who preaches the tenets of a "particular cult to his disciples is essential for the existence of the

In Ramprakash v. Anand Das, I L R 43 cal. 707 at p. 713: U I R 1916 P C 256 at p. 257) U), there is an interesting passage bearing on this subject in the judgment of Lord Shaw:

An Asthal, commonly known in Northern India as a Muth, is an institution of a monastic nature. It is established for the service of a particular cult, the instruction in its tenets and the observances of its rites. The followers of the cult and disciples in the institution are known as Chelas; the Chelas are of two classes celibate and non-celibate.

The Mahant is the head of the institution. He sits upon the Gaddl he initiates candidates into the mysteries of the cult; he superintends the worship of the idol and the accustomed spiritual rites" etc.

In his ''Hindu Law of Religious & Charitable Trust Mr. B, K. Mukherjea Judge, Supreme Court of India) says at page 326 that

unlike debutter where the essential or central part of the institution is a deity or idol, the presiding element in a Mutt is an ascetic or religious teacher who together with his disciples, and, co-disciples form a sort of spiritual family. Both a Mutt as well as a debutter owe their existence to benefactions or grants of property made by pious benefactors. In one case the grantee is an idol for whose ministration of service the debutter is created; in the other case the result of the benefaction is the creation of an institution for the benefit of a fraternity of religious men at the head of which stands the superior or Mohunt who represents the entire institution. But if a pious ascetic gathers round him a number of disciples whom he initiates into the mysteries of tenets of Ills order and such of his disciples as intend to become ascetics renounce all connections with their family and claims to family wealth, and affiliate themselves so to say with the spiritual fraternity would eventually grow up.

Again at page 827 it a remarked ;

The primary purpose of a Mutt on the other hand is to encourage and foster spiritual learnin by maintenance of a competent line of teachers win impart religious instructions to the disciples am followers of the Mutt and try to strengthen the doctrines of the particular school or order of which they profess to be adherents.

Vide also Sammantha Pandara v. Sdlapl Chetti, i. L. R. 2 Mad. 175 at p. 179(B) and Vidy, puma Tirtha Sioami v. Vidyanidhi Tirtf Swami, i. L. R. 27 Mad. 435 at p. 439 (o). Fro these passages it to be gathered a to what destitute the essentials of a mutt. The deposited of the several of the Petitioner''s witnesses extracted above clearly indicate that the institution of Mantralaya conforms to all the indicia laid down in the decisions.

Mr. Kuppuswamy contended that as this institution had grown out of. a tomb it could not be regarded as a mutt or a religious institution. For this proposition, reliance) is placed on two Bench judgments of the Minima High Court, A. Draviasundaram Pillai Vs. N. Subramania Pillai, and Vellu&wamy Qoundan v. Dandu/pani, 1946-1 Mad. L. J. 354: (A. I. R. 1046:Mad. 485) (E). In the first of the casers, the testator in his last will and testament provided for the construction of a muttam for the purpose of conducting poor feeding etc. and for the construction of a tomb in which he should be buried after his death and a Muttam over the tomb where a sivalingum should be installed and puja or worship to be conducted. It was decided by the Bench consisting of Leach C. J. and Justice Lakshmanarao that the latter direction should not be given effect to as the spending of money on the building of a tomb and its maintenance would not constitute a charitable endowment and to that extent the gift failed. But the learned Judges upheld the direction for the construction of a Mattam for purposes of conducting poor feeding and also for supply of butter-milk to poor persons are being valid since they had the effect of constituting public charity.

In the second of the cases, the question considered was whether a bequest for the purpose of maintaining puja at a Samadhi was valid and it was answered in the negative as it was thought that it was gift with superstitious purposes. The basis of that decision was that there was only one gift and that it was to Samadhi and that everything else was subsidiary to it.

These rulings are inapplicable to a case like the one on hand. If an institution answers the description of a mutt or a temple it does not lose its character as such, merely because it owes its origin to a tomb of a great saint. It may be that at the inception there was a samadhi. But the question is whether the characteristics of a mutt as indicated above are present or not. Merely because it was connected with a tomb it cannot fall outside the definition of a mutt. There is authority for this view, in decided cases.

In The Board of Commissioner for the Hindu Religious Endowments Vs. Pidugu Narasimham and Others, a Bench of the Madras High Court ruled that whatever might be the origin of an institution, if in course of time it had developed into a place of worship and Nitya Naivedya Peeparadhana was performed and offerings were distributed and the public who took part in the worship believed in its efficacy the worship was religious and the institution a temple within the meaning of the Madras Beligious Endowments Act. The learned Judges remarked:

The test is not whether it conforms to any particular school of Agama Sastras; we think that the question must be decided with reference to the view of the class of people who take part in the worship. If they believe in its religious efficacy, in the sense that by such worship, they are making themselves the object of the bounty of some superhuman power it must be regarded as ''religious worship.

In the preaont case, there can be little doubt that the pilgrims resorting to this institution from all parts of the country had faith in its religious efficacy. It came out in evidence that ''Prasadams'' and ''Tirthams were offered and every day hundreds of people gathered there to receive them and the offer worship at the shrine.

A judgment of Anr. Bench of the same Court in Batnavelu Mudaliar v. Commissioner For Hindu Religioiis and Charitable Endowments, 1953-2 Mad. L.J. 574: (A.I.E. 1954 Mad. 398) (G), is to the same effect. There, it was held that whore people had regarded an institution for a long period as a plac9 of religious worship which they used as a matter of right, the institution is a temple and does not fall outside the definition in Section 9 (12) though in its origin it was a samadhi and continues to retain traces of it and Guru Pooja was performed in the precincts. It follows that the beginnings of the institution will not have much bearing in deciding the question whether an institution is a mutt or a temple. This argument therefore, fails and is rejected.

12a. This brings me to the second part of the contention, namely, it being only a branch and not having an independent and separate existence it would not fall within the operation of the Act. The argument is that the jurisdiction of the Board could be extended only to an institution which has its head-quarters within the State. I do not think I can agree with this view. For one thing, it is difficult to hold that the mutt at Mantralaya is only a branch, the main institution being only at Nanjangud. The evidence noticed above does not support any such contention. The various documents relied on by the Petitioner in which the description is given as Bagbavendraswamy''s mutt situated at Nanjangud or the manager for the time being of Sugna Narendra Swamy Mattam do not advance the case of the Appellant as they do not establish that the mutt at Mantralaya is only a branch. They consist mostly of either title deeds granted to the manager for the time being of the institution or some communications said to have been sent by the officials of the Mysore Government for the purpose of making some arrangements; for the tours of the Matadhipathi. They have been dealt with by my learned brother in his judgment and I concur in his conclusion that they do not establish the case of the Plaintiff. Further, it is in evidence that the bulk of the properties is situated in this state. The institution was the recipient of several grants by the Madras Government. It is also evident that more importance is attached to the mutt at Mantralaya, that the structures are much bigger there having a golden mantapam whereas there is no audi at Nanjangud, that the present Swamiji himself was installed at Mantralaya and that ho has taken his abode at that place, that ho had never visited Nanjangud after the installation, that ho had been performing all his duties and functions as the head of the mutt at Mantralaya arrangements having been made at that place for his meditation, puja, teaching disciples and for all religious lectures, discourses and worships. I have already referred to the evidence of p. w. 6 that "wherever Swamiji is it is a mutt."

The statements of other witnesses referred to above also far from lending any support to the theory of the Appellant, suggest that the mutt at Mantralaya is at any rate an independent and separate entity being as important, if not mote, than the one at Nanjangud. Further, an off-shoot of a parent mutt could grow more important and eclipse the original one and thus be wholly indopond out and there is no question of subordination.

This is borne out by a passage in Ganapathi Ayyar''s "Hindu and Mohammadan Endowments" at page 272-

There are muths which are offshoots of Anr. parent mutt. The muth at Benares affords an instance. It would seem that when one Masilamoni Desigar was the Pandara Sannadhi at Dharmapu-ram, a Tambiran of his Adhinam established the muth at Benares. Benares being regarded as, a holy city by the Hindus, the muth at Benares naturally rose into pre-eminence and it came to own several subordinate muths both in Northern and Southern India, such as the muths at Morangi in Nepal, at Achlram in Travancore and at Chidambaram, Rameswaram, Kumbakonam and Trichinopoly. The muth at Tirupanandal in its origin the offshoot of the muth at Benares soon, however, came to be the ultimate centre of control and the Benares muth was relegated into a subordinate position and was constituted into a subordinate centre of control. But the Tambiran of Tirupanandal is not subordinate to the Pandara Sannadhi of the Dharmapuram muth.

That apart, to bring it within the definition of a mutt as given in Section 9 (7) of the Act, it is sufficient to show that it is a place of religious instruction being appurtenant to a mutt. Mutt is defined in 3. 9 (7) as an institution for the promotion of the religion presided over by a person whose duty is to engage himself in spiritual service or who exercises or claims to exercise spiritual headship over a body of disciples and succession to whose office devolves in accordance with the directions of the founder of the institution or is regulated by usage ; and includes places of religious worship other than a temple or places of religious instruction which are appurtenant to such institution. It is thus manifest that even a place of religious instruction as appurtenant to the main institution is brought within the scope of the definition. It is argued that the main institution to which the place of religious instruction is appurtenant must be situated in and at the same place. I do not think that this is a necessary requisite. If both the places are adjacent to each other, it is unnecessary to invoke'' this inclusive definition. For these reasons, this! contention also cannot prevail.

This brings mo to the question whether the Board was precluded from holding an inquiry by reason of the previous decision rendered in 1928. The basis of the earlier order was that the Act was inapplicable to the institution as the headquarters was within the State of Mysore and thus not amenable to its jurisdiction. We are not now concerned whether that conclusion is well founded or not. It is apparent on the face of the record that that situation has since changed, the headquarters of the institution now being at Mantralaya. The evidence to the effect that the present Swamiji was installed at Mantralaya, that ever since he has been having the headquarters at Mantralaya, delivering religious lectures and having discourses at that place only and never having gone to Nanjangud has already been alluded to. It is the presence of the preceptor teaching the disciples that makes the mutt and it is not the mere structures of the buildings that constitute a mutt. So, whatever might: have been the position in the year 1928, it is since altered as the Matadhipathi has chosen. Mantralaya for his religious activities. 1 have already referred to the establishment of Sanskrit college in this place and other matters which are-suggestive of the shifting of the headquarters to Mantralaya.

That a decision rendered under particular; circumstances cannot be regarded as conclusive and final when there is a change of circumstances is evident from a decision of the Full Bench of the Madras High Court in The Board of Commissioners for the Hindu Religious Endowments Vs. P.V.R. Ratnasami Pillai and Others, . It was laid down there that an order of the Board declaring a particular temple to be an excepted temple within the meaning of the definition, as it then stood in the Act of 1927 was no bar to its holding after the Amending Act of 1930 that it was a non-excepted''. temple according to the new definition. In my opinion, this principle also applies to a case of changed circumstances and is not confined to alteration in law. It has also to be observed here that the Board in its prior order has definitely remarked:

This order will not stand in the way of the Board exercising jurisdiction over temples, if any,, in the Madras Presidency under the trusteeship of. the Petitioner.

It is brought out in the evidence of the P. Ws. that there are several shrines dedicated'' to Anajneya and other deities attached to this institution, that there was a big temple car; costing about Rs. 60,000.

Furthermore, the inquiry u/s 84 of the Act as it stood in 1927 could extend to a -dispute whether the mutt or the temple is one to which the Act applies. Obviously, it is under a this clause that the decision was rendered at that time. This section had undergone a change. By Act Iv of 1930, Section 84, as it stands today, was Substituted. The section as amended in 1930 contemplates only an inquiry whether an institution is a mutt or a temple as defined in the Act, etc. Under the amended provision of law enquiry should be confined only to the question whether it is a mutt or a temple. In view of this change in law, the enquiry by the Board which has given rise to this appeal should also fee held to be competent in view of the judgment of the Full Bench of the Madras High Court already noticed.

In the result, the judgment under appeal is confirmed and the appeal dismissed with Costs.

Srinivrasachari J. - This is an appeal u/s 84(3) of the Madras Hindu Religious Endowments Act, against the judgment of the District Judge, Bellary, in Original Petition No. 112 of 1947. These proceedings arose out of an application filed u/s 84 (2) of tb.3 Madras Hindu Religious Endowments Act by the Raghavendraswanii Mutt, Nanjangud, represented by its Swami, per power of attorney holder for a declaration that the institution known as Nanjangud Shri Raghsivandraswivru Mult at Mantbralaya is not a must as defined in the Act .and for setting aside the order of the Religious Endowment Board of 31st. May 1917 declaring the above institution to be a Mutt.

It may be mentioned before the above application was filed proceedings wore started suomotu by the Hindu Religious Endowments Board, 4Ikfodras to decide the question as to whether Shr Raghavendra Swami Mutt at Manthralaya was a ''Mutt'' within the moaning of the Act. "There proceedings were started on the report of the Division Commissioner of the Hindu Religious Endowments Board. The Board after an elaborate enquiry opined by majority that -the institution at Manthralaya was a Mutt and .as such came within the jurisdiction of the Board. The Petitioner being aggrieved by this order filed the above petition before the District Judge, Bellary. The Petitioner stated in his application that the institution was originally started by one Madhawacharya the expounder of Dwaita Philosophy, who founded a Mutt at a place called Naujangud in the Mysore State, that thereafter the Swami had to move to a place called Manchala or Manthralaya in the District of Biliary and stayed there on account of disputes with regard to the lands belonging to the Mutt situated there. The Petitioner also -Stated that one of the heads of the Mutt Shri Baghavendra Swami happened to stay there for a long time and breathed his last there. There was a Samadhi built for him and the place assumed great importance as a place of pilgrimage for the devotees of Shir Raghavendra Swami. It was further stated that the Board had on a former occasion started proceedings u/s 84 of the Act, made an elaborate enquiry and came to the conclusion that the institution of Shri Raghavendraswami Mutt situated at Nanjangud''was in the Mysore State, outside the Madra3 Presidency and hence the Act could not govern the aforesaid Mutt. The Petitioner contended that in the face of this order, it was not open to the Board to have made a fresh enquiry and come to a different conclusion. The proceedings of the Board were attacked as illegal and ultra vires, not falling within the "scope of Section 84 of the Act.

On behalf of the Board it was urged that the institution at Manthralaya was itself a Mutt coming within the definition of a Mutt u/s 9 (7) of the Act and the place being situated in the Madras Presidency was subject to the jurisdiction of the Madras Religious Endowments Board.

The Petitioner relied upon a number of documents and. also led oral evidence. After elaborately discussing the evidence on record the District Judge gave the finding that the institution at Manthralaya was a Mutt as defined in Section 9 (7) of the Act and consequently amenable to the jurisdiction of the Board. Being aggrieved by this order the Petitioner has filed the present appeal.

It would be desirable to examine the scope and import of the Act. The proceedings out of which this appeal has arisen having been started in 1947, the Act that would govern the case would be the Madras Hindu Religious Endowments Act, Act 11, of 1927 as amended by Act x of 1946. Act II of 1927 repealed the former Act of 1923. As the Preamble would indicate the object of the Act was to provide for the better administration and governance of certain Hindu Religious Endowments within the Presidency of Madras. Religious Endowment would moan property set apart permanently for a religious purpose, a religious establishment or institution. It would, therefore, follow that the Madras Act would apply to all such religious endowments in the Presidency of Madras. ''Religious Endowment'' has been defined in the Act as all property belonging to or given or endowed for the support of Mutts or temples or for the performance of any service or charity connected therewith and includes the premises of Mutts or temples..(vide Section 9 (ii) of the Act). ''Mutt'' has been defined as an institution for the promotion of the Hindu Religion presided over by a person whose duty is to engage himself in spiritual service or who exercises or claims to exercise Spiri tual headship over a body of disciples. The institution at Manthralaya satisfied the above definition in that there is a Swami presiding over the institution as head, who engages himself in spiritual service.

Learned Counsel emphatically urged that the particular institution at Manthralaya could not be called a Mutt within the meaning of Section 9 (7) of the Act. He elaborated his argument by submitting that a Mutt is the place where religious institution has been started for the first time and if the head of the Mutt went about giving religious discourses at various places and established religious centers the latter would not constitute Mutt. In substance the argument of the counsel was that the place where a religious institution was started for the first time by a religious head could alone be called a Mutt and no other and as this Mutt was started at Nanjangud the Raghavendraswami Mutt should be regarded as being at Nanjangud outside the jurisdiction of the Madras Board. Our attention was invited to certain documents which are letters addressed to authorities for making proper arrangements for the tour of the Swami. In all those letters reference is made to the Swami as Raghavondra Swami at Nanjangud. It is unnecessary to deal with the letters individually. Another class of documents relied upon by the Petitioner are Government orders which inside mention of Raghavendraswami Mutt at Nanjangud, for example, EX. A-67, an order of the Finance Department of the Government. It approves of the nomination of a Swami to succeed Anr. Swami "to the Pootah of the Shri Raghavendraswami Mutt at Nanjangud". Because the Mutt was originally started at Nanjangud, it may generally and popularly be known as the Mutt at Nanjangud. Any number of these letters or Government orders cannot advance the case of the Petitioner any further because a person calling a Mutt by a particular name or making reference to it as the Mutt of Nanjangud would not make the institution located at Manthralaya not a Mutt if it otherwise satisfies the requirements of the definition contained in Section. 9 (7). It is admitted that although the Mutt was originally started at Nanjangud the heads of the Mutt made extensive tours and established religions institutions at various places and one such institution was established at Manthralaya. The institution established at Manthralaya overshadowed the institution originally started at Nanjangud. Manthralaya became the abode of a very largo number of the disciples of Raghavendraswami. There is regular pooja every day and people gather from all over the country for worship many disciples are fed. There is a public library and a school. It is in evidence that although the Mutt was started at Nanjangud the Swami never went to Nanjangud. Manthralaya alone became the headquarters. P. Ws. 5, 6 and 7 depose to the fact that the Swami did not visit Nanjangud in the course of his tours. P. W. 7 says that the present head of the Mutt was installed at Manthralaya. It the headquarters was at Nanjangud why should such an important ceremony as the installation of the head of the Mutt take place at Manthralaya and not at Nanjangud. It is clear from the evidence that large and valuable endowments have been made for the institution at Manthralaya, vide KXS. B-C to B-16. Where therefore from the evidence it is abundantly clear that Manthralaya was made the permanent abode of the head of the Mutt and no relics of the Mutt ever remained at Nanjangud it is futile to contend that Nanjangud alone should be regarded as the headquarters of the Mutt. According to Bejan Kumar Mukherjea (late Chief Justice of India) a Mutt siguifies an abode or residence of ascetics. The essential feature of a Mutt is the presence of an ascetic or religious teacher with his disciples. An institution for the benefit of a religious fraternity headed by an ascetic is called a Mutt-Vide the Hindu Law of Religious and Charitable Trust-. Bijan Kumar Mukherjea. All places where institutions are established as centers of theological learning would be called Mutts. We might refer to the observations of Sir S. Subrahmaniya Iyer J. in this regard in the case of I.L R. 27 Mad. 435 (c). Similarly Sir V. Bashyam Iyengar J. in the same case observed that Mutts were started with the object of imparting spiritual instruction to the disciples. There may be several offshoots of the original place of theological learning and every such place would become a Mutt by itself as religious instruction is imparted there.

We are of the opinion that every essential feature of a Mutt is to be found in the institution at Mantralaya and it, therefore, clearly falls within the definition of a Mutt as contained in Section 9 (7) of the Act.

The argument that the order of the Board made on 11th October 1928 holding that the institution of Shri Raghavendraswami Mutt was situated at Nanjangud and, therefore, the Act would not govern the Mutt, was final cannot be sustained. It is always open to the Board to revise its order in view of subsequent events and circumstances. It had become abundantly clear at the time when it commenced the enquiry in 1947 that the institution at Manthralaya alone was the headquarters of the Swami and Nanjangud had gone into insignificance and under such circumstances it was open to the Board to arrive at a conclusion different from what had been decided on a previous occasion. We are in respectful agreement with the Full Bench judgment in I. L. R. (1937) Mad. 504: ( A.I.R 1937 Mad. 232) (H)

The judgment of the lower Court is upheld and the appeal dismissed with costs.