1. This is a plaintiff's second appeal and is directed against the appellate judgment and decree of the Additional Civil Judge, Udaipur, dated 10th July, 1961. By this decree, the first appellate court, allowed the appeal of the defendant-respondents and reversed the decree of the trial court and dismissed the plaintiff-appellant's suit in entirety.

2. There is no controversy over facts which may be briefly stated as follows-

The dispute relates to the property of one Kachru Brahmin of village Lemdi, Tehsil Sagwara. He had both urban and agricultural properties which have been described in detail in Schedule I annexed to the plaint. He had been married with Mst. Champi Bai--the defendant-respondent. He died in the year 1950 leaving surviving his widow Mst. Champi Bai. Mst. Champibai as his widow succeeded to his property. The Hindu Succession Act, 1956 (hereinafter to be referred to as the Act) came into force in June, 1956. This Act, it may be mentioned, improved the condition of the Hindu widow and converted the "limited estate" into "absolute estate". After the promulgation of the Act. Mst. Champi Bai contracted remarriage with Shri Nathu Ram defendant No. 2 some time either in the year 1957 or 1958. After re-marriage she made a gift of the property inherited by her from her deceased husband Kachru in favour of Nathu Ram, vide gift deed dated 1-7-1960. Mst. Dhuri Bai is related as an aunt to the deceased Kachru and Mst. Bhuri Bai is the sister of Kachru. Mst. Dhuri Bai and Mst. Bhuri Bai instituted a suit in the court of Munsif, Sagwara, on 5-1-1961, against Mst. Champi Bai and Nathu Ram for a declaration to the effect that they are the owners of the property of the deceased Kachru and that the gift deed executed by Mst. Champi Bai in favour of Nathu Ram is ineffective and void against the interests of the plaintiffs. They also prayed for possession of the property of the deceased Kachru. Their case was that Mst Champi Bai was divested of all rights and interests which she had acquired in her deceased husband's property by inheritance in consequence of her re-marriage and the property devolved upon the plaintiffs who are the next heirs of the deceased Kachru.

3. The defendants contested the plaintiffs' suit. It was denied that Mst. Dhuri Bai was related to the deceased Kachru as an aunt in a near degree. It was, however, admitted that Mst. Bhuri Bai was the sister of the deceased Kachru. The defendants' main plea was that the property of the deceased Kachru vested in her (Mst. Champi Bai) absolutely as the sole coparcener and sole heiress. It was also alternatively pleaded that after the promulgation of the Act the widows' limited estate and the institution of the reversioners were abolished and she became the full owner of the property with right to alienate the property and consequently, the plaintiffs had no right or title in the property of the deceased Kachru.

4. The trial court framed one issue as follows:

"Has Smt. Champi who possessed the property of her deceased husband lost her rights of ownership over it by reason of her second marriage and therefore she is not entitled to dispose of the property?"

This issue was treated as a legal one and parties led no evidence. It appears that before the trial court having regard to the provisions of Section 14 of the Act the counsel joined no controversy in relation to the property other than agricultural holding. The counsel for the plaintiffs appears to have conceded that Mst. Champi Bai became absolute owner of all properties other than agricultural holding and the suit in respect of such property does not appear to have been pressed. The parties, however, joined controversy regarding the devolution of the tenancy rights in agricultural holding. The plaintiffs took a stand that the law relating to the devolution of the tenancy rights in respect of the agricultural holdings in the present case is the Hindu Law that was in force before the promulgation of the Act recognising the widow's estate and the institution of the reversioners, and the same having been expressly saved by Sub-section (2) of Section 4 of the Act. Mst. Champi Bai continued to remain as a limited owner only, and on her remarriage the plaintiffs as the reversioners became entitled to Kachru's property. The plaintiffs relied upon Sita Bai v. Kothulal Budhn Lodhi, AIR 1959 Bom 78.

5. The trial court accepted the plaintiffs' case. It, however, observed that Mst. Dhuri Bai could not be treated as the heir of the deceased Kachru although Mst. Bhuri Bai being the sister of the deceased Kachru could be treated as the reversioner of Kachru. In view of these conclusions, the trial court passed a decree in favour of plaintiff Mst. Bhuri Bai for a declaration and possession in the following words:

"It is therefore declared that Mst. Bhuri Bai the plaintiff No. 2 is the reversioner of the last full owner Kachru and the alienation made by Mst. Champi Bai in favour of Shri Nathu Ram by means of a gift deed dated 1-6-60 so far as it relates to the agricultural holdings comprised therein is not binding on her The decree for possession over the agricultural holdings mentioned in the gift deed referred to above is also hereby awarded in favour of Mst. Bhuri Bai."

The plaintiff Mst Dhuri Bai's suit was dismissed.

6. The defendants Mst. Champi Bai and Nathuram filed an appeal which was heard by the Additional Civil Judge, Udaipur. The appellate court took the view that

Mst. Champi Bai became a full owner of the agricultural holding also being in possession of it at the time of the commoncement of the Hindu Succession Act by virtue of Section 14 thereof and got full rights thereunder as if she were a male heir.

The appellate court referring to Sita Bai's case, AIR 1959 Bom 78 observed:

"That learned Judges of the High Court of Bombay came to rather a sudden decision that the principle of reversioner still holds good. They did not take into consideration the effect of Section 14 of the Hindu Succession Act, 1956, at all but left it as an open question."

The appellate court also held that in view of Section 41 of the Rajasthan Tenancy Act she had every right to alienate her rights by gift in favour of Nathuram. In taking this view, the Additional Civil Judge relied upon the observations of the Supreme Court in Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva, AIR 1959 SC 577. Referring to the provisions of the Hindu Widows Remarriage Act 1856, the first appellate court held that

"the hindu widows remarriage act stands repealed since its provisions of making a Hindu widow a limited owner is inconsistent with the provisions contained in Section 14 of this Act."

In the conclusion, the first appellate court held that "the plaintiff-respondents have no case, in that, even with regard to the agricultural lands and that Mst. Champi Bai being a full owner had the right to alienate the property in any manner she liked and that there being reversioners casts no cloud on that right. In this view of the matter, the first appellate court allowed the appeal, set aside the judgment and decree of the trial court and ordered that the suit of the plaintiff-respondents shall be dismissed as a whole with costs of both the courts to the defendant-appellants. The plaintiff Mst. Bhuri Bai has filed the present second appeal.

7. In the first instance, the learned counsel for the appellant contended vehemently that the Hindu Succession Act did not affect the provisions of any law for the time being in force providing inter alia for the devolution of tenancy rights in respect of agricultural holdings. It was urged that the parties being Hindus they were governed by the Hindu Law in respect of the devolution of tenancy rights and the Hindu Law in force at the time of Kachru's death recognised widows' estate and the institution of reversioners. The Hindu Law as it then stood continued to remain in force in respect of the devolution of tenancy rights. The counsel very much relied upon the observations made in Sitabai's case, AIR 1959 Bom 78. Proposing to examine the validity of the arguments, I consider it proper to refer to the legislative back-ground, the purpose and the objects of the Act and in this connection to indicate the state of law. that is Hindu Law that was in force.

8. It needs be pointed out that although Hindu Law claims to have divine origin and further claims to be divinely ordained and divinely dictated body of rules and although theoretical claims are being made that Hindu Law is eternal and immutable yet in practice during the centuries preceding the promulgation of the Act. Hindu Law and particularly the law relating to succession had ceased to be a uniform and consistent Code. Schemes of inheritance with radical differences came into existence in different parts of the country. Not only there were two differing systems of inheritance known as "Mitakshara" and the ''Dayabhaga" systems with different rules and orders of succession but even under the mitakshara system of law various schools with some differences in law had come into existence. Varying interpretations of the texts in the smrities, dissimilar family and local customs and conflicting judicial pronouncements had contributed to the absence of uniformity and consistency. This feature could not remain unnoticed for long.

9. The second important feature of the Hindu Law in the matter of succession and inheritance is the comparative scant regard for the females. Under the Hindu Law a few females could claim inheritance and even if they inherited, they acquired only limited rights. Whatever justification may have been for this position in the ancient and medieval conditions, the position could not be tolerated in the modern age of social emancipation and equality particularly when there was a growing agitation for the equality of sexes based upon the principle enshrined in the fundamental articles of the Constitution. There has been a movement for the amelioration of the lot of the females. It may also be mentioned that even on matters other than succession the defects in the Hindu Law were being emphasised. Thus, there has been a movement for changing the ancient Hindu Law for a more equitable, consistent and coherent system of jurisprudence.

Omitting details of this movement and the steps towards codification of the Hindu Law, I may at once observe that the Hindu Succession Act is one of the Acts which came into existence in consequence of this movement, and its twin objects are (1) to secure uniformity and (2) to improve the conditions of the females. For the first object, the provisions of the Hindu Succession Act were given overriding effects. This has been done by the enactment of Section 4. Section 4, as was originally drafted, read as follows:

"4 (1) Save as otherwise expressly provided in this Act --

(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act:

(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act."

Clause (a) abrogates what one may call "the personal law of Hindus" derived from the original Sanskrit texts, commentary, their interpretation, and custom and usage incorporated into the personal law. This may be conveniently called the "sastric law". Clause (b) abrogates the previous statutory law governing Hindus made from time to time in so far as that law is inconsistent with the provisions the Act. During the discussion of the Bill by the Rajyasabha it appears that the attention of the legislature was drawn to the" considerable legislation by the States aimed at prevention of fragmentation of agricultural holding and securing consolidation and for the purposes of fixing ceilings and devolution of tenancy rights in respect of such holdings. Such legislation had some indirect effects on the Hindu Law of Succession.

Apprehending that Clause (b) might be construed as adversely affecting such legislation, the legislature introduced Sub-section (2) in Section 4 of the Act to save such legislation and consequently, Sub-section (2) was added as follows : --

(2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings."

For achieving the other objects of securing equitable distribution between male and female heirs, the Act has introduced very fundamental and far-reaching changes. Under the old law a female heir took only limited estate. By the new law the limited estate and the institution of reversioners has been abolished and whatever property is now inherited by a woman, whether it be from a male or a female, by whatever school she is governed, is now taken by her as absolute owner. Numerous female heirs have also been introduced as heirs in the property. The principle of simultaneous succession of females with males has also been introduced.

10. From the above narration, the following facts clearly emerge :--

1. That the legislature intended to introduce a uniform law of succession and abrogate the existing divergent rules on the question of succession and, therefore it abrogated all sastric laws in matters provided for in the Act except when otherwise expressly provided. Evidently, while Introducing Sub-section (2) to Section 4 to merely remove doubts as to the effect of the Act on various State legislations aimed at prevention of fragmentation of holding fixation of ceilings and devolution of tenancy rights in the agricultural holdings, the legislature cannot be taken to have intended the continuance of old Sastric law for succession to tenancy rights. Had the legislature any such intention it would have been clearly indicated by appropriate language.

2. Clause (a) of Section 4 uses the expression "any text, rule or interpretation of Hindu Law or any custom or usage" and avoids using "law" while Clause 1(b) uses the expression "law". This difference in the language if the two clauses is significant. In this context Sub-section (2) of the Act saving the provision of any law relating to certain matters cannot be related to Clause (a) or to save the law referred in that clause. It has reference to Clause (b) only and contemplates saving of statutory law in some matters.

(3) The concept of limited estate and the institution of reversioners having been abolished, it will be hardly proper to infer that the legislature by introducing Clause (2) intended to maintain the old Hindu Law recognising widows' estate and the institution of reversioners in force. The only reasonable conclusion to arrive at is that the legislature merely intended to save special State legislations providing for the objects mentioned in the sub-section and not Sastric Hindu Law for matters provided in the sub-section.

In this conclusion, I think a considerable support can be derived from the observations of the Supreme Court in Munnalal v. Raj-kumar, AIR 1962 SC 1493 extracted below:--

The Act is a codifying enactment, and has made far-reaching changes in the structure of the Hindu Law of inheritance, and succession. The Act confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate. She is under the Act regarded as a fresh stock of descent in respect of property possessed by her at the time of her death .......... Manifestly, the Legislature intended to supersede the rules of Hindu law on all matters in respect of which there was an express provision made in the Act.

I may pertinently observe that a contrary view that even in the absence of specific statutory law providing for the matters referred to in Sub-section (2) of the Act. Old General Hindu Law of succession recognising limited estate and institution of reversioners, stands saved in connection with the above matters cannot be justified as it tends to frustrate the twin objects of the promulgation of the Act and is inconsistent with the general scheme of the Act.

11. Strong reliance was placed upon a decision of the Bombay High Court reported in AIR 1959 Bom 78. The facts of that case were that one Budhu had two sons, Kothulal and Narayan. Budhu died in the year 1938 leaving two sons Kothulal and Narayan. Kothulal had separated from the family during the life time of Budhu and consequently, the two fields -- the subject matter of the litigation, devolved upon Narayan alone, Narayan died in the year 1945, leaving two widows. One of the widows made alienation of the suit property. Alleging that alienations were not for legal necessity, Kothulal as a reversioner filed a suit for a declaration to the effect that alienations were not binding upon him. The trial court held that the alienations were for legal necessity and dismissed the plaintiff's suit. On appeal, the lower appellate court arrived at a contrary conclusion and reversed the judgment of the trial court and decreed the plaintiff's suit.

The defendants filed a second appeal in the Bombay High Court. Before the High Court it was contended inter alia that the Hindu Succession Act of 1956 has put an end to the reversioners and that accordingly the entire basis of the plaintiff's suit must fail and the suit must be dismissed. Vyas J. left open the question whether the principle of reversion has been abrogated or not but upheld the decree of the first appellate court by relying upon Sub-section (2) of Section 4 of the Act. The learned Judge observed,

"that the law regarding the devolution of tenancy rights in respect of agricultural holdings which was in force at the time when the Hindu Succession Act was enacted was expressly saved from the operation of the Act,"

The learned Judge then referred to the provisions of Section 151 of the Madhya Pradesh Land Revenue Code, 1954 reading as follows -

"Subject to his personal law, the interest of a tenure-holder shall on his death pass by inheritance, survivorship or bequest, as the case may be"

and observed that in the context of the Hindus, the expression "personal law" in Section 151 of the M.P. Land Revenue Code must be the Hindu Law and that until the Hindu Succession Act was enacted, the Hindu Law recognised reversion. Thus, the law regarding devolution of tenancy rights in respect of agricultural holdings amongst the Hindus which was in force at the time of enactment of the Hindu Succession Act clearly recognised reversion, and that this law was saved by Sub-section (2).

Further, overruling the argument that the personal law in Section 151 of the M. P. Land Revenue Code must be construed to mean the personal law as contained in the Hindu Succession Act, the learned Judge held, that -

"The words 'any law for the time being in force' in Sub-section (2) of Section 4 should be construed to mean any law which came into force. Such a construction would do violence to the language and would be unnatural."

Further, holding that the law in force was expressly saved. It was observed,

It is clear, therefore, that so far as the law regarding devolution of tenancy rights in respect of agricultural holdings amongst the Hindus is concerned, the principle of reversion still holds good, notwithstanding the enactment of the Hindu Succession Act.

12. In reply, the counsel for the respondent challenged the correctness of the view taken in Sitabai's case, AIR 1959 Bom 78. He invited my attention to a later Bench decision of the Bombay High Court reported in Smt. Indu Bai v. Vyankati. AIR 1966 Bom 64 overruling Sitabai's case, AIR 1959 Bom 78. Referring to Sitabai's case, AIR 1959 Bom 78 the Bench made the following observations :--

"True, the decision in AIR 1959 Bom 78, supports Mr. Khare. With respect, we find it very much difficult to agree with the conclusions of the learned Judge. The learned Judge assumes that Section 151 of the Madhya Pradesh Land Revenue Code prescribed a particular law of devolution and secondly that it is with respect to tenancies. It only provided that the holding was heritable and his personal law of succession applied . . ...

.....In view of what we have said, there can be no question of Section 4(2) of the Hindu Succssion Act saving the right of survivors.

We may also observe that this does not involve construing the words 'any law for the time being in force' in Sub-section (2) of Section 4 of the Hindu Succession Act to mean 'any law which came into force', as has been supposed in the above case, once it is held that section 151 of the code merely recognises that the tenure is heritable and will pass according to the law applicable to the tenure holder."

13. I am in entire agreement with the view expressed in the later Bench decision of the Bombay High Court and find it difficult to hold that Sub-section (2) of Section 4 was intended to save Hindu Law of Succession in derogation of the principles enunciated in the Act in the matter of devolution of tenancy rights. I may observe that in Sitabai's case, AIR 1959 Bom 78 the controversy arose on account of the provisions of Section 151 M.P. Land Revenue Act. In the present case, Kachru died in the year 1950 and it has not been brought to my notice whether there was any tenancy law in force at that time providing for the devolution of tenancy rights. Reference to the rajasthan tenancy act is quite inappropriate as this had admittedly come into force after the death of Kachru. For all these reasons, the first contention of the appellant's counsel must fail.

14. Next, it was contended that even if the limited estate inherited by Mst. Champi Bai was converted into full estate by Section 14 of the Act still her right or interest in the property stood forfeited on account of her remarriage with the defendant-respondent Nathu Ram. It was contended that Section 2 of the Hindu Widows Remarriage Act (hereinafter referred to as the Act of 1856) has not been expressly abrogated by the Act and that it cannot be considered as having been abrogated by virtue of the provisions of Section 4(1) of the Act. It was submitted that Section 2 of the Act of 1856 lays down an independent rule providing for the effect of remarriage on the estate inherited by a widow and that it stands quite unaffected by the provisions of the Act, The learned counsel relied upon the opinion of Shri Gupte expressed in his commentary on the Hindu Law of Succession, 1963 Edition :--

"It is, however, still possible to urge as a matter of construction of Section 2 of the Hindu Widows' Remarriage Act that she would forfeit her estate, though full, especially as that Act has not been repealed. If an estate is liable to forfeiture it should make no difference whether the estate is converted into a full estate by Section 14 or not. Any estate either absolute or limited may in law still be liable to forfeiture in certain circumstances and situations by an independent rule such as the rule in Section 2 of the Hindu Widows' Remarriage Act which has not been repealed."

Referring to the difficulty arising on account of the absence of any rule in the present Act providing for the devolution of the property so forfeited as also on account of the Act not contemplating succession opening a second time except to a very limited extent the author says, "But Section 2 of the Hindu Widows' Remarriage Act in fact provides for devolution on forfeiture. Neither the said provision nor the scheme of succession indicated in that section is repugnant to the scheme of succession under this Act .....

Although Section 2 of the Hindu Widows' Remarriage Act, 1856 was drafted at a time when a widow succeeding to her husband or to his lineal successor took only a limited estate, the language of that section is, it is submitted, capable of applying to a widow having an absolute estate. It is also submitted that Section 2 of that Act is not affected by Section 4(2) of this Act."

15. In answer, the counsel for the respondents submitted that remarriage of widow after the promulgation of the Act is not a valid ground for divesting an estate inherited by her from her husband and contended that the rule laid down in the Act of 1856 cannot apply to a case covered by the Act. The counsel relied upon some observations made in Mulla's Hindu Law, 1966 Edition, page 796.

The rule laid down in that enactment cannot apply to a case covered by the present Act and a widow becomes full owner of the share or interest in her husband's property that may devolve on her by succession under the present section. Her remarriage, which would evidently be after the vesting in her or her share or interest on the death of the husband, would not operate to divest such share or interest. The Hindu Widows' Remarriase Act, 1856, is not repealed but section 4 of the present act in effect abrogates the operation of that Act in the case of a widow who succeeds to the property of her husband under the present section and Section 14 has the effect of vesting in her that interest or share in her husband's property as full owner of the same.

It was also urged that the interest contemplated by Section 2 of the Act of 1856 is confined or limited to her life time and that it will not apply to an absolute interest legally acquired by the widow. In support of this, reliance was placed on Lakshmi Ammal v. Thangavel Asari, AIR 1953 Mad 977 and Ballabha Pani v. Jasodhara Pani, ILR (1965) Cut 398. The learned counsel emphasised the following observations in Lakshmi Ammal's case, AIR 1953 Mad 977 :--

"The words 'shall upon her remarriage cease and determine as if she had then died; and the next heirs of her deceased husband or other persons entitled to the property on her death, shall thereupon succeed to the same.' afford the clue to the scope of the section. They indicate that the interest contemplated by the section is confined or limited to her lifetime. The section will not apply to an absolute interest legally acquired by the widow."

In this case, the following observations made in an earlier decision reported in Bangaru Reddi v. Mangammal, AIR 1947 Mad 163 were quoted :--

"It is clear that this section has no effect on property belonging to the widow absolutely on the date of the re-marriage."

16. I have given very careful consideration to the matter and have felt inclined to accept the position taken on behalf of the respondent for reasons which follow:--

1. The present Act provides that the widow succeeding to her husband shall take an absolute estate. It further provides that any limited estate which the widow inherited before the promulgation of the Act shall be converted into absolute estate if the widow had been in possession of the estate at the time of the promulgation of the Act. The Act further makes a widow a fresh stock of descent. Section 2 of the Act of 1856 contemplated the inheritance of limited estate by a widow and does not treat her as a fresh stock of descent and provides for the vesting of the property forfeited by the widow on her husband's heirs. There is thus some kind of inconsistency between the provisions of Section 2 of the Act of 1856 and the provisions of the present Act. While in the present Act the property has to he inherited by the widow's heirs under the Act of 1856 the property vests in the husband's heirs. This inconsistency should not be brushed aside because the scheme of succession indicated in Section 2 is not repugnant to the scheme of succession under the Act as has been done by Shri Gupte in his observations quoted above. In principle, there is an inconsistency between the two enactments on account of the widow being treated as a fresh stock of descent in one case and not so in the other. In this view of the matter, it must be held that Section 2 of the Act of 1856 cannot apply to a widow who has become full owner under the provisions of the present Act.

17. In this view, I am supported by the provisions embodied in Section 24 of the Act. This section lays down that

"any heir who is related to an intestate as the widow of a pre-deceased son, the widow of a pre-de-ceased son of a pre-deceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has re-married."

To constitute a disqualification for succession according to this provision remarriage must have taken place before the opening of the succession and this section does not provide for the divesting of the estate vested in the widow on her remarriage subsequent to the date the succession opens. When the widows specified in Section 24 do not forfeit the property vested in them on remarriage it will be hardly proper to hold that the widow of intestate himself should forfeit the property on remarriage even after she has become absolute owner. It is true that Section 24 of the Act does not include the widow of the intestate but the omission appears to be due to the fact that it is not possible to conceive of a person leaving a widow who had remarried. I am clear that while the principle embodied in Section 24 of the Act points out towards the non-applicability of Section 2 of the Act of 1856 to a widow succeeding or acquiring absolute estate under the Act, the omission of the intestate's widow in Section 24 cannot lend support to a contrary view.

18. There is yet one more consideration very strongly persuading for the adoption of the above view Indisputable the social, economic and political conditions changed tremendously during the past few de-cades. The old attitude towards the women changed considerably and it is sometimes expressed that the progress of civilization moves parallel with the progress of women. In the present conditions women do earn and acquire property and husbands are entitled to inherit partially or wholly the property of their wives. There is no process providing for the forfeiture of the property inherited by a husband from a deceased wife on his contracting a re-marriage. Naturally, in these changed conditions there was a strong movement for remedying the defects of the old Hindu Law of Succession showing very scant regard for the women and for according equal status and treatment to the women in the matter of succession which eventually culminated in the promulgation of the Hindu Succession Act Considering the social and economic back-ground, the movement for the reforms in the old Hindu Law of Succession to secure equality for the females and the scheme of the Act under which the widow inherits an absolute estate from her husband and is made a fresh stock of descent, it will be in furtherance and promotion of the objects sought to be achieved by the Act to hold that Section 2 of the Act of 1856 cannot affect the position of a widow re-marrying after the promulgation of the present Act.

19. In this view of the matter, the second contention of the counsel for the appellant that Mst. Champi Bai got divested of the property which she inherited from her husband Kachru on account of remarriage cannot be accepted and is rejected.

20. The only two contentions advanced on behalf of the appellant's counsel having failed, the appeal is without force and is dismissed with costs.