IRRATIONAL, UNJUSTIFIABLE DISCRIMINATION NOT PERMISSIBLE

 

Ameerunnissa Begum And Others vs Mahboob Begum And Others on 9 December, 1952

Equivalent citations: 1953 AIR 91, 1953 SCR 404

Author: B Mukherjea

Bench: Sastri, M. Patanjali (Cj), Mukherjea, B.K., Aiyar, N. Chandrasekhara, Bose, Vivian, Hasan, Ghulam         

  PETITIONER:  AMEERUNNISSA BEGUM AND OTHERS     Vs. RESPONDENT: MAHBOOB BEGUM AND OTHERS.

DATE OF JUDGMENT:  09/12/1952

 

BENCH:  MUKHERJEA, B.K. HASAN, GHULAM SASTRI, M. PATANJALI (CJ) AIYAR, N. CHANDRASEKHARA

BOSE, VIVIAN

 

CITATION:

 1953 AIR   91                        1953 SCR  404

 CITATOR INFO :

 R                1953 SC 215     (19)

 E                 1955 SC 352     (9)

 RF              1956 SC  60      (13)

 F                 1958 SC 538     (12)

 D                1962 SC1100   (17)

 R                1963 SC 222     (51)

 R                1974 SC1044   (14)

 R                1975 SC1069   (23)

 RF              1992 SC   1       (132)

 D                1992 SC1277   (85,91,96)

ACT:  Waliuddowla  Succession Act, 1950-Act providing for  settlement  of disputes as to succession between  private  persons and prohibiting recourse to courts of  law-Validity-Equality  of  the   law  Discrimination-Reasonableness-Constitution  of India, 1950, Art. 14 (1).  

HEADNOTE:

  The  continuance  of a dispute even for a long  period  of time between two sets of rival claimants to the property  of a  private  person  is not a circumstance  of  such  unusual  nature  as Would invest a case with special  or    exceptional features  and  make  it a class            by  itself  justifying  its differentiation from all other cases of succession disputes, and the fact that a non-judicial authority had made a report against one set of the claimants is not a reasonable  ground for  depriving them by legislation of their ordinary  rights under  the  law and prohibiting them from having  resort  to courts of law for establishing their rights. A  nobleman of Hyderabad died in 1936 when it was under the rule  of  the  Nizam, and disputes as  to  succession  arose between his  legally married wife and two  ladies,  Mahboob Begum and Kadiran Begum, who claimed to be his wives.  After protracted proceedings before several non-judicial bodies  a report adverse to the latter was made in January, 1950,             but before the Nizam could issue a firman in accordance with it, Hyderabad  became  a  part  of   the  Indian  Union  and  the Constitution of India came into force.            An enactment  called the  Waliuddowla Succession Act, 1950, was therefore  passed by  the               Hyderabad  Legislature which provided that  " the claims of Mahboob  Begum and Kadiran Begum  and  of  their respective  children to participate in the  distribution  of the  matrooka  of the late Nawab are hereby  dismissed" and that the above decision "cannot be called in question in any court of law

  Held,  that in singling out two groups of persons  consisting of two ladies and their children out of those who claimed to be  related  to the late Nawab  and  preventing  them from establishing  their  rights  under the personal  law  which governed  the  community,  in Courts of         law,  the  Act was discriminatory ; that there was no rational  or  reasonable basis  for the discrimination, and the Act  contravened the provisions  of article 14  of  the  Constitution  and       was therefore void.  The analogy of private Acts of the British Parliament  is not helpful as the British Parliament  enjoys legislative  omnipotence  and there  are  no  constitutional  limitations on its authority or power.

 

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 63 of 1952. Appeal from the Judgment and Order dated 7th November, 1950, of the High Court of Judicature at Hyderabad (Siddique, Rao and Deshpande JJ.) in Civil Case No. 9-A-5-1 of 1950. M. C.            Setalvad, Attorney-General for India, and C. K. Daphtary, Solicitor-General for India (G. N. Joshi      and Ghulam Ahmad Khan, with them) for the appellants. B. Somayya and Akbar Ali Khan (B. V. Subharayudu,  with them) for the respondents.

1952.   December 9. The Judgment of the Court was delivered by MUKHERJEA J.-This appeal which has come before us on a certificate granted by the High Court of Hyderabad under article 132 (1) of the Constitution is directed against a judgment of a Full Bench of that Court dated November 7, 1950, passed on a petition under article 226 of ,            the Constitution.  By this judgment the learned Judges of the High Court declared an Act, known as the Waliuddowla Succession Act of 1950, void under article 13(2) of      the Constitution to the extent that it affected the 'rights of the present, respondents 1 to 12 who were the- petitioners 'in the article 226 proceeding. The object of the impugned Act, which received the assent of H.E.H. the Nizam as Rajpramukh of Hyderabad on April 24, 1950, was to put an end to the disputes that existed at the time regarding succession to            the matrooka or personal estate of Nawab Waliuddowla', 'a wealthy nobleman and a high dignitary of Hyderabad, and what, in substance, the Act provided was to dismiss the claims of succession to the said properties         put forward by two of the alleged wives of the late Nawab, named Mahboob Begum and Kadiran Begum, and their children. These two ladies as Well as their children filed a petition before the Hyderabad            High Court under article  226 of  the Constitution challenging   the validity of the Act mentioned aforesaid inter  alia on-the grounds that it conflicted with the petitioners' fundamental rights guaranteed under articles 1419(1)(1) and 31(1) of the Constitution and praying for appropriate reliefs by way of declaration and writs of certiorari and prohibition.    The claim was esisted by Ameerunnissa Begum, an admitted     wife of the       late Nawab, and her children,            and they are the persons   who would primarily be benefited by the provisions of the impugned Act. The High Court ,substantially accepted the contentions of the petitioners and declared the Act to be void so ar as it affected them. Against this decision the present appeal has been    taken to this court       by Ameerunnissa Begum and her children. To appreciate the contentions that have been raised by the parties, a brief resume of the antecedent events leading up to the passing of the disputed legislation would  be necessary.

Nawab Waliuddowla, who was one of the Paigah noblemen of Hyderabad and  was at     one time, the President of            the Executive Council of the State, died at Medina on February 22, 1935, while on a pilgrimage to Hedjaz. Besides extensive jagir properties appertaining to the Paigah which fetched him an annual income of nearly Rs. 1,36,000 he left behind           him matrooka or personal estate of  considerable value.     As regards the surviving relations of the Nawab, who could claim rights by inheritance to his estate, it is    not disputed that            Ameerunnissa Begum was one of      the legaly wedded wives of the Nawab and that she and the five children which the Nawab had by her are entitled to their legitimate shares in the properties left by the deceased, There is also no dispute that the Nawab went through a legal marriage with a lady named Fatima Begum who is still alive.         It appears, however, that she left her husband soon after marriage            and did not return to him any time thereafter.   During the period, which is material for our present purpose, the only claim which she put forward against the estate of the       Nawab was one for recovery  of her  dower debt &mounting to one lakh of rupees. The whole dispute between the parties to this litigation really centered round     the point as to whether the other two ladies, namely Mahoob Begum and Kadiran Begum,who are respectively respondents I and 5 in this appeal, were, the lawfully married wives of the late Nawab or were they merely in his    keeping           as. kavases            or permanent concubines? If there was no legal marriage between them and the Nawab, it is not disputed that their children, though admittedly begotten on them by            the Nawab, would not be entitled to any share in the matrooka or personal estate left by the deceased., This dispute first arose before the Paigah Trust Committee whose duty it was to distribute the income of           the Paigah estate amongst the heirs of the late Nawab. In April, 1935, shortly     after Ameerunnissa Begum, who had accompanied her husband    to Mecca, returned to Hyderabad after the death of the latter, the Committee addressed letters to         Ameerunnissa Begum,            Fatima Begum and also to Mahboob Begum enquiring about the wives and children left, by the Nawab. No letter, it seems, was sent to Kadiran Bi. On a consideration of the replies  given   by the several addressees and also of the statements made on their behalf at the hearings before           the Committee, the latter submitted a report to the Executive Council of the Nizam. The Paigah Committee proceeded on the footing that the Nawab's marriage with Ameerunnissa Begum was beyond dispute, but as Mahboob Begum did not produce her marriage certificate even after repeated demands by the Committee, she    as well as Kadiran Bi were     treated as concubines. The Committee recommended that       the annual income of the Paigah should be divided in the proportion of 60 to 40 amongst the legitimate and illegitimate relations of the     Nawab 60% of the income was to go to    Ameerunnissa Begum and her issues and the remaining 40% was to be paid to Mahboob and Kadiran as well as to their children.         These recommendations were approved by  the Nizam in a Firman dated 9th July, 1936.   Previous to this, express intimations were given to   the surviving relations of Waliuddowla under orders of the Nizam that whatever disputes might exist among them regarding  the matrooka or personal estate of the Nawab, should be decided by proper proceedings in a court of law and pending     such decision the estate might be kept ' under the supervision of the Paigah Committee. On the 8th February, 1938, Mahboob Begum and her children filed a suit in the Dar-ul-Quaza, which was a court established under the law for deciding rights of succession, marriage, divorce etc. of the Muslims in the            Hyderabad State, praying for a declaration   that Mahboob Begum was the legally married wife of the Nawab  and the children were his legitimate children and for other consequential reliefs in the shape of participation in            the matrooka and recovery of the dower debt payable to Mahboob Begum.   Both Ameerunnissa Begum and Kadiran Bibi as well as their children were among the defendants impleaded in        the suit. During the pendency of the suit and before it came on for actual hearing, there was a Firman issued by the Nizara on the 9th February, 1937, on the application     of Ameerunnissa Begum, directing the withdrawal of the          suit from the Dar-ul-Quaza court and the appointment of a Special Commission consisting           of Nawab Jiwan Yar Jung, the then Chief Justice        of Hyderabad and the Judge of            Dar-ul-Quaza before whom the suit was pending, to investigate the matter and submit a report to the Nizam through the Executive Council. Proceedings before the Special Commission commenced    on 27th March,1939. Kadiran Bibi filed a plaint            before the Commission claiming on behalf of herself and her children the identical reliefs which were claimed by Mahboob Begum and her children, and though this plaint was at first rejected by the Commission it was subsequently        entertained under specific orders of the Executive Council. It appears that Fatima Bibi also lodged a plaint in respect of her Mahar against the estate of the Nawab and ,this matter was also directed to be investigated by the Commission. The enquiry           before the commission was a long affair in which a large volume of evidence, both oral and documentary,     was adduced. The Commission submitted the report on October 16, 1944, and their findings, in substance, were that          both Mahboob            Begum and Kadiran Begum were legally married wives of Waliuddowla and hence they as well as their children were entitled to have their legitimate shares in the matrooka. Fatima       Begum was also held to be a legally wedded wife of the Nawab, and as such entitled to the dower claimed by her. When the report came up for consideration by the Executive Council        the Members of the Council were divided in their opinion. A minority was in favour of accepting the findings of the  Commission but the majority view was that further expert opinion should be taken in the matter. Eventually on the advice of the Council the Nizam directed by his Firman dated 27th August, 1945, that the report of   the Special Commission should be scrutinised by an Advisory Committee consisting of three persons, namely, two Judges of the      High Court and the Legal Adviser of the State. This Committee was directed to examine fully the bulky report of       the Special      Commission and submit their opinion with a view to assist  the Executive Council in coming to their decision. They were not to take any fresh evidence or hear any further arguments from the parties.  The      Advisory Committee submitted their report on 24th November, 1945, and the Committee held differing from the view taken by the Special Commission that neither Mahboob Begum nor Kadiran Begum           was the legally wedded wife of Nawab Waliuddowla. Despite         this report,      the majority of the Executive Council      recommended that the findings of the Special Commission should be accepted. The Nizam accepted this recommendation and by his Firman dated 26th June, 1947, directed that the findings of the Special Commission should be implemented at an early date.

 

There was a proposal at the beginning that the        members of the Special Commission themselves should be asked   to implement their findings, but eventually it was decided by a resolution of the Executive Council dated 22nd September, 1947, that the task of en forcing the recommendations of the Commission should be entrusted to the Chief Justice of     the Hyderabad High    Court.  It appears that in        subsequent communications to the Executive Council the Nizam expressed doubt regarding the status of Mahboob    Begum and Kadiran Begum and suggested the replacement of the Firman of 26th June, 1947, by now orders in the nature of a    compromise. The Executive Council, however, stuck to their decision  and on 17th June, 1948, the findings of the Special Commission were transferred to the Chief Justice for executing the same as early as possible. On 2nd July, 1948, another Firman was issued by the Nizam directing that the Chief Justice before making the final distribution of the matrooka should submit his report through the Executive Council to          His Exalted Highness for his sanction. This direction was embodied in a resolution of the Executive Council dated 2nd September, 1948.  

The police action in Hyderabad commenced soon after that and it was on 25th September, 1948, after the police action had terminated and a Military Governor was placed in charge of the Hyderabad State that a formal communication of       the resolution mentioned above was made to the Chief Justice. Soon afterwards on the application of  Ameerunnissa Begum made to the Military Governor          the execution  proceedings before the Chief Justice were stayed by an order dated 16th October, 1948.    This stay order was again cancelled on         5th November, 1948, and the execution proceedings were allowed to continue.          On 5th December, 1948,        the Chief Justice submitted his     report  regarding the distribution of  the matrooka to the Executive Council. Strangely, however, by a Firman        dated 24th February, 1949, the Nizam purporting to set under the advice of the Military Governor directed that the findings       of the three-men Advisory Committee, who differed from the views taken by the Special      Commission, should be given effect to. In other words,        the claims of Mahboob Begum and Kadiran    Begum were dismissed and Ameerunissa Begum was directed to pay one lakh of rupees to Fatima, Begum as the dower due to the latter. Protest was lodged against the decision by Mahboob Begum and Kadiran            Begum and again a Firman was issued by the Nizam under the advice of    the Military Governor on 7th of September, 1949. By this Firman the earlier order of            24th February, 1949, was revoked and the whole case was referred for opinion and report to Sir George       Spence, the Legal Adviser       to the Military Governor, who was directed to   hear the parties and take such further evidence as he considered necessary. The enquiry then began before the Legal Adviser but neither party adduced any evidence. Sir George Spence submitted his            report on 7th January, 1950. The material findings and recommendations in his report were as follows:- " 76. My finding on the case is that neither Mahboob Begum nor Kadiran Begum was married to the Nawab with the result that these ladies and their children are not    entitled to participate in the distribution of the matrooka.  

77.If this finding is accepted, the order required for its implementation     would be an order dismissing the claims of Mahboob    Begum and Kadiran Begum on           the matrooka  and directing Ameerunnissa Begum to pay one lakh of rupees out of the matrooka to Fatima Begum on account of Haq Mahar." The Constitution of India came into force on 26th January, 1960. As Hyderabad was integrated with the Indian Union and the Nizam lost the absolute power which he could exercise previously, it was no longer within his competence to issue a Firman on the terms of the report of Sir George Spence and make it legally binding on the parties.  Recourse was therefore had      to legislation and on April 24,            1950,   this impugned Act       was passed which purported to give a legislative sanction to the findings in the report of   Sir George       Spence.            The material   provision of the Act is contained in section 2, clause (1), which *lays down that " the claims of Mahboob Begum and Kadiran Begum and of their respective children to participate in the distribution of the matrooka of the late Nawab Waliuddowla   are hereby dismissed". The second clause of this section provides that a sum of one lakh of rupees shalt be paid to Fatima Begum on account    of her Haq Mahar. Under section 3, the decisions affirmed in section 2 cannot be called in question in any court of law and finally section 4 provides that the     High Court of Hyderabad shall, on the application of any person interested in the decision affirmed in section         2, execute the said decision as if it were a decree passed by itself and such person was a decree-holder. It is this Act which has been pronounced to be invalid by the High Court of Hyderabad to the extent that it dismisses the claims of Mahboob Begum and Kadiran Begum as well as of their children to the personal estate of Nawab Waliuddowla. It may be conceded that before the       coming            in of     the Constitution, the Nizam of Hyderabad     practically enjoyed unfettered sovereign authority and however much the various Firmans, which      were issued by him in connection with     the present dispute, may appear to be capricious and arbitrary, strictly speaking they were not 'unconstitutional in     the sense that they were beyond his competence as            the supreme legislature in the State. After the Constitution came     into force and prior to the setting up of         a duly  constituted legislature in the Hyderabad State, the        legislative authority undoubtedly vested in the Nizam as the Rajpramukh of the            State    under the provision of article 385 of  the Constitution read with article 212-A (2) inserted by       the President's (Removal of Difficulties) Order No. II dated 26th January, 1950; but the legislative power exercisable by the Nizam was a strictly limited power. The Rajpramukh was not only to act in conformity with the provision of article  246 of the Constitution and keep within the bounds of the legislative sphere laid down with reference to            the entries       in the different legislative lists, but    the legislation must not          be in    conflict with    any of         the fundamental rights guaranteed   under   Part&,  III of     the Constitution.  

The impugned Act, as its title and preamble show, was passed with the avowed object of terminating the disputes relating to succession to the estate of the late Nawab Waliuddowala. Although in the report of Sir George Spence it was held that Mahboob Begum and Kadiran Begum were not the legally wedded wives of the Nawab and their children were not       legitimate, there was no        express declaration to that effect in  the operative portion of the Act which merely lays down that the claims       of these two ladies as well as of their children to participate in the distribution of the matrooka of the          late Nawab are dismissed. The legislation may be said to relate to succession and indirectly to marriage also and as    such may come within the purview of entry 5, List   III of     the Seventh           Schedule to the Constitution. It has not          been argued    by Mr. Somayya, who appeared for the            respondents, that a     legislation on these topics      must be a general legislation; but it has not been disputed by      either  side that no valid legislation could be passed under these heads which is discriminatory in its character and offends against the equal protection clause embodied in article 14 of        the Constitution.         The contention       of the learned Attorney- General is that the legislation in the present case does not violate         the principles of the equality clause and he         has attempted to combat with much force the decision of the High Court on this point. This is the main question in the  case which requires to be examined carefully.  

The nature and scope of the guarantee that is implied         in the equal protection clause of the Constitution have            been explained and discussed in more than one decision of this court and do not require repetition. It is well settled that a legislature which has to deal with diverse problems arising out of an infinite variety   of human relations must, of necessity, have      the power of making special laws to attain particular objects ; and for that purpose it must have large powers of selection or classification of persons and ,*things upon      which   such laws are to operate. Mere differentiation or inequality of treatment does not per so amount to discrimination within the inhibition of the equal protection clause.  To attract the operation of the clause it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that it does not rest on any rational basis having regard to the object which the legislature has in view. The learned Attorney-General in the course of his argument laid considerable stress upon the decision of this court in Chiranjit Lal v. The Union of India(1) and he attempted to call in his aid the two propositions recognised and relied upon in that decision, namely, (1) that the presumption is always in favour of the constitutionality of an enactment, and (2) a law may be constitutional even though it relates to a single individual, family or corporation. The  pro- positions themselves may be well founded but whether or      not they would apply to a particular case would depend upon         the facts and circumstances of that case. In Chiranjit Lal's case (1), it is to be noted, the circumstances were somewhat exceptional. The legislation in that case related to a company   which   was engaged in production of            a commodity vitally  essential to      the community, and in   judging  the reasonableness of the classification in such cases the court has undoubtedly to look to    the social, political      and economic interest of the community as a whole. In doing so, as Prof Willis observed, the court will assume the existence of any state of facts which can reasonably be conceived of as existing at the time of legislation and          capable of sustaining the classification made by it("). In the case before us what the legislature has done is to single out two groups of persons consisting of two (1) [1950] S.C.R. 869,   (2) Willis on constitutional Law, p. 580, ladies and their respective children out of those who claim to be related to the late Nawab Waliuddowla and prevent them from getting any share in the personal property of   the latter to which they might be entitled under the general law of the land. They' claim to be wives and children of         the deceased and,       as such entitled to have shares in      his personal -estate, and no competent court of law has as      yet negatived their claims in this respect. On what principle then, it may be asked, was the disability imposed upon these persons          alone while the claim of the other claimants            was, accepted ? Nay, the legislation goes further than this  and denies       to these specified individuals a right    to enforce their claim in a court of law, in accordance with            the personal law that governs the community to  which they belong.      They, in fact, have been discriminated against from the rest of the community, in respect of a valuable right which the law secures to them all and the question is, on what basis this apparently hostile       and discriminatory legislation can be supported.  

It is not suggested that it was for serving a public purpose or securing some advantage to the community as a whole  that the legislature chose in this case to interfere with private rights.        The only purpose of the legislation,      as appears from the preamble, was to end certain private disputes. It is true that the quarrel between the    two rival parties regarding succession to the estate of the deceased Nawab was going on since, 1938; and after several vicissitudes,  for which the Nizam himself or his Legal Advisers -were prima- rily responsible, there was a report prepared by the Legal Adviser to the State in a particular way, which, contrary to the opinion given by   an 'earlier' Special      Commission, negatived the claims of these two ladies and their children. It is   also true that because of the introduction of the Constitution it was no longer possible for the Nizam to issue a Firman embodying this report. That          may be            the reason for passing this legislation but it would not furnish any rational basis for the discrimination that it made. The continuance of a dispute    even for a long period of time between two sets of rival claimants tot he property of a private person is not a circumstance of such unusual nature as would invest a           case with special or exceptional features and make it a class by itself            justifying its differentiation from all other cases of succession disputes.     As appears from the preamble to the Act, the only ground for depriving the two ladies and their children of the benefits of the ordinary law is the            fact that there was an adverse report against them made by          the State Legal Adviser. This ground is itself arbitrary and unreasonable.      The dispute regarding            succession to   the estate of the Nawab was a legal dispute pure and simple            and without, determination of the points in issue by a properly constituted judicial tribunal a legislation based upon      the report        of a nonjudicial authority and made applicable to specific individuals, who are deprived thereby of valuable rights which are enjoyed by all other persons occupying            the same position as themselves, does, in our opinion, plainly come within the constitutional inhibition of Article 14. The analogy of private Acts of the British Parliament, to which reference was made by the learned Attorney-General in the course of his arguments, is not at all helpful.        The British Parliament enjoys legislative omnipotence and there are no           constitutional limitations upon its authority or power.          There   were indeed a few statutes passed by         the Provincial Legislature-in India during British       days which regulated succession to the estates of certain princely families. The Bijni Succession Act (Act.II of 1931) passed by the 'Assam Legislature is an enactment of this type        and it did shut out the rights of certain persons who claimed the Bijni estate under the law of inheritance.  But at  that time the Governor-General of India had express authority under the provisions of the Government of India Act, 1915, to authorize the Provincial    Legislatures to make  laws regarding subjects of a private nature. Quite apart  from this, no question of infraction of the equal protection rule could arise in pre-Constitution days.  We are not unmindful of the fact that the presumption       is in favour of  the constitutionality of an enactment ; but when on the' face of it a piece of legislation is      palpably unreasonable            and discriminatory      and the selection or classification made by it cannot be       justified on any conceivable     or rational ground, the court has got to invalidate the enactment on the ground of its violating the equal protection clause. The learned Attorney-General contended before us that  the High Court was wrong in holding that there was a concluded decree in the present case in favour of respondents 1 to 12 on the basis      of the recommendations of the Special Commission, and that this decree was a property within      the meaning of law of which these respondents have been deprived by the impugned legislation. The point is not free   from doubt, and much could be said on both         sides.   We think, therefore, that it would not be proper on our part to express,any opinion upon it in the present    appeal.            We understand that the respondents have    filed an execution application in the City Civil Court of Hyderabad which    has ordered     that execution should proceed and that objections have been taken to         this application by the present appellants who have raised inter alia the point that there is no        final and effective decree which is capable of execution. As            the point is still pending hearing by     the Civil Court of Hyderabad, we do not desire to influence their decision in any way by expressing any opinion on      this matter.     We only desire to state that   notwithstanding          the observations made by the High Court referred to above,   the question shall be treated as an open one. The applicability of article 14 of the Constitution in the present case      is, however, not at all dependent upon the fact as to whether or not the respondents have already acquired property in   the shape of a decree. Their claim to the estate of the            late Nawab which they wanted to assert under the general law of the land is itself a valuable right, and the deprivation of that right by a piece of discriminatory legislation would be sufficient to bring the case within the purview of article 14 of the Constitution.  

Having regard to the view that we have taken, it      as unnecessary to       consider whether the impugned            Legislation violates the provisions of article 31(1) or article 19(1)  

(f) of the Constitution. The result is that the appeal is dismissed with costs.  

Appeal dismissed.  

Agent for the appellants: Bajinder Narain.  

Agent for respondents Nos. 1- to 12   

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