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Dr. Rachna Khanna Singh vs Santosh S.P. Singh And Ors. on 24 May, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.17/2019, CM APPL.4317/2019, CM
APPL.24781/2019 CM APPL.25194/2019

Judgment reserved on : 29.01.2019
Date of decision :24.05.2019

Dr. RACHNA KHANNA SINGH ….. Petitioner
Through: Mr. P. Norula Ms. Bhawna
Khanna, Advocates
versus

SANTOSH S.P. SINGH AND ORS. ….. Respondents
Through: Mr. Sandeep Sethi, Sr.
Advocate with Ms. Ruchi Singh
Mr. Prashant Kumar,
Advocates.
CORAM:
HON’BLE MS. JUSTICE ANU MALHOTRA

JUDGMENT

ANU MALHOTRA, J.

1. The appellant vide the present regular second appeal assails the
impugned judgment dated 22.10.2018 of the First Appellate Court of
the ADJ-02 (South-East) in RCA No.20423/2016 which upheld the
judgment dated 16.11.2016 of the JSCC-ASCJ-GJ, South-East
District, Saket, New Delhi in CS No.51412/2016 whereby the suit of
the plaintiff therein arrayed as the respondent no.1 herein was decreed
as under:-

“The suit is decreed in favour of the plaintiff Ms. Santosh
SP Singh with the direction to the defendant no.1 Dr.
Rachna Khanna Singh to vacate and handover vacant
peaceful possession of the suit portion as shown in blue

RSA 17/2019 Page 1 of 17
colour in the Site Plan of document in support of plaint,
i.e. the flat at A-7, 2nd Floor, Front Portion, Kailash
Colony, Lala Lajpat Rai Marg, New Delhi-110048. A
Decree of Permanent Injunction is also passed in favour
of the plaintiff and against defendant thereby restraining
the defendant from selling, transferring, alienating and
granting any third party interest in the suit portion or in
the property bearing no.A-7, 2nd Floor, Front Portion,
Kailash Colony, Lala Lajpat Rai Marg, New Delhi-
110048. The defendant no.2 has admittedly already
vacated the suit property. Defendant no.1 is directed to
handover peaceful vacant possession of the suit property
within three months from the date of this order.”

2. The appellant is the grand son-in-law of the respondent no.1.
The respondent no.2 who was arrayed as the defendant no.2 to the suit
filed by the plaintiff is the grand-son of the respondent no.1 being the
son of one of the daughters of the respondent no.1. The plaintiff/
respondent no.1, a senior citizen aged 88 years at the time of
institution of the suit on 02.12.2014 as per pleadings of the appellant
and the respondent no.1 on the record before the learned trial Court, is
the sole and exclusive owner of herself acquired property bearing no.
A-7, Kailash Colony, Lala Lajpat Rai Marg, New Delhi purchased by
her vide a sale deed dated 26.03.2004. The said property as per
averments made in the plaint consisted of 1000 square yard plot and
built up house consisting of ground floor, first floor and barsati and in
the year 2008 the house was reconstructed and now comprises of
basement, ground floor, first floor, second floor and third floor. It has
been averred in the plaint that in terms of the collaboration agreement
with the builder, the builder was given the first floor in lieu of

RSA 17/2019 Page 2 of 17
providing a completed constructed building and that the
plaintiff/respondent no.1 sold a portion of the ground floor to the
builder and four apartments were built on the 2nd floor and 3rd floor i.e.
two on each floor with the stairwell and lift in the center, out of which,
the plaintiff/ respondent no.1 is in occupation of one apartment and
that the plaintiff/ respondent no.1 has given one apartment each to her
two daughters who admittedly reside in the same.

3. The defendant no.1/ appellant and the defendant no.2/
respondent no.2 herein through the pleadings to the suit on the record
of the appellant and the respondent no.1 bring forth that the
defendants/ i.e. the appellant and her spouse, i.e. the respondent no.2
herein on re-construction of the said premises started living at A-7,
2nd Floor, Front Portion, Kailash Colony, Lala Lajpat Rai Marg, New
Delhi/ the suit portion.

4. Through the non-denial by the defendant no.1 i.e. the appellant
herein of assertions in para 6 of the plaint, it is brought forth that the
defendant no.1/ appellant herein along with her spouse/ the defendant
no.2/ respondent no.2 herein started residing in the premises in suit in
2010. Whereas it is the contention of the plaintiff/ respondent no.1
herein that she had permitted her grand-son, defendant no.2/
respondent no.2 and his wife, defendant no.1/ appellant herein to live
in the said premises as licencees, it is contended by the appellant/
respondent no.1 that it was always understood and explained that the
defendants/ the respondent no.1 and the respondent no.2 would
occupy the said suit premises and it was averred through the written
statement of the respondent no.1 to the effect:-

RSA 17/2019 Page 3 of 17

“it was always understood and explained that the
defendants shall occupy the portion of the house on its re-
construction.”

5. The plaintiff/ respondent no.1 averred through her plaint that
due to the nuisance created by the defendants i.e. the appellant and the
respondent no.2 herein who were in the habit of shouting and fighting
in a loud voice at all hours of the day and night, causing the sound to
rise in the stairwell and other places and there were frequent quarrels
and ugly scenes between the defendants i.e. the appellant and the
respondent no.2, she, the plaintiff terminated the licence of the
defendant no.2 who was living in this premises in suit with his wife
i.e. the appellant herein orally in January, 2014, then by an email dated
07.11.2014 and vide the legal notice dated 17.11.2014.

6. As per averments made in the plaint itself, the defendant no.2/
respondent no.2 herein who is the husband of the appellant left the
premises in suit around April, 2014 and that the defendant no.2 has
already vacated the suit property as indicated vide a decree dated
16.11.2016 of the learned trial Court.

7. As per averments made in the written statement in the suit, the
contention raised by the defendant no.1/ appellant was that the
defendant no.2/ respondent no.2, her husband had walked out of the
marriage with the defendant no.1/appellant and left the premises in
suit leaving the appellant/ defendant no.1 along with her daughter in
the premises in suit.

8. Though the appellant denies the termination of any license to
reside in the suit premises by the respondent no.1, even the institution

RSA 17/2019 Page 4 of 17
of the suit per se by the plaintiff/ appellant seeking the vacation of the
suit premises has to be deemed to fall within the ambit of a deemed
termination of the licence which amounts to termination of the license
given by the respondent no.1 to the appellant and to her grand-son i.e.
defendant no.2/ respondent no.2 herein to reside in the suit premises.

9. The contention of the appellant that is sought to be urged is to
the effect that the premises in suit fall within the category of a shared
household in terms of Section 2 (s) of the Protection of Women from
SectionDomestic Violence Act, 2005 and seeks to submit that the suit
premises being her matrimonial home in which she lives and has lived
in a matrimonial relationship with her husband, the respondent no.1,
falls within the category of her shared household from which she
cannot be dispossessed.

10. Inter alia the appellant submitted that there were proceedings
under the Protection of Women from SectionDomestic Violence Act, 2005
bearing no.289/3/2014 that were pending and that the proceedings in
the Civil Suit and the appeal in relation thereto could thus not be
entertained.

11. Vide the judgment dated 16.11.2016, the learned trial Court
held that the occupation of the appellant/ defendant no.1 of the suit
portion was only that as a gratuitous licensee which she was under
obligation to vacate in view of termination of her license vide a legal
notice dated 17.11.2014 and that the contention of the defendant no.1
i.e. the appellant herein of the suit premises being a matrimonial home
could not be accepted in as much as the appellant/ defendant no.1
cannot be said to have any right to reside in the property belonging to

RSA 17/2019 Page 5 of 17
the grand-mother of her husband and that the appellant herein had not
elucidated as to how she termed the suit property or the property
bearing No.A-7, 2nd Floor, Front Portion, Kailash Colony, Lala Lajpat
Rai Marg, New Delhi as her matrimonial house and observed further
that just because the appellant herein had occupied the suit portion for
a certain number of years where her fights with her husband
intensified does not entitle her to call the suit portion as a shared
household.

12. The learned trial Court took into account the observations in
SectionShumita Didi Sandhu vs. Sanjay Singh Sandhu Ors. 174 (2010)
DLT 79 (DB), a verdict of the Hon’ble Division Bench of this Court
herein it was observed to the effect:

“In the context of Section 17 of the Act, has held that a
wife would only be entitled to claim a right of residence
in a “shared household” and such a household would
only mean the house belonging to or taken on rent by the
husband, or the house which belongs to the joint family of
which the husband is a member. The property which
neither belongs to the husband nor Is taken on rent by
him, nor is it a joint family property in which the husband
is a member, cannot be regarded as a “shared
household”. Clearly the property which exclusively
belongs to the father-in-law or the mother-in-law or to
them both, in which the husband has no right, title or
interest, cannot be called a “share household”.

13. Reference was also made by the learned trial Court to the
verdict of this Court in SectionNeetu Mittal vs. Kanta Mittal 2009 AIR (Del)
72 wherein it was held as under:

RSA 17/2019 Page 6 of 17

“A woman can assert her rights, if any, against the
property of her husband, but she cannot thrust herself
against the parents of her husband, nor can claim a right
to live in the house of parents of her husband against
their consent and wishes.”

14. Reliance was also placed by the learned trial Court on the
proceedings in SectionBarun Kumar Nahar vs. Parul Nahar 2013 (2) AD
(Delhi) 517 wherein it was observed by this Court to the effect:

“Testing the present case in the light of aforesaid
discussion, the court is of the view that the plaintiff has
been able to establish a very strong prima-facie case in
his favour. The defendant no. 1 being a daughter-in-law
has no right to reside in the subject property which
belongs to her father-in-law as the said property is not
covered by the definition of ‘shared household’, the same
being neither a joint family property in which her
husband is a member, nor it belongs to the defendant
no.2 and is not even a rented accommodation owned by
the defendant no. 2.”

15. Reference was also made by the learned trial Court to the
verdict of this Court in SectionSardar Malkiyat Singh vs. Kanwaljit Kaur
Ors. 168 (2010) DLT 521 wherein it was observed to the effect:

“While the legal position is clear that the husband has a
legal and moral obligation to provide residence to his
wife, and if the house where the wife lived on being
wedded, belongs to her husband. It would certainly be
treated as a ”shared household” or a matrimonial home,
there is no such obligation on the father-in-law or the
mother-in-law to provide residence to the daughter-in-
law. It is also clear that if the house in question belongs
to the joint Hindi family of which the husband is a
member, even that would be termed as a “matrimonial
house”. In the instant case, no such assertion has been

RSA 17/2019 Page 7 of 17
made by the respondent no. 1 and as a matter of fact, it is
fairly conceded that the house stands in the name of the
appellant, her father-in-law. This would not, in my view,
vest any right in the respondent no.1 to stay indefinitely
in the said house by claiming right of residence.”

16. Reliance was also placed by the learned trial Court on the
verdict of this Court in SectionHarish Chand Tandon vs. Darpan Tandon
Anr. CS (OS) NO.1738/2013 to contend to similar effect.

17. The First Appellate Court vide its impugned judgment dated
22.10.2018 has observed vide para 10 to the effect:

“10. Appellant in written statement filed before Ld. Trial
Court has not stated that she is staying in suit property
since date of her marriage. Respondent no. 1 in her plaint
has stated that appellant and respondent no. 2 at the time
of reconstruction of property (within which suit property
is also located) were living on their own. This fact has
not been specifically denied by appellant in written
statement filed by her before Ld. Trial Court. Further,
appellant in para no. 6 of written statement filed by her
has stated that her marriage with respondent no. 2 was
back stabbed by respondent no. 2 after 15 years of
marriage. Admittedly the property wherein suit property
is located was purchased by respondent no. 1 on
26.03.2004 and suit was filed by respondent no. 1 before
Trial Court in the year 2014 meaning thereby that suit
property was not abode of appellant and respondent no. 2
since beginning of their marriage and the property
wherein suit property is located was purchased by
appellant much after marriage of appellant and
respondent no. 2.”

and further observed vide paras 18, 19 and 20 to the effect:

“18.I am of the view that no doubt appellant is entitled
to reside in a house equivalent to the house where she

RSA 17/2019 Page 8 of 17
was residing with respondent no. 2 when they were
living together but that does not entitle appellant to
continue to reside in suit property in the circumstances
when suit property belongs to maternal grand- mother
of respondent no. 2 and when property wherein suit
property is located has been purchased by respondent
no. 1 admittedly from her own resources and when
appellant and respondent no. 2 have not been residing
in suit property since beginning of their marriage and
appellant has gifted property in her name to her sister
after institution of suit before Ld. Trial Court. So,
contention of appellant that impugned order is liable to
set aside on the ground that the same may render
infructuous proceedings with regard to right to
residence of appellant in case filed under provisions of
SectionDomestic Violence Act is liable to be rejected. Appellant
in proceedings filed under provisions of SectionDomestic
Violence Act may pray for grant of equivalent
accommodation vis a vis suit property and thus legal
right of appellant is not being effected by impugned
order.

19. It is contended by appellant that Ld. Trial Court
completely ignored collusion between respondents,
specially the affidavit which does not support suit but is
an affidavit copied from divorce petition. Perusal of
Trail Court record shows that no doubt affidavit of
respondent no. 1 had some lines as mentioned in appeal
which are not concerning suit filed by respondent no. 1
before Trial Court but vide order dated 22.01.2016,
Trial Court allowed application of respondent no. 1for
amendment of plaint which order has not been
challenged by appellant till date meaning thereby that
the same ground goes for appellant. Further, it is
admitted that respondent no. 2 left suit property in
April, 2014 and till arguments, he has not returned to
suit property and not residing in suit property for over
period of 4 years does not indicate that there is

RSA 17/2019 Page 9 of 17
collusion between respondents no.1 and 2 but rather
indicates that respondent no.2 has left suit property in
real sense of the term. Hence, this contention of
appellant is rejected.

20. Appellant has mentioned certain dates in order to
show collusion between respondents no. 1 and 2. It is
stated that respondent no. 2 deserted appellant and
minor daughter on 06.04.2014, present suit was filed on
02.12.2014, written statement was filed on 05.05.2015,
divorce petition was filed by respondent no. 2 on
18.10.2014, application U/o 12 Rule 6 CPC was filed by
respondent no. 1 on 20.07.2015 and legal notice dated
17.11.2014 was given after respondent no. 2 left suit
property. It is contended that the way in which
possession of suit property could have been sought by
respondent no.1 was by way of filing suit for possession
against appellant and not by way of filing suit for
mandatory injunction as respondent no. 2 has already
left suit property in April, 2014.”

and also observed vide paras 23 to 28 to the effect:

“23. It is contended by appellant that since there is no
order of vacation against her minor daughter namely
Aveka aged 13 years who is under custody of appellant,
the minor daughter could not be evicted and thus
implying that appellant can also not be evicted. I am of
the view that daughter of appellant does not have any
independent right to stay in suit property and that she is
deriving right to reside in suit property from appellant
and respondent no. 2 who have already been held not
entitled to occupy suit property being licensee. No order
of eviction of minor daughter of appellant and
respondent no. 2 does not imply allowing stay of
appellant in suit property. This contention of appellant
is therefore rejected.

RSA 17/2019 Page 10 of 17

24. It is contended that though respondent no. 2 shifted
prior to filing of suit before Trial Court, it cannot be
said that respondent no. 2 had surrendered possession
of suit property and that suit property is matrimonial
home of appellant. Suit property is not matrimonial
home of appellant as discussed in earlier part of this
judgment and this contention of appellant is therefore
rejected.

25. It is contended that respondent no. 1 permitted
respondent no. 2 to stay in suit property with appellant
and their minor daughter and in fact it is respondent no.
2 who is licensee who has shifted out of suit property
but the same does not defeat right of appellant to reside
in suit property specially when there is no order of
eviction again respondent no.2. As noted earlier,
respondent no. 1in plaint filed mentioned status of both
appellant and respondent no.2 as licencee which has not
been denied specifically by appellant in statement filed
before Trial Court. Trial Court in impugned order has
specifically observed that respondent no. 2 has
admittedly already vacated suit property. When relief
sought qua possession of suit property against
respondent no. 2 already stands satisfied on account of
respondent no. 2 vacating suit property, there is no
requirement of passing any specific order qua
respondent no. 2 asking him to vacate suit property as
he has already admittedly vacated suit property. So, this
contention of appellant is therefore rejected.

26. It is contended that right of appellant to reside in
suit property flows from right of Hindu wife and she is
entitled to reside under his roof. Right of appellant as
Hindu wife cannot be denied but she cannot choose suit
property (property belonging to respondent no.1) to live
there forcefully and respondent no. 2 is duty bound to
provide commensurate accommodation to appellant for
which appellant can avail appropriate legal remedy.

RSA 17/2019 Page 11 of 17

27. It is contended that there is no clear-cut admission
by appellant in written statement about termination of
license and that rather it has been mentioned in written
statement that construction of suit property was done by
respondent no.1 also and it was on account of joint
alliance that completion took place. It is stated that
question as to how much money was put in by
respondent no. 2 for construction matter of trial and it
as clearly agreed that respondent no. 2 and appellant
would continue to reside in suit property. Perusal of
written statement filed by appellant before Trial Court
shows that respondent no. 2 was actively involved in
reconstruction of suit property as respondent no.
1always wanted that family should stay together. It is
further mentioned that father of appellant was also
involved in getting property constructed with respondent
no. 2 and due to joint alliance, completion took place as
there were issues with builder which was managed and
sorted out by father of appellant. I am of the view that
sorting out issues with builder by father of appellant if
any does not entitle appellant to stay in suit property. It
has not been mentioned by appellant that respondent no.
2 spent any money in reconstruction of property which
includes suit property. To be actively involved in
reconstruction does not mean that money has been spent
by respondent no. 2 in reconstruction of property
including suit property. The contention of appellant not
taken before Trial Court dehors appellant to take such
contention in appeal which cannot be appreciated and is
therefore disallowed.

28. Appellant filed judgment in case titled as “SectionBaluram
vs. P. Chellathangam Others Civil Appeals No.
10940-10941 of 2014” wherein Hon’ble Apex Court
discussed circumstances wherein a person may be
considered to be necessary or proper party but the same
has no application in facts and circumstances of present
case as discussed above as minor daughter of appellant

RSA 17/2019 Page 12 of 17
and respondent no. 2 does not have any independent
right to reside in suit property and she is deriving her
right to reside in suit property from her parents who
have already been held not to have any right to reside in
suit property being licensees. Appellant filed judgment
in case titled as “Gulam Rasool and Another Vs.
Quasim Bee Died (per LRs ) 2000 (4) ALD 445″ which
is again not applicable in facts and circumstances of
present case as just discussed in this para.”

18. The appellant vide the present appeal seeks to urge the
following proposed substantial questions of law which are to the
effect:

“1. Can a premises be deemed to have been
surrendered, even though the husband has left the
premises voluntarily abandoning his wife and minor
child whom he had brought to the house.

2. Whether a decree can be passed only against the
appellant wife and not against the respondent no. 2
where both the appellant and respondent no. 2 are
parties to the suit. (Appellant being defendant no 1and
the respondent no 2 being defendant no2).

3. Whether in the absence of a decree against the
respondent no 2 the respondent no 2 could deem to have
vacated and handed over the peaceful possession.

4. Whether the collusion can be ignored between the
respondent no 1 and respondent no 2 against the
appellant where in the respondent no 1institutes a suit
for permanent and mandatory injunction against the
appellant and respondent no 2 only after a proceeding
for divorce was instituted by the respondent no 2
against the appellant.

RSA 17/2019 Page 13 of 17

5. Whether the collusion between the respondents in
instituting the present suit could be ignored even though
the affidavit filed along with original suit was amended.

6. Whether the collusion in filing the suit is distinct from
the amendment.

7. Whether an order could be passed under order 12
rule 6 CPC on the basis of inconsistent pleadings with
regard to who is the licensee of the actual premises,
which itself is a question of trial.

8. Whether the appellant could be deprived to live in her
shared household on the ploy adopted by her husband
who had left the house voluntarily only to evict the
Appellant”

9. Whether the daughter in law is entitled to the
protection of her right of residence against the
respondent no 2 irrespective of the fact that the house
stands in the name of the respondent no. 1and that the
wife is not a sub tenant or licensee of the husband.

10. Whether Aveka Singh was a necessary party to the
proceedings and her non implication in the array of
parties was fatal to the suit.

11. Whether Aveka Singh’s right continues to reside in
the suit property on account of no order being passed
against respondent no 2 for vacation of property.”

19. A catena of verdicts has been relied upon on behalf of the
appellant in support of the contentions that there being collusion
between her spouse and the plaintiff/ respondent no.1, she cannot be
deprived of her rights to reside in the premises in suit which form her
matrimonial home and fall within the category of “shared household”

RSA 17/2019 Page 14 of 17

in terms of Section 2 (s) of the Protection of Women from SectionDomestic
Violence Act, 2005.

20. Reliance has been placed on behalf of the appellant on the
verdict of this Court in SectionKavita Gambhir vs. Hari Chand Gambhir and
Anr. 162 (2009) DLT 459, on the verdict of the Hon’ble High Court
of Bombay in Sarika Mahendra Sureka vs. Mahendra and Ors. 2016
(6) ABR 161, SectionEveneet Singh Ors. vs. Prashant Chaudhri ors.
177 (2011) DLT 124, on the verdict of the Hon’ble Supreme Court in
SectionB.P. Achala Anand vs. S. Appi Reddy Anr. AIR 2005 SC 986 and
on the verdict of the Hon’ble High Court of Allahabad in SectionNeetu Rana
vs. State of U.P. and Ors. 2016 (2) Appellate Court Record 1797.

21. Reliance was also placed on behalf of the appellant on the
verdict of this Court in SectionShilpa Tandon vs. Harish Chand Tandon
Anr. in RFA (OS) 113/Section2015, Navneet Arora vs. Surender Kaur
Ors. in FAO (OS) 196/2014.

22. Reliance was also placed on behalf of the appellant on the
verdict of this Court in SectionSmt. Preeti Satija vs. Smt. Raj Kumari Anr.
in CM APP.4236/2012, 4237/2012, 5451/2013 decided on 15.01.2014,
on the verdict of the Hon’ble High Court of Bombay in SectionBeryl
Murzello and Ors. vs. Ramchandra Bhairo Mane Ors. 2007 (4)
Bom CR 397, on the verdict of the Hon’ble Supreme Court in SectionS.M.
Asif vs. Virender Kumar Bajaj in Civil Appeal No.6106-6108/2015 to
contend that the decree under Order 12 Rule 6 of the CPC which is a
discretionary relief ought not to have been granted by the learned trial
Court in favour of the respondent no.1 and the same ought not to have
been upheld by the First Appellate Court in as much as all the issues

RSA 17/2019 Page 15 of 17
which have been raised were required to be gone into at the time of
trial and adjudication in relation thereto was essential.

ANALYSIS

23. On a consideration of the observations of the Hon’ble Supreme
Court in SectionS.R. Batra Anr. vs. Taruna Batra (2007) 3 SCC 169, on
the verdict of this Court in SectionEveneet Singh Ors. vs. Prashant
Chaudhri ors. 177 (2011) DLT 124, on the verdict of the Hon’ble
High Court of Bombay in SectionRama Rajesh Tiwari vs. Rajesh Dinanath
Tiwari in Writ Petition No.10696/2017, it being apparent through the
pleadings on the record that the premises in suit do not fall within the
category of a shared household in terms of Section 2 (s) of the
Protection of Women from SectionDomestic Violence Act, 2005, the
substantial questions of law sought to be urged by the appellant as
referred to in para 18 hereinabove do not arise for consideration in the
instant case in as much as the rights of the appellant and her daughter
to live in the premises belonging to the respondent no.1 i.e. the
plaintiff did not exist beyond the mere licence given to the parents of
Aveka to live in the same, which has already been terminated.

24. However, as rightly observed by the First Appellate Court, the
appellant being the wife of the defendant no.2/ respondent no.2 herein
is entitled to live in accommodation commensurate to that in which
she lives presently with her child for which she may avail of
appropriate civil legal remedy in relation thereto or under the
Protection of Women from SectionDomestic Violence Act, 2005 for which
there is no embargo.

RSA 17/2019 Page 16 of 17

25. Thus, with the above observations, it is held that no substantial
questions of law arise in the instant case and thus no notice under
Section 100 (4) of the Code of Civil Procedure, 1908 can be issued.

26. The appeal and the interim application CM APPL.4317/2019
are thus dismissed and CM APPL.24781/2019 CM
APPL.25194/2019 call for no action.

ANU MALHOTRA, J.

th
MAY 24 , 2019/vm

RSA 17/2019 Page 17 of 17

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