P L D 1947 Privy Council 375 (PLP)

LORD NORMAND.-The parties to this appeal are Jains of the Khandelwal sect domiciled and resident in Ajmer. The respondent is the sonless widow of a certain Ratanlal and on 22nd May 1919, she executed a deed by which she adopted or purported to adopt the appellant to her deceased husband. After the execution of this deed the parties lived in the same house, but disagreements arose into which it is not necessary to enter. Finally, the present suit was commenced in November 1930. The appellant, founding on his adoption, sought inter alia to restrain the appellant (respondent ?) from wasting the family property, and the respon dent in her defences challenged the validity of the adoption and alleged that Ratanlal had never given her authority to adopt a son to him. This allegation was made because under the general Hindu law adoption by a widow without the prior authority of her husband is not recognised (Mulla, Edit. 7, p. 516), and because it is also an established principle that the rules of Hindu law generally apply to Jains in the absence of special custom varying the law. Apart from a belated and unsuccessful application to amend his pleadings, the appellant did not allege a special custom by which a sonless Jain widow in Ajmer is entitled to adopt a son without the prior permission of her deceased husband. It was therefore necessary for him, since the respondent gave evidence in support of her allegation that she had no authority from her husband to adopt a son, to maintain that the custom was so well-known and so well established by judicial decisions that it was no longer necessary to plead and prove it in the Ajmer Courts. The Sub-Judge, after considering the authorities, upheld the appellants contention, but his decision was reversed by the Judicial Commis sioner of Ajmer-Merwarn. The sole question in the present appeal is whether the decision of the Sub-Judge is well founded and ought now to be reaffirmed by this Board. The question is one of degree. It is not doubtful that the ordinary rule is that a party relying on a custom affecting the Jains which is at variance with the ordinary Hindu law must' allege and prove it. But it is equally beyond doubt that a custom which has been recognised and affirmed in a series of decisions, each of them based on evidence adduced in the particular case, may become incorporated in the general law, with the result that the' onus of proof no longer lies on those who assert it but upon those who assert an exception to it. These are familiar general principles which are acknowledged by both the parties to this appeal, but the respondent denies that the decided cases in which the custom has been found proved have been either so widely distributed or so clearly applicable to all sects of the Jains as to enable a Court to say that the custom has become part of the personal law of the Jains either in India as a whole or in some defined part of India. It is in the North-West Frontier Province that the custom has been most frequently recognised by judicial decisions. The earliest case which need be considered is Sheo Singh Rai v. Mst. Dakho (5 I A 87) In that case the parties belonged to the Agarwal sect of Jains and were domiciled in the North West Frontier Province. The custom was alleged in that case and evidence from Jains in Delhi, Jeypore, Muttra and Benares was led in support of it. The custom was held by the High Court and by this Board to have been proved. The learned Judges of the High Court dealt with the question as one of personal law affecting Jains as such and without regard to particular sects of Jains and they gave considera tion to decisions pronounced not only in the North West Frontier Province but in other parts of India. They proceeded on the principle that the Jains as dissenters from orthodox Hinduism are in certain respects subject to the law of their own proved usages and not to the lex loci. In an account of the history and religious tenets of the Jains, they said : "They differ particularly from the Brahminical Hindus in their conduct towards the dead, omitting all obsequies after the corpse is burnt or buried. They also regard the birth of a son as having no effect on the future state of his progenitor, and, consequently, adoption is merely a temporal arrangement and has no spiritual object." It was in the view of the Court in this attitude towards death and existence after death, differing as it does so vitally from the religious beliefs of the Hindus, that the custom took its origin. Both in the judgment of the High Court and in the judgment of this Board it was assumed that the custom was not confined to Agarwals but was shared by all the Jain sects, and there is no doubt that the reason underlying this assumption is that all Jain sects, have the same views on death and on existence after death In Lakhni Chand v. Gatto Bai (8 All. 319) the High Court at Allahabad had to consider whether a Jain widow could make a second adoption. The Court decided this question in favour of the adoption after considering evidence adduced by the parties. But they also dealt incidentally and apparently independently of evidence with the question whether a sonless widow of a Jain could make an adoption without the antecedent permission of her deceased husband, and they affirmed her capacity to do so. Once more no distinction was drawn between the various Jain sects and the custom was treated as applying to them all indifferently. The custom was again considered and judicially affirmed in Manohar Lal v. Banarsi Das (29 All 495) and again the issue was whether the custom prevailed among the Jain community generally and differences of sect were ignored. The High Court cited with approval Sarkar's Tagore lectures of 1888, in which it was said, at p. 453 of Edn. 2, that a Jain widow is competent to adopt a son without having obtained authority to do so from her husband. Sarkar, whose authority commands the highest respect, also connects the special customs of the Jains in matters of adoption with the fact that for them adoption is a purely temporal institution and is not affected in its incidents by the religious considerations which have influenced the Hindu law of adoption. Asharafi Kun war v, Rup Chand (30 All. 197), does not carry the matter further. In Banarsi Das v. Sunaat Prasad (58 All. 1019) the parties were Agarwal Jains. The authorities, including decisions in other parts of India, were fully considered by the High Court, and at p. 1031 the learned Judges came to this conclusion " As will appear from the cases referred to above, the custom under which a Jain widow can adopt a son to her husband without her husband's authority or permission of his kinsmen has been recognised by judicial decisions since 1833 in different parts of the country, that is Bengal, Central Provinces, United Provinces and the Punjab. In our opinion these decisions are sufficient to hold in this case the existence of the custom, and it is no longer necessary to prove it in each case by oral evidence." The Calcutta cases point to the same conclusion, though none of them can be said to have arrived at it. In Manih Chaud v. Jagat Settani (17 Cal. 518), a Jain widow of the Oswal caste was held entitled to adopt a son without the authority of her deceased husband. The judgment of the High Court was based partly on evidence and partly upon authority, and the learned Judges thought that the custom was prevalent among Jains generally and was not peculiar to any tribe or caste among them. This was still more clearly affirmed in Harnabh Pershad v. Mandil Dass (27 Cal. 379 at p. 391) the learned Judges of the High Court say. " The defendant is not setting up a local custom ; his case is that the customs relied on prevail among all the Jains who are now a scattered community It would be impossible to prove the existence of a custom prevalent amongst the Jains generally by evidence of a purely local character, but if the general custom is proved, the question might arise whether the Jains of any particular locality had adhered to or departed from it, and that would depend upon the facts and circumstances of each case." In that case the Court relied both upon previous decisions and upon the evidence of witnesses resident in various districts west of Arrah, where the parties resided, and extending up to Delhi and Karnal and also witnesses residing in Calcutta, Moorshedabad and Gaya to the east of Arrah. These witnesses included persons who belonged to all the principal Jain sects. Upon this evidence the comment was made that a widespread belief in the custom existed and was acted on. Bat the Court was not yet prepared to hold that the existence of the custom must be recognised without further proof as applicable to all Jains ; for, it was felt that to do so would be inconsistent with the rule laid down by this Board in Chotay Lall v. Chunno Lall (6 I A 15) that, " the customs of the Jains, where they are relied upon, must be proved by evidence as other special customs and usages varying the general law should be proved, and in the absence of proof the ordinary law must prevail." In Sheo Kuar Bai v. Jeoraj (25 C W N 273) however, this Board went further in recognising the custom than it had done forty years earlier. There had been in the interval authoritative decisions which had shown that the custom existed in areas about which there had been no decisions in 1878. It was said to be common ground in the case that the widow of a sonless Jain can legally adopt to hi n a son without any express or implied authority from her deceased husband to make an adoption and it is but a short step from this to the proposition that the custom must now be regarded as established in the absence of proof to the contrary. In Ajmer itself only one case before the present seems to have come before the Courts. In it Dhannalal v. Ratanlal ((1927) Supplement at p. 42) the Judicial Commissioner remarked that he assumed that a Jain widow could adopt a son without her husband's authority and that this was the rule in Western India. The observation was, however, obiter and the case was decided on other grounds. In Bombay the question cannot arise in the same form as in this case, because there the widow even of a Hindu is permitted to adopt without her deceased husband's authority. This is recognised by the Court of Appeal of Bombay in Bhagvandas Tejmal v. Raitnal (10 Born. H C R 241) at pp. 256 and 257, by Mulla in his Principles of Hindu Law at p. 528, and by Rattigan in his Digest of Customary Law, 1898, p.

206. Accordingly there is no need in Bombay to assert a Jain custom differing from Hindu law on this point. In the Punjab the law of adoption is complicated by the local customs of the province, and it would not be possible to draw from the customs of the Punjab any general inference affecting other provinces. Mayne, in his treatise on Hindu Law and Usage, states at p. 210 that the custom appears to vary in the Punjab and this statement was not displaced by those authorities which were cited. Thus, in Prem Sagar v. Rana Goal (A I R 1929 Lah 814) it was held that the evidence had failed to prove the custom, but in Sundar Lal v. Baldeo Singh (14 Lah 78) the opposite conclusion was arrived at. No certain conclusion can be drawn either in favour of the appellant's contention or against it and in any generalisation of the right of a Jain widow to adopt without her deceased husband's consent it would be prudent to omit the Punjab. In Madras, the authorities are against the custom. They were decided on the particular evidence adduced, but there are in them observations which are pertinent to the general question. In Peria Ammani v. Krishnaswami (16 Mad. 182) Best J. says, at p. 193. "It is open to question whether among the converts to Jainism in the Southern District of the Presidency-to which the parties to this suit belong-there was any drifting away from Hinduism as far as the law regulating the devolution and alienation of property is concerned, and with regard to the powers of a widow to alienate property or to make an adoption to her husband without authority from her husband or his kinsmen." There was, too, in the case evidence from accredited witnesses that among Jains in Southern India widows have no greater power in regard to adoption than is possessed by widows under the ordinary Hindu law. In Gettappa v. Eramma (50 Mad. 228) the Officiating Chief Justice felt compelled by authority to lay the onus of proof on the party alleging the custom, and Curgenven J reached the same conclusion, but remarked that it was not yet possible to accept the view that this custom had so often beets found to exist that the onus was shifted to the party who denied it. To sum up there are good historical grounds for holding that in Madras the Jains have not acquired customs affecting adoption which vary from the ordinary Hindu law; in Punjab adoption whether by Jains or by people of other beliefs, is subject to local customs which may and do vary from the law and custom observed by the same peoples and sects in other parts of India. But in many other parts of India it has now been established by decisions based on evidence from widely separated districts and from different sects that the Jains observe the custom by which a widow may adopt to her husband without his authority. This custom is based on religious tenets common to all sects of Jains and particularly their disbelief of the doctrine that the spiritual welfare of the deceased husband may be affected by the adoption, and though it cannot be shown that in any of the decided cases the parties were of the Khandelwal sect, yet in none of the cases has a distinction been drawn between one sect and another. It is now in their Lordship's opinion no longer premature to hold that the custom prevails generally among all Jains except in those areas in which there are special reasons, not operative in the rest of India, which explain why the custom has not established itself. Mayne, in his treatise on Hindu Law and Usage at p. 209 has lent the weight of his authority to the proposition that among the Jains except in the Madras Presidency, a sonless widow can adopt a son to her husband without his authority or the consent of his sapindas. Rattigan's Customary Law, Edn. 12, p. 205 also support this view Their Lordships, for the reasons already explained, would except not only Madras but also the Panjab, but in the rest of India they consider that the onus should now lie upon those who deny that the custom prevails. Their Lordships will accordingly humbly advise His Majesty that the appeal should be allowed and that the judgment of the Sub-Judge should be restored. The respondent will pay the appellant's costs of this appeal and in the Courts in India. K. M. A. Appeal allowed. P L D 1947 Privy Council 381 Present : Lord Uthwatt, Lord Oaksey and Sir John Beaumont ADAN HAJI JAMA and others-Appellants Versus THE KING Privy Council Appeal No. 95 of 1946, decided on 9th Decem ber 1947, from Somaliland. Criminal Procedure Code (V of 1898), Ss. 286, 309, 537, and 556-Administration of Criminal Justice Ordinance, 1926 (Somaliland), Ss. 226, 236, 393 and 413-Trial with aid of assessors-Public Prosecutor was absent-Judge examined prosecution witnesses-Judge summed up evidence-Assessors not asked to give opinions-Accused not prejudiced-Held that defect was curable under S.

393. The trial commenced on 4th October 1945, before Major R. J. Quin and three assessors and lasted for twenty-five days. Fifty five witnesses were called for the prosecution, and nearly fifty for the defence. No public prosecutor appeared and the Judge himself examined the prosecution witnesses presumably from their depositions before the Magistrate. The defence were represented by the legal officer of the Somaliland Protectorate. At the conclusion of the prosecution evidence the learned Judge summed up such evidence. He explained that he did this in order that the defence might know what case they had to meet. The Ordinance does not provide for the summing up of the prosecution evidence before the witnesses for the defence are called, but the accused would not seem to have been prejudiced by this action of the learned Judge. Their Lordships are satisfied that the breach of section 236 did not occasion at failure of justice, and by virtue of section 393 of the Ordinance such breach affords no ground for setting aside the conviction. This objection was overruled by the learned appellate Judge, and their Lordships agree with him in thinking that section 413 of the Ordinance is not applicable to the case. The absence of a prosecutor necessarily involved a breach of section 226 of the Ordinance, since he could neither open his case nor examine his witnesses. It is to be observed however that the definition of public prosecutor in the Ordinance contemp lates that there may be a prosecutor other than a public prosecutor regularly appointed by the Governor under section 356, and their Lordships cannot think that there would have been any overwhelming difficulty in securing the services of some suitable person as prosecutor, and thus avoiding the acquittal of the accused for lack of evidence tendered against them. That course was not followed and the Judge himself undertook the duties of the prosecution This was the real vice in the trial. Breaches of particular provisions of the Ordinance might have been cured under section 393 but the combination in one person of the duties of prosecutor and Judge, in their Lordships' view, prevented the trial from being one conducted substantially in the manner required by the Ordinance. The accused did not have the protection to which they were entitled under the Ordinance, namely to be tried by a Judge whose mind was not, and could not have been, affected by assuming the duties of a prosecutor. The curative provisions of section 393 of the Ordi nance (which is expressed in substantially the same terms as section 537, Indian Cr. P. C.), cannot be called in aid to support a trial conducted in a manner substantially different from that laid down in the Ordinance. Their Lordships have no doubt that the trial Judge did his best to be scrupulously fair to the accused, but it is impossible to be sure that a Judge, who himself examines the prosecution witnesses, escapes an unconscious bias in favour of accepting their evidence. The Judge rightly refrained from cross-examining the defence witnesses, but it would be difficult for him unconsciously to avoid discounting some of their evidence on the ground that it might have assumed a different aspect if subjected to cross-examination. The chance, perhaps a small one, that some witnesses might have impressed their veracity upon the Court by the manner in which they stood up to cross-examination, was lost to the accused. It has been said many times that it is necessary not only that justice be done but that it may be seen to be done. The accused and their friends can hardly have felt assured that impartial justice would be meted out to them by a Judge who was acting as prosecutor. Pulukari Kotayya v. King Empeter A I R 1947 P C 67 and 1 Cox. C. C. 348 ref. Phineas Quass, for Appellants. Solicitors : Ingledew Brown & Co. Frank Gahan, for the King. Solicitors : Burchells JUDGMENT' SIR JOHN BEAUMONT.-This is an appeal by special have from the judgment of the Protectorate Court of the Somaliland Protectorate sitting as a Court of Appeal dated 30th May 1946 dismissing the appellants' appeal from the judgment of the Protectorate Court of the Somaliland Protectorate sitting as a Court of original jurisdiction dated 19th December 1945, and confirming the death sentences for murder passed on the appellants by the latter Court. At the conclusion of the arguments their Lordships announced that they would humbly advise His Majesty that the appeal be allowed, and they now give their reasons. The question which arises for decision on this appeal is whether the trial of the accused was vitiated by the failure of a prosecutor to appear at the trial, and by the course which the trial took in his absence. Criminal procedure in the Somaliland Protectorate is regulated by the Administration of Criminal Justice Ordinance, 1926, of the Somaliland Protectorate (hereinafter referred to as "the Ordinance"). The Ordinance provides for a preliminary enquiry to be held before a Magistrate, and for committal of accused persons to the Protectorate Court. It is not disputed that the appellants, with others, were properly committed for trial to the Protectorate Court. The provisions of the Ordinance relating to trials in the Protecto rate Court in force at the date of the trial of the appellants were, so far as material, as follows : Section 4 (1).-(q) "Public Prosecutor" means any person ap pointed under section 356 and includes any person conducting a prosecution on behalf of His Majesty in the Protectorate Court in the exercise of its original criminal jurisdiction. Section 220.-All trials before the Protectorate Court shall, save where otherwise provided, be with the aid of assessors. Section 226.-(1) When the assessors have been chosen, the prosecutor shall open his case by stating the description of the offence charged, and stating shortly by what evidence he expects to prove the guilt of the accused. (2) The prosecutor shall then examine his witnesses. Section 229.-(1) When the evidence of the witnesses for the prosecution and examination (if any) of the accused are conclud ed, the accused shall be asked whether he means to adduce evidence. (2) If he says that he does not, the prosecutor may sum up his case (4) If the accused or any one of several accused, says that he means to adduce evidence, and the Court considers that there is evidence that he committed the offence, or if on his saying that he does not mean to adduce evidence, the prosecutor sums up his case and the Court considers that there is evidence that the accused committed the offence, the Court shall call on the accused to enter on his defence. Section 232.-If the accused, or any of the accused, adduces any evidence, the prosecutor shall be entitled to reply. Section 236.-(l) When, in a case tried with the aid of assessors, the case for the defence and the prosecutor's reply (if any) are concluded, the Court may sum up the evidence for the prosecution and defence, and shall then require each of the assessors to state his opinion orally, and shall record such opinion. (2) The Judge shall then give judgment but in doing so shall not be bound to conform to the opinions of the assessors. Section 296.-An appeal shall lie from any judgment or order of the Protectorate Court, sitting as a Court of original Jurisdiction to the Protectoate Court sitting as a Court of Appeal. Section 356.-(l) The Governor may appoint generally, or in any case, or for any specified class of cases, in any local area, one or more officers to be called Public Prosecutors. (2) In any case committed for trial to the Protectorate Court the Governor may appoint any officer of the administration not being an officer of police below the rank of Superior Police Officer to be Public Prosecutor for the purpose of such case. Section 357 -The Public Prosecutor may appear and plead with out any written authority before any Court in which any case of which he has charge is under inquiry, trial or appeal. Section 358.-Any Public Prosecutor may, with the consent of the Court, or on the instructions of the Governor, in cases before the judgment is pronounced, withdraw from the prosecution of any person and upon such withdrawal : If it is made before a charge has been framed, the accused shall be discharged. If it is made after a charge has been framed, or when under this Ordinance no charge is required, he shall be acquitted. Section 393.-Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account (a) of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Ordinance ; or (b) of the want of or any irregularity in any sanction required by section 155 or any irregularity in proceedings taken under section 346 ; or (c) of the omission to revise any list of assessors in accordance with section 243; unless such error, omission, irregularity or want has, in fact, occasioned a failure of justice. Explanation -In determining whether any error, omission or irregularity in any proceeding under this Ordinance has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. Section 413.-No Judge or Magistrate shall, except with the permission of the Court to which an appeal lies from his Court try or commit for trial any case to or in which he is a party, or personally interested. Explanation.-A Judge or Magistrate shall not be deemd to be a party, or personally interested within the meaning of this section, to or in any case by reason only that he is concerned therein in a public capacity, or by reason only that he has viewed the place in which an offence is alleged to have been committed, or any other place in which any other transaction material to the case is alleged to have occurred, and made an inquiry in connection with the case. The trial commenced on 4th October 1945, before Major R. J. Quin and three assessors and lasted for twenty-five days. Fifty five witnesses were called for the prosecution, and nearly fifty for the defence. No public prosecutor appeared and the judge himself examined the prosecution witnesses presumably from their depositions before the Magistrate. The defence were represented by the legal officer of the Somaliland Protectorate. At the conclusion of the prosecution evidence the learned Judge summed up such evidence. He explained that he did this in order that the defence might know what case they had to meet. The Ordinance does not provide for the summing up of the prosecution evidence before the witnesses for the defence are called, but the accused would not seem to have been prejudiced by this section of the learned Judge. After the conclusion of the defence evidence the learned Judge summed up to the assessors. After dealing with the law relating to evidence of an accomplice, the learned Judge put certain specific questions to the assessors, and on ascertaining from their answers that they were not prepared to accept as true any evidence given by the accomplice, the learned Judge seems to have concluded that it would be useless to sum up to them further, and he did not require each of the assessors to state his opinion as required by section 236 of the Ordinance. It has been argued that the failure of the learned Judge to comply with section 236 is a sufficient ground for allowing the appeal of the appellants. Their Lordships are satisfied that the breach of section 236 did not occasion a failure of justice, and by virtue of section 393 of the Ordinance such breach affords no ground for setting aside the conviction. After the conclusion of the summing up the learned Judge gave judgment convicting the appellants as already stated and sentencing them to death. No objection seems to have been taken on the part of the accused to the absence of a public prosecutor, but in his judgment the learned Judge referred to the matter in these terms. "For some reason, which has not been communicated to me, there has not been a prosecuting officer in this case. Although a Judge is entitled to question witnesses, he would be exceeding his duty and acting improperly if his questions could be construed into the cross-examination of defence witnesses. For that reason I have refrained from asking questions in the nature of cross-examination with the result that the evidence of these witnesses has not been subject to the tests which are normal in criminal Court. This is a matter which has given an unusual advantage to the accused and is an important factor that has largely contributed to my finding that a considerable number of the charges have not been proved." The appellants preferred an appeal against their conviction, and the appeal was heard on 30th May 1946, before Lieutenant-Colonel Donald Jackson, legal secretary. An objection to the trial based on the absence of a public prosecutor was taken by leave of the Court as an additional ground of appeal. It seems to have been argued that the trial Judge was disqualified from trying the case under section 413 of the Ordinance as having become a Party to, or personally interested in the trial. This objection was overruled by the learned appellate Judge, and their Lordships agree with him in thinking that section 413 of the Ordinance is not applicable to the case. The absence of a prosecutor necessarily involved a breach of section 226 of the Ordinance, since he could neither open his case nor examine his witnesses. It is to be observed however that the definition of public prosecutor in the Ordinance contemplates that there may be a prosecutor other than a public prosecutor regularly appointed by the Governor under section 356, and their Lordships cannot think that there would have been any overwhelming difficulty in securing the services of some suitable person as prosecutor, and thus avoiding the acquittal of the accused for lack of evidence tendered against them. That course was not followed and the Judge himself undertook the duties of the prosecution. This was the real vice in the trial. Breaches of particular provisions of the Ordinance might have been cured under section 393 but the combination in one person of the duties of prosecutor and Judge, in their Lordships' view, prever.ted the trial from being one conducted substantially in the manner required by the Ordinance. The accused did not have the protection to which they were entitled under the Ordinance, namely to be tried by a Judge whose mind was not, and could not have been, affected by assuming the duties of a prosecutor. The curative provisions of section 393 of the Ordinance (which is expressed in substantially the same terms as section 537, Indian Criminal P. C.), cannot be called in aid to support a trial conducted in a manner substantially different from that laid down in the Ordinance Pulukari Kotayya v. King-Emperor (74 I A 65) Their Lordships have no doubt that the trial Judge did his best to be scrupulously fair to the accused, but it is impossible to be sure that a Judge, who himself examines the prosecution witnesses, escapes an unconscious bias in favour of accepting their evidence. The Judge rightly refrained from cross-examining the defence witnesses, but it would be difficult for him unconsciously to avoid discounting some of their evidence on the ground that it might have assumed a different aspect if subjected to cross-examination. The chance, perhaps a small one, that some witnesses might have impressed their veracity upon the Court by the manner in which they stood up to cross-examination, was lost to the accused. It has been said many time that it is necessary not only that justice be done but that it may be seen to be done. The accused and their friends can hardly have felt assured that impartial justice would be meted out to them by a Judge who was acting as prosecutor. Reference was made before the Board to the case in The Queen v, Hezell (1 Cox. C. C. 348) where Cress well J. seems, under protest, to have examined the prosecution witnesses in the absence of a prosecutor. But that case was tried by a jury, while in the present case the Judge himself had to try the case. For the above reasons their Lordships felt it necessary to advise His Majesty that the conviction of and sentences passed upon the appellants be quashed and that they be acquitted. K. M. A. Appeal allowed.