family law: Adoption, guardianship, succession

 

Guardianship Under The Family Law

Guardianship basically implies the legal authority and corresponding duty of a person to care for another person ( a child, disabled, an aged old person, etc) relating to his body or the property. Any person under the protection of another is commonly known as ward. Guardian is a person who takes care of an individual who is below the age of 18 years and his personal affairs as he is incompetent to manage them on his own under family law.

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Who Are Guardians And What Are His Rights?

A guardian is a person who makes important decisions about the children’s life. He/ She takes all the duties, rights and responsibilities and powers that a parent has in bringing up that child. A guardian may be classified as natural or by relationship(Testamentary) or by appointment of the court. A guardian has the following rights:

  1. Right to custody,
  2. Right to determine the religion of the child,
  3. Right to education,
  4. Right to control movement,
  5. Right to reasonable chastisement,
  6. Represent the minor in litigations,
  7. Get compensation for legal expenses from minor’s property,
  8. Sue the minor after he attains majority to recover expenses on his necessities,
  9. Refer matters to arbitration if it is in the best interest of the minor

For the purpose of guardianship under the family law there are basically two acts that govern it:

  1. Guardianship and Wards Act,1890,
  2. Hindu Minority Guardianship Act,1956

Guardianship Under Hindu Law

The Hindu law of guardianship of minor children has been reformed, codified and defined by the Hindu Minority and Guardianship Act,1956. Thus, Section 4(b) of the act states that a minor means a person who has not completed the age of eighteen years. He is considered to be a person who is physically and intellectually imperfect and immature and hence needs someone’s protection.

Section 6-9 deals with the concept of the various types of guardians under the Hindu law and what are the various rights and duties that are present in the guardian and what are his liabilities and restrictions.

There are certain cases under which the guardianship of the child is given to either of the parents:

Case 1– If the couple has either a boy or an unmarried girl (legitimate), then, the first guardian would be the father and after the father will be the mother, but in case of a child who is less than 5 years of age, the custody of the child would always be with the mother unless the father after his death has appointed someone else as the guardian of the minor child.

Case 2– If the couple has an illegitimate boy or girl, then the first guardian of the child is the mother and after mother, guardian is the father unless the mother after her death has appointed a person to be the natural guardian of the minor child.

Case 3– If the couple have a daughter and she is married then the guardian of the married daughter will be his husband.

Removal of A Guardian

The court has the power to remove any guardian in accordance to the Section 13 of the Hindu Minority and Guardianship Act,1956:

  1. If he ceases to be a Hindu,
  2. If he becomes a hermit or ascetic,
  3. The court can remove him if his interest are against the interest of the minor. 

The welfare of the minor is of paramount importance while deciding such things.

Guardian Under Muslim Law

The source of law of guardianship and custody are certain verses in the Quran and a few Ahadis. These authorities on Muslim law emphatically speak about the guardianship of the property of the minor, the guardianship of the person is a mere inference and since the Muslim personal law is not codified like the other laws there are certain concepts and terms that we study under this.

Power Of Guardian

  1. Power of alienation,
  2. Power to grant the lease,
  3. Power to carry on business on behalf of the minor child,
  4. Power to conduct partition,
  5. Power to incur debts and enter into contracts.

Further, the Muslim law deals with the concept of the natural guardian, testamentary guardian and guardians appointed by the court and also covers the concept of custody in terms of de facto, custody and guardianship which are of utmost importance which have been defined under the muslim law in detail as the muslim law is not a codified law there are concepts related to every aspect.

Guardian Under Christian Law

As Christian law itself does not have any specific law thus it is governed by the Guardianship and Wards Act of 1890 under which it talks about the title, duties, powers, rights and restrictions of the guardian as per section 19 to 29 and various other sections discussing the same under the Christian law. 

Guardian Under Parsi Law

Under the Parsi law, there is no general law for guardianship but still, it is permitted by a statue amongst the Hindus and by custom among some numerically insignificant categories of the person for which they have to approach under the Guardians and Wards act of 1890. Since, Muslim, Parsi and Christian have no adoption laws so once a minor child under a foster care becomes major, he is free to break all his relations and also the law which is applicable to the guardian takes place outside the country.

Adoption Under Family Law

Adoption in the simple language implies the transplantation of a son into one family in which the son is born in another family. Adoption is to be carried on with all the legal proceedings and it is a mode of affiliation as the son of an individual, of one of whom he is not the natural son.

Adoption is one of the concept that has evolved over the years where it has been seen that earlier only a male could adopt a child but now a female can also adopt and even if a single parent wants then he can also adopt within the framework of the existing laws.Adoption as a practice is not followed in most of the personal laws. Under Muslim and Christian law adoption is prohibited but it is practised under the Hindu law due to the various self-beliefs and faith.

Adoption Under Hindu Law

This act of Adoption under the Hindu law can be done in two ways:

  1. Within-country adoption,
  2. Inter-country adoption,

The Intercountry adoption is governed by the Juvenile Justice Act. Under which there is an agency which is also known as the Central Adopted Regulating Authority.

The rules and policies regarding the inter-country adoption were properly laid down in the landmark judgment of Laxmikant Pandey vs Union of India in the year 1984 after which inter-country adoption rules and regulation got a new dimension.

The Hindu law from the very beginning allows for the adoption due to certain religious beliefs. For Example– There are certain obligations in the Hindu law that are required to perform by the son, for that purpose adoption is necessary. Thus, the Hindu law allows the adoption of a child under the Hindu Adoption and Maintenance act, 1956 and every adoption has to take place with in conformity of this act and any contraventions of the provisions of this act will be void. 

This act earlier was of the concept that only a male can adopt a child but later in amendment came and now a female can also adopt.  is applicable in the whole of India except the state of Jammu and Kashmir and applies to any person who is a Hindu. Section 6-17 of the Hindu Adoption and Maintenance Act, 1956 talks about who can adopt, what are the essentials for a valid adoption, conditions for a male and female to adopt, who can be adopted, what are the rights and relationship in the eyes of the law between the parents and the adopted child etc. 

Adoption Under Muslim Law

The Islamic law does not recognize the concept of adoption unlike the Hindu law and this was also proved in the landmark case of Mohammed Allahabad vs Mohammad Ismail where the court held that there is no concept of adoption under the Mohammedan law similar to adoption as under the Hindu system but the Muslim law acknowledges the concept of paternity.

The basic difference between the two is that under adoption, the person who is adopted is called as the son of another person while in paternity the essentials of acknowledgment are that the acknowledgee must not be known son of another.

Exception- If the person who wants to adopt has the orders of the court to adopt under the guardianship and wards act of 1890 can adopt.

Adoption Under Christian And Parsi Laws

The personal laws of these two communities do not recognize adoption and they do not have any laws for adoption but they can adopt a child only one circumstance that is by obtaining permission from the court under the Guardians and Wards Act of 1890 to adopt a child from a foster care. Thus, once the child under the foster care becomes a major hr ahs freedom to break all his relationships as such child does not possess the legal right of inheritance.

Succession Under Family Law

Succession basically means the transfer of property belonging to an individual after his demise to some other individual. Thus, the succession can take place in two ways:

  • Testamentary Succession: When a person dies after making a will of his personal property, 
  • Intestate succession: when a person dies without making a will of his personal property,

Thus, the succession laws that govern the various communities and religions are shown in the table below.

succession

What Is A Will?

A will is a document in which a deceased person entrusts his property to be distributed  be assets to be distributed according to his wish. Section 2(h) of Indian Succession Act, 1925 provides that Will means the legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death. The following are the terms related to a will:- (See Here)

Codicil

Codicil is an instrument made in relation to a Will, explaining, altering or adding to its dispositions and is deemed to be a part of the Will. The purpose of codicil is to make some small changes in the Will, which has already been executed. The codicil must be reduced to writing and has to be signed by the testator and attested by two witnesses. It is also the duty of the court to arrive at the intention of the testator by reading the Will and all the codicils.

Executor

An executor is appointed by the testator, as distinguished from an administrator who is appointed by the court. Where the Will confers the powers to collect the outstanding, pay debts and manage the properties, the person can be said to be appointed as an executor by implication.

Probate

It is an evidence of the appointment of the executor and unless revoked, is conclusive as to the power of the executor. The grant of probate to the executor however does not confer upon him any title to the property.

Letter of Administration

It is a certificate granted by the competent court to an administrator where there exists a Will authorizing him to administer the estate of the deceased in accordance with the Will. If the Will does not name any executor, an application can be filed in the court for grant of Letter of Administration for the property

Attestation of Will 

Attestation means signing a document for the purpose of testifying the signature of the executants. Therefore an attesting witness signing before the executants has put his mark on the Will, cannot be said to be a valid attestation. It is necessary that both the witnesses must sign in the presence of the testator but it is not necessary that the testator have to sign in their presence. Further it is not necessary that both the witnesses have to sign at the same time. It is also not necessary that the attesting witnesses should know the contents of the Will. 

Under The Hindu Law

The Hindu Succession Act of 1956 governs the Hindu succession which covers any person who is a (Jain, Buddhist or Sikh). The Hindu law deals with the concept of Joint(Ancestral) and Separate property. This act is a comprehensive system passed by the Parliament of India enacted to amend and regulate the Intestate and Testamentary Succession under the Hindu law but in some cases, the Indian succession act plays a major role.

Under the act, Section 5-29 talks about the intestate succession related with the concept of women as a coparcener(Sections 6 & 7), male interstate and their order of succession(Section 8-13), female intestate and their order of succession (Section 14-16), other relationships and rights (half-blood, full-blood, child in a womb etc) has been dealt under (Section 17-29) of the Hindu succession act.

Part VI of the Indian Succession Act, 1925 starting from Section 57 expressly recognizes the right of a Hindu to dispose of his property according to the will made by him (Testamentary Succession).

This Part applies to all the wills and codicils made by a Hindu, Jain, Si or Buddhist on or after the first day of September, 1870. It does not apply to any will or codicil made before the first day of January, 1866. It is divided into chapters which contain relevant sections related to form and construction of a will, wordings in the will, execution of wills etc. Schedule III provides for sections which are applicable to wills and codicils under Hindu law subject to restrictions.

Earlier women were not treated equally as the male and did not have the same rights in the property but after the amendment in the year 2005 now they are treated equal and possess the same right as the male and now they can also become either a karta or a coparcener after the amendment earlier if which they did not possess the right.

Under The Muslim Law

The Muslim law is governed by its own law own known as the Shariyat. The Muslim law does not recognize the concept of separate property.

There is only one single property with same(general rules such as rule of representation, rule of exclusion, rule of primogeniture, rule of vested inheritance and of spec successions) for both the male and female succession, if a Muslim individual dies without making a will then, after the death of an individual the per the laws the property under his ambit of ownership would be distributed among the legal heirs after deducting some expenses and liabilities after which the remaining property which is also known as the Heritable Property.  The Muslim law for succession constitutes as follows:

  1. The Quran,
  2. The Ijma,
  3. The Sunna,
  4. The Qiya,

Distribution Of Property

Under the Muslim law, there are two schools known as the Shia and Sunni school of law. Under the Shia law the property of the deceased person is divided as PER STRIP which also means per relationship their share in the family thus the quantum depends upon the branch in which they are and also the number of people that are present in their branch while under the Sunni law, the heritable property is divided as PER CAPITA which also means per head according to which they get equal share in the heritable property.

Inheritance Under The Sunni Law

  1. Sharers,
  2. Residuaries,
  3. distant kindred. 

The sharers are the person who is directly entitled to a certain amount of share in the property as per capita and it is fixed by Koram(12) and after the sharers if any property is left it goes to the residuary and even after the residuary have taken their shares it will go back again to the shares.

Distant kindred are those relations which are neither sharer nor residuary and property will go to them only if no sharers or residuaries is alive. The right of inheritance in Muslim law comes with birth, a child in a womb does not possess any right, he will have an equal right in the property only if he is born alive in the family and the shaiyat law even talks about the number of shares in cases of a widow with children and other cases and if any person dies without any legal heirs then his whole property goes to the government in the process called as Escheat

If a Muslim man or women wants to make a will of his property then he can only make a will of the one-third property and not more than that and the remaining property will go to the legal heirs in depending and if the person wants to will more than one-third property then he has to take the consent of the other legal heirs and if he has not taken the consent of the other heirs and wills more than his right of one-third the share property after his death to the person willed will be only to the extend of one-third.

Inheritance Under The Shia Law

The order of succession under the shia law are as follows:

  1. Heirs by consanguinity,
  2. Heirs by special case
  • Group 1( parents and children and descendants of children)
  • Group 2( grandparents, brother and sisters and their descendants)
  • Group 3( paternal and maternal aunt and uncles)

Doctrine Of Aul And Radd:

There are cases where arises a situation in which the total sharers exceeds the heritable property, then the share is decreased proportionately. While in the case where the share of sharers is less then the heritable property the remaining part goes to the residuary and if no residuary then it passes on to the distant kindred.

In case of a testamentary succession, the following happens:- (See Here)

Revocation of Muslim Wills:

A will is, by its exceptional nature, revocable. A testator may,  whenever he feels like, revoke his will explicitly or implicitly. In this manner, when the deceased testator demolishes the topic of his inheritance, or totally changes its inclination, or exchanges it to someone else, revocation might be construed.

In any case, the marriage of the testator after the making of the will does not revoke the will. This rule of Muhammadan Law is totally different from the rule under Indian Succession Act, 1925 where marriage of the testator revokes his will.

Lapsing of Legacies:

Sunni Law

If the legatee does not survive the testator, the inheritance lapses and forms some portion of the testator’s estate.

Shia Law

If the legatee does not survive the testator, the inheritance does not lapse but rather goes to the beneficiaries of the legatee. It is just when the legatee has no beneficiaries, that the inheritance lapses.

Abatement of Legacies

Sunni Law

If the bequests surpass the bequeathable third, and the heirs don’t consent, under the Sunni law, the inheritances abate rateably. Inheritances for pious objects are likewise diminished pro­portionately as bequests for common purposes, and don’t have priority over them.

Be that as it may, estates for pious objects are themselves separated into three classes : 

  1. mandatory philanthropies, e.g., an inheritance for the execution of Hajj in the interest of the expired; 
  2. suggested, yet not required, e.g., an endowment for philanthropy on the below average overshadow those of the third.
Shia Law

This law does not perceive the standard of abatement. Of a few bequests, the first in time prevails until the point that the bequeathable third is depleted. Where a few estates are to be found in a will, need is determined by the request in which they are mentioned. It is to be noted, in any case, that where there are successive bequests of the correct third to two different people, the later inheritance prevails.

Devolution of Inheritance:

A deceased Muslim’s estate vests in his heirs instantly on his death, and it might be distributed among his heirs even before the payment of his debt, unless the estate is indebted. Prior to the distribution of the deceased person’s estate, every one of the heirs are mutually at risk to pay the debt due from the deceased to the extent of the assets received. After circulation, every heir’s liability is proportionate to the share of the assets that goes to his hands.

Position of an Executor of a Muslim Will:

Under the strict Muhammadan law, an executor was simply an administrator to complete the intentions of the testator He was a trustee named by the testator to protect and deal with his property and kids after his demise. He was not the lawful proprietor of the property of the deceased and the property did not vest in him. He had no energy to offer or contract or estrange the property in some other way.

Yet, now, under the provisions of Section 211 of the Indian Succession Act, 1925. an executor of a Muslim’s will is his legal representative for all reasons, and all the property of the deceased vests in him; in this manner, he has the ability to dispose of the property at the appointed time.

Probate of a Muslim will, when Necessary:

A will made as per Muslim law may, after due verification, be conceded in evidence, though no probate has been acquired.

The situation of the executor of a Muslim will is administered by the Indian Succession Act, 1925. The property of the testator vests in him and can be sold and passed on by him, without taking a probate or getting the assent of the considerable number of heirs. (Sec. 307 of the Indian Succession Act, 1925).

Nor is it essential, if there should be an occurrence of intestate succession, that his heirs ought to acquire letters of administration to establish their entitlement to any piece of his property. (Secs. 212 and 213 of the Indian Succession Act, 1925). An oral will may, after evidence, be confessed to probate.

A Muslim whose marriage is solemnized or registered under the Special Marriage Act, 1954, is governed by the exemption made by Sec. 213(2) of the Indian Succession Act, 1925. In a similar manner, a probate isn’t vital, and a succession certificate can be allowed under Sec. 370 of that Act.

The main situation when a title of representation is important is the point at which it is should recover a debt due to the deceased through the Court. No Court can pass a declaration against the indebted person of a deceased Muslim for payment of his debt to a man guaranteeing on succession to be qualified for the impacts of the deceased, or continue upon an application of a man asserting to be so entitled, to execute against such a debtor a decree or an order for the payment of his debt, aside from the production, by the individual so asserting, of a probate or letters of administration or a succession certificate.

Alienation by a Heir of his Share before Payment of Debts:

Indeed, even before the distribution of the estate, an heir may exchange his own particular share, and pass a decent title to a real buyer for a particular value despite the fact that the debts of the deceased are not paid.

A creditor of a deceased Muslim can’t follow his estate under the control of a bonafide buyer for incentive to whom it has been alienated by his heir-at-law. Subject to S. 52 of the Transfer of Property Act, each heir of the deceased Muslim is entitled:-

  1. To discard his offer in any way he prefers; and
  2. To pass a decent title to a bonafide buyer for a particular value, despite the fact that the debts of the deceased yet stay unpaid.

In this manner, even before the dissemination of the estate:-

  1. If any of the heirs exchange his own share to a bonafide transferee for value, or
  2. If his offer is sold in execution of an announcement go against him,

It passes a decent title to the transferee or to the buyer, all things considered, despite any debts that may be expected from the deceased.

Legitimacy of Alienation of the Whole Property for Payment of the Deceased’s Debts:

The inheritance of a Muslim vests at his death by a particular title in every individual heir. A sole heir can’t speak for the whole estate of the deceased, and can’t manage the shares of co-heirs without their assent.

Consequently, an alienation of the entire of the property of an expired Muslim by one of his few heirs despite the fact that he is in possession, and regardless of whether it be for the payment of debts of the deceased, isn’t authoritative upon his co-heirs. Such alienation works as an exchange just of his enthusiasm for the property.

Declaration against a Heir, if Binding on Other Heirs:

A creditor’s suit is an administration suit, and any heir in possession of the estate represents the estate for the purposes of the suit. Therefore, if a creditor of a deceased Muslim obtains a decree against some of his heirs, the decree is binding on the other heirs.

However, this would be so only if:

  1. The decree was not a consent decree or a decree obtained by fraud; and
  2. The heir who is sued is in possession of the estate on behalf of the other heirs, and not on behalf of himself. 

Under The Christian Law

The Christian law of succession is regulated by the Indian Succession Act, 1925. Part IV and V of the Indian Succession Act governs Christian law of succession. Section 2(d) of the act specifically defines an Indian Christian and section 23-49 deals with the Christian succession. Under the Christian law, the concept of separate and ancestral property is recognized. The succession is different in cases of both male and females:

Male Intestate Succession for Indian Christian:

  • When the deceased has left a widow but no lineal descendant or a collateral, the widow takes the entire property,
  • If there are lineal descendants then the widow takes only one-third share of the property,
  • If there are no lineal descendants but there are ascendants and collateral, the widow gets half of the property.
  • In the absence of the widow if there are lineal descendants with the different degree then the share will go according to per stirpes and if the lineal descendants are of the equal degree then the share will go according to the per capita rule.
  • When there are no lineal descendants then after the share of the widow is deducted, then the remaining half goes to the father of the deceased.
  • If the father is dead then it goes to the mother and if the mother is also dead then it goes to the brother and sisters and to their children.
  • If the parents of the lineal descendants are not there, then the relatives who are nearest will take the property.

Female Intestate Succession for The Indian Christian:

  • The husband of the deceased has some rights which widow has in respect of the husband’s succession in the points mentioned above, the difference is that the widow word is replaced with the term widower.

Intestate Succession for Other than Indian Christian:

  • When there are no lineal descendants the widow or widower is entitled to first Rs. 5000/- out of the estate. 
  • If the amount is more than Rs5000/-it devolves as follows:
  • A Christian dies leaving behind a widow, 2 sons and 2 daughters then the estate would be distributed equally between them.

Testamentary Succession for Indian Christians

Section 59 of The Indian Succession Act, 1925 deals with testamentary succession stating that any person of a sound mind may dispose off his property by a will provided that he is not a minor. It is further expanded to those persons who are blind or deaf or mute and married women who have the capacity to make a will are entitled to dispose off their property by a will. Part VI of the Act includes Sections 57 to 190 deal with all the issues regarding wills and codicils, making and enforcement of wills, formality needed for wills etc. (See Here)

Under The Parsi Law

The special rules of succession under the Parsi laws are governed by the Indian Succession Act, 1925. Section 50- 56 of the act specifically talk about the Parsi laws of inheritance.

Under the concept of intestate succession where there is no will then:

  • Any person who inside the womb of mother at the death of father but is born alive after the death of father will have a share which is equal to the share of a person who is alive.
  • If a lineal descendant dies before the death of the deceased Parsi without leaving any legal representative then his share will not be in consideration,
  • If a widow or widower of any relative marries again during the lifetime of the intestate Parsi, such widow or widower is not entitled to any share in the property of the deceased Parsi.

General Rules

  • In case the deceased leaves only either widow and children or only children after his death then the share would be taken as per capita.
  • If in case the parents also survive after the deceased death then the fathers share is half of the son and mothers share is half of the daughter while the widow, son and daughter will get the share as per capita.
  • If a Parsi dies leaving behind a widow or widower and his lineal descendants then the share that the survivors and the relatives will get has been defined specifically under section 50-56 of the Indian Succession Act.
  • Lastly, where there is no relative as Where there is no relative as specified above, the property of the Parsi who has died intestate shall be divided equally among those of the intestate’s relatives who are in the nearest degree of kindred to him.

Gift

A gift is a transfer of existing movable or immovable property made voluntarily and without any consideration by a person called donor to the other person called donee and accepted by or behalf of the donee followed by immediate delivery of possession of the subject matter. Gift is a transfer of property applicable only in Muslim law. 

What Are The Valid Requirements Of A Gift?

There are three main requirements of a gift:-

  1. Parties to the gift (donor and donee)
  2. Subject-matter of the gift
  3. Essential ingredients of making of a gift:
  4. Declaration (Ijab) by the donor
  5. Acceptance (Qubool) by the donee
  6. Immediate delivery of possession (Qabza)

Donor

Any Muslim who is a major, of sound mind, competent to contract and owner of the property is eligible to make a gift of his property. The age of majority is 18 but in case a guardian is appointed, the age of majority is 21. The gift can be made by a woman too.  While making a gift, the financial obligations of the donor are immaterial.

Donee

Any person can be a donee. Even a person:-

  1. Who is a minor; or
  2. Who is of unsound mind; or
  3. Who is incompetent to contract

is capable of being a donee. The donee must be a juristic person who is capable of handling a property. Gifts given:-

  1. to an unborn person is void except if it is given in way of maintenance for life and to his male heirs not in existence at that time. 
  2. to a child in womb is valid provided he is born within 6 months of making of the gift. 
  3. to a non-Muslim is valid.

Subject-Matter Of Gift

Subject-matter of a gift can be a property which can be owned. Property can be either movable or immovable, ancestral or self-acquired, corporeal or incorporeal.

Essentials Of A Valid Gift

Declaration

Offer to make a gift must be declared voluntarily and with free consent. Declaration can be made in form of a will as well. Declaration cannot be made in isolation and has to be made in presence of witnesses or by way of public statement. 

2. Acceptance

The gift must be accepted by the donee if he is competent to accept it himself or by a competent person who can accept the gift on behalf of the donee if he lacks capacity to accept it himself. In case of donee being a minor or person of unsound mind, the gift can be accepted by the guardian of his property. Guardian can be his father or paternal grandfather as executor appointed under the will. Gift can also be accepted by a person other than the guardian.

3. Delivery of Possession

Under Muslim law, a gift is invalid if it is not delivered. It is essential that the owner must completely divest himself of the ownership and control of the property and vest it to the donee. If the gift is of a movable property it must be delivered and in case of an immovable property, the donor must:-

  1. vacate the property with his belongings that would signify his relinquishment of total control.
  2. put the donor in possession.

The physical departure of the donor and entry of the donee must be shown.                     In case of an immovable property not in possession of the donor at the time of making a gift, he can complete the gift by some overt act which shows his bonafide intention. 

There are some exceptions to the rule that gift is invalid if it is not delivered:-

  1. Gift made by a husband to his wife or vice versa.
  2. Gift from a father to the minor child or by guardian to the ward. 
  3. Donor and donee reside at the same property which is the subject matter of the gift.

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