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THE LEGAL PROFESSION
IN GRATEFUL EECOGNITION OP
THEI3 WARM APPRECIATION AND SUPPORT
PATNA HIGH COURT
1926
Chief Justice* :
The Hon'ble Sir Thomas Dawson Miller, Kt., K. C.
Sir Jwala Prasad, Kt., B. A., LL. B., Rai Bahadur (Offg).
Puisne Judges:
The Hon'ble Sir B. K. Mullick, Kt., I. C. S.
• " Jwala Prasad, Kt., B. A., LL. B., Rai Bahadur.
« Mr. P. R. Das, Barat-Law.
« L. C. Adami, I. C. S.
« Sir John Alexander Sfcrachey Bucknill, Kt., K. 0., Bar-at-Law.
Mr. R. L. Ross, M. A., I, C. S.
• " H. F. E. B. Poster, I. C. S.
•• <> Knlwant Sahay, B. L.
» » T. S. Macpherson, M. A., I. C. S., Bar-at-Law (Acting).
" P. K. Sen, M. A., LL. M., (Cantab), Bar-at-Law (Acting).
EDITORIAL COMMITTEE
BAHADUR G. S, RAO, Ex* Judge, High Court, Bombay.
l. SUDISH CHANDEA*BOY, M.A.* LL.B., Ph, D., Bar-aHawt Calcutta.
Suit M. V.SFOSHI, Kfc.'f K.c.I.E., Ex-Law Member, C. P. Government.
V. B. PANDIT, Bar-at-law, Nagpur.
EAO, B.A., B.L., Vakil, High Court, Madras, Editor, Journal
, B.A., I&.B., High Court Vakil, Nagpur [Section
EDITORIAL STAFF
MB. S. G. GADGIL, B.A., LL.B., High Court Vakil, Bombay
MB. G.13. JOSHI, B.A., LL.B., Pleader, Nagpur.
MB. D. D, DATAB, B. so., LL.B., Plaader, Nagpur.
REPORTERS
Privy Council
(1) Dr. A. Majid, LL.l)., Barat-Law, London.
Allahabad
(2) Mr. Saila Nafch Maker ji, B.A., B.L., Vakil, High Court, Allahabad.
Bombay
(3) Mr. B. K. Dosai, M.A., LL.B., Advocate, High, Court, Bombay.
(4^; Mr. S. 0. Joshi, M.A., LL.B., Advocate, High Court, Bombay.
(6) Mr. B. D. Mehta, B.A., LL.B., Vakil, High Court, Bombay.
Calcutta
(6) Mr. Pramatha Nafch Banerjee, M.A., B.L., Vakil, High Court, Calcutta.
(7) Mr. Narain Chandra Ear, B.L., Vakil, High Court, Calcutta.
Lahore
(8) Mr. Atflolak Bam Kapur, B.A. (Hons.), 'LL.B., Advocate, High Court, Lahore.
(9) Mr. Anant Earn Khosla, B.A., (Hotts.), LL.B., Advocate, High Court, Lahore.
(10) Mr. Kedar Nath Chopra, B.s.c., LL.B., Advocate, High Court, Lahore.
Madras
(11) Mr. P. E. Srinivasa lyengar, M.A., B.L., Vakil, High Court, Madras.
(12) Mr. N. Srinivasa lyengar, M.A., B.L., Vakil, High Court, Madras.
Nagpur
(13) Mr. M. Bhawani Shankar Niyogi, M.A., LL.M., Advocate, High Court.
Nagpur.
(14) Mr. K. V. Deoskar, B.A., B.L., High Court Pleader, Nagpur.
Oudh
(J5) Mr. Surendra Nafch Eoy, M.A., LL.B., Vakil, Lucltnow.
Patna
(16) Mr. Subal Chandra Muzumdar, M.A., B.L., Vakil, High Court, Patfta.
(17) Mr. Laxfnidhar Mahanfcy, B.A., B.D., M.L.C., Vakil, Circuit Court, Guttack.
(18) A. J. Eoberfcson, Bar*at-Law, Rangoon.
Slnd
^(19) Mr. P. K. Vaswani, ]?L.BM Barat-Law, Karachi.
(10) Mr, Kishiochand Wadhumal, B.A., LL.B., Pleader, Karachi.
THE ALL INDIA REPORTER.
1926
PATNA HIGH COUrt
NOMINAL INDEX
[241 OASES]
Absence of Star denotes Cases of Small or Provincial Important
% Indicates Cases of Great Importance
Indicate cases of Very Great Importance
Abdul Ghaffar v. F. B. Dowin
Abdul Gaffar v. F. B. Downing
: Achutanand Jha v. Surjanarain
Jha t
*Achutta Bam v. Jainandan
Towary
Aghori Koori v. Kishundeo
Narayan
Ajodhya Prasad v. Eamkhelawan
Singh
Aklu v. Emperor
"Ambika Prasad Singh v. Commis-
sioner for Income-tax, Bihar
and Orissa
Ambika Shig v, Emperor
Amril Lai Seal v. Jagafc Chandra
,Thakur
*Anant Potdar v. Mangal Potdar
Anmole Kuer v. Kamla Dutt
*Anwar All v. Dooghar Munici-
pality 9
Asharfi Dhimar v. Mahommad
Dindalal -
'Ashloke Sin&h v. Bodba Ganderi
15 B
Badri Chaudhry v. Emperor
*Badri Gope v. Emperor
*Badri Narmn Singh v. Kailash
. Gir ,
*Badri Sahu v. Peare Lil Misra
*Bahadur Singh Maharaj v. A. H.
Forces •
*Baidyanath Jiu v. Har Dutt Dwari
Baijnath Prasad Singh v, Firm of
Hand Bam Das
246
465
427
474
16
421
446
256
368
27
:192
449
125
20
237
239
140
478
205
353
.Baijnath Eai v. Mangla Prasad
Narayan J
Baiju Lai Marwari v. Thakur Pra-
sad Marwari :U'>
Balak Singh Bhumij v. Srikanta
Manji 524
Bal Gobind Thakur v. Emperor 39^
:Barhamdeo Kai v. Emperor 36
Bashitt ^arayan Singh v. Jjiti-
deshwary Prasad Singh 537
Blmsucleo Bhagat v. Sh. Kadir 359
*B atisa Kuer v. Eaja Eam Pandey 192
:;B. & N. W. By. Co. v. Tupun Dan S84
Bengali Gopo v. Emperor 400
Bhairo Math Eoy v. Shanke Pahan 605
Bhatu Earn Modi v. Fogal Eam 141
"Bhnpendra Karain Mander v.
Janeswar Mander 53^
Bigna Knmhar v. Emperor 440
Bihari Lai Mitter v. Tannk Lai
Mander 397
37 C
Chakauri Lai v. Deo Chand
Mahton 01
Chandra Mouleshvvar Prasad v
Hemnalini Debi 410
Chandra Prasad v. Emperor 299
Chhakauri Lall v, Isher Singh % I9r>
Chofce Lai Kand Kishoro v, Tula
Singh 561
• Chotolal Sahu v. Gumani Cbau-
dhury 432
'Commissioner of Income*tax,
Bhihar d Orisa v. Shiva Prasad
Singh l 109
44
NOMINAL INDIX, 1926 PATNA
*Dangal Bam v. Jaimangal Saran
Debi Dayal Singh v. Mt. Ganfca
Kuer
*Debi Prasad v. Jaldhar Mahton
Deonara^an Singh v. Bam Prasad
*Deshi Sugar Mill v. Tupsi Kahar
Dhuplal Sahu v. Bhtkha Mahto
Dinanath Bai v. Rama Bai
*Dinda>al Bai v. Indra^an Bai
Dindayal Singh v. Baj Keshwar
Narayan
^District Board, Monghyr v. Sheo*
dutt Singh
Durga Singh v. Bam Da«i Kuer
*Dwarika Singh v. Emperor
56 E
*E. I. By. Go. v. Bhimraj SriJal
— v. Chinmay Charan
Sanyal
* v Goharrjhan Das
:; v. Kishun Chand
* Emperor V. Govind Singh
* . v phagunia Bhuian
— v. Zahir Hauler
63 F
Fagu Tanti v. Chotolal Tanti
*Fairduddin Ahmod v. Abdul
Wahab
Ttfarman Khan v. Emperor
Farzand Ali v. Emperor
Faujdar Bai v. Emperor
*Fa»lul Rahman v. Mfc. Kokila
*j?irangi Singli v. Durga Singh
70 G
G a nosh Lall v Bisosar Pandey 49
Gangadhar Misra v. Dobendrabala
Dasi 249
*Gobardhan Das v. »lagat Narain 291
Gobinda Bauri v. Kristo Sardar 64
Gokul Tafcwa v. Emperor 58
vGoswami Laloo Lai Sharmn v,
Badhoy Lai Goswami 17]
^G. 1. P. Uy. v. Datti Kara 148
, v Kameshwar Prasad 190
78 H
"Habibur Balimau, M(i. v. Qasin
Hussain 404
*|Iafsa, Bibi y. Kaniz Fatina 111
Hajo, Bibi v. liar Sahay Laf 62
"Hamir, P. & P., Co. 'v. Suresh
Chandra Sarkar 348
Harbans Namin Singli \. Maho-
ruecj Sayeerl 51
Hargobind Singh v. Kiuhundeyal
Gopo 436
Harihur Singh v. Emperor 182
364
68
288
143
606
363
512
472
495
438
503
464
413
295
165
5^5
566
l?46
277
433
:,47
25
320
292
*Hari Sankar Bai v. Tapai Kuer 3J
Harnandand Das v. Atul Kumar
Prasad 5*
¥Hemchandra Mahto v. Prem
Mahto '154
Hira Lai v. Sarabjit Kamkar 498
*Hitendra Singh v. Maharajadhiraj
of Darbhanga 147
*Hit Narayan Singh v. Emperor 517
91 I
^Ibrahim Hussain Khan v. Sheo-
pratap Narain 129
**Iltaf Khan v. Emperor 362
^Ishwardas Marwari v. Biseswar
Lai Marwari
94 J
Jagannath Lahu v. Sbbogobind
Prasad 128
Jagat Narain Singh v. Tulsi
' Chamar 513
Jai^dip Singh v. Harku Singh 37
Jageshwar Jha v. Mahtap Singh 516
vJagwa Dhannk v. Emperor 23S
*Jang Bahadur Singh v. Emperor 244
*Janki Sahay v. Lalbehari Lai 33
^Jawahirlal v. Fateh Mahton
Jeoharan Singh v. Bamkishun Lai 5:
Jhaldhari Sinph v. Pershad Bharti 33,.
Jhapsi Sao v. Bibi Aliman ' 2631
JHondra Nath Chatterji v. Jasoda L
Sahun 1°^
Jodhi Singh v. Chhofcu Mahto 3S*c
Mogendra Prasad Narayan Sinha
v. Mangal Prasad Sahu 160
Jngal Kishore v. Sonabati Kumari 51f
Mugal Sarkar v. Baj Mangal Pra-
sad 18?
Jung Singh v. Dnlarchand Mahto 53!i
111 K
*Kali Bai v. Tulsi Bai
Kamakhya Narain Singh v. Jawa-
hir Khan
Kamla Prasad v. Murli Manohar
'Kanhaiya Lai Sahu v. Suga Kuar
"Karu Singh v. Emperov
Keshabji Pitamhar y. Shashi
Bhusan
20?
369
385
Kesho Prasad Singh v. Kirtarath 577
Kesho Prasad Singh v. Bam
Swarup Ahir 175
Kesho Prasad Singh ^v. Sham-
nandan Bai 504
Keshub Pra^ttd Singh v. ^arihar
Prasad Singh * 54
::iKhiid Chand Mahton v, Mt.
Meghni ' 46LV
Khodoijatnl Kobra v. Harihar
Misser 209
NOMINAL INDEX, 1926 PATNA
*Kkndi Rai v. Lalo Eai 259
**Khursaidi Begum v. Secy, of State 321
Kirtya Nand Sinha v. Ram Lai
Dube 580
Kishore Ahir v. Emperor 32
Kishun Mandar v. Emperor 424
Kokil Ghand Ram v. Banbahadur
Singh 539
*Krishnaballabh Sahay v. Governor
of Bihar 305
Krishna Chandra v. Raja Mahakur 251
Kuldip Saran Singh v. Raghunan-
dan Singh 461
Kttldip Singh v. Kamakhya Narain
Singh 241
Kosunda Nayadi Collieries v.
Bholanath Sarkar 430
134 L
Lachman Sahay v. Gouri Charan
Mahton 423
Laureotins Ekka v, Diikhi Koeri 111
'Lekraj Mahton v. Jang Bahadur
Singh 23
137 M
Madhab Poddar v. Lall Singh
Bhumji 403
Madhu Sudan Dev v. Panu Parhi 358
MaJhusudan Singh v. Jeolal 606
M. &8. M. By. Co. v.Gopal Rai
!Ram Chunder 273
Mahari Dhangar v. Baldeo Narain 525
*Mahomed Afzal v. Lachman Singh 409
*Mahomed Ibrahim v. Chhafcto Lai 274
Mahomed Sadiq v. Ba^git Sah 150
*Mahomed Yasin v. Emperor 302
Makhru Dusadh v. Emperor 367
^Manisty, P. H. v. J. V. Jameson 380
Mathura Prasad Singh v. Jageswar
Prasad Singh 260
Midnapore Zamindari Co., Ltd. v.
Muktakeshi Pat rani 340
*Midnapur Zamindary Co. v. Ram
Kanai §ingh Deo ISO
Mina Mahto v. Doman Mahto 564
152 N
Nandau Singh v. Siaram Singh 67
Nanhak Sao v. Emperor 493
Karesh Chandra v. Charles Joseph
Smith 408
*Nathan Prasad Shah v. Kali
Prasa^ 77
Nazir Hussain v. Anlad Haider 460
*Nilmacfhab v. Empefor 279 .
*Nimi Narayan Sinha v. Emperor 499
158 P
^Parmeshwar Dayal v. Emperor 316
xParehan Sahi v. Richardson " 289
ri Dai v. Naimish Chandra • 184
**Pereira, H. G. v. E. I. Ry. Co. 109
*Permanand Kumar v. Bhon Lohar 457
*Pershad Tiwari v. Emperor 5
*Pheku Pande v. Gena Lai 481
Prasanna Kumar Banerji v. Kal-
yan Charan Mandai 80
Pratap Udainath Sah Deo v. Lai
Gobind Nath 537
168 R
*Radhey Lai v. E. I. Ry. 40
Raghunandan Prasad v. JIahabir
Mahton 545
Raghunandan Thakur v. Kishun*
deo Narain Mahta 257
"Rajdulari Bibi v. Krishna Bibi 269
Raj Gopal Acharjya v. Upendra
Acharjya 528
"Raj Kishore Lai Nand Keolyar v.
Alam Ara Bo^am 28
**Ram An tar Pando v. Shanker
Dayal 87
Rarnbilakh Singh v. Dinajpure
Mixamat Municipality 462(1)
Rambirich Ahir v. Emperor 569
Ramchandra Modak v. Emperor 214
xRamchandra Singh v. Jang Baha-
dur Singh 17
Ram Charan Singh v. Emporor 29 (1;
^Ramdhani Sin^h v. Kewal Mani
Bibi ~ 156
'Rameshwar Singh v. Durga
Mandar 14
Rameshwar Singh v. Kitab All 487
Rameshwar Singh v. Puran Chan-
dra 213
'Rameshwar Singh v. Rajo Ghou-
dhrain 210
Rameswar Narayan Hingh v.
Mahabir Prasad 47
Ramgobind Singh v. Sital Singli 489
:*Rara Golam Sahu v. Chintaman
Singh F. B. 218
Ramishwar Narain Sin,i*h v. Maha-
bir Prasad 401
Ramjee Prasad v. Bishun Dtitt 194
"Ramjbari Koer v. Kashi Nath
Sabai 337
Ram Karan Mahto v. Dahur
Mahton 450
Ramkhelawan Sahu v. KulcUp
Sahay 15a
Ram Lagan Singh v. Mary Coffin f 572
Ramlakhan Pande v. Dharamdeo
Misir 575
Ramlai Singh v. Mt. Septi 295
Ram Lochandas v. Nandi Jha 485
*RampritlAhir v. Emperor 560
Ramsakal Rai v. Emperor 139
8
NOMINAL INDEX, 1926 PATNA
Bam Saran Singh v. Mahomed Jan
Khan 34
**Bam Sumran Prasad v. Govind
Das 582
Bamsunder Isser r. Emperor 253
Bamyad Dusadh v. Emperor 211
**Banjit Narain Singh v. Bambaha-
dur Singh 81
*Bazia Begum v. Mahammad Daud 508
*Bukmin Das v. Deva Singh 351
Bup Lai Singh v. Secy, of State 258
207 S
Sadhn Sao v. Awadh Bihar Saran
Singh 71
*8adhu Saran Pande v. Nanda
Kumar Singh 276
Sagar Mull v. Hira Maharaj 164
Sarda Devi v. Bam Lonchan
Bhagat 444
Satyadeva Sahay v. Jlmmel Kuer 519
Satya Niranjan Chakravarty v.
Sushila^BalaDasi 103
Shama Kant Lai v. Kashi Nath
Singh 549
Shamahor Narain Singh v. Maho-
med Sale 29 (2)
*Sheo Charan Singh v. Kishno Kuer 146
Sheo Dani Kuor v. Bamji Upadhya 76
Sheodhar Prasad v. Bamsaroop
Singh 318
*Sheo Prasad v. Emperor 267
Sheoratni, Mt. v. Munshi Lai 542
*Shripat Singh v. Naresh Chandra 94
**Siban Bai v. Bbagwant Dass 176
Sib Sahai Lai v. Bijai Chand
Mahtab 197
*Sitaram Das v. Emperor 173
*Sita Bam Singh v.Khul Lai Singh 255
*Sobhifc Mallah v. Emperor 70
*8one Kuar v. Baidyanath Sabay 462(2)
**8ubda Santal v. Emperor 29s
Subedar Bai v. Bambilas Bai 162
:|fSudha Krishna Mukerji v. E. I. ,
By. Co. 137
230 T
Tarkeshwav Prasad Tewari v.
Devendra Prasad Tlwari 180
Tarni Singh v. Satnarain •*
;:cThakur Sao v. Abdul Aziz 170
Thirathman Jha v. Gnnjeswari
Kuor 529
Tikari Municipality v. Alain Ara
Begum 547
Tilakdhari Lai v. Abdul Wahab
Khan 112
Tulshi Prasad Bam v. Chairman, '
Durrraon Municipality 181»
':<Tunia v. Emperor 168
238 U
*Uma Habiba Bibi v. Mt. Basoolan 497
Uma Jha v. Chctu Mandor B9
240 W
Wajibunnissa Begum v. Babu Lai
Mahton -JW
L241]
THE ALL INDIA REPORTER
1926
PATNA HIGH COURT
SUBJECT INDEX
Absence of Star denotes Cases of Provincial or Small Importance,
# Indicates Cases of Great importance.
* * Indicate Cases of very Great Importance.
Abatement of suit
See Civil P. C., 0. 22
Adverse Possession
Mortgagee cannot acquire
against mortgagor 51 2<;
Trespasser can acquire right
only in land encroached upon 385ft
Plea of, rimy be raised in ap-
peal for tho first time, if based
on original pleadings 192
-Trespasser abandoning posses-
sion before statutory period is
over — Rightful owner's title is
not affected 130/
Cosharers — Mere exclusive
possession of a portion for pur-
poses of management is no ons-
ter— A specific denial of other
co-sharer's right to possession
is necessary. 112
Amendment of Pleadings
See CIVIL P. C., 0. 6, R, 17
Amendment of Decree
-See CIVIL P. C., S. 151
Appeal
Right to second appeal— First
appejjate Court hearing appeal,
where no appeal lay— Second
apjfcal lies
Approver
See. (1) CRIMINAL P. Ct,8. 337
(2) EVIDENCE ACT, S. 133.
Arbitration
Sfe CIVIL, P. C., SCH. 2.-
B
Benami
Onus of proof is on party set-
ting up pica
Bengal Cess Act (9 of 1880)
S. 6 — Lessee of mining rights
need not pay cess to lessor
Ss. 41 and 107— Valuation
statement prepared under the
Act — Status of tenant under
Bengal Tenancy Act is not
affected—- Civil Court cannot
question the statements 175
Bengal Estates Partition Act
(5 of 1897)
Land not belonging to estate
under partition allocated —
Claimant of the land can bring a
suit for its recovery \vithin 12 ,
years 4&L
S. 119 — Objection as to cer
tain plots not belonging to the
estate under partition raised-^
No adjudication given on the
question but the plots allotted
in the final partition award —
Civil suit by objector is not
barred 421
S. 119 — Collectorate partition
after purchase of raiyati holding
by co-sharer — Allotment as
bakasht land to takhta of
another co-sharer — Partition
does not take away privilege of
purchasing co-sharer— S. 119 is
no bar * 268
10
SUBJECT INDEX, 1926 PATNA
Bang Eat. Partition Act
-- S. 119— Partition proceedings
are not binding on tenure-
holder even though he is one of
the proprietors 162
Bengal Ferries Act (1 of 1885)
— S. 9-— Scope— Th ! approval of
the Commissioner is limited to
the term of tbo lease and not
to the whole lease 318&
- S. 16 — Limits of the ferry
should be known 520a
-- Ss. 16 and 6— Public ferry is
one declared to bo so under
S. (> or Besula-fcion 6 of 1819, or
Bengal Act 1 of 1866 520c
-- S.s. 18 and 16— Plyin- along
one bank is no offence 5206
-- Ss. 28 and 16— Persons main-
taining ferry and carrying per-
Bonn for hire' is guilty and not
his servants 520(7
Bengal Ghatwili Land
Regulation (29 of 1814)
--- Gha^wal can bo a mourashi
mokararidar
Bengal Land Revenue Sales
Act (11 of 1859)
- Begister D kept by Collector
erroneous — Full description of
the estate not given — Notifica-
tion describing estate co Tocfc-
ly — Sale cannot bo set aside
-- Sale under — All proprietors
need not bo mentioned in the
proclamation
-- Ss. 2 and 3 — Liability of es-
tate to sale depends on three
dates
- Ss, 2 and «] — Original kist-
bandi unknown — Dates fixed
Hnder S. 3 are the kist dates 549/>
Bengal Municipal Act (3 of
1884)
-- 8s, 6 (3) and 85- A— Adjacent
plots held by same person as
owner, one by survivorship and
the other by purchase, consti-
tute one holding — S jparate
assessments are riot legal
- Ss. 114 and 113— Objection to
assessment disposed of without
reference under S. 114 — Disposal
is Ultra vires — Subsequent pro-
, oeedings regarding assessment
and collection arc also ultra
vires 647a
- — S. 363 — Assessment paW un-
iler protest, proceedings oemg
1B1
Beng. Mancl. Act
ultra vires — Suit for recovery
need not be filed within three
months
Bengal Pafni Regulation (8
of 1819)
— S. 5— Transfer of tenure-
Fees not paid — Landlord can
ignore transfer and proceed
against transferrer for rent —
Sale for arrears of rent cannot
bo challenged by unregistered
transferee
Ss. 5 and 0 — Unregistered
assignee of leaso can have sale
set aside on the gro'indof fraud,
but not on ground that he wan
not p&rty to rent realization
proceedings 465o
3.11 — Landlord can realize
rent after one year under ordi-
nary law, i.e., Bengal Tenancy
Act 46W
S. 11— B. T. Act applies whero
P"tni law is silent 4=65e
Bengal RegulationUl of 1793)
Re-ad j istment of revenue does
not conf -r new title. • 577 a
(3 of 1872)
S. 27— Landlord's interest in
raiyati holding can bo sold in
execution of a decree
Bengil Revenue Sales (Act 11
of 1859)
-S. W— Purchaser at sale for
arrears suing for recovery of
land—Defendant claiming land
as lakh iraj— Onus is on the plain-
tiff to show that a*J Permanent
Settlement the land was entered
as rnal and w.as included in the
estate as such
S. 37, Bxcep. 4 — Exception
does not mean that lease, must
be one for excavating a tank
thereon *
S. 37 — Encumbrance -r- Rev-
enue sale does not ipso facto an-
nul an encumbrance — Steps
have to be taken by purchaser
to annul it — Denial of pur-
chaser's title by tenants liefore
encumbrance is annulled does
not create forfeiture
Bengal Tenancy Act (8 of
1885 *
Landlord can realise
alter one year under
lawri. e.,B.T.Acfc
SUBJECT INDEX, 1926 PATNA
u
B. T. Act
S. 5 — Question whether ten-
ant is tenure-holder or raiyat de-
pends on question of fact 9J>
— — S. 5 (5) — Tenant whether
tenure-holder or raiyat — Test
is purpose and extent of tenancy 9a
S. 5 (5) — Tenant whether
tenure-holder or raiyat — Re-
clamation and cultivation by
tenant by his own plough is
inconsistent with tenant being
tenure-holder only 9d
S. 22 (2)— Co-sharers — Part
of proprietary right of a part of
holding falling to a co-sharer
purchasing the entire holding
at rent sale — His stat% is not
affected 580
8. 22 (2)— Collectors, te parti-
tion after purchase of raiyati
holding by a co-sharer — Allot-
ment as bakasht land to takhfa
of another co-sharer — Partition
does noii take away privilege of
purchasing co-shaver — Bengal
Estates Partition Act (5 B. C.
of 1897), S. 119 is no bar 263
— — -S. 29 — Tenant must prove
1iha<. bo is an occupancy raiyat
tefore invoking aid of S. 29 156/>
S. 40 — Crop-cutting report of
Deputy Collector is pi blic docu-
ment and is admissible to prove
quantity of crops cut 4:366
S. 46, sub.-S. 7— Kent at en-
hanced rate is payable from the
date of acceptance of agreement
420
S. 52 — Landlord should show
additional area in tenants' pos-
session to claim additional rent —
Onus then is on tenant to prove
that the additional area be-
longed to him previously 197/-
S.*53 — Contract not in ado
with reference to boundaries but
a specific block not specifiable
except by area — Area is the es-
sence— Additional area found
with tenant — Tenant is liable
tojpay enhanced rent? 197a
S. 60 — Registered and un-
registered theKadars — Claim by .
registered thekadar — Tenant
^ can not plead payment to un-
' registered thekadar 532
—^ S. 61 — Bona fide deposit of
whole amount is valid though
71
B. T.Act
in fact it turns out to be less 426
S. 70(2)— Notice served by 4
Amin — Person alleging absence
of notice must prove it 4:955
S. 70 (4) — No fresh notice
need be given tinder sub-S (4) 4950
S. 71— Suit for rent— Bhauli
rent — Tenants removing crops
before appraisement — Landlord .
is entitled to claim rent on the
basis of best crops in the neigh-
bourhood on similar lands 436d
S. 85 (2) — Lease registered
contrary to S. 85 (2) throiigh
misapprehension of registering
officer — Ko collusion between
lessor and lessee to evade the
provision — Lease is inoperative
beyond nine years 9a
S. 87— There is no abandon-
ment where tenant lusiifruc-
tuarily mortgages his holding
but still resides in the village
S. 1Gb (b)— Zamindar is not
presumed to be in possession of
raiyati holding — Kecord-of-
rights recording land to be occu-
pancy holding — Onus is on
zemindar to provo that the land
is his rualik zerait
S. 1Gb (b) — Entry in the re-
cord-of-rights as to the tenant's
right to trees does not carry the
presumption of correctness
S. 105 — Application under —
Sole plaintiff karta of the family
and the sole recorded proprietor
— His sons need not be joined
as plaintiffs
S. 158 B(2) — Sale without
notice is not a nullity hut a
mere irregularity 505
S. 158 B- Tenure passes to
purchaser only after actual sale
uncfor decree 21&*
* S. 170— B. 58 of O. 21, Civil
P. C., does not apply to rent
decrees 210 and 2136
S. 174— Sale set aside — No
appeal lies at the instance of
auction purchaser 56*
S. 174— Deposit made tfnlly
but in slightly erroneous man:
ner — Sale need not beset aside, 55ft
8. 182 — Person not a raiyat
buj> residing in village home-
stead— S. 182 does not apply
485
68ft
461
12
SUBJECT IN&BX, 1926 PATNA
B. T. Act
but Contract Act applies — Inci-
dents of permanent tenancy
pointed out 600
--- Ss. 188 and 105— Application
under S. 105 — Sole plaintiff
karta of the family and the sole
recorded proprietor — His sons
need not be joined as plaintiffs 401
S. 195 (o) —Tenancy Act ap-
Encumbered
plies where Patni law is silent
Bengal ' Troop* Transports
and Travellers ' Assistance
Regulation (11 of 1806)
— S. 3(1) — Native officer can
impress cart against owner's
consent 258/>
Bihar and Orissa Municipal
Act (7 of 1922)
----- S. 377 (1) »nd (2)— 8. 377 (0
and (2) do not cover cases of
contract 462(1)
Bihar and Orissa Public De-
mand Recovery Act (4 of
1914)
--- S. 4G — Recorded patnidar
holding hcnami for another or
transferring by private arrange-
ment- Beneficiary or transferee
cannot sue to net aside rent de-
cree on grounds other than
Burden of Proof
--- Sw EVIDENCE ACT, SF. 10 1
to 103
C
Cause of Action
-- See CIVIL P. C., O. 2, R. 2
Cheating
- See PENAL CODE, S. 415
Chota Nagpur Encumbered
Estates Act (6 of 1876)
--- Before amendment by Act 8
B and O. C., of 1922, B. 3 01. (1)
and 8. 12, 01. (2) — SchemQ of
payment of debts by manager,
and approval of scheme by Com-
missioner — Period during which
estate is under protection under
'Ehonoibered Estates Act i*
excluded in computing limita-
tion — Manager incurs no liabi-
lity in drawing up scheme —
Determination of debt by man-
ager is not judicial decree 260
— -8*. 3 and S3 — Usufructuary
mortgage by proprietor— Decree
for rent against tenants— Estate
Chota Nagur
Estates Act
vested in manager — Decree can-*
not be executed 524
Chota Nagpur Tenancy Act
(6 of 1908)
Definition of agricultural land
appears purposely omitted 527k
S. 46 — Suit for ejectment of
under-tenant by his immediate
landlord is barred as applica-
tion lies under S. 46 to Deputy
Commissioner 403
Ss. 71, 139 and 139- A— Amend-
ing Act (1920) was not in-
tended to take away vested
rights uyler old Act 561&
-8s. 71 and 189— Suit for pos-
session by tenant against land-
lord— Question of tenant's sta-
tus is immaterial .' 561 c
S. 83 — Any order passed
under S. 83 relates to the draft*
record only 369/*
Ss. 89, 83 and 258 — Order
under 89 of Attestation Officer
can bo revised by Settlement
Officer and such revision bars
a suit in civil Court by reason
of S. 258
S. 139— Section
646
contemplates
cases where relationship of land-
lord and tenant is admitted—
Where tenancy is not admittecl
suit for possession of occupancy
holding cannot bo entertained
by Deputy Commissioner but
can bo maintained in civil
Court 64<:
S. 139 A— Suit for ejectment
of under-tenant by his imme-
diate landlord is barred as ap-
plication lies under S. 46 tp
Deputy Commissioner * 40&
S. 1H9 (2) — Person sued .need
not be raiyat — Bent payable
must bo in respect of agricul-
tural land ' 627*
— S. 231 — Section does not ap-
ply to suits to set aside sale on
the ground of fraud ^ 401ft
— S. 258— Fraud is the onjy
ground to remov& the bar • 528/>
— Ss. 258 and 84 (3)— Becord W
rights recording a tenure to 1&
non-resumable — Suit to declare
that tenure is resumable is not
barred* " 369*
SUBJECT INDEX, 1926 PATNA
Chota Nagpur Tenancy
(Amendment Act) (6 of
1620}
-Ss. 38 and 39 — The Amending
Aot was not intended to take
away vested rights under the
old Act 56la
S. 139 A— Suit c or declara-
fcidn as occupancy tenant and for
possession is barred 363
S. 231 — Suit to set aside an
execution sale on the ground of
fraud is governed not by S. 231
but by Limitation Act, Art. 95 47
Civil Procedure Code (5 of
1908)
-— —S. 11 — Execution purchaser
whether the decree be a money
decree or mortgage decree, re-
presents judgment-debtor for
purposes of the section 478a
S. 11 — Go-defendants — Con-
flict of interest between co-
defendants and necessity to
adjudicate on that dispute to
give relief to plaintiff are neces-
sary to make the decision res-
judicata between them 478c
— — S. 11 — Application challeng-
ing validity of a compromise
decree under S. 151 dismissed —
Subsequent suit for the same
purpose is not barred 289
S. 11 — An erroneous decision
on a point of law can be res
judicata 288#
— — S. 11 — Cause of action a recur-
ring one — Still, matter directly
and substantially in issue is res-
judicata 288A
— — S. 11. — Competent Court —
Suit dismissed but one issue
decided against defendant — De-
fendant appealing — Appellate
Court wrongly holding appeal
incompetent but deciding the
issue in defendant's favour —
Finding is res judicafca 87^
Ss. 37 and 38 — Court passing
decree abolished and re-estab-
lished— It can'exocute decree if
it cc$ild try the suit to which
decree relates 209a
S? 37 (b) — A'Court that is
abolished can be revived 209/>
— — 'S.-41 — Court to whichadecree
i§ transferred for execution
cfefcses to have jurisdiction after
14 has taken action under SV41 274
Civil P. C.
— — S. 47 — Order on question of
notice under O. 21, B. 22, is one
in execution 397<*
S. 47 — First appellate Court
deciding that property compris*
ed in the decree is not saleable
— Second appeal lies 202e
S. 47— Partition suit — Decree
directing separation of plain-
tiff's share only but leaving
shares of defendants joint —
Separate suit by defendants
inter se for separate possession
of shares is not barred 154^
S. 65 — Decree- holder allowed
to bid but on conditions — His
failure to fulfil the conditions
does not not affect the sale in
favour of highest bidder 335
' S. 73 — Another decree-holder
applying for distribution — First
decree-holder alleging thai
other's decree to be collusive and
applying for judicial enquiry —
Application should not bo enter*
tained 497 »
*— S. 92— Suit to establish exis-
tence of trust itself is not
within S. 92 321*
— -S. 100 — Question as to notice
is one of law 495c
S. 100— Question of law de-
pending on question of facfc riot
raised in lower Court was nofc
allowed 4016
; S. 100 — Question of fact based
on no evidence will be interfered
with 187(5
S. 100 — Construction of a
title-deed is a question of law 49a
S. 100 — Misreading of docu-
mentary evidence — Finding is
not binding 496
S. 100 — Question whether
tenant is tenure-holder or
raiyat under B. T, Act uUi-
mately depends on question of
fact 9b
:* S. 109— Final order — Or%der
allowing appeal under S. 5,
Limitation Act, is not ; but
order refusing to allow would
amount to, final order 102
S. 115 — Failure to forthwith
apply in revision on interlocu-
tory prder does not bar right to
apply when the case is over . 5754
SUBJECT INDEX, 1926 PATNA
Civil P. C.
* 8. 115 ~ Valuation of suit
tinder 8, 7 (4) (c), Court-fees
Act, found to be reasonable by
lower appellate Court — High
Court will not interfere 334
* 8. 115— Power should not be
exercised whpre technicalities are
served at expense of justice
F.B. 218a
• 8. 116 — Inadmissible evidence
admitted — Finding based on
other evidence — Finding is not
vitiated 29(2)d
8.115— Sub-Deputy Collector
refusing application to pro-
aeoute — Collector on appeal sett-
ing aside the order and making
a complaint exercises judicial
powers and revision lies 25a
8. 151— Amendment of decree
— A, original guardian of minors
dying before appeal from preli-
minary decree — B appointed as
guardian in appeal — Final de-
cree mentioning A to be guar-
dian— Amendment to substitute
B for A should be allowed 564
8. 151 and O. 41, K. 23— Re-
mand on the ground that suit
was not properly tried — No
appeal lies where remand is
under 8. 151 and not O. 41,
B. 23 516
*— — S. 151 — Remand order is ap-
pealc^le only if it amounts to
decree — Order reversing trial
Court's decree is not a decree
unless order itself decides any
point for determiraf.ion 457
*— 8. 151— Application challeng-
ing validity of a compromise
decree under S. 151 dismissed —
Subsequent suit for the same
purpose is not barred 289
* S. 151 — Wrong dismissal of
application for ascertaining
mesne profits for non-pa>ment
of Court-fees cannot be reviewed
fr t it can be restored under
8. 101 F. B. 218d
* 8. 151 — Injunction against
person outside jurisdiction can
be issued if he has submitted to
• jurisdiction 171
* S. 151 — Section does not
necessarily apply whenever no
other remedy is open % 276
*— 0. 1, H. I—Rent suit— A per
Civil P. C,
son who alleges to be transferee
from a co-sbarer landlord, but
who is not recognized as snob
by the plaintiffs-proprietors, can-
not be joined in a rent suit
against the wishes of the plain*
tiffs 519
0. 1, R. 8—Commnnity of in-
terest is the essence of represen-
tative suit 321/1
' 0. 1, R. 10— Transfer of par-
ties raising value cf subjeofc-
mafiter higher than Court's juris-
diction— Court should add par-
ties and return the plaint 28fc
* O. 1, 0. U, R. 1 and S. 115—
Refusal to add a party as plain-
tiff— S. 115 does not apply — If
fair trial would be denied, Gov-
ernment of India Act, S. 107,
will apply 207>,
' -O. Si, R. 2— Causes of action
different but substantial evi-
dence common to both— Reliefs
arising from both should be
claimed in the same suit
O. I ,R. 1 — Advocate can be
verbally appointed
O. 6, R. 17 — Amendment
prayed for after evidence — Ques-
tion of fact to be raised by am-
endment already raised and evi-
dence adduced — Amendment
should be allowed
O. 7, R. 2— -Valuation will
refer to profits before and after
suit where both are claimed —
(Per Mullick, «/.) F. B. 218<;
: O. 7, R. 10— Transfer of par-
ties raising value of subject-
matter higher than Court's juris-
diction— Court should add par-
ties and return the plaint 28fc
0. 8, R. 6— Equitable set off
can be claimed though . tinie-
barred 77J>
O. 9, R. 13 — Application for
restoration decided according to
law — High Court will not inter-
fere under Government o£ India
Act, S. 107 37
0. 9, R. 13 — Applicatiofc to.
set aside ex parte decree allowed
— Mo revision lies 29(2)a
O. 16^ R. 1— Application at a
late stage to send for Char.kida*
Register from Deputy Commis-
sioner and admit it in
SUBJECT INDEX, 1926 PATNA
Civil P. C.
— Application should not be re-
fused 5456
— — O. 20, B^ 12 — Application is
no plaint ; ifc can be oral— (Per
Jwala Prasad, J.) F. B. 218e
O. 20, E. 12 — Dacrea for
mesne profits passed — Applica-
tion for ascertainment cannot be
dismissed 14 la
O. 20, B. 12— Application for
mesne profits — Law of limita-
tion does not apply 141 b
O. 21, B. 11— -Heading and
column 8 blank — No correct
entry in column 6 — No list of
properties — Sheet No. 2 blank —
No copy of decree attached —
Names of decree- holders not
given — Application returned
— Time given for supplying
defects — Defects supplied bj-
yond time — Application is
bat red 533
O. 21, R. 16— Decree-holder of
a decree-holder is not .transferee'
within B. 16 320
0. 21, B. 22— Ord3r on ques-
tion of notice is one in execu-
tion • 397«
O. 21, B. 22— Application to
set aside execution sale on tho
ground of want of notice is
governed by the three years'
rule of lim't&tion under Art. 181,
Limitation Act 397<?
O. 21, B. 58 — Bule does not
apply to rent decrees by virtue
of Bengal Tenancy Act, S. 170 2136
O. 21, B. 58 -Bule does not
apply to rent decrees by virtue
of Bengal Tenancy Act, S. 170 210
— O. 21, Br. 66 and 72— Auc-
tion-purchaser, whether decree*
holder or not, cannot be com-
pelled to bid higher than or up
to the proclaimed price 146
O. 21, Br. 66 and J2— Price
in proclamation is not* an exact
estimate — Court cannot compel
decree-holder to bid up to or
higher than the proclaimed
price * 140
— O. 2>Br. 90 and 96— All par-
ties affected by an application
under B. 90 need not be parties
to the application , but that they
should have notice 2666
21, B. 92— Notice— There
Civil P. C.
is no limitation for notice under
the rule 966*
- O. 22, B. 4— One of the heirs
brought on record in time —
Suit or appeal does not abate 276a
- 0. 22. Br. 4 and 9— Bach of
the appellants is entitled to ap-
ply under the rules Indepen-
dently 2766
-- 0. 22, B. 4~ Finding that a
deceased plaintiff's heirs were
not necessary parties to applica-
tion to set aside ex-pavte decree
is not revisable 29(2)6
-- O. 22, B. 6— Decree against; a
dead person is a nullity 504f/
- O. 23, B. 1 — Permission to
withdraw given, on condition of
paying defendant's costs, not
mentioning that suit will stand
dismissed if costs not paid, with-
in prescribed time — Fresh suit
is not barred for non-payment
of costs— Bemedy is not to pro-
ceed with the fresh suit
costs are paid
: - 0. 23, B. 1— Withdrawal of
suit allowed on certain condi-
tions — Conditions not fulfilled —
Suit is not automatically dis-
missed but is deemed as pending 409
1 -- 0. 23, B. 1 — Application made
for permission to withdraw
with liberty to bring fresh suit
on same cause of action — Pjr>
mission granted — No mention
made about liberty to bring suit
— Liberty to bring fresh suit
will be de 'tnod as granted
- 0. 23, B. 1— Plaintiff bonnd
to fail owing to substantial
defect in plaint — Permission
cannot be granted
- 0. 25, B. 1— Official Assignee
adopting proceedings filed by
insolvent plaintiff is
giving security for
curred prior to his
472.
259
128
liable for
costs in-
becoming
plaintiff % 533
- 0. 26, B. 4— Plaintiff having
no choice of fornm — Commis-
sion may be issued for his exa-m
i nation 2T7
- 0. V6, B. 10— Beport of Com-
missioner is notbin^ing 469(2)
-- 0. 26, B. 12 — If Commis-
sioner's report is unsatisfactory
SUBJECT INDEX, 1926 PATNA
Civil P. c.
another Commissioner should be
/appointed 159
— KX 29 ,B. 2— Suit against Bail-
way Company — -Proper name to
be described is the one under
which it carries on business —
If through, error agent is made
defendant and not the Company
and Company is real defendant,
Buit may proceed against Com-
pany 10
O. 32, B. 3— Defendant alleg-
ing to be minor — Issue should
be framed and decided — Court's
opinion about defendant's ap-
pearance is not sufficient 489
rQ. 34, B. 1— Suit by prior
mortgage without joining puisne
mortgagee — Puisne mortgagee
is not bound either by decree
in such suit or sale in execution
—Purchaser being in possession
for more than 20 years does not
affect rights of puisne mort-
gagee 337a
— — 6. 34, B. 1 — Mortgage suit by
Hindu joint family — Non-joinder
of members is fatal only where
strong reasons exist 207&
— O. 34, B. 14 — Decree declaring
s a charge on certain property of
defendant — Charge can be en-
forced in execution — -Separate
suit is not necessary 31
fy 39, B. 1— Court should be
satisfied before granting tempo-
rary injunction as to there being
a serious question and as to the
probability of plaintiff's success 318a
O. 39, B. I—Suit for declara-
tion only — No permanent in-
junction claimed — Whether in-
terlocutory injunction should be
granted (Quaere) 3l8r
O. 39, B. 1 — Injunction
against person outside jurisdic-
tion can be issued if liO| has sub-
mitted to jurisdiction 171
O. 41, B. 19 — Appeal dismis-
sed for failure to deposit print-
ing costs — Application for res-
toration is one for review and
not one under O. 41, B. 19 27a
0. 41, B. 23—Bemand on the
ground that suit; was not pro-
perly tried — No appeal lies
where remand is under 8. 151,
and not under O. 41, B. 23 516
Civil P. c.
* O. 41, B. 23— Bule applies if
whole suit is remanded — When
remand is on a portion of suit;
it is not under B. 23, and no ap-
peal lies 514
O. 41, B. 23 — Bemand order
is appealable only if it amounts
to decree — Order reversing trial
Court's decree is not a decree
unless order itself decides any
point for determination 457
•>• o. 47, B. 1 — Wrong dismissal
of application for ascertaining
mesne profits for non-payment
of CourHees cannot be reviewed,
but it can be restored under
Civil P. C., 8. 151 (Per Jwala
Prasad, J.) F. B
O. 47, B. 1 — Appeal dismissed
for failure to deposit printing
costs — Application for restora-
tion is one for review and not
under O. 41, B. 19
Sch. 2, para. 16 — Appeal on
grounds other than those in
para. 16 is incompetent 164a,
Commissions
See CIVIL P. C., O. 26 •
Compromise
Pleader authorized to compro-
mise — Compromise is valid '
unless fraud or collusion is proved 73c
Confession
See EVIDENCE ACT, Ss.24 <fc 30
Contract
-Completed contract — Setting
aside — Inadequate consideration
amounting to fraud iaground for
seting aside 539<r,
-Mortgagor selling equity of * *
redemption — Purchaser promis-
ing to pay the mortgage money
—Mortgagee not a party to the
agreement — Purchaser Is not
personally liable to mortgagee
for mortgage money 474
Contract Act (9 of 1872)
Ss. 16 and 17— Inadequate
consideration may lead to in-
ference of fraud or undue in-
fluence 5396
S. 19 — Completed contract —
Setting aside-*-Inadequate con-
sideration amounting to fraud
is ground for setting aside 539<t
* S. 23— Gift by bride's parents
fo bridegroom and his relation
in .consideration of marriage
SUBJECT IHDEX, 1926 PATNA
17
Contract Act
•re not prohibited — Gifts ac-
tually made cannot be recovered
although they may not be en-
forceable by suit 58 2c
Ss. 59, 60 and 61— In the ab-
sence of any direction from
debtor, creditor may appropriate
payment in chronological order
of debts — This right of creditor
continues until he has com-
municated the appropriation to
the debtor 330
S. 68 — Debt by guardian for
necessaries — Decree for, is exe-
cutable against minor's pro-
perty 399
S. 74 — Contract to hold pre-
mises for 11 years and after
that to hold at thrice the rent
or to take fresh settlement is
enforceable
S. 74 — Decrees whether on
compromise or contest — Doc-
trine of penalty does not apply
S. 78 — Payment of purchase
money does not determine pass-
ing of title — Court will construe
contract according to intention
of parties as to when property is
to pass 353a
S. 78 — He who enables third
person to occasion loss must
suffer it — Principles explained 3536
S. 108— Steam launch— Cer-
tificate of survey is not a docu-
ment of title 353c
Court-fees Act (7 of 1870)
c S. 5 — Appeal wrongly assessed
by Taxing Officer—Kefund o
Cpurt'fees cannot be ordered by
bhe High Court 147
" S. 7 (iv) (b)— Partition suit- -
Defendants need not pay Court-
fee • 15i6
* S. 7 (iy) (c)— Two reliefs not
co-exjfcensive and both necessary
— S. 7 (iv) (c) will apply 403
S. 7 (vi) (c)— Civil P.O., S. 115
Valuation found to be reason-
able by lower appellate Court
tjigh Court will not interfere
in revision
^8. 7 (iv) (c) — Declaratory suit
Plaintiff obtaining ad interim
injunction in lower Court, but
losing the suit and in appeal
. seeking same relief — Ad interim
1926 N. S. T.
249
Court fees Act
prayer brings the case under
01. (c).
- S. 7 (v)— Where the suit is
one for possession of land after
determination of the question
of title and the title is gone
into, the case falls within S. 7
(v) and the Court-Pee is payable
on the market-value of the land 251
- S. 11 — Court-fee is payable on
future mesne profits from date
of suit but cannot be ordered to
be paid on pain of dismissal of
suit even on ascertaining the
profits - F. B. 2lfc>
- S. 11 — First part applies to
final decree including future
profits (Per Jivala Prasad, J.)
F. B. 218/
- S. 27 — Patna — Stamps im-
pressed with " for use in tho
High Court only" are not invali-
dated for use in subordinate
Courts 408
- Sch. 2, Art. 10 — Article pres-
cribes fees only and does not
create necessity for an authority 296c
- Sch. 2, Art. 10 — Written
power of appointment filed even
by a barrister must be stamped 246
Criminal Breach of Trust
- See PENAL CODE, S. 409
Criminal Procedure Code (5
of 1898)
- (amended in 1923), S. I—Ap-
plication of Code to pollfb is,
but to Magistrate is not, barred
by S. 1 (Per Adami, J.) 27f:&
* - S. 4 (j)— "High Court" for
purposes of revision against ac-
quittal from proceedings from
Sonthal Parganas is Commis-
sioner of Bhagalpur 449
- S. 37 — Cognizance of offence
beyond powers specified in Sch.
4 and S. 37 is without juris-
diction and convictipn may not
be invalid but complainant can-
not be prosecuted for false com-
plaint 400
-- S. 54 — Because certain* per-
sons are in a certain place at a
certain time does not make
them liable for arresfe 560
- Ss. 56 and 54 — Command cer-
tificate issued under S. 56 — Con-
stable effecting arrest not notify-
ing/contents to person arrested
18
SUBJECT INDEX, 1926 PATNA
Criminal PC.
— Arrest is not; illegal if facts
entitle the constable to arrest
tinder 8. 54 ^ 424
8. 59 — 'In his view' 'means 'in
his presence* 53
8. 107 — Two opposing parties
in 'a dispute cannot be proceeded
against under S. 107 in one
proceeding 32
S. 109 (a)-~ 01. (a) is not limi-
ted to cases where the accused
has not been arrested, nor is it
necessary to prove a continuous
effort at concealment — Mere
effort to run away on the ap-
proach of police is not sufficient
— Whether a particular case
falls within 01. (a) depends on
the facts of that case 569
S. 133 — Only when denial of
right is a pretence, Magistrate
can make order absolute HQa
— S. 133 (1) — Discharge into river
of an effluent from a factory is
covered — There must be definite
scientific and convincing evi-
dence against the accused 506
S. 139-A (2)— Eoliable evi-
dence supporting denial of right
ousts jurisdiction 170&
S. 144 — Absence of notice to
one of the members does not
render wholeproceedings without
jurisdiction 676
S. 145 — Party — A party's
sodflfcaving no possession or title
is not bound by order against
his father 103c
S. 145 — Jurisdiction — Non-
joinder or misjoinder of parties
does not affect jurisdiction 67a
145 — Minor made party to
order under sub-S. (1) — Notice
not served on him — Minor is
not a necessary party 67c
S. 145 — Order passed after
looking into evidence and hear-
ing arguments — Order declar-
ing right of one party to be in
possession and forbidding others
froto interfering with the pos-
sesion is one under S. 145 51
S. 147 — Eight of personal
easement as well as public
right of way can be claimed to-
gether 348a
S. 147 — Seasonable grounds
that bona fide claim of Bright
#*.
Criminal P. C.
exists are sufficient to pass an
order under the section. 3486
S. 147 — Specific instances of
user within three months is not
necessary — General user is
sufficient 3480
S. 147 — Proceedings against
gumasta alone are not illegal 196
— S. 162 — Important statement
made at trial was not made at
the investigation — Contradic-
tion can be proved 362
(amended 1923), S. 162—
Section excludes completely
statements made during in-
vestigation except for limited
purposes — Statements of ac-
cused, not amounting to confes-
sion are still admissible 232d
— S. 162 — Statement before
police cannot be used to meet a
suggestion of defence nor to
support testimony of the depo-
nent— Infringement of S. 162
is not necessarily fatal to con-
viction if decision is based on
other admissible evidence , 211
S. 1G2— Statements of wit-
20
nesses recorded by investigating
officer cannot bo used to show
that the statements do not assist
the story put forward in the
first information report
--- (as amended in 1923), Ss. 164
and 1 — Change by amendment
is made to allow Presideucy
Magistrate to record confession
(Per Adami, J.) 2796
— S. 164— The Code itself contains
no provisions as to the confes- . •
sion being made in open Court 279c
- S. 164 — Accused asked as to
his willingness to make volun-
tary statement, his reply^in the
affirmative and warning him
subsequently is sufficient (Per
Adami, J.) .
-- S. 164 and Ch. 14— Con-
strnction — Even though the
police in Calcutta may not con-
duct their investigations in pre-
cise accordance with tht pro-
visions of C^. 14, to construe
S. 164 which would exclude its
utilization in Calcutta during
the pblice investigation at ai^y
time afterwards before the com-
mencement of the enquiry or
SUBJECT INDEX, 1926 PATNA
19
ifc in a some-
and unnatural
Criminal P. C.
trial, is to read
what strained _.
sense 279/
— — 3. 190 and S. 37 and Sch. 4
— Cognizance of offence beyond
powers specified in Sch. 4 and
S. 37 is without jurisdiction
and conviction may not be in-
valid but complainant cannot
be prosecuted for false complaint 400
>S. 192— Complaint under S.
420 Indian Penal Code — Police
ordered to report — Police
reporting the case to ba false
and instituting prosecution
under S.'2ll — Complaint by
complainant praying for judi-
cial enquiry — Case transferred
to another Magistrate — Trans-
fer is one under S. 192 525
S. 192 (1) — Sub-divisional
Magistrate transferring a case
before issue of summons — Trans-
feree Magistrate can issue sum-
mons and perform all requisites-
to decide the case — If transfer
is by High Court's derection it
• makes nc difference 358
S. 195 — Magistrate dismissing
a falso complaint cannot proceed
against complainant under
S. 211, Penal Code 368
S. 202 — Issue of process with-
out recording reasons is not
correct — Cross-examination and
arguments should not, as a rule,
be allowed in a case of inquiry
under S. 202 340
: 3. 203— Order of dismissal-
Reasons for dismissal should be
recorded 57
S. 210 — Prosecution not pro-
ducing aljl material witnesses-
Committing Magistrate should
call them. himself 56
S. 227 — Alteration of charge
from S. 436 to S. 436 road with
S. 149 does not take away opera-
tion of notification requiring
S. 436 offence triable by jury —
Trial oj altered charge with
assessors is void 253&
(amended 1923), • S. 234—
Cheating two persons within
one month — Joint trial is ^not
illegal 3476
249— S. 249 does not apply •
to warrant erases — Order gf
Criminal P. C.
release in a warrant case under
S. 249 is void and proceedings
cannot be re-opened at the in-
stance of a private party 292
S. 250 (3)— Total amount of
compensation is the basis to
decide appealability 70
(amended by Act 18 of 1923), '
S. 256 — Sufficient time must be
given to the accused to consider
for further cross-examination of
prosecution witnesses after
charge is framed 21 4&
-S. 256— S. 256 does not apply
before charge is framed 2146
3. 256 — Magistrate cannot
insist on the accused to deposit
costs of witnesses before recall-
ing for cross-examination 214c
S. 257 — Magistrate deciding
to call a witness should take
steps'to produce him but he t
can dispense with his presence
if he finds his presence unneces-
sary 139
S. 269 — Alteration of charge
from S. 436 to S. 436 read with
S. 149 does not take away opera-
tion of notification requiring S.
436 triable by jury — Trial of
altered charge with assessors is
void 253«
S. 288—" Subject to the pro-
visions of the Evidence Act"
means so far as the previo4l
evidence is evidence under the
Evidence Act and not so far as
it is admissible under that Act —
Weight to be given to the pre-
vious evidence depends on facts
of each case, but it cannot be
utlized to support conviction
unless there is other evidence to
corroborate it 440&
S. 307 — Two inferences possi-
ble on evidence — Court of refer-
en ce will not interfere unless
inference drawn by jury is in-*
consistent with evidence 5666
S. 307— Verdict of jury wilt
not be upset unless it is un-
supported by evidence 5356
— S. 337 — Approver disclosing
offences other than that he is
charged with, while making full
disclosure, should not be pro-
ceeded Against for the further
disclosed offences 279<*
20
SUBJECT INDEX, 1926 PATNA
Criminal P. C.
c S. 340 — No authority in
writing is necessary for an
advocate or vakil in criminal
cases 296a
S. 342— Technical failure to
comply is not fatal unless pre-
judice is caused 393i
S. 342 — Provisions are man-
datory— Non-observance vitiates
trial 29(1)
S. 360 — Deposition not read
over to witness but read by
witness himself — Deposition is
legal evidence 2320
S. 403 — Scope is wide —
Jurisdiction does not refer
merely to character or status of
Court but refers also to want of
jurisdiction on other grounds
such as want of sanction under
S. 195 302a
S. 403 and S, 249— S. 249 does
not apply to warrant cases —
Order of release in a warrant
case under S. 249 is void and
proceedings cannot be re-opened
at the instance of a private
party 292
Ss. 437 and 202 — Allowing
cross-examination in an enquiry
under S. 202 is a mere irregu-
larity and further inquiry should
not be directed 34i
S. 439 — Question of proof of
ralice is one of law (Kulwant
Sahay, J.) 499d
• S. 439— Magistrate convicting
accused for lesser offence within
his jurisdiction — Facts also con-
stituting grave offence not with-
in his jurisdiction — Proceedings
are not void — High Court will
not interfere unless prejudice is
caused 393a
S. 439— High Court will in-
terfere only in exceptional cases
e. g.f where there is denial of
fair trial — In cognizable cases,
private prosecutor has no locus
Btandi at all (Mullick, J., Mac-
pherson, J. contra) 176
— — S. 439 — Accused convicted of
one offence though facts found
would constitute more serious
offence — High Court would not ,
interfere unless sentence is in-
adequate or accused is deprived
of right of appeal 36a
81*
Criminal P. C.
S. 444 — Oh. 33 does not apply
fco complaint by public servant
on orders of Government 566c*
S. 444 — Powers of High Court '
on reference are not co-extensive
with those under S. 449 566^
< g. 475 — Making complaint is
discretionary — High Court
should interfere only in excep-
tional cases Sib
- S. 476 — Court generally takes
action on application by parties Sic
S. 476 — Question as to forged
nature of document is to be de-
cided in prosecutions following
complaint and not before making
one Sid
' S. 476 — Criminal offence sus-
pected — Facts forming the of-
fence shoujd be determined in
the proceedings 25&
S. 476-B— First Court refusing
to make complaint — Appellate
Court allowing appeal and itself
making a complaint — Appeal lies
to High Court
S. 476B— Party prejudicially
affected has a right of appeal .250
S. 526 — Crown case conducted
by Court Inspector — Complain^
ant appointing a pleader, who
is a near relation of Magistrate,
to watch the case is no ground
for transfer 464
S. 529 (e) — Cognizance of of-
fence beyond powers specified in
Sch. IV and S. 37 is without
jurisdiction and conviction may
not be invalid, but complainant
may not be prosecuted for
false complaint
Ss. 530 and 439 — Magistrate
convicting accused for lesser of-
fence within his jurisdiction —
Facts also constituting grave of-
fence not within his jurisdiction
— Proceedings are not void —
High Court will not interfere
unless prejudice is caused 393a
S. 537 — Cheating — Omission
to give exact date — Month given
— Irregularity is curablo 347a
S. 537 — Allowing cross-exami-
nation in an enquiry under
S. 202 is a mere irregularity 346
S. 539— Affidavit before Magis-
trate having no seisin over the
case is not valid 2140
400
SUBJECT INDEX, 1926 PATNA
21
Criminal P. C.
— — Sch. IV — Cognizance of offence
beyond powers specified in
Sch. IV and S. 37 is without;
jurisdiction and conviction may
not be invalid but complainant
cannot be prosecuted for false
complaint 400
Criminal Trial
Written statement by accused
is not legal 566&
••It is for the Crown and not
for the High Court to consider
whether proceedings should be
dropped on the ground of harass-
ment to accused 3025
-Sessions trial — Defence having
a counter- case should give evi-
dence and should not rely on the
discrepancies in prosecution evi-
dence 5&
Prosecution case not proved —
Accused should be acquitted 50
Custom
•*Proof must be given apart from
estate in dispute 61a
D
Damages
Breach of contract — Railway
Company entrusted with goods
to be carried — Route not fixed —
No delay in delivery — Railway
is free to carry goods by any
route
-Suit for — Cause of action based
on breach of contract — Damages
based on delay cannot be
claimed
•Decree
-Setting
2736
aside-
4870
Fraud — Minor
is equally bound by a decree as
a major — Decree against minor
properly* represented — Fraud or
collusion is the only ground for
setting aside 5280
Deed
Construction — Lease — Dak
fard is not a lease
'Construction — Principles —
Each document and the cir-
cumstaJhces under which it came
into Qjdstence mus^be considered
separately, and the construction
of one document is not generally
of jnuch assistance in conttruo-
ting another which may differ
materially in its terms and in"
the attendant circumstances • 4876
Deed
-Construction — Intention may
be elucidated by conduct 3400
Construction — Conveyance of
land — Difference between boun-
daries and area given — Land
actually comprised within the
boundaries should be treated as
conveyed 257
Defamation
See PENAL CODE, S. 499
Dower
See MAHOMEDAN LAW
DOWER
Easement Act (5 of 1882)
S. 13 — Right of way — Ser-
vient owner pleading permissive
user must allege and prove it 460
S. 17 — Profits a prendre do not
include right to water 1876
Equity
He who enables third person
to occasion loss must suffer it 3536
Escheat
** jn fcne discretion of Govern-
ment alone escheated property
can be granted back 321/
Evidence Act (1 of 1872)
S. 8 — Evidence of raped girl — -
Voluntary statements made im-
mediately after occurrence are
relevant 580
S. 2 I—The Code of Criminal
Procedure contains no provisions
as to confession being made in
open Court (Per Adami, J.) 279o
S. 24 — The hope of being made
an approver does not show that
the confession is not voluntary
2790
S. 30 — Confession to be used
against co-accused must be con-
fession of guiJt of maker 4406
S. 32 — Admission by a Hindu
widow regarding the existence
of a loan cannot be split into
two but must be considered as a
whole for ascertaining the pur-
pose of loan * 255
3. 33 — Evidence not taken ac-
cording to Ch. 25, Criminal
P. C., is not admissible 58a
••S. 35 — Crop cutting report of
Dy. Collector under B. T. Act,
S. 40, is a public document and
is adnyissible to prove quantity
of crops cut 4366
22
Evidence Act.
SUBJECT INDEX, 1926 PATNA.
— S. 35 — Jamabandi prepared
by landlord is admissible to
show basis of assessment 197c
S. 36 — Thakbast map and
revenue survey map — The latter
is more accurate and should be
relied upon to determine boun-
daries 385a
S. 40 — A judgment is not evi-
dence against persons not
parties to it — It is admissible
only in so far as it shows asser-
tion of title made therein 5776
S. 45 — Evidence of Finger-
print Expert as to age of thumb-
impression opposed to date on
the document — Court should
bo careful to accept expert
opinion 575a
S. 54 — Evidence of bad
character, to prove motive for
the crime or otherwise relevant,
is not excluded 232&
S. 58 — Admission of execution
of a document — Attestation
need not beproved — Executant
a pardanashin lady — Consid-
eration must l)e proved 295
— — S. 66, Proviso — Redemption
suit — Mortgagee denying exis-
tence of mortgage deed — Notice
is not necessary 512&
-Ss. 74 and 35 — Crop-cutting
report of Deputy Collector
under S. 40, Bengal Tenancy
Act, is public document and ad-
missible to prove quantity of
crops cut 4366
S. 76 — Plaint is not a public
document 180a
S. 78 — Copies of registers in
Native State are not admissible
29(2)c
S. 92 — Evidence to show non-
existonce of an agreement is
admissible 156a
S. 101 Will — Ordinarily
parties propounding must prove
due execution 269
S. 102 — Zamindar and tenant
— Record of rights recording
tenants as owners of non-resum-
able tenure — Burden is on
zamindar to prove that the
tenure is resumable ( 369(2
— S, 133 — Approver should be
Evidence Act.
corroborated also in material
points as to the part played by
his accomplices
- S. 154 — Witnesses, being
neighbours or supporting defence
or not supporting prosecution is
no ground for discrediting them
as hostile — There must be
something in their depositions
contradictory 3166
- S. 157 — Evidence of raped
girl excluded — Evidence of her
relatives cannot be used for
corroboration 58fr
Execution
* - Decree for dower passed —
Executing Court cannot direct
in execution payment of decree
proportionate to shares of differ-
ent heirs 411
* - Declaratory decree — Decree
declaring a charge on certain
property of defendant — Charge
can be enforced in execution —
Separate suit is not necessary 31
Execution of Decree
- Mortgage decree — Executing
Court cannot entertain objection
that property ordered to be sold
in decree is not saleable — Such
objection may be entertained in
the case of money decree 2026
* - Limitation — Objection to
execution raised but dismissed
— Appeal against the order by
objector does not extend limi-
tation
Ex parte Decree
- Setting aside— Sec CIVIL P.O., ,
0. 9, R. 13.
G
General Police Act (5 of 1861)
* - S. 30 — Section gives* police
power to control procession, but
not to forbid 1730.
- S. 30 — Issue of licenses —
Signing and giving for delivery
is sufficient 1736
* - S. 30 — Once license is applied
for, the applicant may take out
his procession 173c
Government - of India * Act
(1915)
* - S. a07— Refusal to add a
party as plaintff — S. 115 does
toot apply — If fair trial -is
denied S. 107 will apply . 207&
SUBJECT INDEX, 1926 PATNA
23
Govt of India Act
S. 107 — Bx-parte decree— •
Application for restoration —
Application decided according
to law — High Court will not
interfere 37
8. 107— Sub-Deputy Collector
refusing application to pro-
secute— Collector on appeal set-
ting aside the order and making
a complaint exercises judicial
powers and revision lies 25a
K1919)
* (amended 1925)— In 01. (3) to
S. 72 D the words "payments
or emoluments payable to or on
account of a person in respect
of his office " include the tour
expenses and the travelling
allowances of the Governor and
the Members of his Council and
the Inspector-General of Police
and therefore these expenses are
non-votable items 305a
Grant
Brahmottar interest created
by Ghatwal is not burdened
with service — It is liable to be
sold in execution of a decree 444&
H
Hindu Law
** Adoption — Karfca putra is not
in better position than dattaka
putra — Karta putra does not
inherit any person except the
adoptive father — Karta putra
does not by mere adoption get
a right to succeed to the es-
tate of adoptive father — Natural-
born son excludes altogether
the karta putra 90
Alienation by widow — Defen-
ding tifrle to property no longer
hers is no legal necessity 490
Alienation by Mahant — Limi-
tation 'for setting aside such
alienation by succeeding Mahant
does not begin afresh from the
date of his succession, but dates
back to the death of the vendor
Mahaift 2396
Alienation by m manager for
personal benefit is not binding
though the manager shares the
benefit with the family tolun-
tarily or by agreement 0 17
— -Damdupat — Rule does not
apply to muffasil 94a
Hindu Law
* Debts — Pious obligation of
son does not extend to time-
barred debts of father 4270
*- Debts Son's liability-
Father undertaking to pay
money misappropriated by an-
other— Money misappropriated
after having taken lawfully —
Son is liable 14
* Family settlement — Property
not partitionable without in-
convenience— One party should
take compensation from the
other for his share — Legal neces-
sity need not be proved 864a
Family settlement is method
of enjoying ancestral property
by parties — Binding nature —
Doctrine of legal benefit applies
(Per Foster, J.) 3646
Impartible estate — Ghatwali
— Produce of impartible estate
is not necessarily accretion-
No distinction exists between
realized and unrealized rents —
Unrealized rents are liable to
attachment in execution 518
* Joint family— Father ad-
judged insolveut — Son's shares
are liable to be sold by Official
Receiver to pay off debts not in-
curred for immoral purposes 438
Joint famil> — Alienation by
manager — If r-ale for considera-
tion is not much over the I6g3il
necessity and the transaction Is
not an improper one sale
should not be set aside 4276
Marriage — Re-marriage during
lifetime of first husband — Cus-
tom as to, must be proved 346
* Mithila School— Widow —
Grant of immovable property by
karta of joint family for main-
tenance does not constitute her
stridhan, nor does it create a
widow's estate — After widow's
death properties revert to donor 481
Partition — Ascertainment of
shares that would fall to differ-
ent members in the event of
partition does not amount to
partition — Intention ^o divide
is necessary • 645 a
* Partition — Mother takes equal
to sons, but only half as much
if sheiias got income producing
stridhan 537
SUBJECT INDEX, 1926 PATNA
Hindu Law
Keligious office — Mahants
are only managers of the in-
stitution and no property is
vested in them 239<x
Beversioner has no interest
in the estate — Compromise with
reversioner does not hind rever-
sionary hody and is wholly void 16
— Successions — Daughters among-
st themselves take by survivor-
ship— Agreement to relinquish
survivorship right is valid 392
Succession, effect of — Heirs,
whether male or female, are
bound to maintain those whom
last holder was bound to main-
tain— Mainteinanco includes
marriage expenses la
-Widow — Sonless widow suc-
ceeding her husband takes ab-
solute estate, but her power of
alienation is limited like that
of a coparcener — Small gifts of
immovables for spiritual bene-
fit of her husband are not in-
valid — Gift of immovables to
her daughter or son-in-law at
fhe time of marriage will be
upheld to a reasonable extent
— Gifts may be promised at
marriage and given afterwards
Income-tax Act (11 of 1922)
< -- gjf 12 — Taxes payable under
Act 3 of 1914 and Act 4 of 1920
are not to be deducted from
royalty in determining assess-
able income 109
— H3. 14 (1) — Section does not
apply when a member receives
income from property not taxed
as joint property 256
Inherent Powers
- See CIVIL P. 0., S. 151
Injunction
-- See CIVIL P. C., 0. 39
- See SPECIFIC RELIEF ACT,
S. 54
Interpretation of Statutes
- Eepealing Act — Vested rights
under old Act are not taken
away unlees expressly provided —
New procedure applies to fur-
ther action 5612)
——General and special enact-
ments — Extent to which special
enactment overrides, general
Interpretation of Statutes
enactments depends. on language
of special Act 23 2c
Judge
Definition of— See I.P.O., S. 19
Jurisdiction
Act of State — Court cannot
question 3056
Land Acquisition Act (1 of
1894)
S. 11 (3) and 30— Occupancy
lands acquired — Lands not trans-
ferable without landlord's con-
sent— Landlord is entitled to
a share of the compensation
money 16
Landlord and Tenant
* Zerpeshgidar lessee from land-
lord inducting tenant on raiyati
or bakasht lands — Tenant acquir-
ing status of occupancy — Land-
lord cannot eject him 605&
Rent — Tenant dispossessed of
a portion — Bight to claim posses-
sion barred by lapse of time —
Tenant can still withhold entii'e
rent 513
* Tenant's rights — English
doctrine that tenant, unless put
in possession cannot sue for
infringement of rights based on
actual possession, applies to
Indian leases for a term of
years — In India lessee or sub-
lessee can sue for damages for
being kept out of possession 508
Bent decree — Some defen-
dants dead at the date of
decree — Whole decree is not
nullity — Decree can be executed
against living defendants only as
money decree 504a
Tenant cannot deny landlord's
title at the time of demise —
Tenant can show that • subse-
quent to the demise landlord's
title has expired 498
Belationship is not estab-
lished by marfatdari receipts 4650
Non-transferable occupancy
holding — Landlord may suf for
rent against the original tenant
even after the transfer 423
-Molfcirrari grants are life
grants — Grantee's heirs continu-
ing in possession adversely to
landiord after grantee's deafh —
SUBJECT INDBX* 1926 PATNA
Landlord and Tenant
Landlord's suit for actual posses-
sion is not maintainable 241
Abandonment by tenant —
Mineral rights — Mere non-user
is not enough — Landlord treat-
ing lease as at an end is not
enough unless adverse possession
for statutory period is proved 1300
Dispossession of tenant by
landlord — Mere refusal to recog-
nize lease is not enough 130/1
Mines and minerals — Bight
to, vests in landlord unless ex-
pressly divested 103a
Bight to trees — Tenant is to
cut trees and landlord is to
appropriate wood
686
-Expression "cultivate and get
cultivated" does not necessarily
indicate a tenure-holder rather
than a raiyat
Land Tenure
-Ghatwali — Produce of impar-
tible estate is not necessarily
accretion — No distinction exists
between realized and unrealized
rents — Unrealized rents are
liable to attachment in execu-
tion 518
Jagir — Bamgarh Baj — Main-
tenance grants and jagirs are
resumable on failure of lineal
male descendants — Jagodih
tenure is such jagir tenure under
Bamgarh and is likewise resum-
able 369c
Ghatwali tenure — Ghatwal
can be a mourashi mokarrari-
dar — Distinction between ghat-
wali within and outside Begula-
tion pointed out 1036
Ghatwali tenure — Occupancy
rights cannot be acquired in
ghatwali lands 64c
Lease -
Permanent lease — Lessee
never having got possession can
yet sue for ejectment or damages
and injunction , 130c
Construction — Contract to
holct premises for 11 years and
after that to holcf at thrice the
rent or to take fresh settlement
i? enforceable <• 122a
-"Construction — Ijara deed is a
mortgage and haq ajiri is not
rent— Interest on hag ajiri can-
Lease
not be claimed unless there is a
stipulation in the deed lid
Zar-i-peshgi — Damage to ijar&
property is to the corpus and
compensation for excavation in
such property cannot be claimed
by ijaradar from third person but
can be claimed from the owner lie
Legal Practitioner
Advocate can be verbally ap-
pointed and can present an ap-
plication on behalf of clients
without vakalatnama 73a
Pleader authorised to compro-
mise— Compromise is valid un-
less fraud or collusion is proved 730
Limitation Act (9 of 1908)
S. 5 — Petition out of time —
No reason for delay shown on
the face of it — Petition is not
entertainable 736
S. 9 — Limitation begun in
lifetime of full owner is not
suspended on his death 1926
S. 10 — Duty of receiving pro-
perty and holding it for another
can only be discharged by hand-
ing it over to the person entitled
and noli by appealing to the
lapse of time 321a
-S. 10 — Suit to recover remu-
neration as dwaris of temple is
not covered by S. 10 — Art. 100
applies, but not Ari. 131 nor
Art. W'2 ^
S. 14 — "Civil proceeding" does
not include application under
Land Begistration Act, S. 28,
S. 29 and S. 42— Land Begistra-
tion Deputy Collector is not
"Court"
S. 18 — Mere carelessness
205
or
negligence does not substantiate
a finding of fraud' 3976
S. 22 (1) and (2)— Defendant
made co-plaintiff after limita-
tion— Suit does not become
barred , 28a
Art. 14 — Partitition under
Estates Partition Act (1897)—
Land not belonging to the estate
under partition allocated —
Claimant of the land can bring
a suit for its recovery within
12 years — Art. 14 does not
apply 4216
"- Arfcs. 95 and 12— Suit to set
aside sale under Chota Nagpur
26
SUBJECT INDEX, 1926 PATNA
Limitation Act
Tenancy Act on the ground of
fraud is governed by Art. 95 —
S. 231, Ohota Nagpur Tenancy
Act, does not apply 401a
Arts. 100, 102 and 131— Suit
to recover remuneration as
dwaris of temple — Art. 100 ap-
plies and not Arts. 131 or 102 205
Art. 132,Expl — Malikana—
A suit to recover malikana,
though coupled with an ancil-
lary relief of declaration of right
to receive malikana, is governed
by Art. 132 340c
Art. 132 Expl. — Malikana—
The explanation to Art. 132 does
not merely refer to malikana as
contemplated by the Bengal Be-
gulations, but it also covers
malikana claimable by a sardar
ghatwal under a settlement bet-
ween the Ghatwals and zarain-
dars 340d
Arts. 132 and 148 — Suit for
redemption of prior mortgage by
second mortgagee is not gov-
erned by Art, 132 but by Art.
148 3376
Arts. 144 and 14 — Partition
under Bengal Est. Partition
Act — Land not belonging to the
estate under partition alloca-
ted — Claimant of the land can
bring a suit for it in recovery
with in 12 years — Art. 14
does not apply 4216
Arts. 148 and 132 — Suit for
redemption of prior mortgage
by second mortgagee is not
governed by Art. 132 but by
Art. 148 3376
Art. 166 — Application to set
aside execution sale on the
ground of want of notice under
O. 21, B. 22, Civil P. C., is
governed by the three years'
rule of limitation under Art.
181 397c
J Arts. 181 and 166— Scope-
Application to set aside execu-
tion sale on the ground of want
of notice under O. 21, B, 22,
Civil P. C. is governed by three
years' rule of limitation under
Art. 181 397c
Art. 181— Execution stayed
by an injunction — Eight tc*exe-
cute revives on injunction com-
Limitation Act
ing to an end — Decree-holder
must apply for revival within
three years from accrual of
right 626-
Art. 182 — Application though
in accordance with law may be
defective for some other reason
— Art. 182— Bules 11—14 of
O. 21 complied with — Applica-
tion is in accordance with law
1606
-Art. 182 — Issue of notice
under 0. 21, E. 22, is step-in-
aid though the application is
not in accordance with law 160c
Art. 182 — Setting aside of sale
under O. 21, B. 90, Civil
P. C. — Second application for
execution after the setting aside
of sale is in continuation of the
first one in which sale was
held — Decree-holder's right
revives on the date of setting
aside the sale
Art. 182— -Execution applica-
tion in continuation of previous
application — Scope of both ap-
plications must be the same 129&
Art 182 — Execution stayed by
injunction — Bight to execute
revives on injunction coming
to an end — Decree-holder must
apply for revival within three
years from accrual of right
Sch. £ — The more general
article must be governed by
that which is more specific
M
Mahomedan Law
: Dowor — Decree for dower
debt does not create a charge
on the husband's property*in the
hands of his heirs 4040
Dower — Suit by widow to set
aside alienation by husband of
his property made with a view
to defeat plaintiff's claim for
dower is a suit as contemplated
by S. 53, T. P. Act 404&
:; Escheat — Property of*heir-
less Shia takep by acts of apve-
reignty — Suit does not lie to
recover it — But if taken under
legal tftle Courts have jurisdicr
tion — Property taken under a
decree is not taken by act of
sovereignty 321ef
SUBJECT INDEX, 1926 PATNA
Mahomedan Law
Pre-emption — Owner of plot
can pre-empt though not resid-
ing on the plot 542a
Pre-emption — " Hait " in-
cludes small enclosure or plot
of homestead land 5426
Shias-— -Suit for declaration of
trust in favour of poor — All
Shias are interested — No dis-
tinction as to actual poor and
others can be made 321c
Mir>or
Decree — Setting aside —
Fraud — Minor is equally bound
by a decree as a major — Decree
against minor properly repre-
sented— Fraud or collusion is
the only ground for setting
aside^ 528#
Mischief
-See PENAL CODE, S. 425
Mortgage
Mortgagee
purchasing mort-
gaged property at execution sale
can use mortgage as shield
against subsequent incum-
brancera 4786
— Mortgagor selling equity of
redemption — Purchaser promis-
ing to pay the mortgage
mone> — Mortgagee not a party
to the agreement — Purchaser is
not personally liable to mort-
gagee for mortgage money 474
Motor Vehicles Act (8 of
1914)
- Ss. 8 and 16— Bight to de-
mand driver's license for inspec-
tion is not restricted to a public
place only 446a
- S. 16—Patna Motor Vehi-
cles Eules — R. 12 — Person res-
ponsible for fixing board is the
owner and not the user of the
car • 4466
- S. 16— Patna Motor Vehicles
Rules, R. 13— Time at which
car was found driven without
proper lights must be accu-
rately proved 446c
Occupancy Holding
- Acquisition 'of right by
custom — Mere proof of long
possession and planting 4rees is
insufficient
- -Acquisition under Land
Acquisition Act-, — Landlord is
16-
529
295
184
Occupancy Holding
entitled to a share of compensa-
tion money
P
Pardanashin Lady
- Execution of document —
Want of independent advice
will not make document invalid
unless such advice would have
affected the execution 5826
-- Liability under a deed exe-
cuted by her — Execution by and
explanation of document to her
must be proved — When she is
already aware of its nature, deed
need not be explained to her
-- Admission of execution of va
document — Attestation need
not be proved — Executant a
pardanashin lady — Considera-
tion must be proved
Part performance
- Plaintiff permitting his agent
to grant a lease and induct
lessee into possession cannot be
allowed to succeed merely on a
plea that the document was not
registered
Patna High Court Rules
-- Part II, Chap III, Rr. 12 and
8 — Affidavit on an interlocu-
tary application — Declarant
must state the source of his
belief
-- Ch. 17, K. 5A— Kule does not
prescribe a written authority
for an advocate in criminal
cases 2966'
- R.oO— Construction— Bule SO
must be construed as subject to
Kr. 1 and 4 1806-
Penal Code (45 of 1860)
- S. 19 — A person, not desig-
nated as a Judge, is a Judge
only when exercising jurisdic
tion in a case
- S, 34 — All accused abetting
or aiding each other by presence
or other acts in the commission
of the act are equally liable 182-
-- S. 71 — Separate sentences
under both Ss. 380 and 457 are
bad 367
- S. 97 — Bight of private
defence of property — Onus is on
accused to prove their owner-
ship of property 433#
S.t 100 — Eight
defence arises only
of private
when there
28
SUBJECT INDEX, 1926 PATNA
Penal Code
is no recourse for safety —
Accused must not be the creator
of necessity for self-defence —
No right of self-defence exists
when hoth parties are deter-
mined to vindicate their rights
by show of criminal force 4336
S. 147 — Because certain
persons are in a certain place,
560
at a certain time, does not make
them liable for arrest — Resis-
tance to arrest is not rioting
S. 149 — Guilt of principal is
gnilt of participator and not a
separate offence 2536
— ^S. 161 — Statement that
Government servant worked
for money in favour of a can-
didate at an election is not
charging him with bribery as
such work is not in discharge of
his official duty — It is on the
contrary prohibited 4996
-S. 186 — Attachment under
237
517
168
invalid writ — Attached property
claimed by owner judgment-
debtor from attaching peon's
possession — Peon delivering pos-
session of property — No hurt
caused to peon — Judgment-
debtor is not guilty under
8.186
S. 193 — Witness withdrawing
his previous statement in same
deposition as beinq false — No
offonco is committed
S. 193 — Giving false answers
to questions which should not
have been asked but were
asked — Perjury is committed
but sentence should ho light
S. 211 — Magistrates dismissing
a false complaint cannot pro-
ceed against complainant
under S. 211 ' 368
— S. 361 — Offence is complete
as soon as minor is actually
taken from the lawful guardian-
ship 493a
S. 361— Whether kidnapping
from lawful guardianship is
complete is a question of fact 4936
S. 379 — Servant knowing his
master had no right to com-
plainant's goods and assisting in
removing commits theft 366
Ss. 380 and 457 — Separate
sentences under both . are bad 367
Penal Code
S. 409— Post office clerk deli-
vering V. P. P. to party and re-
ceiving money — Entry not made
in register nor money credited
— Offence is committed 299
Ss. 411 and 414 — Accused
found seated around the stolen
property disputing as to its dis-
tribution can be convicted 316&
S. 415 — Merely taking thumb-
impression on a blank piece of
paper is not sufficient
S. 425 — No mischief is com-
mitted by damage done to one's
267
244
own property
Ss. 457 and 380— Separate
sentences under both are bad 367
S. 464 — Antedating document
is not necessarily forgery 5350
S. 494 — Kemarriage during
lifetime of first husband —
Custom as to, must be proved 346
S. 499 — Statements made by
advocate during professional
work are privileged — Privilege .
is qualified — Prosecution has to
prove express motive
S. 499— Statement that Govt.
servant worked for money in
favour of a candidate at an
election is not charging him
with bribery as such work is
not in discharge of his official
duty : It is on the contrary
prohibited 4996
S. 499— Advocate — Liability
— English Common Law princi-
ples do not apply in India (Kul-
want Sahay, J.) 4990
S. 499 — Question of proof of
malice is one of laid. (Kulwant
Sahay, /.) 499rf
S. 499 — Defamatory state-
ment in a plaint is not abso-
• lutely^ privileged ' 425
Possession
Underground rights — Owner
not working the mines may be
still in possession 1304
Practice
Witness— See WITNESS
Court-fees — Patna High
• Court — Stamps impressed with
Mfor use in the High Court
only," Are not invalidated for,
use in the subordinate Courts 408
Inconsistent pleas — Plaintiff
resisting a rsrfanama (settle-
SUBJECT INDEX, 1926 PATNA
3406
Practice
ment) in a previous suit, but
failing can claim under the
rafanama in a subsequent suit
r
Belief — It is meaningless to
have a power and to pass an
order without having the power
to enforce it 305<2
Duty of Court — Court will
not initiate proceedings 62&
High Court — Stay of execu-
tion for costs is not ordered
unless it is clear that the suc-
cessful party will have no
chance of recovering the costs 546
Probate and Administration
Act (5 of 1881)
S. 14 — A grant of adminis-
tration does not decide* any ques-
tion of title. It merely decides
the right to administer 356e
S. 17 — Applicant challenging
validity of the Will — Adminis-
tration cannot be granted 3566
-S. 21— Will— Court's duty-
Will must be established al-
' though administration is com-
plete 356c
S. 86— Appeal — High Court
will not interfere with the dis-
cretion of the lower Court 356cZ
S. 90 — Conveyance without
sanction of Court is voidable
only by person interested in
property 1306
Pro-note
Loan transaction and pro-note
contemporaneous — Suit based
on pro-note, which cannot be
proved fails 432
Provincial Insolvency Act
(5 of 1920)
S. Q (1) (d)— Hindu joint fami-
ly— Father adjudged insolvent
— Sons1 shares are liable to bo
sold by Official Keceiver to pay-
off debts not incurred for im-
moral purpose
438
3s. 56 (3), (4) & (5)— S. 56 (3)
implies that £k>urt must have
appointed Receiver in insolven-
cy and that the power to recover
property is reserved *to the
Court — Enquiry by the Cpurt
must be a judicial inquiry 291
Provincial Small Cause
Courts Act (9 of 1887)
S. 25 — Failure to forthwith
apply in revision on interlocu
tory order does nob bar the
right to apply when the case is
over 5756
Q
Question of Fact
See CIVIL P. C., S. 100
Question of Law
See CIVIL P. 0., S. 100
R
Railways Act (9 of 1890)
S. 72 — Kailway Company en-
trusted with goods to bo car-
ried — Koute not fixed — No
delay in delivery — Railway is
free to carry goods by any route
S. 72— Risk Note B— Admis-
sion of loss by Railway — Rail-
way need not prove the fact of
loss — Consignor must still prove
loss by negligence 190
S. 72— Risk Note B— Consign-
or pleading loss to himself —
Railway need not plead loss to
them but may simply plead the
risk note 165&
S. 72— Risk Note B — Wilful
neglect means deliberately doing
or abstaining from doing an act
which the party is bound to do
1656
S. 72— Risk Note B is a spe-
cial contract complete in itself
— Company admitting loss need
not prove it 148&
-S. 72— Risk Note B signed—
Consignor cannot go behind it
and sue under ordinary law 148
S. 72 — Risk Note A — Loss
due to unsound packing is
covered by the note — Admission
of loss discharges burden on
company's part 137
S. 72 (2) (a)— Person sending
and person delivering goods to
Railway need not be same 336
S. 75 — No Indian autliority
exists for the proposition that if
goods are abstracted by com-
pany's servants S. 75 does not
apply — English rulings are 'in-
applicable ^ 3846
S. 76 — 'Deterioration' must
bet taken in ordinary sense —
30
SUBJECT INDEX, 1926 PATNA
Railways Act
abstraction of goods from parcel
is deterioration 384a
S. 77 — Six months run from
date of delivery of goods for
carriage 413a
Ss. 77 and 140 — Notice ad-
dressed to Subordinate Officer
and forwarded by him to Agent
within six months is sufficient
4196
S. 77 — Delegation of power
by Agent to receive notice may
bo inforred from rules and con-
duct of railway — Authorizing
to settle claim is not delegating
power to receive notice 413c
S. 80 — A Railway accepting
goods and sending to If Railway
— Invoice not sent by A to B
for over six months — Goods not
identified and henco not deliver-
ed— Both railways are respon-
sible for deterioration 395
Registration Act (16 of 1908)
S. 2 — Mango tree gifted — In-
tention of the gift was that
donee should enjoy fruit — Tree
is immovable property 125
*S. 28 — Including a small pro-
perty in the deed in a particular
district to effect registration in
that district — Property really
existing and no fraud committed
• — Property ically intended to
be transferred — Registration is
valid although transforrer does
not take possession 582a
S. 49-—A plaintiff permitting
his agent to grant a lease and
induct lessee into possession
cannot bo allowed to succeed
merely on a plea that the docu-
ment was not registered 184
S. 49 — Unregistered deed is
admissible in a suit for specific
performance 896
S. 77— S. 77 does not affect
equitable jurisdiction of Courts
to decree specific performance
of contracts to sell 89a
Res-judicata
— =-S«* CIVIL P.O., S. 11.
Return of Plaint
See CIVIL P. C., O. 7, R. 10
Review
See CIVIL P. C., 0. 47
Revision (Civil)
See CIVIL P. C., S. 115
Revision (Criminal)
, See CRIMINAL P. C., S. 439
Right of Private Defence
See PENAL CODE, Ss. 97 AND
WO
Riparian Rights
* Upper owner cannot appro-
priate whole water of natural
stream for irrigation — Such right
can bo acquired by prescription 187a
Risk Note
See RAILWAYS ACT, S. 72
S
Sanction
See CRIMINAL P. C., S. 476
Set-off
See CIVIL P. C., O. 8, R. 6
Sonthal Parganas Settlement
Regulation (3 of 1872)
S. /) (2) — Execution proceed-
ings are "suit" within S. 5 —
Ponding execution cases should
not be dismissed but should be
transferred to officer appointed
under the regulation 33
(amended in 1908), S. 6-—
Regulation does not restrict
Court's power under S. 34, Civil '
P. C. 359a
S. G — Whether contracts of
novation are nullified is un-
decided 3596
S. 27 (1) and (2)— "Any Court"
in sub-S. (2) does not include a
Court executing decree under
Civil P, C. 202a
(5 of 1893)
S. 4 (I) (ii)-~"Hi8h Court/'
for purposes of revision against
the acquittal from proceedings
from Sonthal Pargannas is
Commissioner of Bhagalpur 449
Specific Performance
Relief of specific performance
is discretionary with Court, but
Court has no discretion to refuse
relief based on completed
contract 539c
Specific Relief Act (1 of 1877)
* S. 12— S. 77, Registration Act,
does not affect equitable juris-
diction of Courts to de&'ee
specific performance of contracts
to sell S9a
3 45 — \Vrit of mandamus
cannot *be issued by Patna,
Allahabad and Lahore High
Courts 305«
SUBJECT JNDEX, 1926 PATNA
31
Specific Relief Act
S. 54 — Plaintiff not in posses-
sion can still sue for injunction
in a proper case 130/
Stamp Act (2 of 1899)
: S. 2 (15)— Partition suit— De-
fendant need not pay Court-fee 1546
Statements to Police
See CRIMINAL P. 0.^ S. 162
Step-in-aid of Execution
See LIMITATION ACT, Art. 182
Subrogation
See T. P. ACT, S. 74
Succession Act (10 of 1865)
S. 179— 'All the property of
the deceased' in S. 179 includes
property held as trustee 130#
(39 of 1925)
S. 124— Rule in S. 121 is rule
of law and not construction —
Devise to A and in case A dies
B to become heir — A surviving
the testator — B cannot take
under the Will 356ft
Suits Valuation Act (5 of 1887)
* S. 11 — If proper valuation
would have brought the appeal
to High Court directly as first
appeal, and under- valuation
brought it to High Court on
second appeal, such undervalua-
tion affects the merits of the
appeal 351
T
Tort
Secretary of State — Donee of
the power exercising it unreaso-
nably is guilty of tort. (Per
Mullick, Aq. C. /.)
* Action in trespass can be based
, on constructive possession 1300
Transfer of Property Act (4
of 1882)
* S. 3 — Mango tree gifted—
Intention of the gift was that
donee should enjoy fruit — The
tree is immovable property
g 48;— Property mortgaged for
paying Government revenue —
Court directing mortgage to have
priority over pre-existing mort-
gage — Prior mortgage is post-
125
946
S. £2 — Transfer made by order
of Court is an exception to the
section 940
:S. 53 — Suit by widow to set
aside alienation by husband of
his property made with a view
T. P. Act
to defeat plaintiff's claim for
dower is a suit as contemplated
by S. 53 4046
S. 54 — Unregistered dead is
admissible in a suit for specific
performance 896
S. 60 — Tender of mortgage
money is not condition precedent
to suit for redemption 5126
S. 60 — Integrity of mortgage
cannot be broken except by con-
sent of all persons interested or
by mortgagee — Consent of
parties may be inferred from
circumstances 940
S. 63 — Mortgagor allowing
mortgagee to remain in posses-
sion of the accession as occu-
pancy tenant — Subsequently
mortgagor cannot claim the
accession 572
S. 74 — Puisne mortgagee not
impleaded in suit by prior mort-
gagee— Puisne mortgagee cannot
redeem the property merely by
paying the amount for which
the property was purchased in
auction 94d
S. 74 — Subrogation — No sub-
rogation if there is no redemp-
tion— Kedemption must be of
entire security and not part —
Payment by subrogator must be
on express agreement with deb-
tor or creditor 23
S. 81 — Puisne mortgagee with
notke of former mortgage can-
not claim benefit of S. 81 946
S. 83 — Tender of mortgage
money is not condition prece-
dent to suit for redemption 5126
S. 100 — Decree for dower debt
dot** not create a charge on the
husband's property in the hands
of his heirs 4040
S. 101 — Mortgagee purchasing
mortgaged property at execution
sale can use his mortgage as
shield against subsequent incum-
brancers 4786
S. 107— English doctrine tfiat
tenant, unless put in possession
cannot sue for infringement of
rights based on actual possession
applies to Indian leases for a
term of years — In India lessee
or sub-lessee can sue for damages
for boing kept out of possession 508
32
SUBJECT INDEX, 1926 PATNA
Trespasser
See ADVERSE POSSESSION
Trusts Act (2 of 1882)
S. 6 — According to Shiah Law
property of heirless Shia is to be
devoted to poor — The dedica-
tion is, however, vague and no
trust is thus created 3210
S. 10 — Secretary of State can
bo trustee 321/j
w
Will
Execution — Proof — Ordinarily
parties propounding must prove
the due execution — Party writ-
ing Will getting benefit under
it — Court must be careful in
satisfying itself that the instru-
ment expresses the true will of
the testator, but this is the rule
of prudence and not of law 269
Construction — Donee a des-
cribed as Malik Mokamit and
Will
permitted to mortgage the pro-
perty in case of necessity —
Will confers an estate of a Hindu
women and not absolute estate
Withdrawal of Suit
See CIVIL P. C., 0. 23
Witness
Credibility — Witness being of
the same caste as accused is no
ground for disbelieving him 36c
Words
"Bahsht lands" are lands held
by landlord on surrender or ab-
andonment by tenants — They
retain the character of raiyati
lands ( 6056
Words "kharij jama" import
"independent proprietor" 152
"Malik" in a will does not
necessarily confer absolute estate 76a
Moghli — The word does not
constitute rent 08
THE
ALL INDIA REPORTER
1926 PATNA
COMPARATIVE TABLES
(PARALLEL REFERENCES)
Hints for the use of the following Tables : —
TABLE No. I.— This Table shows serially the pages of INDIAN LAW
REPORTS for the year 1926 with corresponding references of the ALL INDIA
REPORTER.
TABLE No. II.— This Table shows serially the pages of other REPORTS,
JOURNALS and PERIODICALS for the year 1926 with corresponding references of tha
ALL INDIA REPORTER.
TABLE No. Ill— This Table is the converse of tha First and Second
Tables. It shows serially the pages of the ALL INDIA REPORTER 1926 wibh corres-
ponding references of all the JOURNALS including the INDIAN LAW REPORTS.
Table No. I.
Showing seriatim the pages of INDIAN LAW REPORTS, PATNA SERIES for the
year 1926 with corresponding references of the ALL INDIA REPORTER.
JV. B.— Column No. 1 denotes pages of I. L. R. 5 PATNA.
Column No. 2 denotes corresponding references of the ALL INDIA
REPORTER.
I. L. R. 5 Patna-AH India Reporter
ILR!
A. L R.
ILK;
A. I. R.
ILK
) A. I. R.
ILK
I A. I. R.
ILK
) A. L R.
i
1925 Jf 474
157
1926 P 197
281
1926 P 263
452
1926 P 802
578
1926 P 299
8
1926 »» 162
168
n „ 255
290
» PC 2
461
M PC 81
585
» PC 56
13
1925 » 581
171
i» « 279
306
tt P 409
484
t, P 867
595
» P 80&
20
1926 »' 256
198
f> M 17
312
» PC 9
465
384
681
1927 ft 140
23
it t. 259
205
it M 258
326
tt P 330
468
474
634
1926 PC 19
25
ti t 176
208
it »t 251
341
tt t 239
476
438
646
» P 582
33
1925 , 717
211
M n 249
346
tt t 362
480
364
714
1927 tt 88
40
1926 > 184
216
n it 237
350
ft 1
488
413
721
tt ti 4£
46
» t 42
221
»» n 836
861
218
496
458
726
1926 tt 416
58
1925 PC 203
220
It It 141
393
tt 485
505
351
735
»t' PC 60
63
1926 *P 232
229
1927 it 59
398
274
511
820
746
tt P 427
80
,, » 130
233
1926 it 504
404
ft 260
513
887
755
1927 ti 23
96
1925* » 743
238
• »i ft 253
415
465
520
483
759
1926 tt 401
106
,, » 727
243
i* M 292
433
' »t 359
533
tt 424
765
1927 >t 1
110
118
1926 » 214
ii ft 148
249
255
it it 205
it » «246
441
445
tt 192
497
536
tt 493
768
1926 tt 528
128
' » tt 40
262
tl M 81
447
» 400
539
ft 821
678
1927 ft 3&
135
1925 PC 280
276
M M 289
450
tt 368
573
tf >t 535
777
M tt 61
1926 N. S. T. (Pat.)— 5
Table No. II
Showing seriatim fche pages of other REPORTS, JOURNALS and PERIODICALS
for the year 1926 with corresponding references of the ALL INDIA REPORTER.
N. B. — Column No. 1 denotes pages of other JOURNALS.
Column No. 2 denotes corresponding references of the ALL INDIA
REPORTER.
1926 Patna High Court Cases—All India Reporter.
PHCC) A. 1. *. 1 PriOO) A. 1. *. | Prlox.) A. 1. K. | PHOC) A. 1. R.
PHCC) A. I. R.
1
1926 P '205
86
10*6 P '274
138
1926 P 836
228
19*6 P 416
300
1926 J 116
4
». .1 246
80
M M 81
139
n »i 316
236
• .1 421
302
" P 516
9
.1 .1 411
97
t» n 276
142
1925 n 618
241
• ti 481
303
ii » 564
11
», » 89
99
i. »• 423
145
1926 » 321
246
» J 166
305
1927 . 0
18
.1 II 211
100
1925 .. 822
158
t» 432
249
. P 478
310
1926 , 337
16
M „ 62,5
102
1920 M 334
100
»• J 183
254
• » 444
314
» ' 490
19
.» n 197
103
ti »i 277
161
1927 P 135
250
. i. 461
321
•> ' 438
24
.. J 88
105
M n 258
167
1926 .. 440
258
. M 495
323
1927 » 25
29
M p 150
100
1925 M 717
170
» » 493
201
. .1 487
327
1926 i 474
34
M M 241
110
1920 M 267
178
„ 404
204
. n 460
332
1927 i 57
37
» >t 239
113
i» ». 288
183
.» M 351
2G5
i M 430
333
1926 » 457
40
1925 »» G91
114
1925 »• 727
187
ii 348
267
. »i 449
338
1927 i 97
42
1926 J 138
117
1926 M 295
190
n » 299
274
. M 4fc7
342
• 92
44
1925 P 540
118
M »i 356
195
., i. 304
279
» » 514
344
» i 93
49
1920 » 218
121
1927 M 90
199
M „ 340
282
* M 359
349
7
65
,, » 260
123
1926 M 273
207
M i» 347
286
i M 512
353
» 114
70
.» II 17
125
»» " 296
210
n M 385
288
i ii 403
858
. 106
74
1925 •» 755
129
1925 733
220
M » 395
290
i .. 569
362
1926 t 549
81
1926 »> 504
134
1926 M 291
223
» M 363
293
»» »* 561
381
1927 » 118
83
„ i, 266
137
M M 140
225 »» " 401
2 OH
n M 605
3H8
1926 * 464
7 Patna Law Times-All India Reporter.
£CT
A. 1. R
"PL?
) A. I. K.
jPLr
) A. I. H.
TO
') A. I. R.
TPT
f) A. I. R.
i
1926 P 71
114
1926 P 81
I25ll
1926 P 10 '2
381
1925 P 534
499
1926 P 207
4
1 025 »> 544
T24
1925 it 480
259
n M '29
383
1920 n 302
501
» PC 50
*)
.. •• 473
127
1926 M 428
260
1925 » 748
388
1925 M 700
507
1025 P 787
11
1920 " 65
129
1926 M (502
'204
1920 ii 104
301
1026 »• 256
524
1920 » 29<>
14
1925 ii 3HI
1U4
1920 »> 257
4207
ii " 180
302
.. " 147
529
M 402
19
.1 PC 213
130
» » 170
209
1025 >i 581
303
n »• 102
530
" M 52-r»
22
1920 P 23
138
1927 . 90
2?a
1926 ii :J6
396
•i " 232
532
ii »• 260
25
1925 " 702
140
Iy20 ' 105
275
1925 PC 257
407
» " 351
535
" » 457
27
M » 591
145
M » 150
•280
ii P r»i5
410
.. »» 143
540
M 46*
30
1926 . 287
150
» 87
285
n i, 080
415
1025 •• 577
542
» 440
35
» 181
153
ii M 33
287
»• ii 712
420
1026 i 358
547
n ». 187
30
•• » 34
156
M ii 67
42HH
1924 n 5H9
424
1025 » 138
552
>< 70
39
M , 02
158
» .• 77
291
1020 .. 27
425
1020 • 241
553
» PC 70
42
• 14
161
1925 t> 576
'293
». J irta
428
• 168
561
* || P 148
45
M > 137
163
1926 PC 9
295
» P 154
431
1025 i 765
567
»i »i 316
47
1926 > 820
170
»> P 268
299
n ii 122
441
1926 / 138
570
• " » 444
49
ti > 818
175
1925 »» 441
304
». » 214
448
»• P 346
573
" » 255
62
192G • 17
178
1926 n 268
810
» » 76
445
.. J 88
575
• n PC 98
67
H » 40
183
» M 184
313
• ii 218
449
P 292
577
M p 380
61
i 194
186
1925 •• 651
330
• ii 160
453
n >i 239
587
M >< 425
66
• 53
188
1926 n 180
333
• ii 209
456
1925 M 807
•589
» " 432
67
1925 > 784
199
• 25
335
i M 400
461
1926 ii 274
591
ii PC 46
71
1U2& » 80
203
M i 269
387
• ii 818
463
n M 258
599
» P 537
78
192$ t 796
209
1925 . 585
340
• ii 141
465
i. •* 205
602
w» M 519
76
>» » 697
218
1926 » 246
*43
1925 M 755
468
•i >i 202
604
u " 542
79
1926 > 244
218
i 560
350
1926 »» 533
473
1025 »r 477
608
4 '*'"
» » 499
82
1936 . 074
220
1925 i 692
353
1924 '» 628
478
M ». 737
622
» M 178
87
ii > 647
223
1926 PC 2
355
1925 » 42
481
1926 .. 67
625
ti M 210
90
1926 • 190
233
1925 P 743
362
ii M 73
483c
M PC 60
A OR
.. m ft
96
1926 » 822
339
M •• 797
867
»i n 566
4/91
n P 409
040
»» «i OJLO
97
n PC 280
253
»» n 549
372
1925 »» 677
495
ii n 259
628 i
.. »i 604
111
M P 494J
256
1926 M 1C2
375
1926 »i 197
496
tt M 393
631
ii « 366
Comparative Tables
7 Patna Law Tiraes-AH India Reporter— (ConcW.)
35*
PT?
T. 1 A. 1. R.
TFI
..f.| A.i.4.
7TF
7n
A. 1. K.
A. 1. *.
$84
1926 P 862
6V7
1926P 277
734
192
5 P 623
779
19i
to P 4^1
804
1926P 547
641
»» »» 527
679
» • 321
737
192
7 .1 45
784
i " 485
807
» » 299
642
»» »> '251
695
• 305
739
,,
" 135
788
» 837
811
M *, 516
644
1925 .. 810
716
368
746
192
5 •» 276
793
* 320
812
.. >, 498
bt>V
»> »» 678
717
213
747
,
»» 549
794
» 867
816
„ PC 105
661
1926 PC 94
719
427
768
,
J 174
795
462
821
»» P 582
664
>» P 404
724
474
770
,
P 464
797
192
7 44
870
<» .. 863
6'U
» » 436
730
89
772
,
»• 267
798
192
3 411
871
t. .» r>0»
6V 3
»» » 211
732
, , 399
775
»» 545
801
ttfifl
M fr i8&
27 Cr. L. J. & 91 to 98 Indian Cases=All India Reporter
Cr.L.J.
&
I.C.
tCr.L.J, Cr.L.J. ICr.L.J.
A. I. R. I & A. 1. R. & A. I. R. &
_ I I.C. I I.C. I I. .C
A. 1. R.
|Cr.L.J.
&
I.C.
A. I. R.
Please refer to COMPARATIVE TABLE No. II in A. I. R. 1926 Lahore.
Table No. Ill
Showing seriatim the pages of the ALL INDIA REPORTER, 11)26 PATNA SECTION
with corresponding references of other REPORTS, JOURNALS AK1> PKRIODIGALR, in-
cluding the INDIAN LAW REPORTS.
N. B.— Column No. 1 denotes pares of the ALL INDIA Ri'WKTKR, 1026 PATNA.
Column No. 2 denotes corresponding references of other BEPORTS*
JOURNALS AND PERIODICALS*
A. I. R. 1926 Patna=Other Journals.
AIR | Other Journals
AIR | Other Journals
AIR | Qther Journals
AIR
Other Journals
1
1925PITC C 27
31 14 Pat G9
57
7 P L T 48
89
1926PJ./CC 31
6 P LT 73
6 P L T 80
58
26 CrLJ 147
96 JC 187
90 1C 73
88 1C 92
89 J C 104
7 P L T 73ft
5 Pat 360
82
6 PL T 70
61
90 JC 27
IK)
1 Pa' 824
5
20 CrLJ 1580
26 CrLJ T24
62 |7 P L T 3
6 P L T 59$
90 1C G61
88 1C 864
(89 1C 09
90 J. C 66
9
1925P 11 C C '281
33
90 1C 262
64 ,90 1C 48
94
192-jP JJ C C 28£
6 P LT 787
7 P £ T 153
67
26 Cr L J 128
102
90 JC 72$
90 1C 895
34
26 CV £ / 1394
89 JC 15
7 PLT 266
14
7 P LT 42
89 1C 706
7 P L T 15P
103
4 Pat 799
90 1C 454
17 P*L T 36
68
89 / C 1020
90 J C 513
16"
3 Pat L U 111
36
26 Or L ,/ 1551
70 '20 Cr L J HO-
10'J
J Pai 752
6 P L T 797
90 JC 439
(90 JC 160
91 J C 476
«8 / C 897
7 P Jj T 272
71 17 P J; T 562
112
89 JC 91S
17
7 PL T »2
37
89 i C 863
i? P I, T
J'2'2
192-r»P U C C 35B
90 I Q 553
40
5 Pat 128
LS9 JC 7012
92 1 C bl'f
1926P U C ( ' 70
7 P L T 57
73 14 Pat 766
7 P L T 299
5 Pai 198
90 [ ( ' 680
!U2 ./ C I'i'J
ri>
90 JC 769
20
5 P L T 620
42
5 Pat 46
7 P Zy T 362
128
90 JC 217
92 1C 874
1925P # C C 298
76
90 JC 757
129
89 JC 886
27 Cr L J 362
90 /C 871
7 P LT 310
130
5 Pat 80
23
7 P LT 22
7 P L T 355
7
1925J' # C C 317
1925P JET C C 254
89 1C 822
47
90 1C 325
90 JC 785
91 J C 169
25
26 CYZ.,7 1565
49
88 1C 820
7 PLT 158
7 PLT 188
90 1C 445
51
26 Cr Jj J 1511
0
1 P LT 71
37
1 P^T &
7 BLT 199
90 i C 295
90 JC 352
JO JC 1
27
4 Pa£ 7C4
53
1 P L T 65
1
7 PLT 114
39
26 CrLJ 1627
91 •IC 483
26 CrJO tT 1462
1926PHCC 89
30 JC 92S
7 P L T 291
39 JC 1050
5 Pa* 262
40
PLT 869
128
W JC 82
4
30 1C 708
27 CrLJ 641
2 JC 360
29(1)
26 Cr L J 1289
5
7 ,PL!T 11
?4 JC 693
926P H C C 187
59 'JC 153
38 JC 989
7
L925P H C C 338
41
926P H C C 867
7 P L T 259
7
26 Cr L3 1502
30 JC 622
2 10 629
29 (2)
90 JC 329
1
X) /C 158
7 f Ji T 150
Pat 228
36
1926 Patna
A. I. R. 1926 Patna=Other Journals— (Contd.)
AIR I Other Journals AIR | Other Journals
AIR I Other Journals AIR | Other Journals
141 (7 PL T 340
194
7 PLT 61
258
27 CrLJ 512
802
27 CrLJ 849
148
90 1C 799
90/0 244
255
5 Pa* 168
305FB
5 Pa* 595
7 PLT 410
196
6 PLT 799
94 1C 13
96/0 791
146
6 PLT 860
27 CrLJ 142
7 PLT 573
7 PLT 695
92 1C 2
91/0 814
256
5 Pa* 20
316
1926P H C C 139
147
1925P HOC 859
197
5 Pat 157
93/0 999
94/0 705
92 1C 626
1926PJ/CC 19
7 PLT 391
27 Or L J 657
7 PLT 392
90 / O 862
257
7 PLT 134
7 P L T 567
148
5 Pa* 118
17 PLT 375
98/0 351
318
7 PLT 337
1925P II 0 C 305
202 4 Pat 696
258
5 Pa* 205
96/0 623
90 1C 812
93/0 935
1926P H C C 105
320
5 Pa* 511
7 P L T 561
7 P L T 468
94/0 10
96/0 446
162
90 10 777
205
1926P HCC 1
7 PLT 463
7 PLT 793
154
1925P J? C C 880
5 Pa* 249
259
5 Pa* 28
321
1926P H C C 145
90 1C 739
94 1C 826
93/0 1001
94/0 433
7 PLT 295
7 P L 7 465
7 PLT 495
5 Pa* 539
166
1926P H C C 29
207
4 Pat 723
260
1926PJ/CC 65
7 PLT 679
90/0 929
93/0 982
5 Pa* 404
330
5 Pa* 326
7 P L T 145
7 P .L !T 499
94/0 624
94 1C 273
159
90/0 834
209
92/0 900
263
5 Pa* 281
7 PLT 577
160
1925P H C C 315
4 Pa* 688
7 PLT 170
U34
1926P H C C 102
90 I 0 847
7 PL T 333
93/0 1001
94/0 103
7 PLT 330
210
3 PatLR 339
266
1926P H C 0 83
335
1926P H C C 138
169
5 Pa* 8
95/0 293
94 1C 31
95 1C 441
90 1C 817
7 PLT 625
7 PLT 532
836
5 Pa* 221
7 PLT 257
21X
1926PJETOC 13
267
1926P H C C 110
96 1C 206
164
1925P H O C 824
95/0 273
27 Or L J 609
337
94 / C 284
91/0 799
27 Cr L J 703
94/0 353
5 Pa* 518'
7 PLT 264
7 PLT 673
7 PLT 772
1926P H C C 310
465
1925P H C C 338
218
3 PatLR 341
269
7 PLT 203
7 PLT 788
7 PLT 140
95/0 303
95/0 1036
340
1926P H C C 199
90/0 790
7 PL T 717
273
1626P H C C 123
96 1C 188
168
26 CrLJ 1611
214
5 Pa* 110
94/0 510
6 Pa* 51
90 1 0 715
7 PLT 304
274
5 Pa* 398
346
7 PLT 443
7 P L T 428
93/0 963
1926PHCC 86
96/0 115
170
4 Pat 783
27 Cr LJ 499
94/0 36
27 CrLJ 867
7 P £ T 186
218
1926PHOO 49
7 PLT 461
347
1926P H C C 207
21 CrLJ 9
FB
7 PLT 313
276
1926P.HCC 97
96/0 221
91/0 41
93/0 939
94/0 209
27 CrLJ 909
171
6 P r, T» mn
5 Pa* 361
7 PLT 746
348
1926P H 0 0 187
85 I C 852
232
5 Pa* 63
277
1926P HCC 103
27 Cr L J 841
178 14 Pat 795
93 1C 884
94 / C 229
95 1C 761
98 1C 986
7 PLT 396
7 P L T 077
351 7 PLT 407
27 Or L J 522
27 Cr L / 484
279
5 Pat 171
5 Pa* 505
17 PLT 522
237
5 Pa* 216
96 T 0 509
90 / C 242
175 190 1C 621
7 PL T 30
27 Cr L J 957
353 192GP // C C 183
176 5 Pat 25
93 / C 146
288
1926P/rCG' 113
95 1C 867
6 PLT 833
27 CrLJ 418
94 1C 553
17 PLT 801
27 Cr L J 235
239 1926P It C 37
289
5 Pa* 276
356 1926P 71 C C 118
92 / 0 219
!93 I C 303
94 1C 765
94 1C 750
180
3 Pat L R 270
5 Pa* 341
291
1926P II C C 134
7 .P 7, T 661
92/0 184
|7 PL T 453
94 / C 506
358
7 PLT 420
7 P L'T Qfi7
241-
1926P II C C 34
292
5 Pa* 243
95 1C 935
181 7 PLT ~35
93 /O 300
7 PLT 449
27 ' Cr L J 855
90 T a 7d
7 PLT 425
94 1C 890
359
5 .Pat 433
182
26 Or £ J 1498
244
7 P L T 79
27 CrLJ 698
1926P /fCC 282
90/0 154
93/0 40
295
1926P HCC 117
96/0 627
184
5 Pat 40
27 Or L J 392
94 / C 558
362
5 Pa* 346
90/0 822
246
1926P H C C 4
296
1926P H C C 125
95 / O 396
187
190
7 »P L T 183
94/0 <J2<J
7 PLT 547
1925P H 0 0 311
7 PLT 90
249
7 PLT 218
5 Pa* 255
94 1C 841
5 Pa* sill
94 1C 22
299
94 / C 714
27 CrLJ" 666
7 PLT 524
1926P HCC 190
27 CrLJ 611
363
27 Or L J 796
7 J? L T 634
1926PHOO 228
96 1C 1036
192
90/0 687
1925P H C C 343
92/0 177
251
253
5 Pa* 208
94/0 19
7 PLT 642
7 PLT 178
302
94 1C 355
5 Pat 578
7 PLT 807
7 PLT 388
364
6 Pat 64
7 P L T 870
1926P H 0 C 195
5 Pa/ 480
7 PLT 393
5 P(it 288
5' Pa* 452
95 1C 1051
5 Pat 441
93/0 976
95 1C 929
367
5 P/T/5 464
Comparative Tablet
37
A. I. R. 1926 Patna=0ther JournaIi-(C<mcW.)
-A 1 R | Other Journal*
A 1 R | Other Journal!
A 1 R | Other Journals
A 1 R | Other Journals
867
96 1C 528
424
5 Pat 533
474
5 Pat 468
524
96 JC 587
27 CrLJ 976
98 JC 254
96 1C 287
525
1926PJETCC 16
7 PLT 794
27 CrLJ 1310
1926PHCC327
7 PLT 530
368
5 Pat 450
425
7 P L T 587
7 PLT 724
26 CrLJ 1585
96 1C 651
98 JC 392
478
97 JC 205
90 JC 657
7 PLT 716
27 CrLJ 1820
1926P H C C 249
527
7 PL? 641
27 CrLJ 987
427
1926P H C C 274
481
1926PHCC 241
6 Pat 48
969
94 1C 1007
95 JC 091
96 JC 161
97 JC 789
384
5 Pat 465
5 Pat 746
484
1926P H C C 388
528
9G JC 487
96 1C 605
7 P L T 719
485
5 Pat 398
5 Pat 768
885
1926P#CC 210
430
1926P h C C 265
96 JC 937
529
96 JC 571
96 1C 1027
97 JC 476
7 P L T 784
8 PLT ,17
892
95 JC 648
432
7 P L T 589
487
1926P IT C C 261
532
96 JC 495
898
7 PLT 496
1926P HOC 158
08 JC 374
533
7 PLT 350
96 JC 873
95 JC 348
489
96 JC 278
90 JC 761
27 CrLJ 1017
433
5 Pat 520
490
96 JC 281
535
5 Pat 573
395
1926P # C C 220
98 1C 394
493
5 Pat 536
8 PLT 183
96 JC 1037
27 CrLJ 1322
1926P H C C 176
98 JC 252
897
97 JC 798
436 <
95 JC 966
27 CrLJ 792
27 CrLJ 1808
8 PLT 28
7 P L T 671
95 1C 392
537
7 PLT 599
399
95 JC 548
438
5 Pat 476
7 P L T 812
97 1C 289
7 PLT 732
1926P H C C 321
495
1926P H C C 258
589
96 JC 468
400
5 Pat 447
98 , J C 364
98 JC 991
542
7 PLT 604
7 P L T 335
440
1926P H C C 167
497
5 Pat 445
97 JC 618
27 CrLJ 704
27 CrLJ 594
98 JC 759
545
7 PLT 775
94 JC 896
94 JC 258
498
96 JC 442
96 JC 448
401
1926P H C C 225
444
1926P H C C 254
499
7 P L T 608
547
7 PLT 804
96 JC 529
7 P L T 570
1926P H C C 314
96 JC 444
5 Pat 759
97 JC 210
27 CrLJ 1090
549
1926P HCC 3G2
8 P L T 124
446
7 • P L T 542
97 JC 354
7 PLT 74?
403
1926P H C C 288
97 JC 48
503
96 JC 569
96 1C 807
,
97 JC 175
27 Cr L J 1072
6 Pat 80
560
7 PLT 218
6 Pat 69
449
1926P H C C 267
7 P L T 871
26 CrLJ 1608
404
1926P E C C 178
6 Pat 83
504
5 Pat 233
90 JC 712
95 JC 367
99 JC 112
1926PSCC 81
561
1926P HCC 293
7 PLT 664
453
5 Pat 496
7 PLT 628
97 JC 608
408
8 P L T 38
98 JC 482
94 JC 28
564
1926P H C C 303
97 J C 822
457
7 P L T 535
508
96 JC 558
97 JC 152
409
5 Pat 306
97 JC 105
5 Pat 94
566
27 CrLJ 1011
7 PLT 491
1926P H C C 333
512
926P H C C 286
7 PLT 8G7
j
96 JC 942
460
1926P H C C 264
97 JC 348
J7 JC 17
111 1926P H C C 9
96 JC 1010
3 Pat 102
569
8 P L T 95
96 1C 3
161
1926P H C C 256
513
96 JC 585
1926P h C G 290
7 P L T 798
7 P L T 540
514
1926P II C C 279
97 JC 648
413
5 Pat 488
97 JC 436
97 JC 1
27 Cr L / 1128
98 JC 767
462 (1)
97 JC 128
8 PLT 9
572
97 JC 100
416
1926P HOC 228
7 P L T 529
516
1926P HCC 302
8 P L T 23
$ JC 575
462 (2)
96 JC" 327
96 1C 440
575
97 JC 385
5 Pat 726
7 P L T 795
7 P L T 811
577
97 JC 282
421 J1926P H C C 236
464
27 CrLJ 844
517
27 CrLJ 953
580
97 JC 68
)6 J,C 632
95 1C 764
96 JC 505
8 PLT 20
3 Pa* 73
7 P L T 770
518
7 P L T 626
582
5 Pat 646
7 PLT 779
1926P If C C 383
97 JC 343
7 PLT 821
423
L926PHCC 99
465
5 Pat 415
519
7 PLT 602
99 JC 782
7 P.LT 127
98 JC 893
97 JC 612
605
1926P Jf C C 298
<
W JC 556
472
95 JC 875
520
27 CrLJ 970
97 JC 494
96 JC 522
8 PLT 31
THE
ALL INDIA REPORTER
1926 PATNA
I. L. R. ALPHABETICAL INDEX
of Cases reported in
I. L. B. 5 PATNA
WITH REFERENCES TO THE PAGES OF
The All India Reporter
|HS Casos;
Names of Parties I. L. R. pp A. L R. pp^
Abdul Gaffar, Sheikh v. F. 13. Downing ... ... 415 1926 P . 165-
Abdul Ghaffar, Sheikh v.F.B. Downing ... ... 256 » * ^46
Achutanand Jha v. Svtrjanarain Jha ... ... 746 " " 427
Achuta Bam v. Jainandan Tewary ... ... ... 468 » » 474
Adifcya Prasad Singh v. Bam Narayan Das ... ... SB 11925 P 474
Ambika Prasad bingh v. Commissioner of Income-tax
Bihar and Orisa... ... ... ... 20 1926 P 256
Ambika Singh v. King-Emperor ... ... ... 450 * " 368
Badri Gope v. King-Emperor
Badri Narayan v. East Indian Bailway Company
Badri Narayan Singh v. Mahant Kailash Gir
Baidyanath Jiu Sri Sri v. Har Dutt Dwari...
Baijnath Bai y. Mangla Prasad Narayan Sahi
Barkatnnnisa Begnm Mb. v. Mt. Kaniza Fatma
Basndeo Bhagat v. Sheikh Kadir
Batina Kuer Mt. v. Baja Bam Pandey
216 1926 P 237
755 1927 P 23
341 1926 P 239
249 » » 20/>.
350 » • 1
631 1927 P 140
433 1926 P 359
441 " . » 192
Bengal and North- Western Bailway Company v.
TupanDass ... ... ... ... 465 »• » '384
Bengali Gope v. King-Emperor ... ... ... 447 ». " 400>
Bengal-Nagpnr Bailway Co., Ltd. Agent of the v.
Hamir Mull Chagan Mull ... ... ... 106 1925 P 727
Bhatu Bam Modi v. Fogal Bam ... ... 223 1926 P 141
Bindeshwari Prasad Singh v. Maharaja Kesho Prasad
Singh ... ... ... ... PC 634 . tPC 79
BodhaGanderi v. Ashloke Singh... ... ... .765 1927 tP • 1
Chairman, District Board, Monghyr v. Sheodutt
Singh ... ... ... .•.. 476 1926 P . 438
Ohanflerehoor Deo v. Banwari Lall ... .• ... 773 1927 P 3&-
I. L. R. ALPHABETICAL INDEX, 1926 PATNA
Names of Parties I. L. R. pp.
Chandra Mouleshwar Prasad Singh Bahadur Maharaja
v. Hem Nalini Devi
Chandra Prasad v. King-Emperor
Chandreshwar Prasad Narain Singh v. Bisheshwar
Pratap Narain Singh
Dangal Ram v. Jaimangal Saran
Daroga Gope v. King-Emperor ...
Dhakeshwar Prasad Narain Singh Raja v. Gulab
Kuer
East Indian Railway Company v. Bhimraj Srilal
— — v. Kishnn Chand Kasarwani
Emperor v. Gobind Singh
Farman Khan v. King-Emperor ...
Firangi Singh v. Durga Singh
<3anesh Lai Pandit v. Khetramohan Mahapatra
Gangadhar Misra v. Rani Debendrabala Dasi
Great Indian Peninsular Railway v. Datti Ram
Hira Bibi v. Ram Hari Lall
Iltaf Khan v. King-Emperor
Jagwa Dbamik v. King-Emperor
Jhapsi Sao v. Mt. Bibi Aliman
Kesho Prasad Singh Maharaja v. Shamnandan Rai
Khiri Chand Mahfcon v. Mfc. Meghni
Khudi Rai v. Lalo Rai
Khursaidi Begum M*;. v. Secretary of State ...
Kishun Mandar v. King-Emperor...
Krishnaballabh Sahay v. His Excellency the Governor
of Bihar and Orisa
Krishna Chandra Gauntia v. Raja Mahakur ...
Lalchand Marwari v. Mahanth Rarnnip Gir...
LaJu Mathura Prasad Singh v. Lalu Jageshwar
• • Prasad Singh
JMadho Ray v. Mt. Bibi Mahbuwan Nisa
Makhru Dusadh v. King-Emperor
Malik Fazl'<fll Rahman v. Mfc. Kokila
Manisty v. Jameson ...
Man Singh Rao Bahadur v. Maharani Nowlakhbati
Midnapur Zamindari Co., Ltd. v. Ram Kanai Singh
Deo Darpa Saha ...
Mohammad Yasin Sheikh v. King-Emperor ...
Muhammad Afzal Syed Qazi v. Lachman Singh
— -Ibrahim v. Chhattoo Lai
Sharif v. Rai Hari Prasad Lai
Nanhak Sao v. King-fimperor ...
Nil Madhab Chowdhry v. King-Emperor
Parshan Sahi v. G. L. Richardson
Peari Dai Debitors Srimati v. Naimish Chandra Mitra.
726
578
A.LR.
1926 P
777 1927 P
480
33
1926
1926
P
P
39
PP.
410
299
61
364
717
... PC 735 1926 PC 60
488 1926 P 413
221 » » 336
573 » * 536
520 1926 P 43:)
243 « » 292
... PC 585 1926 PC 56
211 « » 249
118 • P 148
... PC 58 1925 PC 20:)
346 1926 P 362
232
263
504
45:)
259
321
424
M6
a«i
... PC 312 1926 PC !J
404 * P 1460
721 1927 P 46
464 1926 P 367
511 » 320
326 ' * 330
... PC 290 PC 2
80 P 130
452 " 302
306 * 409
398 * 274
229 1927 P t 59
536 1926 P 493
171 » * 279
276 1926 P 289
40 • • 184
63
281
1926
P
it
233
496
23
539
533
1926
if
tt
it
P
tt
tt
it
FB
595
208
it
^
40
I. L. B. ALPHABETICAL INDEX; 1926 PATNA
Names of Parties
I.
Badhe Lai v.Bast Indian Bail way t3o., Ltd....
Bajendra Narayan Bhanja Deo Baja v. Commissioner
of Income-tax, Bihar and Orissa
Kaj Gopal Acharjya v. Upendra Achariya Goswami
Bamchandra Modak v. King-Emperor
Bam Chandra Singh v. Jang Bahadur Singh...
Bameshwar Narain Singh Kumar v. Mahabir Prasad
Bamgulam Sahu v. Chintaman Singh
Bamjhari Kuer Mt. v. Lala Kashi Nath Sahai
Bam Loohan Das Mahanth v. Nandi Jha
Bam Sumran Prasad v. Gobind Das
Bamsundar Isser v. King-Emperor
Banjifc Narain Singh v. Bambahadur Singh ...
Bukmin Das Mahanth v. Deva Singh
Bup Lai Singh v. Secretary of State
Siban Bai v. Bhagwat Dass
Sib Sahiab Lai v. Sir Bijai Chand Mahtab ...
Sita Bam Singh v. Khub Lai Singh
Sourendra Mohan Sinha v. Hari Prasad
Sourendra Mohan Sinha v. Hari Prasad Sinha
Subedar Bai v. Bambilas Bai
Tokh Narayan Puri Mahanth v. Bam Bachhya Singh
Uma Habiba Bibi y. Mt. Basoolan
Upecdra Chandra Singh v. Sadar Chranjifc Singh
Wajihunnissa Begum Mt, Bibi v. Babu Lai Mahton
[88 Oases,]
L.R.
pp.
A. 1.1
*. pp.
128
1926 ]
P 40
13
1925 I
> 581'
768
1926 I
» 528
110
n
214
198
tt
17
759
tt
401
FB
361
n
218
513
n
337
393
n
485
646
n
582
238
n
253
262
tt
81
505
,t
351
205
't A
- 258
25
1926 I
> 176
157
tt tt
197
168
» tt
255
PC
135
1925 I
?C 280
PC
461
1926 I
>C 31
8
• I
> 162
96 1925 P 743
445 1926 P 497
714 1927 P 38
46 1926 P 42
LIST OF CASES OVERRULED
1926 PATNA
Krishna Dayal Gir v. Syed Abdul Gaffur
(1917) 2 Pat. L. J. 402=2 Pat. L. W.
299=40 1. 0. 13 (F. B.)
Overruled in
A.I.E. 1926 P. 0. 126
THE
ALL INDIA REPOB3ER
1926
PATNA HIGH COURT
* A. 1. R. 1926 Patna 1
ADAMI AND SEN, JJ,
Baijnath Rai and others — Defendants
— Appellants.
v.
Mangla Prasad Narayan Sahi and
others — Respondents.
Appeal No. 849 of 1922, Decided on 23rd
Jung, 1925, from the Appellate Decree of
•the Sub- Judge, Muzaffarpur, D/- 10th
June, 1922.
if (a) Hindu Law— Succession, effect of— Heirs
whether male or female are bound to maintain
those whom last holder was bound to maintain—
Maintenance includes marriage expenses.
Where a person takes a property, either by
inherit ince or survivorship, he is legally bound to
maintain those whose maintenance was a charge
upon it in the hands of tha last holder. A
famale heir is under exactly the same obligation
to iruintain the members of a family as a male
Jieir would be by virtue of succeeding to the
same estate. The obligation extends even to
the King when he takes the estate by escheat or
by forfeiture. The duty of the person who
inherits is to provide for the maintenance,
education, .marriages, sradha and other usual
religious expanses of the co-parceuers and of such
nnmbers of their family as they are, or were,
when alive,' legally or morally bound to main-
tain. [P 3 0 1]
^ ^T (b) Hindu Law—Reversloner has no interest
in the estate— Compromise with reversioner does
not bind reversionary body and is wholly void.
The interest of a Hindu reversioner has been
defined as spes successions, that is, a -mere
possibility of succession. Such a possibility
gives no interest to the reversionary heir in the
estate of the deceased, present or future, vested
or contingent ; (46 Oal. 590 (P. 0,) and 6 fat.
L. J. 604, Foil.) An alienation byway of com-
promise entered into between t, limited owner
and persona who had no bona fide claim to the
property at the time of the compromise is not
binding on the reversloners ; 3 Pit. L. J. 88
1926 P/l & 2
S. M. Mullick and S. Dayal— for
Appellants.
LJ. N. Singh and L. K. Jha— for Res
pondents.
Sen, J. —The appellant instituted a
suit out of which this appeal arises for
redemption and possession of certain
specified shares in the properties set out
in the plaint whieh he alleged were in
wrongful possession of the defendants
first party. The following faofcs appear to*
be undisputed, the questions raised being
only as to the character and legal effect
of some of the transactions :
Upon the death of one Bam Ratjn Singh
the family property, except certain par-
cels which went to widows in lieu of fcheir
maintenance, came into the hands of one
Dhuna Singh, his grandson, by his son
Maniar Singh. Subsequently on the
death of Dhuna Singh the estate went by
inheritance to his mother Musammat
Ramdularee Kuer, the widow of Maniar
Singh. On the llth April 1896 Ram-
dularee executed a mortgage bond (Ex. 8)
for Rs. 1,000 in favour of one Jagarnath
Sahi, cousin of Durga Prasad Naraifc Sahi
(the father of the plaintiff). By this
mortgage bond the Musammat purported
to hypothecate 12 annas of Tauzi floe.
2345 and 2346 by way of security for the
loan which she purported^ to raise for
defraying the expenses of marriage* itf
Mtnammat Ramsumaree Kuer with tihj
plaintiff. Musammat Ramsumatee wafi ftm
son's daughter of Johnti Singh, the elder
brother of Maniar Singh. On the 19th
August 1897 an ex parte decree was ob-
tained on foot of the mortgage above
mentioned and the properties mortgaged
brought to sale and purchased in the
name oj Jagarnath Sahi. On the 16th
November 1898 Dhanpat Singh, the •
Patna BAIJNATH BAI v. MANGLA PBASAD HABAYAN SAHI (Sen, J.) 1926
next reversioner instituted a suit being
Suit No. HO of 1898 challenging the,
mortgage in favour of Jagarnath Singh
and all proceedings based thereon. This
suit was compromised and the result was
that on the 22nd August 1889 an ekrar-
Ng|ma (Ex. 11) was executed whereby
Jagarnath Sain relinquished his claim to
12 annas of tauzi 0. S. 2345 *ad 2346 and
accepted a third share'of the estate subject;
to all debts and liabilities of Dhuna Singh.
Bamdularee also took one-third and
Dhanpat Singh, the next reversioner, took
the remaining one- third share. On tha
24th September 1899 Jagarnath sold his
entire interest by kobala (Ex. 1), to
plaintiff for a consideration, it is alleged,
of Bs. 3,500. Hence the plaintiff claims
to have become entitled to the shares in
the mauzas claimed in the suit.
Then came another set of transactions
which brings us to the immediate cause of
the plaintiff's suit. The plaintiff alleges
that on the 18th September 1909 he and
the then presumptive heir Dhanpat Singh
borrowed a sum of Bs. 1,995 from Beohan
'Sahi, father of defendant No. 9, and Basist
Sahi, defendant No. 10, and executed a
serpeahgi bond in respect of the tauzi Nos.
compromised within the estate of Dhuna
Singh in favour of Beohan and Basist
Narain. it is said that out of the sum of
Bs. 1,995 the plaintiff got Bs. 595 only
and Basist Narain the balance of Bs.1,400.
Thereafter Dhanpat Singh, the presump-
tive reversioner, died and his son Bam-
pariohan Singh cam a into possession of all
his estate. He applied for mutation of his
name before the Collector, the application
was opposed by the actual reversioners of
Dhuna Singh who are the defendants first
party in the suit, (for by that time
Mb. Banadularee had died and succession
had opened to the reversioners)* On the
28th November 1918. it is alleged by the
plaintiff, a collusive and fraudulent
ekrarnama was entered into between
Bamparicban^lngh and the defendants
first party, whereby the defendants first
3p*rty got a portion of the zerpeshgi pro-
perty, and on the strength thereof, on the
14th March 1919 oolluaively got the
entire amount of zerpeshgi, that ist
Bs. 1,995 deposited in Court in the name
of the creditors, that is, the defendants
third party, without the knowledge of
the plaintiff, and defendants third party
collug ively withdrew the said bond money
rom the Court and gave up possession of
the zerpeshgi property to them. Hence
h the plaintiff was denied the opportunity
of depositing his proportionate share of
the debt. As a result the defendants first
party got possession of the entire zer-
peshgi property and are still in possession
thereof. On the facts above mentioned
the plaintiff ^prayed for a declaration that
he was entitled to get possession of his
share of the properties given in zerpeshgi
on payment of his share of the debt and for
a decree for a redemption and possession
in his favour. The defendants first party,
the present reversioners, were the con-
testing defendants. They assailed the
mortgage (Ex. 8) as unsupported by any
legal necessity and the transactions en-
tered into under Ex. 8, Ex. 11 and Ex. 1
as being void and of no effect as they
were alleged to be parts of a device to
deprive the reversioners of their just
right and to divide up the estate bet-
ween the limited owner Bamdularee and
the presumptive owner Dhanpafc Singh.
They alleged that Jagarnath was a mere
farzidar of Bamdularee and uo interest
passed under the ekrarnama (Ex. 11) to
Jagarnath and consequently none passed,
to the plaintiff under the sale deed
(Ex. 1). As regards the zerpeshgi deed
dated the 18th September 1909, their
case was that it was really a transaction
entered into by Bamdularee in the name
of the plaintiff and Dhanpafc Singh for
the purpose of paying up the debts of
Dhuna Singh due to Gopal Sahi and
others; that'they were just debts of the
last male holder and, therefore, binding
on the reversioners and on the estate ;
that the allegation of the plaintiff that
a portion of the zerpeshgi money was
due from him was utterly false ; that
upon the death of Dhanpat his son Bam-
pariohan realised that the estate had
passed to the defendant first party, the
present reversioners, and he thereupon saw
the necessity of executing the ekrarnama
dated the 28th November 1918 to dis-
charge the aforesaid debt ; that the defen-
dants first party have as such rever-
sioners paid off the zerpashgi debts and
secured possession of the property to
which they were justly entitled and that
the plaintiff's claim to redemption and
possession should be dismissed.
Two main points of law have been pnt
forward before us. First, whether the
expenses of marriage of Bamsumaree Kuer
could come within $he description of'legah
1926 BAJJKATH BAI v. MANGLA PRASAD NABATAN SAHI (Son, J.) Patna 3
tieoeasity, and consequently whether the
mortgage (Ex. 8) or any rights thereunder
•could be deemed to he valid beyond the
lifetime of the limited owner. Secondly,
did the ekrarnama Ex. (11) pass a valid
title to Jagarnath Singh, or was it invalid
•and of no effeot ? Was it a mere device
by the limited owner to defeat; the right
-of the reversioners ?
As a question of fact it is now beyond all
dispute that the amount of Bs. 1,000 which
was raised upon the mortgage (Ex. 8) was
Actually employed on the marriage ex-
penses of Mt. Batnsumaree Kuer. What
is disputed is that there was any duty
•cast upon the limited owner Mt. Bam-
dularee to defray the marriage expenses of
Bamsumaree Kuer out of the estate in
her hands. It is urged that the duty of
marrying Mt. Bamsumaree lay on Jhpnti
Singh or, in the last'instance, upon Dhuna
Singh, the last male holder. It is also
urged that directly the estate passed by
inheritance to Mt. Bamdularee Kuer it
ceased to be bound to pay the nrarriage
expenses of Jhonfci's son's daughter. This
view' appears to me clearly untenable,
The true principle, as laid down in the
Shastras, is "that where a person takes a
property, either by inhsritance or sur-
vivorship he is legally bound to maintain
those whose maintenance was & charge
upon it in the hands of the last holder,
(see Mayne, Art. 453). A female heir is
under exactly the same obligation to
maintain the members of a family as male
heir would have been by virtue of suc-
ceeding to the same estate. The obliga-
tion extends even to the King when he
takes the estate by escheat or by forfei-
ture". (See Mayne, Art. 458). In fact,
bhe duty of the person who inherits is to
provide for the maintenance, education,
marriages,, sradhs and other usual religi-
oup expenses of the co- parceners and of
such members of their family as they are,
or were, when alive, legally or morally
bound to maintain. Now, Bamsumaree
Kuer would easily come within the des-
cription of such members as were depen-
dent on the male co-parcener when they
were alive. In this. view it appears that
the mortgage (Ex. 8) was for legal neces-
sity and the mortgagee-decree-holder got
a valid right and title to the properties
purchased by him at the execution sale.
The -next question relating to the vali-
dity or otherwise of the ekraraama
(Ex. H) calls for a somewhat detailed in-
vestigation. The Munsif held 'that the
ekrarnama was not supportable on the
ground of alienation by Bamdula'ree for
legal necessity nor was it supportable on
the doctrine of surrender or renunciation.
He further held that Dhanpat Singh, the
presumptive* reversioner, had no right or
interest in praesenti in the property
which Bamdularee held for life until it
vested in him on her death should he sur-
vive her. He had no substantial claim
on which to litigate with her at the time
and that, therefore, the ekrarnama which
purported to compromise the matters in
dispute and difference between the parties
to that suit could not be held to be legally
valid. On this ground he held that the
plaintiff who derived his title from Jagar-
nath on foot of the said ekrarnama could
not recover possession by redemptioa of
any portion of the estate as against the re*
versioners. He accordingly dismissed tha
suit. On appeal the learned Subordinate
Judge held that the plaintiff's vendor
Jagarnath had derived a good title under'
the mortgage ; that ha could not be blamed
for suing on it when the mortg.ige money
was not paid ; that bhe ekrarnama whera-
by Jagarnath relinquished whaLhd had
purchased under the decree and took what
was given to him as one-third of the estate
plus the encumbrance thereon was good
and valid so far as Jagarnath was concern-
ed and it conferred a title on him. With
regard to the other parties to the ekrar-
nama he observes : "Whether it operated
as surrender or alienation on behalf of the
lady in favour of Dhanpat is a different
question with which we are not concerned
in the present suit." Upon these findings
he proceeded to hold that the plaintiff bad
a right ta redeem the zarpeshgi which
Dhanpat executed in favour of the defend-
ant third party and he allowed the appeal.
It has baan urged before'us that a dis-
position by compromise such as that
effected by the ekrarnama (Ex. 11) is per-
fectly valid as the entire estate- was then
in the hands of Mt. Bamdularae, and that
although a limited owner, she was still
the manager and as such manager was
quite competent to dispose of the estate
to the best of her discretion. The subject
of the power of a limited owner to deal
with thp estate of the last male holder as
against the rights of the revertiooai'
4 Patna B.UJNATH RAI v.
dealt with very fully in the case of
Bangasami Goundan v. Nachiappa Gown*
den (1). The Judicial Committee in that
case observed : —
"This raises a consideration of the
whole subject of the power of a Hindu
widow over an estate which belonged to
her husband to which she has succeeded
either immediately on the death of her
husband, or as heir on the death of her
own childless son, her husband being
already dead. This subject has been
dealt with in many cases which are too
numerous to cite individually; it has
given ri«e to different currents of judicial
opinion, and, as in this case and some
others, to actual difference in judicial
determination. * * *
It has often been noticed before, but it
is worth while to repeat, that the rights
of a Hindu widow in her lafce husband's
estate are not aptly represented by any
of the terms of English Law applicable to
what mightseem analogous circumstance?,
Phrased in English law terms, her estate
ie neither a fee nor an estate for life, nor
an estate tail. Accordingly one must
not, in judging of the question, become
entangled in western notions of what a
holder of one or other of these estates
might do. On the other hand, what a
Hindu widow may do has often been
authoritatively settled. Here arises that
distinction which as Seshagiri Ayyar, J.,
most justly observed in the present case,
will, if not kept clearly in view, inevitably
lead to confusing the distinction between
the power of surrender or renunciation
which is the first head of the subject and
the power of alienation for certain specific
purposes, which is the second.
3Po consider first the power of surrender.
Twfoundation of the doctrine has been
sought in certain texts of the Smritis. It
is unneoessaiy to quote them. They will
be found in the opinions of the learned
Judges in some of the cases to be cited.
But in any case it is settled by long
practice and confirmed by decision that
a Hindu widow can renounce in favour of
the nearest reversioner, if there be only
one, or of all the reversioners nearest in
degree, if more than one at the moment.
That is to say, she can, so to epeak, by
(1) [1919] 42 Mad. 528=46 I.A.^T2=26 M L.T.
5—86 M.L.J, 498=17 A.L.J. 586=29 O.L.
J. 589=^21 Bom. L.R. 640=280. W.N. 777
=(1919) M. W.N. 262=50 1.^.498=10
L. W. 105 (P.O.).
NARAYAN SAH[ (Sen, JJ 1929
voluntary act operate her own death/*
(Pages 531 and 532).
At page 536 their Lordships observed r
"The result of the consideration of the
decided cases may he summarized thus :
(1) An alienation by a widow of her de-
ceased husbands estate held by her may be
validated if it can be shown to be a
surrender of her whole interest in the
whole estate in favour of the nearest
reversioner or reversioners at the time of
the alienation. In such circumstances
the question of necessity does not fall to
be considered, But the surrender musfc
be a bona fide surrender, not a device to-
divide the estate with 'the reversioner.
(2) When the alienation of the whole or
part of the estate is to be supported on
the ground of necessity, then, if suob
necessity is not proved aliunde and the-
alienee does nob prove inquiry on his part
and honest belief in the necessity, the-
consent of such reversioners as migbt
fairly be expected to be interested to
quarrel with the transaction will he held
to afford a presumptive proof which, if
nob rebuUed by contrary proof, will vali-
date the transaction as a right and proper
one. These propositions are substantially
the same as those laid down by Jenkins,
C. J., and Mookerjee, J., in the case of
Debi*£rosad v. Gopal Bhagat (2).
Tb0<question to be considered, therefore*
is whether the ekrarnama in question can
be supported ou either of the principles
above laid down. There can ba no valid
contention in this case that the ekrar-
nama is supportable on the doctrine of
legal necessity. On the finding that the
mortgage deed was for legal necessity the
sale of 12 annas in favour of Jagarnath
of Tauzi Nos. 2345 and 2346 may be con-
sidered to be valid and binding. But
thereafter we find that Dhanpat, the
presumptive reversioner institutes a suit
against Musammafc Bamdulareeand Jagar-
nath for a declaration that the mortgage
was not for legal necessity and that
therefore the sale was not; binding. It was
this suit which was purported to be com-
promised by the ekrarnama (Ex. 11) and
by virtue of that ekrarnama each of the
three parties to the euit got a thftd share
in the whole estate. The transaction has
to be looked into from different points of
view. Firstly, had Dhanpat at thatiime
any riftht or interest in the property in
(2) [1913J 40 Oai. 721=17 C.W.N. 701-19 i.C,
278=^17 O.L.J. 499 (F.B.).
1926
PERSHAD TEWARI v. EMPEROR
Patn*
regard to whioh he instituted the suit ?
True he was entitled as presumptive re*
versioner, to institute a suit for a declara-
tion, but was he under any circumstances
entitled to a share in the property ? The
interest of a Hindu reversioner has been
defined as spes successions, that is, a mere
possibility of succession. Such a possibility
gives no interest to the reveraionery heir
in the estate of the deceased present, or
future, vested or contingent. This prin-
ciple is supported by various rulings
among whioh may be mentioned the case
of Amrit Narayan Singh v. Qaya Singh
{&) ; M usammat Bhagwati Kuer v Jaydam
Sahay (4). On this principle it has also
been laid down that,'an alienation by way
of compromise 'entered into between a
limited owner and person who had no
bona fide claim to the property at the
time of the compromise is not binding on
the reversioners, Anud Narain Singh v.
Mahabir Prasad Singh (5). Therefore it
is clear that the ekrarnama in question
offends the principle laid down in these
rulings on account of the fact that it pur
ports to give Dhanpat Singh, who had no
interest in proesenti at the moment a
third share in the whole estate which he
was clearly not entitled to.
Secondly, looking at it from the point
of view of the limited owner, Musummat
Bamdulari Kuer, the question thai has to
be considered is whether-she purported to
efface herself completely and to operate
her own death as it were by relinquishing
the entire estate and consequently acoe*
lerating the interest of the consenting heir
This she clearly did not do, for she pur-
ported to take under the ekrarnama one-
third of the estate. It is urged before us
that this share in the estate was given to
her in lieu of her maintenance. Tt is
doubtful. if she could do so, but the matter
does not arise at all inasmuch as there is
no evidence on the record, nor-doas it
appear to have been contended at any
stage of tha proceedings that the share
that she took was-by way of her mainten-
ance. On this ground it appears to me to
be quite clear that the ekrarnama is
~(3) [mS] 45 Oal. 590=45 I. A. 35=23
142=32 O.W.N. 409=27 O.L.J. 296=84
M.LJ. 298=4 *>.L.W. 221=16 A.L.J. 265
=(1918)M.W.N.306=7 L.W. 581=44 1.0,
408=20 Bom, L.B. 646 (P. 0.)
44) [1921] 6 P. L. J. 604=^2 I. 0. 988=2
P. L. T. 471.
45) [1917] 8 P.LJ, 88=s42 1.0. 9fc=3 P.L.W.
295.
illegal and invalid as against the right of
the actual reversioners. The learned Sub-
ordinate Judge seems to think that it is
not necessary to consider whether the
ekrarnama operar ted as surrender or alie-
nation on Behalf of the lady in favour of
Dhanpat, but that it is sufficient to con-
sider as to whether Jagarnath got a valid
title under it. Such a piecemeal considera-
tion of the ekrarnama is wholly un-
warranted. It is either valid or invalid
and if it be invalid, it must; he held to be
invalid in respect of all the parties. That
being so, the conclusion is irresistible
that Jagarnath never got a valid title
under the ekrarnama and that therefore
the plaintiff is not entitled to any relief.
This decision will nofc in any way pre-
judice such rights as the plaintiff or
his vendor Jagarnath might have in
respect of Tauzi Nos. 2345 and 2346
which Jagarnafch purchased at auction
in execution of his mortgage decree.
The appeal must therefore ho allowed
with costs. The judgment and decree of
the learned Subordinate Judge musfc ha
reversed and the judgment and decreo
of the learned Munsif restored.
Adami, J.-— I agree.
Appeal allowed.
# A. I. R.1926 Patna 5
MULLIOK AND JWALA PRASAD JJ.
Pershad Tewari and others — Appellants,
v.
Emperoj — Respondent.
Criminal Appeal No. 68 of 1925, deci-
ded on 4th June 1925, from the dfafcjsion
of the Sessions Judge, Saran, ""^Nkted
25th March, 1925.
# (a) Criminal trial— Sessions trial— Defence
having a counter case should (jive evidence and
should not rely on the discrepancies In prosecu-
tion evidence.
It is advisable that when persons who are
accused of serious charges in the -Sessions Court
have a oountsr case and have also to give -some
substantive evidence in support of if, they should
produce that evidence and not rely on the chance
of finding discrepancies and loopholes in the
prosecution evidence. [P. 6, Col, 9*]
* (6) Grim. Pro. Code' 8. 210— Prosecution not
producing all material witnesses — Committing
Magistrate should call them himself.
It is not sufficient for committing Magistrates
to say jhat a prima facia case has been made out
6 Patna
PERSHAD TEWARI v. EMPEROE
1926-
dCnd thus to relieve themselves of farther res-
ponsibility. If the prosecution did not send up
all the material witnesses it is the committing
Magistrate's duty to examine them himself in
order to determine whhh side was speaking the
trutja. [P 8, Col. a]
(c) Criminal trial — Prosecution case not
proved— AccusecTxfayld be acquitted.
Whdre the prosecution fails to prove its case
as laid, the accused are entitled to acquittal.
8. P. Varma and B. P. Jamuar — for
Appellants.
Assistant Oovt. Advocate — for the Grown.
Mullick, J.— About 6 A.M. on the
21st November last Ram Bod ban in the
course of a quarrel in his village received
an injury on the head from the result of
which he died at 2 o'clock on that night
in the hospital at Ghapra. Within 4
hours of the assault his son Awadh-
Bihari lodged an information before the
Sub-Inspector of Mirzapur thana which
is about 7 miles away stating that early
in the morning a buffalo, belonging to
the appellant Kuldip had trespassed into
the mustard field of his father and that
his father had seized the buffalo for the
purpose of impounding it. Kuldip came
,and protested and there was then a
struggle. The appellant Ram Prasad,
who is the brother, and the appellant
Nathuni, who is the nephew of Kuldip,
were standing by with lathis and came
to the assistance of Kuldip. The result
was that Ram JBodhan was struck by
Ram Prasad and Nathuni on the head 5
or 7 times. Awadh Bihari who was in his
house 63 paces off, came up running and
Kuldip gave him a.thrust with the spear-
bead of his lathi in the forearm. There-
upon the appellants went home with the
buffalo and Ram Bod ban was carried
home by his relatives and by prosecution
witness Ram Parsan Ojha. That wa*
the Story put forward by Awadh Bihari
in his first information to the police.
At or about tho same time that Awadh
Bihari lodged his information, the ap-
pellants Ramprasad and Nathuni also
appeared at the thana and laid a counter
information to the effect that at 6 A.M.
that morning the wife of Ram Prasad had
had a quarrel with the wife of Ram
Bodhan in a rahar field to the east of
Ham Prasad 's house and that Ram
Bodhan, Awadh Bihari and Awadh-
Bihari'a brothers Mahadeo and Sit a Ram,
and Ram Bodhan 's brother Jeo Bodhan
baci come to the place with lathis and
that, when Bam Prasad and Nafehuni
interfered to protect Ram Prasad's wife*
they assaulted Ram Prasad most severely.
Nathuni was also alleged to have been
assaulted at the same time. Strangely,
how Ram Bodban and Awadh Bihari .
came by their injuries was neither asked
nor explained.
After recording tbe two informations,,
the Sub-Inspector sent Ram Bodhan, who*
had been brought on a stretcher by
Awadh Bihari, to the Chapra hospital.
He also sent Awadh Bihari, Ram Prasad
and Nathuni to the same place. The-
Sub-Inspector arrived at the place of
occurrence on the evening of the same>
day, On tho following morning he began*
an investigation, but it does nob appear
that he did anything substantial. At
10 a.m. he received news that Ranx
Bodhan had died in hospital the previous-
nighfr. But although the case had thu£
assumed a graver aspect he did not con-
sider it his duty to make any serious-
investigation and he left the village that
night. On the 23rd or 24th he did not-
go to the village at all and I must express
my surprise that in a case of this descrip*
tion where there was a complaint and a
counter-complaint and where everything
depended upon a speedy investigation for
ascertaining which side was telling the
truth, the police took no action whatever
for two days. However on the 25th
November, the Sub-Inspector returned
and took up the investigation in earnest.
In the result he decided upon sending up
the appellants for trial and upon keeping
the counter-case pending till the disposal
of this case.
Now the case must be decided -upon
the evidence adduced for the prosecution.
Tbe defence have called no evidence and
have as usual run a grave risk in not doing
so; but it 303ms hopeless to impress upon
those who are accused of serious charges
in the Sessions Gourt, that it is neces-
sary whdn they have a counter-case to
give some substantive evidence in sup-
port of it and that it is generally most
dangerous for them to rely on the chance
of finding discrepancies and loopholes
in the prosecution evidence. Hawever,
it is fortunate for the appellants \n this
case that there are* circumstances in
the prosecution evidence which induce
us to hold that the real assault took
place not under a mohua tree near
the mustard field but near the well to>
1926
PEBSHAD TEWABI v. BMPBBOB (Mullick, J.)
Patna 7
the east of Bam Prasad's house as al-
leged by the defence.
The prosecution witnesses are first of all
a man named Ban si. He states that he was
going out for a necessary purpose early in
the morning and he saw the assault. On
the morning of the 22nd when the Sub-
Inspector took up the investigation he de-
clined to make any statement whatsoever
though pressed to do so. He did not show
the Sub-Inspector the mohua tree where
two drops of blood were found on the 25th
November by the Sub-Inspector. It is
strongly contended on behalf of the prose-
cution that the presence of these two blood
stains at that place conclusively estab-
lishes the truth of the prosecution story.
But the unfortunate part of it is that Bansi
did not at the earliest moment disclose
this important piece of evidence before the
pDlice. On the contrary fche Sub-Inspector
states that Bansi and Awadh Bihari's
brother Mahadeoand the appellant Euldip
went with the Sub-Inspector to the well
and there pointed out large patches of
blood on the ground and that they allowed
the Sub-Inspecfcor to take it as admitted
that tjie well was the place where the
fatal assault was committed. In these
circumstances it is impossible to accept
Bansi's present statement that nothing
took place at the well and that Bam
Bodhan and Awadh Bihari received their
injuries near the mohua tree. The distance
between the two places is not less than
97 paces and there can be no ground for
contending that the places were so close
that the discrepancy was not considered
by Bansi to be material.
" "The next witness for the prosecution is
Bam Parsan Ojha. This witness states
that he also was going out for a necessary
purpose and when he was at a distance of
15 or IGlag'gasfrom Rama Bodhan he saw
Bam Prasad^and Nathuni striking him 4
or 5 times on his head with their lathis.
He says thart Bam Bodhan spun round on
receiving the first blow and that the other
blows were delivered after he fell. Ac-
cording to him Awadh Bihari arrived
after his father fell and received his in-
jury because he remonstrated.
The refraining eyewitness is a Bajput
named Kali Singh, Now this man states
that he was'coming from his village which
is to the north of Nautan to fetch some
labourers whom he wished to employ. He
also corroboratea Bam Parsan but it is
evident that he and the other two wit-
nesses have attempted in the Sessions
Court to make a much more definite case
against Bam Prasad than they did before
the police. They now stated that they
are confident that Bam Prasad struck the
fatal blow ; but before the police they
were not quite clear that Bam Prasad
struck the fatal blow and the suggestion
then made was that Nathuni and Bam
Prasad were responsible jointly for the
injury from which Bam Bodhan died.
In the case of Bam Parsan and Kali
Singh, the same difficulty arises as to the
occurrence at the well. They ignore all
knowledge of any assault at that'place and
it is clear that they cannot be accepted as-
impartial witnesses who have come for-
ward to tell the whole truth. Evidence
has been given that on the 17th November
Awadh Bihari had impounded two cows
belonging to Kuldip and that on the 21st
October Awadh Bihari's brother Sitaram
had impounded another cow belonging to
Kuldip. An attempt was made to show
that the pound keeper was perjuring him-
self, but I do not think that attempt has
succeeded. In my opinion the learned
Judge'was right in accepting che allegation
that the feelings bet ween the parties had
been strained for some time and that
shortly before the occurrence Awadh
Bihari's family had twice seized Kuldip's
cattle and impounded them. That, how-
ever, was not the immediate motive for
the occurrence of the 21st November,
The question then is whether we are
to accept the story told by Bam Prasad
in the counter-information. It is obvious-
that there was no delay in putting for-
ward this story, and, reading the account,
it seems to me to be a much more na-
tural one than that told by Awadh
Behari himself and to be more consistent
with the circumstances proved in this
case. The allegation is that 2} years
ago Bam Praaad was suspected of an
intrigue with one of the daughters of
Bam Bodhan in consequence of which he
had to go away to Calcutta. He had
returned from Calcutta three months
before the occurrence, but the old fend
was still continuing and on the morning
in question a sudden quarrel broke out
between the wife of Bam Bodhan and the
wife of Bam Prasad. I do not think a
story of this kind would have been easHy
invented having regard to the fact that the
8 Patna
PEBSHAD TEWABI v. EMPEBOB (Mullick, J.)
1926
appellants are Brahmins by caste. Awadh
Bihari himself and the other prosecution
wit nesses stoutly deny that Awadh Bihari
had a sister called Sudama and that any
such intrigue was ever suspected, fie
maintains that he had two sisters both of
whom died 8 or 10 years before the occur*
rence. The concoction of a story of this
kind requires time and as there was no
delay at all in going to the police. I think
on the whole that it furnishes a better
explanation for the assault than that put
forward by the prosecution. That being
so, the question is whether the blood
patches near the well were the result of a
fight as alleged by the defence. On this
point we have the fact that Bam Prasad
had no less than 11 injuries, 3 of which
were lacerated wounds. His nose appears
to have been very severely damaged and
the other two lacerated wounds must have
also bled considerably. Nathuni had three
injuries, one of which was a lacerated
wound, and although it had been con-
tended by the Crown that the .above
injuries were not sufficient to cause copious
bleeding, I think the evidence establishes
that the blood marks at the well were due
to Bam Prasad'a and Nabhuni's injuries.
On the other hand it is in evidence that
Bam Prasad died of a fracture of the skull
and that there was no external wound
from which any blood could have flowed.
The only injury on his side from which
blood could have come was A wadh Bihari's
which was a trifling one and which certain-
ly could not have produced the copious
patches which the Sub- Inspector found
near the well. On the 25th November
two small spots of blood under the mahua
tree were pointed out to the Sub'Inspec-
tor. They wore about the size of a 4-
anna bit each and the earth was scraped
up and sent to the Chemical Examiner
and the report is that they were caused
by human blood. But it has to be re-
membered that on the 22nd November
when the Sub* Inspector first came to the
village, Bansi did not point either the
place or the marks to him and in the cir-
cumstances the suggestion that the blood
was subsequently put there for the pur-
pose of creating evidence should, I think,
be accepted. Therefore we have now the
position that while the account given by
the defence has much to support it, the
evidence for the prosecution is so deficient
that it cannot be safely accepted for the
purpose of convicting the appellants. If
the prosecution case is substantially true,
then they have only themselves to thank
for its failure.
In this connexion I think it necessary
to point out that it was the duty of the
Committing Magistrate to make some in-
vestigation into the truth of their story
before he committed the appellants to the
Sessions Court. It is not sufficient for Com-
mitting Magistrates to say that a prim a
facie case has been made out and thus to
relieve themselves of further responsibi-
lity. If the police did not send up all the
material witnesses, it was the Committing
Magistrate's duty to examine them himself
in order to determine which side was
speaking the truth. Here two clear cut
cases were put forward by the respective
sides and from the police diaries we find
that there were apparently independent
witnesses to support the account given by
the appellants, and the learned Magistrate
might with very little trouble have rea-
ched the conclusion that it was advisable
to try tho counter-case first and to keep
the present case pending. If that pro-
cedure had been adopted, the appellants
would either have been discharged or com-
mitted for trial with all the material evi-
dence at the service of the Sessions Court.
Therefore, in these circumatances,being
unable to say that the case put by the
prosecution is a true account of the man-
ner in which Bam Bodhan came by his in-
juries, I think there must be an acquittal.
The learned Judge has set out the vari-
ous submissions made to him at great
length, but he has not met them by an
adequate discussion of the evidence nor
referred to the discrepancies between the.
depositions and the statements before the
police, nor has he considered the question t
whether having suppressed a material part
of the prosecution story the eyewitnesses
on whom he relies can be trusted in res-
pect of the assault upon Bam Bodhan.
He thinks, and evidently the assessors
also think so, that the assault took place
in both places. But of this there is no
evidence at all and we cannot proceed
upon mere conjecture.
The result?, therefore, is that < the con*
victions and the sentences wijl be set
aside and the appellants will be acquitted
and set at liberty.
JwaU Fraud, J.— I agree.
Conviction set aside.
TAKKI SI>GH v. SATNARAIN MAIURAJ (Macpherson, J.) Patna 9
A.I. R. 1926 Patna 9
MtLLEB, 0. J., AND MACPHERSON, J,
Tarni Singh alias Tomi Singh and
others — Defendants — Appellants,
v.
Satnarain Maharaj and others — Plain-
tiffs— Respondents.
Appeal No. 1277 of 1922, Decided on
the 22nd June 1925, from Appellate De-
cree of District Judge, Monghyr, D/- the
16th June 1922.
(a) B. T. Act (1885), S. 5 (5)— Tenant whether
tenure- holder or raiyat — Test Is purpose and
extent of tenancy.
In determining whether the status of tenant
under the B.T. Act is that of a tenure-holder or
a raiyat what has to be considered is (1) the pur-
pose for which the Und was acquired and (2) the
extent of the tenancy 45 Cal. 805. Foil
Where -the area exceeds 100 bighas there i8
under S. 5 (5) of the Act a presumption until the
contrary is proved that the tenancy is a tenure.
But if the first criterion is established the second
does not arise, while if the first is not established
the second is conclusive, [P. 11, Col. 1.]
(6) Civ. Pro. Code, S. 100— Question whether
tenant Is temire- holder or raiyat under B. T. Act
ultimately depends on question of fact.
. Though a substantial question of law may and
.generally does, arise in 'letermiaiug whether a
tenant is a raiyat or a tenure holder, the point
•depends ultimately on questions of facts. 46 Cal.
90 (P. C.)t Foil. [P. 11. Col. 1.]
In second appeal the High Court is not enti-
tled to go behind the findings of fact of the lower
Appellate Court unless such findings result from
the misconstruction of a document of -title or the
jmisapplication of law or procedure, (19 0. W. N.
270.JMJ,), Such findings cannot be assailed how-
ever gross and inexcusable the error therein if
the lower Appellate Court had before it evidence
proper for its consideration in support of its find-
tag. 18 Cal. 23 (P. C.). Foil. [P. 11, Col. 1.]
(c) Landlord and Tenant — Expression "culti-
vate and get cultivated " does not necessarily In-
dicate a tenure-holder rather than a raiyat.
A patta kaidkarar . executed by the darmus-
•tajirs in respect of 275 bighas for a period of seven
years provided inter alia "it behoves that you
cultivate and get cultivated the land in the said
village.1'
Held: that the expression was consistent with
the status of the grantee being that either of a
rayat or of a tenure- holder. 45 Cal. 805 (P. C.) ;
46 Cal. 90 (P. C.), Dist.
(d) B. T. Act (1885), S. 5 (5)— Tenant whether
-tenure hol&er or raiyat — Reclamation and culti-
vation by^tenint by his own plough is Inconsistent
with tenant being tenure-holder only.
Though reclamation of the whole jot by the
settlement- holders and cultivation by their
own -ploughs may not be absolutely inconsistent
with a tenure, it is entirely contrary to experi-
ence in Bengal in oases where the tenancy is a
•tenure or the tenant proposes to settle raiyata
upon the land and become a rent- receiver, more
especially where the settlement- holder belongs
to an agricultural caste or tribe. [P 12 C 1]
(e) B. T. Act (1885), S. 85 (2)— Lease registered
contrary to 8. 85 (U) through misapprehension of
registering officer — JVo collusion betueen lessor
and lessee to evade the provision— Lease Is en-
operative beyond nine years.
Where there is no evidence that lessor and
lessee conspired by false or equivocal recitals to
evade the provisions of B. 85 (2) the lease that
was admitted to registration contrary to the
provisions of section 85 (2) through a mis*
conception of the registering officer does not
affeot the property demised, at any rate beyond
the period of nine years. [P. 13, Col. 2]
S. M. MullickB.ua N. N. Smlia—tor
Appellants.
Sultan Ahmad and Jayannath Prasad
— for Respondents.
Macpherscm, J. — This appeal has
been preferred by the defendants first
party from the decree of the District
Judge of Monghyr in which he affirmed
the decree of the Munsif for the eject-
ment of the appellants and of the defen-
dants second party from the land in suit.
The land in suit is a reputed area of
137i bighas which, at the time of the
cadastral survey was found to be actually
157 bighas, 2 kathas. In the record-of-
rights finally published in 1908 the ad-
optive mother of plaintiff No. 1 and the
plaintiff No. 2 who is his natural mother
as guardians of their respective minor
sons, were entered in the record-of-rights
as "jotdar istimrari lekin mukarrari
nahi" signifying "permanent tenant but
not at a fixed rent," the defendants first
party, now appellants, as "dar jotdar
istimrari lekin mukarari nahi" signify-
ing permanent under-tenant bub not at a
fixed rent," and the defendants second
party as occupancy raiyats under the
darjotdar. The defendants first party
were also entered as in cultivating pos-
session of a portion of the area ancl as
receiving Rs. tfoO as rent from defendants
second party.
The plaintiffs sued for adjudication that
the plaintiff No. 1 i* occupancy raiyat of
the land in suit; the defendants first party
are dar-rayat of the land and not "da*
jotdar istimrari lekin mukarrari na/u"as
shown in the record-of-righfcs, and the
defendants second party have no concern
with the land, for khas possession thereof
10 Patna
TARNI SINGH v. SATNARAIN MAHARAJ (fifaopberson, J.)
1926-
from the defendants and for mesne pro-
fits from Aain 1327.
The case cm,, behalf of the plaintiffs
was briefly as follows :
The land in suit was a jot held by
Hibharan Singh as an occupancy-raiyat.
On the 29fcb November 1893, the jot was
sold in execution of a rent decree and
purchased by Nand Maharaj, the right
sold being shown as " hak'tnokabzat." On
the 25th October 1897, Nand Maharaj
granted a dar-jofc of the jot purchased by
him for the years 1305—1311 at an an-
nual rent of Bs. 400 to Khanro Singh,
father of Defendants No*. 1 to 3, This
grant is described as thika pabta and the
grantee as thikadar and as mustajir ; and
it is set oufc that after expiry of the term
of the thika patfca fche thikadar shall not
retain possession over the lands in suit
without executing a newjpafcta and will
give up possession after the expiry of the
term or if the grantor gells the land. On
the expiry of that patta a new patta,
Ex. D.-i, for the period 1312 — 1320 was
executed on the 5fch February 1901, by
Mfc, Mini, widow of Jaisa Maharaj, for
herself and as guardian of Plaintiff No. 1,
and by Plaintiff No. 2 who is the widow
of Nand Maharaj for herself and as guar-
dian of Durgapat; Maharaj, her son, now
deceased. Ifc may be here observe! that
Jaiaa Maharaj and Nand Maharaj were
brothers, and Jaiso adopted Plaintiff
No, l.fchat Plaintiff No. 1 is the sole
surviving member of the joint family
and that Plaintiff No. 2 has been joined
in this litigation merely to avoid future
dispute, The patta Ex. D-l differs con-
siderably from the patfca of 1897. The
executants set out therein that they
have executed a patta conferring a
darkarindgi jot in respect of the land de-
miaed for a term of nine years at an an-
nual rental of Bs, 400," and that " objec-
tion on the score, of (loas through) inun-
dation, drought, hail and storm will be
the concern of you the raiyat," and make
provision for renewal which will be
quoted and discussed later. The grantee
is referred to as " jotdar " and in particu-
lar there is no mention of thika, thikadar,
0* mustajir.
In the reoord-of-righfcs of 1908 fche
lessee is shown as Khanro 'Singh and
Nandlal Singh of whom the former is the
father of Defendants Nos. 1 to 3 and the
latter (His brother) is the father of defect*
dants Nog. 4 and 5. These five defendant
constitute the defendants first party
though plaintiffs do not admit that De-
fendants Nos. 4 and 5 have any concern
with the land.
Towards the end of the settlement
operations the Banaili Baj, which besides
being proprietor of the village had then
become the immediate landlord of the
plaintiffs' tenancy, applied under S. 105
of fche Bengal Tenancy Act for settlement?
of a fair and equitable rent in respect of
it, the tenants having been as will be re*
membered recorded as " jotdar istimrari
lekin mukarrari nahi" The tenant
thereupon claimed under S. 105-A to ber
an occupancy raiyat and that claim was
sustained. That decision, however, does
not bind either defendants first party
or defendants second party as they were
not parties to the litigation.
After fche expiry of fche lease Ex. D*l
in 1913 fche plaintiffs sued fche defendants
for recovery of possession of fche leased
land and for mesne profits. Ifc was held
in appeal fchafc as plaintiffs had realized
some rent for 1321, the-year after the ex-
piry of fche period of fchekabuliyafc, notice^
under 3. 49 of fche Bengal Tenancy Act
was necessary before fche defendants could,
be ejecfeed. The suit was accordingly
dismissed. The plaintiffs thereafter is-
sued nofcice upon fche defendants first-
parfcy under S. 49 which was served in
1325, calling upon fchem to relinquish
fche land from 1327, and as fche defen-
dants first parby failed to comply there-
with plaintiffs insfcifcufced fche suit for
ejectment out of which this appeal has
arisen.
The suit was contested by Defendant^
Nos. 1 fco 5. They contended fchafc they*
were in fact occupancy raiyafcs and that-
in any case fche plaintiffs could not in
view of fche pafcfca of 1904 ejecb them.
The Munsif decreed the suifc* holding
thab Hibharan Singh and therefore the-
purchaser of his interest, Nand Maharaj,
who is now represented by fche 'Plaintiff
No. 1 was a raiyafc, and fchafc fche defen-
dants first parfcy have neither occupancy
right nor any permanent right. On ap-
peal the District; Judge affirmed tjjie deci-
sion holding thafc fche evidence on record'
established thafc fche tenancy of fchtf Plain-
tiff No. 1 is raiyabi and fchafc the defen-
dants have no permanent tenancy over
fche land in *suifc and are liable to 'be
ejected. .
In second appeal the decision **of the*
1926 TABNI SINGH v. SATNARAIN MAHARAJ (Macpherson, J.)
Pfttna 11
lower appellate Court; is assailed on the
following three grounds :
(1) The plaintiff No, 1 has wrongly been
held to be o'f raiyati status and entitled
on that ground to eject the appellants.
(2) Even if the land is the occupancy
holding of the plaintiff No. 1 the defen-
dants first party are not, in view of the
terms of the lease of 1904, liable to eject-
ment since that lease confers upon them
a permanent tenancy.
(3) The suit was nob within the pecu-
niary jurisdiction of the Munsif and his
decision being void for want of jurisdic-
tion, there should bo a remand of the suit
to a competent Court for trial.
Now as laid down in Debendra v. Bibhu-
dendra (I), in determining whether the
status of a tenant under the Bengal
Tenancy Act is that of a tenure-holder or
a raiyat, what has to be considered is :
(1) the purpose for which the land was ac-
quired, and (2) the extent of tho tenancy.
In the present case the area exceeds 100
fcjighas and therefore there is under sec-
tion 5 (5) of the Bengal Tenancy Act a
presumption, until the contrary is proved,
that the tenancy is a tenure. But if the
first criterion is established the second
does not arise, while if the first is not
established the second is conclusive.
The finding of the final Court of fact is
that the presumptions in favour of the
defendants under section 103-B and sec-
tion 5 (5) of the Bengal Tenancy Act have
been rebutted by the evidence adduced by
the plaintiffs and though a substantial
question of law may, and generally does,
arise in determining whether a tenant is
a^ raiyat or a tenure-holder, the point,
as indicated by Lord Sumner in Rajani
Kant v. The Secretary of State (2), depends
ultimately on questions of fact. In second
appeal the High Court is not entitled to
go behind the findings of fact of the
lower appellate Court unless such find-
ings result from the misconstruction of a
document of title or the misapplication
of law or procedure (Umi Char an v.
Midnapur Zamindari Go. (3).)
On behalf of the appellants it is con-
(1) [1918 J *45 Oil. 805=r5 I. A. 67—5 Pat.
L. W, 1 =27 C. L. J. 648=22 0. W. N. 674=
16 A.«L. J. 522^23 .M. L. T. 384=(1918)
M. W. N 379=20 Bom. L. R. 743=46 I. C.'
411=35 M. L. J. 214 (P% C.).
(9) [1918] .46 Cal. 90=451. A. 190=511.0.
226=23 0. W. N. 649 (P. 0.).
(8) [1913J 19 C. W. N. 270=26 I. 0. I82=s20
C. L. J. 11.
tended by Mr. M. N. Singh in regard to
the finding on the question of status, firstr
that it is based on a misconstruction of
the document of 1876, by which the ten-
ancy of Hibharan Singh was created, and
secondly, that there is a misapplication of
the law inasmuch as the finding that the*
plaintiff No. 1 is a raiyat is based on evi-
dence legally insufficient to support it, or
rather that there is no evidence to sup-
port the finding.
Now Ex. B, the document of 1876, is-
a brief patta kaulkarar (agreement) in
favour of Tekan Singh and Hibharan
Singh executed by the darmustajirs in-
respect of 275 bighas for a period of seven
years from 1284 at an annual rental o£
Bs. 221. The only relevant provisions
are : "It behoves that you cultivate and
Set cultivated the land in the said village
ot wa abad karke wa karake) and pay the'
said rent, etc., [literally "It behoves that
you (by) doing and getting done ploughing
and cultivation (? reclamation) pay the*
said rent, etc.,"] and "objection on the
score of (loss through) inundation, drought
and calamities of the sky will be your
concern." The learned District Judge
held, that the expression "jot wa abad
karke wa karake" was consistent either
with the status of a raiyat or the status
of a tenure-holder. It is now urged that
taken in conjunction with the area of
275 bighas [or even with the moiety of
that area held by each of the two lessees,
and (as the sale in 1903 of half of the
area shows) accepted by the landlord as
a separate tenancy] the word "karake"
points to the grant of a tenure. In my
opinion such is not necessarily the case,
and it is impossible on that word alone
to hold that a tenure rather than a
holding is implied, especially when the
grantees take from a darmustajir. Apart
f rom.the fact that the words, "jot wa abad"
would seem in the word ' abad" to imply
reclamation of the soil in addition to
cultivation, the lessees and each of them
in his own moiety might well contem-
plate cultivation of such an area by their
(or his) own family or hired servants
without any idea of settling raiyats upon
it. Much the same language was indeed
used in the leases discussed in Debendra
v. Bibhudendra (1) and in Rajani Kant
v. The Secretary of State (2), but in those-
leases there were clear indications
that a tenure was intended, and it-
12 Patflfc
TARNI SINGH v. SATNARAIN MAHABAJ (Macpherson, J.) 1926
-was so found by the final Court of fact.
The District Judge has in my judgment
taken a correct view of the terms of the
original lease.
The original lease being inconclusive
the attendant circumstances may he
looked at to determine the purpose for
which the tenancy was created. The
learned District Judge found that that
purpose was established by three pieces
of evidence : (l) the statement of Kamla
Singh, one of the original settlement-
h olders, who deposed that originally the
settlement was a raiyati one ; (2) the de-
position of Tilak Singh who is a nephew
of Hibbaran Singh and 71 years of age
and who stated that the land was jungle
at the time of the settlement and that
the settlement-holders got the jungle cut
.and cultivated the land with their own
ploughs ; and (3) the mention in the sale
certificate of 1893 "that Hibbaran Singh
judgment-debtor, had ' hdk mokabzat '
e. occupancy right in the land sold."
Mr. N. N. Singh strenuously contends
that the evidence relied upon by the
District Judge is conclusive as to the
status of Hibharan Singh and his suc-
cessor- in-infeerest and could not, especi-
ally as it is not contemporaneous, nega-
tive the statutory presumptions arising
under Ss. 103-B and 5 (5) of the Bengal
Tenancy Act. It is urged that the opi-
nion of the witness Kamla Singh is value*
less especially as the area is so large that
the reclamation of the land by the
lessee is not altogether inconsistent with
an intention to settle raii/ats upon it
and so is inconclusive, and that "hak mo-
kabzat" is not "occupancy right" as used
technically in the Bengal Tenancy Act,
but is simply a loose expression meaning
"the right to possession."
Now the lower appellate Court had
before it the evidence of Kamla Singh
which has not been shown to 113, and it
is therefore impossible to say that he
ought not to have relied upon it. Again
though reclamation of the whole jot by
the settlement-holders and cultivation
t>y their own ploughs may not be abso-
lutely inconsistent with a tenure, it is
entirely contrary to experience in this
province in oases whore the tenancy is a
tenure or the tenant proposes to settle
raiyatz upon the land and become a rent-
receiver, more especially where the set-
tl ement-holder belongs to an argicultural
caste or tribe, It has also* not been
shown that from 1876 to the date of sale
in 1893 there were any under-tenants. It
was only when the ''landlord and stamp-
vendor/1 as Nand Maharaj describes him-
self, came into possession that sub-leasing
began. Finally it is not possible to say
that in the circumstances the terms ''hak
mokabzat" does not, as the District Judge
held, denote, the "occupancy right" of the
Bengal Tenancy Act which had been in
force for eigh t years at the time of the sale.
There is no substance in the complaint
of the learned Advocate that the defend-
ants' evidence on the subject of status
had not been considered. The learned
Judge having referred to the presump-
tions proceeded to examine the nature of
the settlement, and as will be seen below
the patta of 1904 does not throw any
light on the character of the tenancy of
Hibharan Singh.
Findings of fact of the lower appellate
Court cannot be assailed in second ap-
peal, however gross and inexcusable the
error therein if, as Lord Macnaghten said
in Durya Chaudhiirani v.Jawahir Singh
Chaudhuri (4), "the lower appellate Court
had before it evidence proper for its con-
sideration in support; of its finding." It
is impossible to say that the learned Dis-
trict Judge had not before him evidence
on which a finding of fact could legally
be based that the presumptions in favour
of plaintiff No. 1 being a tenure-holder
were rebutted and that he is in fact a
raiyat as he claims to be. The first point
therefore fails.
It is next urged that even if the plain-
tiff No. 1 is a raiyat he is not entitled to
eject the appellants. In support of th*i*a
contention reliance is placed on a pro-
vision in the patta of 1904 which run1?
as follows : — "When the terms of the
patta will expire, you again taking a fresh
patta from us (the executants) will cul-
tivate, and if contrary to this provision
you cultivate, then rent will be realized
at the rate of Rs. 3 per bigha, the rate
for adjoining lands, and if you the karin-
da will all along pay faithfully (? punc-
tually) the rent fixed under the patta
then the land shall remain in* your pos-
session and occupation as before."
' There are two branches to the argu-
ment. In the first place reference is made
to S. 18 'of the Bengal Tenancy Act
(4) -[1890] 18 Oal. 28=17 LA. 122-5 Sar. 560
(P. 0.).
TARNI SINGH v. SATNARAIN MAHARAJ (Maopherson, J.) Patna 1$
1926
and it is urged that it is for Plaintiff No.
1 to show that he is not " a raiyat at
fixed rates'1 who is not precluded by 8.
&5 of the B. T. Act or any other enact-
ment from making such a transfer as is
involved in the provision quoted. The
plaint, however, sets out that the Plain-
tiff No, 1 is an oooupanoy raiyat and pre-
sumably an entry to that effeot was also
made in the reoord-of-rights under S.
109 D of the B. T. Act after the decision
under S. 105 A. The appellants also never
asserted that their landlord, Plaintiff No.
1, held his tenancy at fixed rates. Indeed
the point was never previously taken
and it is not rmnbioned in the grounds
of appeal. It therefore cannot be taken
now. But apart from that the implied
finding throughout is that the Plain iff
No. 1 is an occupancy raiyat.
The main contention, however, is that
the plaintiff is in some manner estopped
by the provision quoted from ejecting the
appellants. In support of it reliance is
placed upon the Full Bench decision of
the Calcutta High Court in Chandra
Kanta, v. Amajad Ali (5) and it is urged
that as in the lease of 1904 the plaintiff's
predecessors held themselves out to be
tenure holders and so S. 85 (2) of the B.
T. Act was not a bar to the registration
of the dead of sub-lease, though it pur-
ports to create a term exceeding nine
years, the grantor, even if a raiyat, can-
not now ba parmittel to derogate from
his own grant and eject the grantee to
whom he made a permanent grant. This
argument manifestly lacks foundation
unless it is found that the lessors of 1901
held themselves out as having a right
higher than that of occupancy raiyat.
The learnetd District Judge was not satis-
fied that the pardanashin ladies who
executed the deed were even aware of
the provision or accepted it. But apart
from that finding, I am unable to hold
that the exsoutants of the lease of 1904,
all professed to have a higher status
than the status of a raiyat. The period
of nine ypars is a very common one for a
sub-lease by a raiyat and less probable
in a grant of an under-tenancy or a
raiyati settlement. The word ' raiyat"
is indeed used in Ex. B, but pnly in the
stipulation that " objection on the score
of (loss through) innundation. drought
(6) (1931) 48 OaL 783-26 0. W. N. 4=32 0, L. J,
236=61 1. 0. 466 (F.3.)
hail and storm will be the concern of
you, the raiyat " which is merely an
adaptation of the similar provision in the
patta of 1876. The word "raiyat" has
here not the usual technical meaning nor
any special significance, being merely
equivalent to grantee. Manifestly it
must be interpreted in conjunction with
the definite statement in the deed that
the 'grantors have executed a patta con*
ferring a darkarindgri jot, the literal
meaning of which is "a sub-management
jot." In the course of the document the*
term " karinda " signifying " agent " or
"manager," is twice used of the grantee.
The description in the last sentence of
the lessee as "jotdar" must also be read
in the light of that description of the-
tenancy. Tbe lease is perhaps one which
migat equally be executed by a raiyat or
by a tenure-holder, but that is all that'
can be said in favour of the contention
on behalf of appellants. Accordingly it
must be regarded as a sub-lease granted
by the executants in the capacity which
they actually occupied. Plaintiff No. 1
is therefore not estopped from denying;
that he holds a higher status than that
of an occupancy raiyat. Ex. D 1 appears
to have been admitted to registration
contrary to the provisions of S. 85 (2)
through a misconception on the part of
the registering officer, and whether the
misconception was that the term of the
sub-lease granted by a raiyat was not
more than nine years, or was that the
executants held a tenure, is immaterial.
There is cartainly no evidence that lessor
and lessee conspired by false or equivocal
recitals to evade the provisions of the
statute. Ex. D-l therefore does not affect
the property demised, at any rate beyond
the period of nine years. The first of the
three cases dealt with in the Full Bench
decision cited is that which applies to
the present circumstances and the raiyat
is entitled to eject the grantee upon giv-
ing not/ice under S. 49 (2) as has been
done in the present instance. The second
point also cannot prevail.
As to the third point the suit was
valued at Bs. 1,100 and was instituted in
the Court of the Munsiff having jurisdic-
tion to try suits of value not exceeding Bs,
2,000. Objection to the jurisdiction of the
Court was taken before the Munsiff .Before
the District Judge in appeal the objection
was renewed. But the trial by a Court of a
14 Patn*
BAMESHWAB SIKGH v. DCRGA MANDAR (Das, J.).
1926
suit; beyond its peouniary jurisdiction is
not in itself a ground for setting aside
his order on appeal unless the appellate
Court is satisfied that the undervalua-
tion has prejudicially affected the dis-
posal of the suit on the merits. The
District Judge recorded that he was not
«o satisfied. It is, however, now argued
that in fact the disposal of the suit on
the merits was prejudicially affected
'because the forum of appeal would on a
correct valuation of the suit have been
the High Court and not the District
Judge, and Mohni Mohan v. Gour
Chandra (6) is cited in support of the
contention. That decision does not
assist the appellants. Therein it was
held that where in a suit tried by a
Subordinate Judge the appeal was
wrongly preferred to the District Judge
in disregard of his peouniary jurisdiction
in appeal, the appeal was incompetent
and S. 11 of the Suits Valuation Act,
1887, was inapplicable 'as in fact the
undervaluation prejudicially affected the
-disposal of the appeal on the merits.
In the present case the appeal lay to
the District Judge whether the correct
valuation of the subject-matter was
Bs. 1,100 or was Rs 3,650 as the District
Judge found it to be for purposes of
assessment of GourHee. The real plea
on behalf of the appellants is that the
true valuation exceeded Bs. 5,000 so
that the appeal from the decision in the
suit would lie to the High Court; But
that plea must fail in the first place
because it is not taken in the grounds of
Appeal and in the second place because
there is nothing before us which would
lead us to hold that the valuation of
Bs. 3,650 is erroneous, and the appeal in
a suit so valued lies to the District Judge
and not to the High Court. The third
submission also fails.
I would therefore dismiss this appeal
with costs.
Dawson- Miller, C. J.— I agree.
Appeal dismissed.
(6) [1903] 5 P. Lu J, 897=
T. 890.
=l P, L.
* A. I.R 1926Patna 14
DAS AND Boss, J J.
Rameshwar Singh Bahadyi — Plaintiff
— Appellant.
Durga Mandar and others— Defen-
dants— Respondents.
Appeal No. 825 of 1922, Decided on
29th May 1925, against the Appellate De-
cree of Sub-Judge, Bhagalpur, D/- 26th
May 1922.
^ Hindu Law — Debts — Son's liability—
Father undertaking to pay money misappro-
priated by another — Money misappropriated
after having taken lawfully— Son is liable.
Whore the taking of the money itself is not a
criminal offence, a subsequent misappropriation
by the father cannot discharge the son from hia
liability to satisfy the debt. The same principle
applies where the misappropriation was not
midi by the father but by a third persoa and
the father undertook to pay the money for such
third person In such a case also the son is
liable to discharge the obligation; 39 Cal.
862, AppL. [P 15, 0 2]
Murari Prasad and Sambhu Saran —
for Appellant.
Siveshwar Dayal — for Bespondents. •
Das, J. — This appeal is directed
against the judgment of the Subordinate
Judge of Bhagalpur, dated the 26th of
May 1922, and arises out of a suit insti-
tuted by the appellant, the Maharaja of
Darbhanga, to enforce a mortgage bond
executed by one Adhik Lai Mandar in
his favour on the 4th of April 1916.
The plaintiff's case as made out in the
plaint is as follows : One Jag Narayan
Lai Das was his Patwari and he owed
the plaintiff Bs. 1,231-15-9 in respect4
of the collection made by him on
behalf of the plaintiff. The Patwari
being unable to pay the amount arranged
with Adhik Lai Mandar to execute the
mortgage bond in question in* favour of
the plaintiff. The plaintiff states that
there were money-lending transactions
between Adhik Lai Mandar and Jag
Narayan and that Adhik Lai p%id Bs. 200
in cash to the plaintiff and executed a
mortgage bond for Bs. l,031-15-91n favour
of the plaintiff. Adhik Lai Mandar is
dead and the suit is now brought against
defendant No. 1, the minor son of Adhik
Lai, and Billo Mandar his brother. The
allegation in the plaint is that the defen-
dants were members of a joint family of
1926
BAMESHWAK SINGH v. DCJRGA MANDAR (Das, J.)
Patna 15
which Adhik Lai Mandar was the karta
ind that, as suoh the plaintiff is entitled
to enforce the mortgage bond as against
She members of the joint family.
The learned Munsif found that the mort-
gage bond was in fact executed by Adhik
Lai Mandar for valuable consideration.
According to him Jag Narain Lai mis-
appropriated the sum of Bs. 1,231-15-9 and
Adbik Lai executed the mortgage bond in
jmestion in consideration of the plaintiff
ibstaining from taking criminal prooeed-
ing as against Jag Narain. On this find-
ings he thought that the mortgage bond
sould not be enforced as against the defen-
dants, and he dismissed the plaintiff's suit
Hrith costs. On the'question whether de-
fendant No. 2, the brother of Adhik Lai
Mandar, was in any event liable, he came
bo the conclusion that Biilo Mandar was
separate from Adhik Lai and could not in
any case be liable on a bond executed by
Adhik Lai. The plaintiff appealed to the
learned Subordinate Judge, That learned
Judge agreed with the finding of the Court
of first instance on dae question whether
Billo was joined with Adbik Lai. He
thought that there was no consideration
for the mortgage bond and that, were
Adhik Lai Mandar alive, the plaintiff
3ould not enforce the mortgage bond
igainst him. He also agreed with the
finding of the learned Munsif that the
defendants could not be made liable on the
bond in question, and dismissed the appeal.
The plaintiff now comas to this Court.
The finding of the Courts below that
Billo Mandar was separate from Adhik
Lai Mandar is a finding of fact which is
bincling on us in second appeal. The
plaintiff's suit as against Billo Mandar
must accordingly fail.
The next question is whether the plain-
tiff is entitled to recover the money
covered by the mortgage bond from the
defendant No. 1. The solution of this
question depends on whether what Adhik
Lai undertook to pay was tainted with
illegality or immorality. The argument
on behalf of the respondents in this Court
was to the, effect that Jag Narayan Lai
was guilty of a criminal offence and that,
if he had Executed the * mortgage bond in ,
question, it could not be enforced as
against his sons ; and that tha( being so,
and Adhik Lai having undertaken to pay
the money tainted with illegality or im-
morality, his son, defendant No. 1, cannot
be oailed upon to pay the debt of hh
father. There ara many decisions in the
books on the question how far a Hindu son
is under a pious obligation to discharge a
debt of his father when such dab4; consists
of money misappropriated bytlu latter.
Here the mortgage bond was not executed
by the Patwari, but by Adhik Lai Mandar,
who certainly was not guilty of any cri-
minal misappropriation. But the problem
is exactly the same, namely, is there any
illegality or immorality involved in a
transaction of this nature. There is a
divergence of judicial opinion on this
question ; but, as was pointed out by
Mookerjee, J., in Chhakauri Atahton v.
Ganga Pmsad (l)uthe cases might possi-
bly be reconciled if we recognize the
distinction between a criminal offence and
a breach of civil duty." That learned and
distinguished Judge discussed the various
cases on the point and came to the conclu-
sion* that "Where the taking of the money
itself is not a criminal offence, a subse-
quent misappropriation by the father can-
not discharge the son from his liability to
satisfy the debt ; but the'position is differ-
ent if the money has been taken by the
father and misappropriated under circum-
stances which render1 the taking itself a
criminal offence." I entirely agree with
the view taken by Mookerjee, J., in the
case to which I have referred which is
founded on the decision of the Madras
High Court in Medai Tirumalayappa
Mudaliar v. Veerabadra (2).
What then is the position ? Jag Narayan
was the plaintiff's Patwari. It was his
duty to make collections on behalf of the
plaintiff and the taking of the money was
in the ordinary course of his employment
as Patwari and was in no sense a criminal
offence. Now what was the position when
the money originally came into the hands
of Jag Narayan? It was his duty to
account; for it to the plaintiff and the
failure to do so involved on his part a
breach of civil duty. It is said that he
misappropriated the money ; but if ha did
so, it was a subsequent act, for, as I have
said, it was part of his duty to make
collections on behalf of the plaintiff.
That being so, the son is clearly
under a pious obligation to discharge the
debt incurred by Adhik Lai Mandar,
The plaintiff is, however, not entitled
to a mortgage decree, for be has
(1) [1912 j 89Oftl, 862=46 0, W. N. 519— U
I. 0. 6b94Et5 0. L. J. 228,
(2) [1909] 19 M. L, J. 759=4 I. C. 1090,
1C Patn* AOHORI KOERI v. KISHUNDEO NABAYAN MAHTA (Adami, J.) 1926
not shown that the debt was incurred for
the benefit of the family. He is entitled
to a decree for the sum of Rs. 1,031-15-9
with interest thereon at 12 per cent, per
annum up to the date of this decree.
The plaintiff is also entitled to interest
at 6 par cent, per annum on his decree
up to the date of realisation. He is en-
titled to recover the money out of the
entire ancestral property now in the
hands of defendant No. 1. The plaintiff
will also get his coits throughout from
the defendant No. 1.
Rosa, J. — I agree.
Appeal allowed.
AIR 1926 Patna 16
DAS AND ADAMI, JJ,
Aykon K(?eri and others — Appellant?,
v.
J}, Kisktindeo Narxyaii Mahta and
other* —Respondents.
Civil Appeal No. 88 of 1922, Decided
on 2.'Jrd April 1925, from a decision of
the District Judge, Darbhanga, D/- the
16th January 1922.
Land Acquisition Act (1 of 1894), S. 11 (3) and
30 — Occupancy lands acguired — Lands not
transferable without landlord's consent — Land-
lord is entitled to a share of the compensation
money —Occupancy holding — Acquisition.
When occupancy lauds are acquired the land-
lord is entitled to some oompenmtion, if there is
no custom of transforabiLity without consent of
the landlord or if within the next 20 years, the
landlord could have enhanced the rent of the
land*. [ P 16, 0 2]
Janah Ktshore — for Appellants.
S. M. Mullick, S. N. Bow, Rai Guru
Saran Prasad and T. N. Sahay — for
Kespondants.
Adami, J. — This appeal arises out of
an acquisition of certain lands for the
expansion of the Agricultural Farm at
Pusa. The Daputy Collector, in respect of
tho occupancy lands, awarded full com-
pensation to tenants. The landlords
made a reference against this decision to
the District Judge and the result; was
that the District Judge found that out
of tho compensation paid to the occu-
pancy raiyats one- fourth should be paid
to fche landlords on the ground chiefly
that occupancy holdings were not trans-
ferable without the consent of the land-
lords and on the ground thtf i-he land-
lord was entitled to compensation by
reason of his rights of reversion and right
to enhance the rents.
Mr. Janak Kishore, on behalf of 72 of
the tenants only, raises this question be-
fore us, namely whether the landlords
were entitled to receive this 25 par cent
out of the compensation awarded to the
tenants.
Now, the Land Acquisition Deputy
Collector in hia note of reference stated
that the village note mentioned that the
holdings were transferable without the
landlord's consent and that there was no-
evidence adduced to show that salami was
payable on transfer by the raiyats.' The
learnad District Judge has come to a find-
ing in the opposite direction. He states
that the village note does not support
the custom of transferabilifcy without the
landlord's consent and that it has been the
custom to pay salami of 25 per cent, on
transfer of an occupancy holding. For us-
to be able to decide this appeal, it is ne-
cessary to have before us good evidence-
both as to tho custom of transferability4
and as to the payment of salami. Such-
evidence is not on the record. The vil-
lage note even is not before us although
both Courts have referred to it. We have
looked at the evidence and it is scanty,
and is insufficient to show to our satis-
faction whether there is the custom of
transforability or not.
For a right decision of this question,
whether any amount should be taken out
of the compensation awarded to the ten-
ants to be paid to the landlords it is neces-
sary to decide whether the custom of
transferability exists. It is also neces-
sary to find out whether the landloHs
had at tho time of the acquisition the
right to enhance the rent within 20 years
of that date and we must send back this
case in order that full evideribe may t^j
taken to enable a decision on these points
It has to be remembered tha't if there is
no custom of transferability -without the
consent of the landlords, the landlords
will be entitled to some compensation
for the right this implies, and the restric-
tion is detrimental to the tenant's claim
to full compensation. If, on *the other
hand, there is a right of tranaferability
without the consent of the landlord, the
landlord will not be entitled to a share
in_the confpensation.
Then as to t,he question of enhancement
if, within the next 20 years, the landlord
could h we enhanced the rent, as«ho wn by
1998
RAMOHAKDRA SlNOff * JANG BAHADUR SINGH (Dftg, J). Patna IT
Maclean, C. J., in the case of Bhupati Boy
Chowdhury v, Secretary of State (1), the
landlord would be entitled to some amount
of compensation, although, as pointed out
by the learned Chief Justice, it will be
difficult to estimate the money value of
that compensation.
Let, therefore, the case be sent back to
the District Judge in order that the follow-
ing two issues may be decided : —
(1) Whether a custom of transferability
without the consent of the landlord exists
in the village, and
(2) Whether the landlord had accruing
to him within the next 20 years the right
to enhance the rent under the Bengal
Tenancy Act ?
After taking evidence on these issues and
coming to a finding, the District Judge
will return his finding to this Court. The
parties will be at liberty to adduce such
evidence as may be necessary to prove
their respective oases. The finding should
be returned to thia Court within two
months from the date of the receipt of the
record.
Costs will abide the result of the appeal.
Pas; J. :— I agree.
Case remanded.
(I) (1907) 5 O.L.J. 663.
* A.I.JB. 1926 Patna 17.
DAS AND ADAMI, J.T.
Bamchandra Singh and others — Appel-
lants
v.
•Jang Bahadur Singh and others — Res-
pondents.
* Appeal No. 14 of 1923, decided on
27th July, 1925, against the Appellate
Decree of the District Judge, Gaya, dated
13th June, 1922.
* Hindu Law— Alienation by manager for per-
sonal benefit is not binding though the manager
thares the benefit with the family voluntarily or by
agreement.
It is not in the power of the karta of » joint
family to bind the joint family by entering into
speculative transactions. The question of benefit to
the family must be determined by reference to the
nature of the transaction, ariti not by reference to
the result thereof, although the result may pro-
perly be taken into consideration in determining
whether the transaction was one into which a pru-
dent owner would enter, Where a transaction
would result in benefit to the manager personally
1926 P/3 & 4
and not to the family, debt incurred for the tranM*
tion is not binding. The fact that the manager,
either by agreement with the family or volun-
tarily shares the benefit with the family makes no
difference, [P. 19, Cols, 1 & 3,]
S. M, Mullick and S. N. Boy— tor
Appellants.
Hasan Jan and Kailaspati — for Res-
pondents.
Das, J, : — Dasarafc, Nankhu and Ram-
loohan were three brothers. Bamloohan
died leaving a widow Sahodra Kuer and a
son Baghubar Dayal. Bbupnarain cited as
defendant No. 1 in this suit is the son of
Nankhu. Biahundayal cited as defendant
No. 8 is the grandson of Dasarat. Defend-
ants Nos. 2 to 7 are the sons and grandsons
of Bhunnarain. Defendant No. 9 is the
son of Bishundayal and defendant No. 10
is the son of defendant No. 9. It baa
been found by the Court below, and the
finding is one which is binding on us in
second appeal, that Bbupnarain and Bish-
undayal together with their sons and
grandsons constitute a joint family. It has
also been found that Baghubar Dayal was
separate from Bbupnarain and Bishundayal.
Baghubar Dayal died leaving, according
to the case of all the parties, three daugh-
ters Phalindra Kuer, Lalpari Kuer and
Sabinda Kuer. It was the case of Bhup-
narain that Bagbubar Dayal died leaving
also a son Baburam who died shortly after
the death of Baghubar ; and tbat, in the
events which happened Sabodra Kuer be-
came entitled to succeed to the properties
of Baburam on his death as his grand-
mother and that the daughters of Baghubar
Dayal had no interest in the properties
which were once of Bagbubar Dayal bud
which on his death came into the handa
of his son Baburam. Bhupnarian con-
tended that he was the reversionary heir of
Baburam and would be entitled to succeed
to the properties upon the death of
Sahodra Kuer. Sahodra Kuer on the other
hand contended tbat Baghubar Dayal died
leaving three daughters and she applied in
the Land Registration Department for re-
gistration of the names of the daughters of
Baghubar Dayal who are all minors and
whom Sabodra Kuer purported to represent!
in the matter of that application. On the
20th February 1909 the land registration
case was decided against Bhupnaram and
on the 27th April 1909 Bhupnarain insti-
tuted a title suit as against Phalindra
18 Pattm BAMOHANDBA SINGH V. JANG BAHADUB SINGH (Das, J).
Kner, Lalpari Kuer and Sabinda Euer in
substance for a declaration that they as
the daughters of Raghubar Dayal had no
interest in the estate whioh was onoe of
Raghubar Dayal and that he was entitled
to succeed to the properties on the death
of Sahodra Kuer. The suit was resisted by
the daughters of Ragbubar Dayal ; but was
ultimately compromised on the 14th
February 1912 by whioh Bhupaarain got
7 dams 13 cotvris out of 10 dams 13 cowris
mokarrari in Mouza Senaria and 32 Ing has
of r my at i land and the daughters of Bagbu-
bar Dayai got 3 dams of mokarrari in the
same village and certain other properties.
In the course of this litigation Bhup-
narain had bo borrow certain sums of
money from time to time from the plain-
tiffs who are the appellants in this Court.
The money was required by Bbupnarain
to enable him to prosecute fcbe suit as
against the daughters of Raghubar Dayal.
Five mortgage- bonds in all were executed
between September 1909 and November
1910. Of these, four mortgage-bonds were
executed by Bhupnarain and Bishundayal
and one was executed by Bhupnarain
during the illness of Bishundayal. The
suit out of which this appeal arises was
instituted by the appellants to enforce
these mortgage- bonds as against the entire
joint family consisting of Bhupnarain,
Bishundayal and their sons and grand-
sons. The suit was not resisted either by
Bhupnarain or Bishundayal ; but it was
resisted by their sons and grandsons and
the only question is whether the plaintiffs
are entitled to a mortgage- decree in this
suit. It is conceded that they are not
entitled to any personal decree as against
Bhupnarain and Biahundayal inasmuch
as the suit was brought more than six
years after the execution of the mortgage-
bonds.
The Court of first instance dismissed the
suit on the ground that the money was
borrowed by Bbupnarain and Bishundayal
without any legal neoessity. The learned
Judge in the Oourt below has reversed the
decision on the ground that the expendi-
ture of the money resulted in a benefit to
the joint family and that accordingly the
creditors are entitled to a mortgage- decree
as against tbe joint family.
There is one passage in the judgment of
the learned District Judge whioh requires
immediate attention. He says : " At the
Cutset I may say that I have not been able
to find any authority for the proposition of
law advanced by the learned Subordinate
Judge, that is, that speculative expenditure
will not bind a joint family, however, bene-
ficial be the result. The law would appear
to be that the test of the transaction is
the question of the actual benefit, and that,
if the joint family derived actual benefit
from the expenditure in our rod by the
kartas, it would be bound by the expendi-
ture, even though the latter may have been
speculative at the outsat, " I entirely differ
from tbo learned District Judge. It is
necessary to remember that " the power of
the manager for an infant hoir to charge an
estate not his own, is under the Hindu
Law, a limited and qualified power." I may
point out that it is settled law that the
power of a karta of a joint Hindu family
stands on the same footing as that of the
manager. In the loading case of Hunooman-
Persaud Panday v. Babooee Munraj Koon-
loeree (1), the position in regard to the
power of the manager to charge an estate
which belongs to an infant heir is stated in
these terms : " It can only ba exercised
rightly in a case of need, or for the benefit
of the estate. Bat, where, in the particular
instance, the charge is one that * prudent
owner would make, io order to benefit the
estate, the bona fide lender is not affected
by the precedent mia-managoment of the
estate. The actual pressure on the estate,
the danger fco be averted, or the benefit to
be conferred upon it, in the particular in-
stance, is the thing to be regarded." It is
obvious, therefore, that the test whioh
must be applied by the Oourt in each case
is — is it a transaction into whioh a prudent
owner would enter? Now I hold that«a
prudent owner would never think of enter-
ing into a speculative transaction whioh
may benefit him, but whioh may also
cause him loss. Tbe question of the
right of the creditor or the liability of
the joint family cannot depend upon the
spin of the coin or the throw of the dice. I
may be possibly taking a very extreme case,
but the test, in my opinion, is the same.
In Ram Bilas Singh v. Ramnad Singh (2),
the Chief Justice of this Court after point-
ing out that it is not desirable u'o lay down
any general proposition, whioh would limit
'and define the various oases, whioh might
(1) U854-57I 6 M. I, A. 393-18 W.R. 81 (n)-8
Buiher 99-1 B»r. 663 (P.O.).
(3) (1930) 1 P.L.T, 535 -58 I. 0. 303-5 P.L.J.
699.
BAMOHANDBA SINGH V. JANG BAHADUR SINGH (Da0, J.) Fatna 19
be classed under the term beneficial as
used in the oases, said as follows : — " Ifc is
clear, however, that all transactions oi a
purely speculative nature would properly
be excluded " I may refer to a passage
in my judgment in Skeotxhal Smqh v,
Arjun, Das (3): "I quite agree that the
manager of a joint family has no authority
whatever to affect or dispose of any portion
of joint family property in order to enable
him to embark on speculative transaction."
In my judgment in that case I conceded
that there is a certain element of risk in
every business transaction, and if we are to
hold that when the business has succeeded
and the entird family haa benefited by it,
we ought nob bo uohold the mortgage tran-
saction entered into by the manager to en-
able him to embark on suah a business un-
less the mortgagee satisfies us that the busi-
ness was bound to succeed and that bonefib
was bound to accrue to the family, we would
necessarily handicap the managers of joint
Hindu families and place limitation on
their powers, which would have the effect
of stopping all business transactions in
every Mitakshara family. But it is one
ttiing to say that a manager of a joint Hindu
family has complete power to enter into
business transactions, where the particular
business is part of the ancestral joint family
property , it is another thing to say
that he has power to enter into speculative
transaction* I sbiil adhere to the opinion
which I expressed in that c<iso that the
iesfe is not whether benefit was bound to
accrue to the join 5 family , but ic is still
necessary for tbe mortgagee to show that
the transaction was one into which a
Drudent owner would enter , and as soon aa
this test is laid down we must hold that ib
is not m the power of the Karta of a joint
family to bind the joint family by entering
into speculative transactions. In my
opinion the question of benefit must be
determined by reference to the nature of
the transaction, and not by reference to the
result thereof ; although the result may
properly L-a taken into consideration in
determining whether the transaction was
one into which a prudent owner would
enter The proposition resfcs on principle
and is cohered by authorities and it is not
necessary to pursue the subject.
The question, however, is somewhat
(1920) 1 P,D.T, 186-56 I.C, 879-1920 P. H,
G, C, 155.
different in this case. It is'oonoeded that
the creditor must establish that the
transaction was for the benefit of tbe joint
family. The money was borrowed and the
mortgages were executed to enable Bhup-
narain to establish his title to tbe estate of
Baburain. OQ his own case Bhupnarain
was the nearest heir expectant of B*buram
on the death of Sahodra Kuer. Biahundayal
was oue degree removed from Bhupnarain
and was nob entitled in any case to succeed
to the properties of Baburam. If Bhup-
narain succeeded in the action he might
establish his title to the estate of Baburam ,
but the joint family of which he was a mem-
ber would not necessarily participate in the
benefit that might accrue to Bhupnarain.
What then was the position of fcha joint
family > Bhupnarain might fail to establish
his case in which case his au'fc would
bo dismissed and no benefit woulri accrue
fco the joint? family , bub Bhupnarain might
succeed. But if he succeeded the benefit
would accrue to him and not to the joint
family , for it is wall established that
unless he chose to share the property along
with the members of the joint family the
fruits of his victory would belong to him
and not to the joint family. How can it then
be said that the mortgage transactions
ware for the benefit of the joint family }
Ibis said that Bhupnarain has actually
made over the property which he gained
as a result of his suit to the joint family.
That may be so, but tfaa matter rested
with Bhupnarain and the joinb family
could never have compelled him to make
over tha property to it. Benefit has
aocruod to the joint family, nob as a result
of the transactions which are the subject-
matter of the suit, bub as a result of an act
of bounty on the pari of Bhupnarain If
it be contended that there was an agree-
ment between Bhupnarain and the joint
family by which the joint family agreed to
finance Bbupnarain in the litigation and
Bbupnarain agreed to share fche property
which was the subject matter of that
litigation with the joint family, I would
unhesitatingly say that tha agreement
being of a speculative nature could not
bind the joinb family.
In mv opinion the decision of the
learned District Judge cannot he supported.
I would accordingly allow the appeal, set
aside the judgment and tbe decree passed
by the Court below aod restore the
judgment *nd the decree of the Additional
20 Patna BADBI CHAUDHRT v. KING-BMPEROB (BuokniU, J.)
Subordinate Judge. The result ia that the
suit ia dismissed with costs in this Court
and in the Court below. So far as the
costs in the Court of first instance are
concerned, I agree with the learned
Additional Subordinate Judge that each
party should bear his own costs.
Ad ami, J, :— I agree.
Appeal allowed.
A.I.R. 1926 Patna 20.
BUCKNILL AND MACPHBRSON, JJ,
Badn Chaudhry and others — Accused-
Appellants
v,
King-Emperor — Opposite Party.
Criminal Appeal No. 15 of 1925, deci-
ded on 19th March, 1925, against an order
of the Sessions Judge, Darbhanga, dated
19th January, 1925.
Crim, Pro, Code, 8» 2M— Statements of witness-
a recorded bjy investigating (fficer cannot be used
to show that the statements do not assist the story
fWi forward in the first information report*
According to the recently amended provisions of
the Crim. Pro, Code, statements of witnesses
recorded by the investigating c fficer can only be
uned to assist the accused in particular by ehowing
that a witness who in court deposes to certain facts
baa in such a statement at an earlier stage given
an account or made statements which are contra-
dictory to the testimony which he gives in Court.
They cannot be used in croeB-eiaminicg the wit-
nesses not merely to show contradictions but at
large for the purpose of showing that the state-
meets did not corroborate or assist the story as put
forward in the first information report, [P 31,
Col. a.]
K. B. Dutt, S. P. Varma and Lakshmi
Kant Jha — for Appellants.
H. L. Nandkeolyar — for the Crown.
FACTS : — This was an appeal made to
the High Court by eight persons wbo were
convicted on the 13th January 1925 by
the Sessions Judge of Darbhanga of various
offences and were sentenced to various
terms of imprisonment, \Vben the appli-
cation for the admission of this appeal came
before the High Court (before Muliick and
BuokniU, JJ.), their Lordships ordered that,
although the appeal should be heard, the
appellants should be directed to show cause
why their sentences should not be en-
hanced. This was on the 21st January
J925,
Bucknill, J.:— [His Lordship after
stating facts as given above, proceeded :]
Now, the learned Counsel has as bis first
point strenuously suggested that the story
whioh was put forward by the prosecution
as the occasion and cause of the wounding
of the deceased, his brothers and Sheikh
Banwali was not true. He has pointed
out that there is a substantial difference
between important features in the first
information report whioh was laid by the
deceased man on the 5th August, at the
Bahera police station, and a statement
whioh he subseqently made before a Magis-
trate on the 14th August, when it was seen
that his condition of health owing to his
having contracted look-jaw was such that}
it was probable that he would not recover*
The principal feature of difference to
whioh very prominent attention has been
drawn by the learned Counsel for the
appellants is that in the first information
the deceased man undoubtedly states that
on the 4th August, it was the third
appellant Tirpit who had demanded forced
labour from him and upon his refusal had
threatened him with serious consequences
on the following day. In the statement
made by the deceased on the 14th August,
it will be seen that the deceased man says
that the occurrence on the 4th August,
was between himself and the father of the
third appellant, namely, Sinalai Cbaudhry.
The learned Sessions Judge evidently
either thinks that there has been some
mistake or pays little attention bo this
discrepancy. I think it is undoubtedly a
peculiar matter and it is certainly remar-
kable that the deceased should have in the
first instance spoken of the son (that id
to say, the 3rd appellant) as having had
words with him on the 4th August, and
in the second instance that he should have
spoken of the father. There is,' however,
this to be said that there is no doubt that in
the first information report the deceased
man speaks of the "rnalik resident " whilst
in the statement which he made on the
14th August, he merely mentioned the
name of Sinala), the father of the man
Tirpit Chaudhry, the 3rd appellant, whom
however he did mention by nanle in the
first information. 1, do not pretend to
explain bow this difference arose but at
any rate there can be no doubt that the
3rd appellant's father had only quite
recently become the malik of the deceased
man, who was one of his raiycds.
1988
B1DRI CHAUDHBY V. KING-BMPEROR (MaOphetSOD, J.) PatHa
The learned Counsel has also referred
to a somewhat remarkable abatement
which appears to have been made by one
Genwa Dasadh, a chaukidar, oc the 5th
August, at the police station ah about
3 p.m. It is not quite olear whether the
chaukidar. at the time he gave the informa-
tion, was aware that something of the
nature of a disturbance had already taken
• place. Bat what was takan down in the
station diary at the Bahera polioe station
was to the effect that this chaukidar had
arrived and reported that there was an
apprehension of a breach of the peace
between Sheikh Mazhar and Sheikh Latif
on the one side and Sinalai Ohoudhry and
others on the other side in connection with
lands. The learned Counsel has per-
sistently suggested that it was really a
dispute about land and not absub begari
which had led up to the affray and he
based, in the first instance, one of his
arguments in this direction upon what he
thought wag the fact that although a
number of persons had accompanied the
deceased man bo the thana when ha gave
the first information, yet no person other
than the deceased had given the names
of any of those who were said to hava
attacked him. He, therefore, suggested
that at that time these persons, such as
for instance Jero and Latif, the brothers
of the decaased, who undoubtedly wore
both injured and were certainly present
at the occurrence, did not know who had
attacked their brother the deceased and
subsequently concocted the story which
has resulted in the conviction of the
present appellants. The learned Sessions
Judge does not appear, so far as I can
gather, to have examined carefully what
these persons did actually say to the
Head Constable who took down the first)
information gjven by the deceased. How-
ever, in this Court we had this document
examined and it is found that the contention
which was pub forward by the learned
Counsel for the appellants could cot be
substantiated ; for it is quite clear that those
persoas whj were examined by tha Head
Constable and who purported to be eye-
witnesses did in fact corroborate what had
been said by the deceased in his first
information. Thin argument, ^therefore,
that, owing to the lack of corroborative
evidence at an early stage of the proceedings
little, if any, value can be attached to the
a&rst information ibaelf, (alia to the ground,
But, it is, I think, at this stage not
unimportant to draw attention to tha
somewhat free use which appears to have
been made of these statements to the polioe
officer. It is said that according to the
recently amended provisions of the
Criminal Procedure Code documents of
this character can only be used to assist
the accused in particular by showing that
a witness who in court deposes to certain
facts has in such a statement at an earlier
stage given an account or made state-
ments which are contradictory to the
testimony which he gives in court. Here,
in this case, these statements made to
the polioe appear to have been used in
cross-examining the witnesses not merely
to show contradictions but at large ; and
they have beon referred to in this Court
again ab large not merely with the idea
of contradicting the witnesses' evidence
bub rather for the purpose of showing that
the statements did not corroborate or
assist the story as put forward in the
first inlormaliioureporD. I, fcharefore, must
observe thad it was only when this
sutfjjestion that these statements could
thus be utilized as a serious aUack upon
the truth of the first information was made
that I thought it desirable that what had
actually been stated to the police officer
should be seen and scrutinized ; and it was,
as 1 have said, then ascertained that the
contention which was bemg put forward
was not in fact correct). I am not, however,
satisfied that the use which was sought to
be made of these statements, both at the
trial and in this Court, was justified by
the present provisions of toe Criminal
Procedure Code. The matter, however,
need not ba pursued here further ; because
although it is suggested, now somewhat
naivety, that thia Court should nob perhaps
have examined these documents for the
purpose of scrutinizing them in order to see
if the argument put: forward by the learned
Counsel for the appellants was sustainable,
yet I can only point out that the examina-
tion of these statements by this Court was
really rendered necessary by the argument
of the learned Counsel for the appellants ;
an argument which perhaps should not
hivebeen listened to.
(The rest of His Lordship's judgment is
not material to our report.]
Macpherson, J.:-I agree that this
appeal mufb be dismissed and that tha
sentenoea under Motion 148, I.P.O,, aia
.22 Patna BADRI OHAUDHBY v. KING-EMPEROR (Maopherson, J).
Inadequate and fall to be enhanced as
proposed.
I offer a few additional observations.
I agree generally with the careful judg-
ment of the learned Sessions Judge except:
in two particulars, The first of these is
the question of sentence ; that has been
fully dealt with in the judgment just de-
livered. The second is his interpretation
of the new section 162 of the Code of
Criminal Procedure, and his admission in
evidence of certain statements made to
the investigating officer in the course of
the investigation under Chapter XIV of
that enactment.
The effect of the amending Act of 1923,
which is very great, has not yet been fully
appreciated by the Subordinate Courts.
Before that enactment came into operation,
section 162 merely enjoined that the
written record of a statement (not covered
by section 32 (1) of the Indian Evidence
Act) made by any person to a police officer
in the course of an investigation under
Chapter XIV should not be used as evi-
dence. The proviso permitted tbe state-
ment itself to be used in certain cir-
cumstances to impeach tbe credit of tbe
maker when examined as a witness. The
new Act has substituted a section which
prohibits the use of any such statement
(not covered by section 32 (1) of tbe Indian
Evidence Act, 1872) or any record of it
whether in a police diary or otherwise or
any part of such statement or record for
any purpose (subject to subsequent provi-
sions of the Code) at any inquiry or trial
in respect of any offence under investiga-
tion at the time when such statement was
made. The expression " for any purpose "
is very important and there is no sound
reason why it should not be given its full
value. K the legislature meant merely to
prohibit; the use of the writing an evidence
there was no point in amending the section
or substituting the present stringent sub-
section (1). It is not merely use as evidence
of the statement or of the record thereof
that is prohibited by sub-section (1) but
use of it for any purpose, unless such use
comes within subsequent specific provisions
of the Code in that regard. There is for .
all practical purposes no such provision ex-
cept in the first proviso to sub-section (l)
and >n sub-section (2), for section 162
overns also section 172 (2). Sub- sec-
tion (2) excludes frcm the operation of the
prohibition cases covered by section 82 (1)
of the Evidence Act, which do not require
consideration in this appeal.
The first proviso to section 162(1)
makes an exception in favour of the
accused but it is an exception most
jealously circumscribed under the proviso
itself. " Any part of such statement "
which has been reduced to writing may
in certain limited circumstances be used
to contradict the witness who made U.
The limitations are strict : (1) only the
statement of a prosecution witness can
be used ; and (2> ocly if it has been
reduced to writing ; (3) only a part of the
statement recorded can be used ; (4) such
part must be duly proved ; (5) it must be
a contradiction of tbe evidence of tbe
witness in Court ; (6) it must be used as
provided in section 145 of tbe Indian
Evidence Act, that is, it can only be used
after the attention of the witness has
been drawn to it or to those parts of it
which it is intended to use for the pur-
pose of contradiction, and there are others.'
Such a statement which does not con-
tradict tbe testimony of tbe witness
cannot be proved in any circumstances
and it is nob permissible to use the
recorded statement as a whole to show
that the witness did not say something to
the investigating officer.
Unquestionably tbe new sub-section has
greatly enhanced the difficulty of trials
because it excludes much that was
previously admissible as evidence on which
the Courts were accustomed to rely. It k
unfavourable to the prosecution and to a
less, but still considerable, extent to the
defence. Experience points to the conclu-
sion that the Courts do apply tbe provisions
against tbe prosecution but fail to do so
against the defence. It is, however, not
a sufficient ground for deviating from what
is intended to be a rigid rule that such
deviation will favour the accused. It ia
incumbent on a Court loyally to observe
the prohibition of the legislature in all oases
where it is applicable. The legislature has
employed firm language palpably intended
to make a clean srceep of the u^e at a trial of
any statement to the police during tbe in-
vestigation, notorrfy in evidence but for any
purpose not covered by subsequent provi-
sions of tjbe Code which provisions make
but oce exceedingly restricted exception.
The* danger of endeavouring to temper this
provision in favour of the defence and to*
widen the exception is illustrated by thfe
1986 LBKHRAJ MAHTON V, JANG BAHADUR SINGH (DftB, J.)
Patna
present case. In the cross-examination of
the Head Constable, Bir Prasad, evidence
.has been admitted of statements to the
witness of five prosecution witnesses who
accompanied the deceased Sheikh Mazhar
to the thana and who were examined by
him at the outset of the police investi-
gation. Among them are several statements
which are not admissible under the proviso
to section 162 (1) or otherwise. Upon
them the learned Sessions Judge founded
the remark in his judgment :
M None of the other witnesses told him that
night as to who wer« the assailants of Mazhar ",
which on the record of the trial could
only have bean arrived at by an inadmis-
sible use of the record of the examination
under section 161. If the inadmissible
evidence be eliminated from consideration,
as it must be, there is no warrant in the
record for the remark, which indeed
substantially misrepresents the position.
Learned Counsel has urged that the
question of re-trial should be considered
because of the improper admission of
such evidence. But under section 167 of
the Indian Evidence Act the improper
admission of evidence is not of itself a
ground for a new trial or reversal of a deci-
sion in a case, if it appears to the Court
thab independently of that; evidence there
was sufficient; evidence to justify the deci-
sion. In the present instance the evidence
improperly admitted was favourable to the
appellants an i the elimination thereof only
makes more inovi able the decision against
them. In reaching '-his conclusion no use
of the police diaries is made which is not
warranted by section 172 of the Orim. Pro.
Cfode or in accordance with the views ex-
pressed by the Judicial Committee in the
case of Dal Singh v. King -Emperor (1).
The only use to which these diaries can be
put is to aift the Court in an inquiry or trial.
Learned Counsel is aware of the contents
of the record of tho examination of the
witnesses under section 161 and is unable
to contend that a fuller utilisation of them
in evidence within the limits of the law
would at all improve the case for the appel-
lants. [The rest of the judgment is not
material tor our report],
•_ , Appeal dismissed.
(1) (l917fU~CaTT876»~44 LA. 137-16 A.L.J,
475-1 P.LW. 661-19 Bom. L.R. filO-21
O.W.N. 818-26 0 L.J. 18-SL.W. 71-22
'M.L T. 81-'1917) M.WrN. 622-18 Or, L.
J, 471-33MLJ. 665-11 Bur. -L.T, 54
-89 1,0. 811-13 N.L.B. 100 (P.O.)*
*ALR. 1986 Patna 83.
DAS AND ADAMI, jj.
Lekhraj Mahton — Appellant
v,
Jang Bahadur Singh and others — Res-
pondents.
Appeal No. 301 of 1921, decided on 8th
April, 1925, from Original Decree of the
Sub-Judge, Monghyr, dated 25th August,
1921.
* Transfer of Property Act, 8. 74— Subrogation-
No subrogation if there is no redtmption — Redemp*
tion must be of entire security and net part— Pay-
ment by sulrogator mu&J, be on exprtss agreement
with debtor or creditor.
To entitle one to invoke the equitable tight of
subrogation, he must either occupy the position
of a surety of the debt or must have made the
payment under an agreement with the debtor or
creditor that he should receive and hold an assign-
ment of the debt as security or he must stand in
such a relation to the mortgaged premises that his
interest cannot otberwino be adequately protected.
Subrogation is by redemption and unless there
is redemption subrogation cannot taka place.
Before one creditor can be subrogated to the rights .
of another, the demand of the latter must be
entirely satisfied and not only in part, BO that ho
shall be relieved from all further trouble, risk and
expense. (36 Cal. 193, Foil,) [P, 24, Col. 2,]
Ilasan Jan — for Appellant.
S. N. Roy and Satyadeva Sahay—tot
Respondents.
Das, J. : — The question in this appeal
is one of priority. To appreciate the point
involved in this case, it is necessary to
remember the following transaction?! :
On the 30th Baisak 1305 the principal
defendants executed a mortgage in favour
of Ghona Singh as a security for a loan of
Bs. 3,700 advanced by Ghena Singh to the
mortgagors.
On the 1st Sawan 1305 they executed
anotber mortgage in favour of Ghana Singh
as a security for an advance of Bs. 500.
In Kartik 1307 corresponding with the
12th of November, 1899, they executed a
zerpeshgi patta in favour of Sant Prasad
and Bam Lagan. Defendants 7 9 represent
the interest of Sant Prasad, and Bam
Lagan has been cited as defendant No. 15
in this suit. Sant Prasad and Bam Lagan
paid Bs. 600 to the mortgagors and held
Bs. 4,400 in their hands for the purpose of
paying off the mortgages of Ghena Singh,
the sum agreed to be advanced by Sant
Prasad apd Bam Lagan being Ba. 5,000 in
34 Patna LEKHBAJ MAHTON t>. JANG BAHADUR SINGH (Das, J.)
1986
all. It appears that Bam Lagan did not
pay his share of the mortgage money, bat
Sant Prasad discharged the mortgage
bond of the lab Sawan 1305 by naying
Ra. 738-12-3 to Ghana Singh. He also
paid Rg. ^,10-1-3-0 to Ghena Singh in oarb
satisfaction of the mortgage of the 30bh
Baiaak 1305.
Ghena Singh instituted a suit to enforce
his mortgage of the 30th Baisak 1305. He
obtained a decree and prooedeed bo sell the
property in due course. In order to save
the properties from sale, the mortgagor-
defendants borrowed Bs. 6,000 from the
plaintiff and on the 5th December, 1903,
executed a mortgage in favour of the
plaintiffs. Ib is the mortgage of the 5th
December, 1908, which is sought to be
enforced in this suit and the question is
whether defendants 7-9 as representing the
interest of Sant Pra&ad are entitled to
priority in respect of the sums of monies
paid by them and which form part of the
consideration of their mortgage of the 12bh
November, 1899. The learned Subordinate
Judge has decided this question in favour
of defendants 79 and the plaintiffs appeal
to this Court.
In my opinion the decision of the learned
Subordinate Judge ia erroneous. Ib is quite
true that Sanb Prasad paid off the mort-
gage bond of the 1st Sawan 1305 ; but by so
paying he acquired the rights and powers
of Ghena Singh as a second mortgagee, for
it is to be noted that the mortgage of the
30th Baisak 1305 Was still outstanding.
Now Ghena Singh enforced the mortgage
of the 30bh Baisak 1305. He obtained a
decree in due course and put up the
mortgaged properties for sale. It was the
duty of Sant Prasad under his contract
with the mortgagor- defendants to satisfy
the mortgage of the 30bh Baisak 1305 ;
but he paid Ghena Singh the sum of
Be, 2,104-3 Gin part satisfaction of his claim
and failed to pay the balance to him. In
these circumstances the mortgagor defen-
dants approached the plaintiffs and took a
loan from them to enable them to discharge
the mortgage of the 30th Baisak 1305
"keeping intact the encumbrances under the
bond dated the 30bh Baisak 1305 and the
decree in Suit 231 of 1907 " which was the
suit instituted by Ghena Singh to enforce
the mortgage of the 30th Baisak 1305.
I have no doubt whatever that the plain-
tiff is entitled to priority by virtue of his
express agreement with the mortgagor-
defendants. It has been pointed out more
than onoe that to entitle one to invoke
the equitable right of subrogation, he must
either occupy the position of a surety of
the debt or must have made the payment
under an agreement with the debtor or
creditor that he should receive and hold an
assignment of the debt as security, or he
must stand in such a relation to the mort-
gaged premises that his inberest cannot
otherwise ba adequately protected. In this
case the mortgaged properties were about to
be sold. Sanb Prasad refused to save the
properties although under his contract with
the mortgagor-defendants it was obligatory
on him to satisfy the mortgage of the 30th
Baiaak 1305. The plainbiffs thereupon
lent money to the mortgagor-defendants in
order to save the mortgaged properties and
there was an express agreement between
them that the plaintiffs should receive and
hold an assignment of the debb as
security.
Bub it was pointed out that Sanb Prasad
nob only paid off the mortgage-bond dated
the 1st Sawan but also partly satisfied the
mortgage of the 30th Baiaak 1305. As I
have said, by paying off the mortgage bond
of the 1st of Sawan Sanb Praaad stepped
into the position of a second mortgagee.
Now in regard to the payment by him
of Ba. 2,104-3-0 the position of Sanfe
Prasad is a perfectly hopeless one. It is well
established that subrogation is by redemp-
tion and unless there ia redemption sub-
rogabion cannot take place. As was point-
ed out by Muker ji, J. in Gurdeo Singh v.
Chandrikah Singh (1)!" before one creditor
can be subrogated to the rights of anotbejr,
the demand of the latter must be entirely
satisfied, so that he shall be relieved
from all further trouble, rink and expense".
In this case the demand of Qhena Singh
was not entirely satisfied and in my opinion
it is impossible to hold bbab the defendants
7-9 are entitled to be subrogated to the
securities held by Ghena Singh to the
extent of Be. 2,1043 0 paid by them to
Ghena Singh.
I would accordingly vary the decree by
discharging the direction of tfce Court
below in regard to " the Han of defendants
7.-9 for Ba. 738 3-12«plua the am6unt that
would be left out of Bs. 2,104-3-0 after
deducting therefrom the interest on Bs. 1,850
at 14 per cent, per annum from the 25th
(1) (1909) 36 Gal. 199-18 1,0. 913-5 O.L.J, 611
live
frAUJDAR BAI V. KING-EMHBBOB (MullUk, J,)
Patna 25
Kartik 1307 to 9th Baisak 1309. The
result is that the plaintiff is entitled
to the usual mortgage decree with costs
both in this Court and in the Court below.
We give the defendants six months to
redeem. The oross appeal is not pressed
and is dismissed.
Adami, J, :— [ agree.
Decree varied.
AJ.R. 1926 Patna 25,
MULLICK, J,
Faujdar RJLI — Petitioner
v.
King-Emperor— Oapoaite Party.
Oivil Criminal Raviaioa ND. 5 of 1925,
decided on 14bh May, 1925, from an order
of the District; MigiaSrioe, Ohamparan,
dated 23rd February, 1925.
fa) Civ. Pro. Code, 8. 115— Sub-Deputy
Collector refusing application to prostcute —
Collector fn appeal setting aside the order and
making a complaint exercises judicial powers and
revision lies—Government of India Act, 8. 107*
Where fche Siib-Daputy Collector after inquiry
refused the application of the opposite party for
prosecution of petitioner under Penal Code, 3. 471
bat on appeal the Collector set aside the order of
the Sab- Deputy Collector and made a formal
oomplaint under 8. 200, Grim. Pro. Code, for the
prosecution of the petitioner.
Held, that the Collector was clearly acting as a
Revenue Court and he waa exercising judicial
powers in setting aside the order of the Sub-Deputy
Collector and in making a complaint under S. 200
and wan therefore subject to the superintendence
of the High Court and bis order is roviaable under
8. 115, Oiv. Pro. Code, as also under S. 107 of the
Government of India Act, (6 Pat, L. J. 178, Ref.)
[P. .25, Col. 1,]
(b) Grim, Pro. Code, S. -176 — Criminal
offence suspected— Facts forming the offence should
be determined in the proceeding* •
When a criminal offence is alleged to have been
committed in 'the course of revenue or oivil
proceedings, the rule is that the facts, upon which
the criminal offence IB founded, should <*s far
as pOBSibto be finally determined in the Civil or
Revenue Court. A refusal to follow the rule
materially affects the criminal proceedings and
amounts to a denial of the right of fair trial.
[P. 36, Col, 9.]
(o) Grim, Pro, Code, 8. 476 B~Party prejudi-
cially affected bas a right of appeal.
8. 476-6 appears to contemplate that if an appel-
late Court Seta a<ttde the vrder of the original ,
Court the party prejudicially affected has a right of
appeal to the Court to which appeals from that
appellate Court ordinarily lie. [P. 27f Col. 1,]
S. P. Farwa— for Petitioner.
N. N. Sinha—toT Opposite Parky..
Mullick, J. :— This is an application in
revision against a complaint made by the
Collector of Ohamparan on the 23rd Feb-
ruary, 1925, under section 476 of the
Criminal Procedure Code against the peti-
tioner Faujdar Bai for his prosecution for
offences under sections 471 and 193, I. P.O.
It appears that on the 1st July, 1924, the
petitioner filed an application for the com-
mutation of his rent under section 40 of the
Bengal Tenancy Aofc before fche Sub-Deputy
Collector of Champaran. On the same day
he filed a patta alleged to have been given
to him by the opposite party Beofci Baman
Ojha. On the 5th August the petitioner
was examined and the patta was tendered
in evidence. On the 6th August the
opposite party took a certified copy of the
patta. On the 20th August the parties
having come to an arrangement, the com-
mutation case was withdrawn by the peti-
tioner. On the 26bh August the opposite
party asked the Sub- Deputy Collector not
to return the patta to the petitioner ; but
by that time ib bad already been taken
back. On the llth September the opposite
party asked the Court to direct the pro-
secution of the petitioner for offences under
sections 471 and 193, I.P.C., but the Sub-
Deputy Collector after inquiry refused the
application.
On appeal the Collector set aside the
order of fche Sub -Deputy Collector and, on
the 23rd February, 1925, he marie a formal
complaint unrter section 200, of the Cri-
minal Procedure Code to the Sub-
Divisional Magistrate of Motihari for the
prosecution of the petitioner.
The petitioner thereupon appealed to the
Divisional Commissioner ; but he on the
SOfch March, 1925, held that no appeal lay,
Now the first question is whether the
High Court] has any jurisdiction to inter-
fere with the order of the Collector. The
Collector was clearly acting as a Revenue
Court and he was exercising judicial
powers in setting aside fche order of the
Sub-Ddpuby Collector and in making a
oomplaint under section 200 of the
Criminal Procedure Code. He was there-
fore subject; to the superintendence of the
High Court and his order is revisable
under section 115 of the Civil Procedure
Code, liuktu Singh v. Emperor (1) is
authority for this view,
(1)(192D 6P.L.J, 178-9 P.L.T. 609-93 Or, L, J.
408-91 1,0. 648-1931 P.H.G.O. 340.
36 Patna
FAUJDAB BAI V. KING-BMPBBOB (Mullick, J )
1926
The Court also baa jurisdiction to inter-
fere under section 107 of the Government
of India Aot. Undoubtedly the Collector
had jurisdiction in appeal to set aside the
Bub- Deputy Oolleotor'8 order declining to
make a complaint against the petitioner.
But in arriving at this result the Collector
did not apply his mind to the evidence in
favour of the petitioner and therefore he
has failed to exercise jurisdiction. Finding
that the opposite party had withdrawn from
the compromise and instituted criminal
proceeding* against him, the petitioner
renewed his application for commutation
and refiled the patta in the Sub-Daputy
Collector's Court on the 14th November,
1924. It is suggested that this is not the
patta which was filed on the 1st July but the
Bub-Deputy Collector states definitely that
it is the eaate patta and that u contains the
endorsements made by him on the former
occasion ; the loarned Collector has not
considered how a prosecution for forgery
can be maintained when there is no brace
of any alteration in the document. It is
true that a certified copy was issued from
the Collector's office on the 6th August in
which the plot alleged to have been leased
by the patta is described as within Khata
No. 22G, Kheara No. 1227, while in the
original document it is said to be within
Khata No. 191 and Khesra No. 279.
It is also true that iu the certified copy
the word " Nij " appears and in the original
patta contains the word " Khas ". The
landlord denies that ha over gave any patta
to the petitioner and his oaao is that
the patta which is alleged to have been
given in 1901, must be a forgery because
the laud id dosjribud by the number given
to it at the ruvisional survey which took
place long after 1901. It is suggested that
after taking baok oho document on or about
the 20th August the petitioner altered tho
revisional survoy numbers which were
originally in tho document into tbe num-
bers allotted to the land in the Cadastral
Survey which took place before 1901
Now thora ia no evidence to ahow that
tbe numbers 22G and 1227 whiob appear
in the oarfcifiad copy have any relation to
the nuuibers 191 and 279 which now
appear in the pabta and the object of alter-
ing the patta is therefore not clear. More-
over, if, as appears from the evidence, the
opposite party was aware on the 21st July,
1924, that the patta contained the Bevi-
flional Survey plots and was1 therefore a
forgery, it is not understood why he did
not bring that fact to the notice of the
Sub-Deputy Collector on the 5th August
but allowed tbe case to be withdrawn on
the 20th August without demur ; nor is
there any explanation why only six days
later he asked that the documents by the
petitioner should be attached. In my
opinion the suspicious conduct of the
opposite party has not been considered.
The learned Collector relies upon the
statements of his copying staff, but they
do not really touch the case. It has not
been shown that the document, which
was given to the copying staff, was
tbe document now under consideration.
On the contrary as there are no
marks of alteration on tbe document,
the presumption is that it is not the
document which was made over to tbe
copying department for the issue of a
certified copy. The petitioner suggests
that the copying department ware in con-
spiracy with the opposite party and inten-
tionally inserted the revisional survey ploti
numbers instead of the numbers on the
document, but without going so far it is
possible to hold that the copying depart-
ment were deceived and that they copied
out a document which was neither filed nor
exhibited by tbe petitioner.
There is another point which requires
notice, The learned Collector was asked
to proceed with the commutation case
which is now ponding in order that the
question of the genuineness of the patta
might be determined before the criminal
law was put in motion against the peti-
tioner; but his order is that the question
whether in fact the petitioner is a tenant
or not should first be determined by the
Criminal Court. This is a reversal of the
ordinary procedure and oannpt be permit-
ted. When a criminal offence is alleged
to have been committed in the course of
revenue or civil proceedings, the rule is
that the facts, upon which the criminal
offence is founded, should as far as possible
be finally determined in tbe Civil or
Revenue Court. Here the refusal to try
out the commutation cane matfrially affects
the criminal proceedings and amounts to a
. denial of the right of fair trial. 'This Court
is therefore competent to interfere under
section 1Q7 of the Government of India Aot,
There is a third point raised, 'namely,
that the learned Commissioner was wrong,
in declining to hear the appeal preferred by
1986
ANANT POTDAR V. MANGAL POTDAR.
Patna 27
the petitioner. I think the contention must
be accepted. Section 476 B of the Criminal
Procedure Code (appears to contemplate
that if an appellate Court sets aside the
order of the original Court, the party
prejudicially affected has a right'of appeal
to the Court to wbioh appeals from that
appellate Court ordinarily lie. In this case
therefore the Commissioner had jurisdiction
to hear the appeal from the order of the
Collector and to set it aside if necessary,
and I am asked to direct that the criminal
prosecution should not proceed till the
Commissioner has disposed of the appeal.
In my opinion it is not necessary to make
any such order as I think I have jurisdic-
tion to interfere under section 115, Civil
Procedure Code and section 107 of the
Government of India Act. I direct that
the order of the Collector be set aside.
The application is allowed but without
costs.
Application allowed.
* A.I.R, 1926 Patna 27.
MULLIOK AND KULWANT SAHAY, JJ.
Anant Potdar and others — Applicants
v.
Mangal Potdar— Opposite Party.
Civil Revision, decided on 20bh March,
1925.
• (a) Civ, Pro. Code, 0. 41, r. 19-Apptal
dismissed for failure to deport printing Costs-—
Application for restoration is one for review and
not one under 0, 42, r, 19- Civ. Pro. Code, 0. 47 1
r.l.
' The words " (or any other sufficient reason " in
r. 1 of 0. 47 will cover the oaee where there is a
good ground for not filing the deficit printing oosts,
and therefore an application to set a Bides dismissal
of appeal for failure to file printing costs is one foe
review and not an application under 0. 41, r. 19,
[P. 38, Col. 1.]
• (b) Civ. Pro, Code, 8, 251— Section does not
apply whenever no other remedy is open.
B, 151 of the Code does not apply in every case
ID which there IB no other remedy, A Court has
DO inherent power to set aside its own orders when-
ever it c boot es to do BO. [P. 98, Col, 1,]
JSf. N. Hal for Muhammad Yunus — for
Applicants.
Judgment:— The* facts of this case
are as follows : On the 20th November,
1924, .this Bench made an order in First
Appeal No. 86 of 1921 that unless the
printing oosts were deposited within four
days the. appeal should stand dismissed
without further reference to the Bench.
The printing oosts were not paid within the
time prescribed and the appeal stood auto-
matically dismissed on the 25f.h November.
On the 18th December, 1924, an applica-
tion was made by the appellant for permis-
sion to pay the deficit oosts. The stamp
affixed upon the application is one of the
value of Rs. 3 which would be the proper
stamp if the application were regarded as
one under Order XLI, rule 19 of the Civil
Procedure Code. If, however, the appellant
is required to file an application for review
of judgment, half the fee payable on the
original memorandum of appeal is required
and the application is insufficiently stamped,
The earlier decisions oCthis Court pro-
ceed upon the decision in Fatimunnissa v.
Deoki Pershad (I) which held fchat an ap-
plication to set aside a dismissal of an ap-
peal for failure to file the necessary list
must be regarded as one for review under
Order XLVII, rule 1. This authority would
seem to govern tbe present oaee also and
has been followed in the following oases : —
(1) Civil Review No, 36 of 1916, decided
on tbe 8fch June, 1917, by Hoe and Jwala
Prasad, JJ.
(2) M. J. C. 95 of 1918, decided on the
20bb June, 1918, by Mulliok and Thornhill,
JJ.
(3) Review No, 31 of 1920, decided on
the llth August, 1920, by tbe Registrar as
Taxing-Officer.
(4) M. J. C, 35 of 1924, decided on tbe
30th May, 1924, by Das and Ross, JJ.
(5) Review No, 16 of 1924, decided on
the lOtb June, 1924, by tbe Registrar as
Taxirjg-Offioer.
On the other hand the following cases
since 1923 have taken tbe view that the
appeal can be restored by an application
under Order XLI, rule 19, read with sec-
tion 151 of the Oivil Procedure Code : —
(1) Review No. 35 of 1923, decided on
the 19th April, 1924, by Jwala Praaad and
Poster, JJ.
(2) M. J. C. 24 of 1923 and Review
No. 38 of 1923, decided on tbe 15fcb April,
1924, by Jwala Prasad and Adami, JJ.
(3> Review No. 30 of 1924, decided on
the 20th November, 1924, by the Registrar
as Taxing- Officer.
If the decision in Fatimunnissa v. Deoki
Pershad (1) is still good law, then the appli-
cation under Order XLI, rule 19, does not
(1) (189f) 24 Oftl. 850-1 C.W.N, 91 (P.BJ.
38 Patna
RAJ K18HORB LAL V. ALAM ABA BBGUM.
1026
lie. From the wording of the rule in question
it is difficult) to see bow it oan be applied
to a case of default otherwise than by non-
appearance. It may be said that the Full
Bench decision of the Calcutta High Court
was made before the present Code of Civil
Procedure when an order dismissing a case
by default was considered to be a decree.
But it does not appear that the change in
the definition of a decree really makes any
difference for the purpose of this case.
What the party is really seeking is a
reversal of an order, which, if it is not a
decree, is certainly a judgment, and if the
provisions for review do not apply, then
there is no rnmfldy at all given by the
Code: Order XLT, rule 19, certainly does
nob seem to be applicable. We think the
words "for any other" sufficient reason "
in rule 1 of Order XLVII will cover the
case whore theru ia good ground for not
filing the deficit printing costs. If it does
not, then the appellant has no remedy and
we do not think section 151 of the Code
become* applicable in every case in which
there ia no other remedy. It does nob
appear that a Court; has inherent power to
set aaido its own orders whenever it
olioosea to do so.
The application has bo-day been stamped
as an applioa&iou for review and &he nooes-
sary deficit fee has be^n paid. Tbe fee
will ba kopb in deposit aad notice will
issue upon Lbe opposite parly bo show
causa why the review should nob be
allowed.
Revision allowed.
*A.I,R, 1926 Patna 88.
ADAMI, J.
Rajkishore Z/al, Nand-Kcolyar and others
— Petitioners
v.
Alam Ara Begum and another — Opposite
Party,
Civil Revision No. 547 of 1924, decided
on 23rd'M*roh, 1925, from an Order of the
Munsif, First Court, Gaya, dated 17bh
November, 1924.
(a) J^im. Act, S, 2* (1) and (a)— Di
m*de co plaintiff after limitation— Suit does not
become barred.
It ia olear from the provisions of sub-8, (9)
of 8. 92 that the provisions or sub-S. (1) ot the
Beofcioa will nob apply where » defendant, who WAS
made each by the plaintiff at the tima of the
institution of the suit, is transferred in thit aoifc
as a oo-plaintiff. [P. 38, Col. S.]
* (b) Civ. Pro. Coda, 0. I, r. 10— Transfer of
parties raiting value of subject-matter higher than
Court's jurisdiction— Court should add parties and
return the plaint— Civ. Pro. Code, 0. 7, r. 10,
Where transfer of some co-defendants to the
side of plaintiffs raises valuation of tha suit beyond
the pecuniary jurisdiction of the Qjurt, the Court
should not refuse the transfer. It should allow
transfer and return the plaint foe presentation to
proper Court. [P, 29, Col, 1,]
Anand Prasad — for Petitioners.
Judgment : — This application ia direct-
ed against an order of the Munsif, First
Court, Gaya, rejecting the application by
the petitioners to ba made co-plaintiffs in a
suit brought by the opposite party No. 1.
The opposite party No. 1 sued to recover a
sum of money from fcbe defendants STos. 1
to 26 on account of certain expenses
incurred by her in erecting and maintaining
a bandh. It appears that the co-sharer
malifaot village Lao and of several other
villages have to ereafc bzndhs for tha pur-
poses of irrigation in those villager. The
maliks of village Lao supervises the erection
of these bandhs and the other maliks
contribute towards the expenses incurred.
The suit related to the expenses incurred bv
the opposite party No. 1 in the years 1329
and 1331. She joined as defendants to the
suit defendants Nos. 27 to 35, who are
co-sharer maliks of Mouza Lio. The
present applicants petitioned the lower
Court; to be changed from co-defendants in
the suit to co-plaintiffs.
Tbe learned Munsif rejected the appli-
cation on two grounds, firstly, that if these
defendants were made co-plaintiffs, the rulo
of limitation would come in and the plaint-
iffs, suit would be barred wiih regard to
the claim for 1329. The second ground was
that the addition of these petitioners as co-
plaintiffs would raise the value of the suit,
beyond the jurisdiction of the Court. Now,
with regard to the question of limita-
tion, it is clear from the provisions of sub- "
section (2) of section 22 of the Limitation
Acb that the provisions of sub-section (1)
of the section will not apply rwhere a
defendant, who was made such by the
plaintiff at the time of the institution of
the suit, is- transferred in that suit as a
co-plaintiff. Sub-seotion (2) clearly says
that "nothing in sub-section (1) shall
apply to A case. ..where a plaintiff is made
1990
SHAMSBBB KARAIH SINGH V. MOHAMMAD 3ALB
Patna 29
a defendant! or a defendant is made a plaint-
iff," All that the petitioners have asked in
this oase is that they being defendants
should he made plaintiffs in the suit.
Accordingly the Law of Limitation will
not bar any portion of the claim.
With regard to the other objection raised
by the Munsif if the suit after the addition
of these petitioners as oo- plaintiffs exceeds
the valuation which is within the jurisdic-
tion of the Munsif, it will be open to him
to return the plaint, after the petitioners
have been so added, to the plaintiffs to be
presented in the proper Court.
The order of the Munsif must be set
aside and it is directed that the status of
the present petitioners be changed from the
category of defendants to that of plaintiffs
in the suit.
Order set aside.
A.I.E. 1926 Patna 29 (I).
ADAMI, j.
•Bam Charan Singh and another — Peti-
tioners
v,
Emperor— Opposite Party.
Criminal Revision No, 46 of 1925, deci-
ded on 24th March, 1925, from an order of
the Sessions Judge, Muzaffarpur, dated the
4th December, 1924.
Crtw. Pro. Code, 8. 312 —Provisions are man-
datory—Non-observance vitiates trial.
The provisions of 8. 84*2 are mandatory. The
accused must be examined under 8. 342 after the
prosecution has oloeed and before the accused have
entered upon their defence and if the provisions of
that section are not observed, the trial is vitiated,
[P, £9, Col. 2.]
S. M. Gupta — for the Petitioners.
Judgment : — The only point taken in
this application is the fact that the provi-
sions of section 342 have not been com-
plied with in the trial of the petitioners
and, therefore, the trial and the convictions
found against the petitioners are vitiated.
It appears that the petitioners were not
examined under section 342 until about
two months had elapsed after the peti-
tioners had Entered upon their defence.
The learned .Sessions Judge holds that, as
the defence could not be prejudiced in any
way by the delay in examining the accused
under section 342, the trial could not be
held to be vitiated. It may be that the
delay did not in fact prejudice the petition-
ers ; but as has been often held by this
Court, the provisions of section 342 are
mandatory. The accused muat be examin-
ed under section 342 after the prosecution
has closed and before the accused have
entered upon their defence, and if the
provisions of that section are not observed,
the trial is vitiated. In the Calcutta High
Court the oase of Surendra Lai Shaha v.
hamaddi (I) was a oase in which the
circumstances were similar to those of the
present case, and in that oase it was found
that the trial was vitiated.
The convictions of the petitioners must
be set aside and it is directed that the trial
of the petitioners must proceed now from
the point where the prosecution closed
their case. The petitioners must be
examined as required by section 342 of the
Criminal Procedure Code, and then be
allowed to enter upon their defence. The
fines, if paid, will be refunded.
Conviction set aside.
(I) A.I.R, 1926 Cal, 480-51 Cal, 933-36 Cr. L J,
261.
AIR 1026 Patna 29 (2).
KULWANT SAHAY, j.
Shamsher Narain Singh and others —
Petitioners
v.
Mohammad Sale — Opposite Party.
Civil Revision Nos. 441 and 442 of
1924, decided on 27bb April, 1925, from
an order of the Muusif, Bihar, dated
16th September, 1924.
(a) Civ. Pro. Code, 0. 9, r, 13— Application to
set aside ex parte decree altow ed— No rt vision lies.
Where on nn application to eet aside an ex parte
decree the Court considered (he evidenoe and
decided that the applioant had no knowledge of the
suit and that summonses were not served upon
him and that he came to know of the decree with-
in 30 days of the application and set asido the
ex partc decree,
Held, that no revision lay as it cannot be said
that the Court committed any error, illegality oe
irregularity withm the meaning of 8. 115. [P, 80,
Coi. 2.]
(b) Civ. Pro. Code, 0. 22, r. 4— Finding that
a deceased plaintiff's heirs were not necessary
parties to application to set aside ex parte decree is
not revisable,
. Where in a proceeding to set aside an tx parte
decree the heirs of a deceased plaintiff were not
made parties to the application, but the Court
comes to the finding that it was not necessary to
bring his heirs on the record, the finding cannot
be interfered with under B, 115. [P. 30, Col, 2,]
30 Patna
SHAMSHBR N ABA IN 8LNQH V. MUHAMMAD SALB
lose
(a) Evidence Act, 8. 73— Copies of Bag liters in
Native State are not admissible,
Copies o( entries in registers kept by the officers
of a Native Bute are not admissible in evidence
having regard to the provisions of B. 78 (6),
[P, 30, Ool, a,]
(d) Oiv. Pro.Cvde, 8. 115 -Inadmissible evi-
dence admitted— Finding based on other evidence —
Finding not vitiated.
Whore a Court erroneously holds that certain
doourrnnta are admissible but arrives at its finding
independently of auoh documents, its finding
cannot be said to be vitiated by suoh admission.
[P, 31, Ool. 1J
S, N, Boy and A. H. Fakhruddin—fat
Petitioners,
Hasan Jan — for Opposite Party.
Judgment : — These two applications
arise out of an order passed by the Munsif
of Bihar setting aside two ex parte decrees
on an application of the defendant under
Order IX, rule 13 of the Civil Procedure
Code. The decrees were obtained by the
plaintiffs-petitioners on the 6fch of January,
1920. These decrees were ex parte as the
defendant did not appear and contest the
suits. In execution of these decrees the
holding was sold on the 18fch of May 1920
and purchased by the plaintiffs. The
sale was confirmed on the 18tb of June
1920 and possession was delivered to the
auction-purchasers en the 6th of July, 1920.
The present applications in the two suits
under Order IX, rule 13 of the Civil Pro-
cedure Code were filed on the 9bh of
January 1924 the allegation being that the
defendant came to know of the decrees and
of the sale for the first time on the llth of
December 1923.
The opposite party's case was that he
was ia the territories of the Nizam of
Hyderabad as he was in service there and
returned home in April 1923, and he had
no information of the institution of the
suits or of the decrees, or of the execution
proceedings or sale of the holding, The
learned Munaif has considered the evidence
in very greats letail and he has come to the
conclusion that the opposite party had no
knowledge of the suits and summonses
were nob served upon him, As regards
limitation he h«u found that the opposite
party came to know of the decrees and the
sale within thirty days of the applications.
There was another objection on the ground
of limitation by reason of the fact that) one
of the plaintiffs Taluka Prasad was dead
and his heirs were brought on the record for
the first time on the lObh of March 1924,
and it was contended that so far as the
heirs of Taluka Prasad were concerned, the
applications were evidently barred by
limitation. The learned Munsif has found
that it was not necessary for the opposite
party to bring the heirs of the deceased
Taluka Prasad on the record inasmuch as
all the plaintiffs were members of a joint
Hindu family and the surviving plaintiffs
represented the family. Upon these
findings the learned Munsif baa granted
the applications.
It has been contended in revision that
the learned Munsif was wrong in holding
that the applications were within time, and
secondly, that he was wrong in using in
evidence, certain documents produced by the
opposite party which were copies of attend-
ance register and leave register kept by the
officers of the Nizam of Hyderabad, which
showed the presence of the opposite party
at Hyderabad. As regards the question of
limitation it has been argued that the heire
of Taluka Prasad were necessary parties,
and as they were not brought on the record
within thirDy days of the date of knowledge
of the decrees as alleged by the opposite
party, the applications were barred by limi-
tation. Now the learned Munsif has come
to a finding that the other plaintiffs repre-
sented Taluka Praaad and it was not
necessary to bring his boirs on the record,
The learned Munsif may be right or he
may be wrong, bat there is no question of
jurisdiction involved on this point. He
was entitled to come to a finding on the
question as to whether the surviving plain-
tiffs represented Taluka Prasad and as* to
whether the applications were barred by
limitation and he did 00010 to the finding
that) the applications were not barred
because the heirs of Taluka Prasad were
not brought on the record within thirty
days. I am of opinion that it is not a
question which oan be considered in
revision under section 115 of the Oode.
As regards the question relating to the
admissibility of documents of the Hydera-
bad State, it is clear that those documents
ware not properly admissible hi evidence
having regard to the provisions ,of section
• 78, clause (6» of the Indian Evidence Act.
Bat the learned Munsif does not base his
decision apon those document^ only.
Before referring to those documents, the
learned Munsif had, upon the other evidence
1086
HARI SANKAB BA1 V. TAFAI KUBR (Mulliok, J.)
Patna 31
in the oaae, oome 60 the conclusion that
the opposite party was absent from his
home and summonses were not served
upon him. The learned Munaif has, no
doubt, not applied his mind to the con-
sideration of the question as to whether
these documents were admissible in
evidence or not, but, even excluding these
documents from the record, it appears
from the judgment tbat there was sufficient
evidence to enable the Munsif to oome to
jt finding ou the question as regards the
service of summonses.
It was next; contended that the document
marked Ex. F in the case (which was a
compromise petition filed in a proceeding
relating to the execution of a decree obtained
by the opposite party against the peti-
tioners) snowed conclusively that the
opposite party had knowledge of the decrees
and of the execution proceedings long before
30 days of the filing of the present applica-
tions. The learned Munsif has considered
this compromise petition and has come to
the conclusion that this petition was not
filed with the knowledge of the opposite
party. He has compared the handwriting
and he has considered the other circum-
stances connected therewith, and his finding
on this document) is a finding of fact upon
a consideration of the document. I cannot
in revision say that the Munsif has
committed any such error or any illegality
or irregularity so as to affect his jurisdiction.
There is no question of jurisdiction
involved in these applications and they are
dismissed with costs. There will be only
one hearing fee, two gold mohurs.
Applications dismissed.
* A.I.R. 1926 Patna 3i.
MULLICK AND ROSS, JJ.
Hari Sankar Rai — Appellant
v.
Tapaikuer — Respondent.
Appeal No. 185 of 1924, decided on
5th March, 1925, from the Appellate Order
of the District Judge, Saran, dated 19th
May, 1924 %
*C%v. Pro. Code, 0. 34, r.JJ — Decree declaring a
charge on c&r tain property • of defendant— Charge
can be enforced in execution— Separate suit is not
necessary — Execution— Declaratory decree.
It is npt necessary that in every oatfe where it is
Bought to enforce a charge created by a declaratory
- decree the parson for whose benefit the charge is
created mast resort to the procedure for enforce-
ment of claims under A mortgage. (2 P.L.J, 55,
Foil.; 1 P.L.W, 69, Dist, and 92 Gal. 859, not
Foil.) [P, 31, Col. 2,J
Plaintiff obtained a decree declaring that she wag
entitled to a certain maintenance allowance from
the defendant to ba recovered from certain pro-
perties belonging to the defendant. In execution
of this decree the plaintiff made an application for
the recovery of a certain sum on account of arrears
of maintenance by sale of the properties charged.
Held, that although the decree obtained by the
plaintiff was declaratory in form it was capable of
execution and the decree obtained by the plaintiff
being a money decree the interest of the judgment-
debtor in the properties charged with the payment
of maintenance allowance could be sold in execu-
tion of the decree. The provision of r. 14 of 0. 34
of the Civ, Pro. Qode, did not apply to such a case.
[P. 82, Oofc, 1&2.]
Jadubans Sahay — for Appellant;.
B. B. Saran — for Respondent.
Muliick, J. :— The deorea-hoider sued
for maintenance and obtained a declara-
tion that she was entitled to an allowance
of Ba, 5 par monhh from the defendant
and that certain properties belonging to
the defendant were charged with the
payment thereof. It is admitted bhat the
decree created a charge within the mea-
ning of soobion 100 of the Transfer of
Property Act. Thereupon the plaintiff
made an application in execution for the
recovery of a total sum of Ra. 31-10-0 on
account of her allowance for six months
and some odd days.
The Munsif dismissed the application
and held tbat the plainbiif-deoroe-holder
must bring a separate suit.
In appeal the District Judge has taken
a contrary view and directed tbat the
properties charged should be sold in
execution.
In second appeal the first point taken
ia that the decree being declaratory cannot
be executed and that the only remedy of
the deoree- holder is bo bring a separate
suit. Now, although the deoree i« declara-
tory it clearly means that the maintenance
allowance shall be recovered from the
property charged ; and the question
simply is what is the proper procedure
for the enforcement of the relief. In my
opinion there is no reason why recovery I
should not be made by the agency of the
Execution Court. Although neither the
original deoree nor a copy of it baa been
filed, it is clear from the recitals in the
judgments of the Courts below that it is
a deoree which was intended to be executed
32 Patna
KIBHOBB AHIB 0. KIHG- EMPEROR (Das, J.)
1886
and that it was nob the intention of the
Trial Court to subject; the decree-holder to
the expense of a separate suit;. Raja
Braja Sundar Deb v. Sarat Kumari (l) is
clear authority in favour of this view.
Then it is urged that even if the decree
oan he executed the plaintiff oannot bring
the property to sale in the present execution
and that ahe musb first sue under the
provisions of section 67 of the Transfer
of Property Act. The reply to this again
is that Raja Braja Bunder's case (I) IB
authority which binds us. On the other
baud we have been referred to Gokui Nath
Jha v. Pran Mai Marwari (2) as authority
for the view that the execution oannot
proceed and that a decree for the
enforcement of a mortgage must be first
obtained. It does not appear that the
particular fcoint before us was directly
raised in that case. In that case there
was a mortgage bond in respect or the
property charged and the Court held that
as there was a separate bond which was
capable of beicg enforced it was not open
to the decree-holder to resort to the
procedure of the Execution Court. There
may have been observations in that case
to suggest that the compromise decree
oould not) be enforced otherwise than by a
suit; but these observations were not
necessary for the decision itself,
We have also been referred to Abhoy v.
Oouri Sunkur Pandey (3). There also a
consent decree was sought to be executed
and the properties secured were advertised
for sale in the Execution Court. It was
held in second appeal that the proper
procedure was to obtain a decree for said
as in a mortgage suit and that the
execution oould not proceed. Now, in the
first place this case is cot binding upon us
in the face of the decision in Raja Braja
Sunder Deb v. Sarat Kumari (1). In the
second place with the greatest respect it
seems to me that the claim now before us is
not one which arises under any mort-
gage and t.hat, therefore, tho provisions of
rule 14 of Order 31, Civil Procedure Code,
which prohibit the enforcement of a
naortgagj except in the manner provided
in the Code, do not apply here. It does
not follow, that in every case where
it is sought to enforce a charge the
person for whose benefit the charge
is created must resort to the procedure
for enforcement of claims under a mort*
gage. Section 99 of the Transfer of Pro-
perty Act of 1882 has been repealed, and
as the claim here arises out of a money
decree there is no reason why the interest
of the judgment-debtor should not be sold
without a suit for sale. The provisions of
rule 15, Order 34, are not in any way
material to the discussion,
The result, therefore, is that the appeal
is dismissed with costs.
Ross, J:— I agree.
Appeal dismissed.
(1) (1917) 2 P.L.J, 55-3 P.L.W. 203-38 1.0.
791*i9l7 P.H.0,0. 67,
(2) (1917) 1P.L.W, 69-371,0, 397-1917 P,H,
0.0. 371.
(3) (1695) 22 C»l, 859.
AIR 1988 Patna 32.
DAS, J.
Eishore Ahir and others — Petitioners.
v.
King-Emperor — Opposite Party.
Criminal Revision No, 603 of 1924,
decided on 25th November, 1924, against
the decision of the Sessions Judge, Shaba-
bad, dated 9th September, 1924.
Grim. Pro, Code, S. 107— Scope.
Two opposing parties la a dispute oannot be
proceeded against under B. 107 in one proceeding.
[P, 32, Ool. 2,]
P. G. Rai — for Petitioners.
Das, J.: — This application must succeed
on the short ground that there was no
power in the Magistrate to draw one pro-
ceeding against two different factions,.
The order of the learned Magistrate shows
that he tried 53 men belonging to two
different factions in a proceeding under
section 107 of the Criminal. Procedure
Code. It has been held in Kamal Narain
Chaudhry v. Emperor (1), that the two
opposing parties in a dispute oannot) be
proceeded against; under section 107,
Criminal Procedure Code, in one proceed- .
ing. In accordance with this decision I
allow the application and set aside the
order of the learned Magistrate.
Application allowed.
(1) (1907) 11 C.W.N, 472-5 Or, L.J, 197«5
J. 231,
1088
BAIJULAL v. THAKDR PRASAD (Kolwant Sahay, J.) Fatna 3$
A.I.R 1986Patua 33.
ADAMI and KULWANT SAHAY, JJ.
Baijulal Manvari and another — Peti-
tioners
v,
Thakur Prasad Marwari and others —
Opposite Party.
Civil Revision No. 60 of 1925, decided
on 21st May 1925, from an order of the
Sub- Judge, God da, dated llth December
1924.
Parganas Sfttltment Regulation (III of
1872 >* S. 5 (2\- Execution proceedings ate " suit "
within 8. 5-- Pending execution cases should not
be dttwissfd tut should be transtened to officer ap-
pointed under the Regulation.
Execution is merely a continuation of the suit
and proceedings in execution are proceedings in the
puit. Therefore an application in a penrhng
execution proceeding is a suit within the meaning
of 8. 6. Where such an application is made the
executing Court should not diemiab the application
but should tricbier n for disposal to an officer,
if any, appointed under 8. 5 (2) of the Regulation.
[P. 84, Col, 1,]
S. M. Mullick and L. K. Jha—lor
Petitioners.
Juggernath Prasad — for Opposite Party.
Kulwant Sahay, J. :— This is an ap-
plication against an order of r.he Subordi-
nate Judge, God da, dismissing the peti-
tioners' application under Order XXI, rule
100 of the Civil Procedure Code. The facts
stated in the petition are shortly these : —
The petitioner brought a money suit
against one Guruday al Baram and obtained
a decree, and in execution thereof purchased
5 .annas 6 pies share in two properties
belonging to the judgment debtor, namely,
in Ghat Lachmipur bearing Touzi No. 494
and in Ghat Fauzdar bearing Touzi No.
485, The petitioner's purchase is dated
the 9th July 1918, the property having
been attached on the 26bh March 1917.
The opposite party NOB. 1 to 4 bad also
obtained a money decree against Gurudayal
Baram and they also applied for execution
of their decree and in execution thereof
they purchased the remaining 10 annas
6 pies sham in each of the two ghats. The
petitioner get delivery of possession of
the share* purchased 'by him on the •
16th November, 1919. In the meantime it
appears that the opposite party .Nos, 1 to
4 had taken an assignment of an 8 annas
share in a certain mortgage-bond executed
by Gurudayal Baram in favour. of the
*1926 P/5 &.6
opposite party NOB. 5 to 7. A mortgage-
suit was brought on the basis of that
mortgage-bond to which the petitioners
were not parties. It is to be remembered
thai} the attachment in execution of the
decree of the petitioners had taken place on
the 26th March 1917 and the mortgage suit
was brought on the 1st December 1918.
It way, therefore, necessary unoer Order
XXXIV, rule 1 of the Civil Procedure
Code, to maka the petitioners parties to
the mortgage suit inasmuch as under sec-
tion 91, clause (/) of the Transfer of Pro-
perty Act they had a right to redeem. A
mortgage- decree was obtained on the 18th
December 1918, and in execution of the
mortgage-decree, the opposite party Nos. 1
to 4 purchased the whole of the two ghats
mentioned above on the 28th May 1923.
They obtained a sale certificate and applied
for delivery of possession and possession
was delivered to them in respect of ghat
Laohmipuron the 21st December 1923 and
in respect of Ghat Fauzdar on the 23rd
December 1923. As a result thereof, the
petitioners say that they were dispossessed
of the shares purchased by them. They
accordingly made an application - under
Order XXI, rule 100 on the 19th January
1924. After various adjournments, this
application came on for hearing before the
Subordinate Judge on the llth December
1924. On that date an application was
made OQ behalf of the petitioners for time.
This application was refused. The learned
Subordinate Judge then rejected the appli
cation under Order XXI, rule 100 on the
ground that he had no jurisdiction to
entertain the application on account of the
provisions of section 5 of Regulation III
of 1872.
It appears that under a Government
Notification, dated the 27th October 1923,
the area within which the property in
dispute is comprised was declared to ba
under settlement from the 1st of November
1923, and the learned Subordinate Judge,
held that under the provisions of section 5
of the Regulation he had no jurisdiction to
entertain the present application* under
Order XXI, rule 100, Civil Procedure Code.
He accordingly rejected that application.
Against this order, the petitioners have
ocme up in revision to this Courr,; and it is
contended that the Subordinate Judge was
wrong in holding that he had no jurisdic-
tion to entertain the application, and further
be was wrong in rejecting tbe applioalioa
34 Patna
BAM 8ARAN SINGH t>. MOHAMMAD JAN KHAN
1086
without giving the petitioners an opportu-
nity to substantiate their ease. In my
opinion the contention of the petitioners is
sound and ought to prevail.
As regards the first point, namely, the
applioation for time it is clear that because
the petitioners' applioation for time was
rejected, the learned Subordinate Judge
was not right in rejecting their application
under Order XXI, rule 100 without calling
upon them to adduce evidence to substanti-
ate their case. As regards the question of
jurisdiction, the learned Subordinate Judge
relies on the provisions of section 5 of
Regulation III of 1872. Now this section
provides that, " from the date on which the
Lieutenant-Governor declares under sec-
tion 9 by a notification in the Calcutta
Gazette, that a settlement shall be made
of the whole or any part of the Sonthal
Par g an as until the date on which such set-
tlement is declared by a like notification to
have been completed, no suit shall lie in
any Civil Gourd established under the
Bengal, N.-W. P. and Assam Civil Courts
Act, 1887, in regard to any land or any
interest in, or arising out of land in the
area covered by such notification ; nor shall
any Civil Court proceed with the hearing
of any such suit which may be pending
before it."
It has been contended that an applioa-
tion in a pending execution proceeding is
not a suit within the meaning of section 5.
This contention does not appear to be
sound, because execution is merely a con-
tinuation of the suifc and proceedings in
execution are proceedings in the suit. The
question, however, is whether the applioa-
tion of the petitioners ought to have been
rejected on the ground that a notification
as contemplated by the section had been
issued by the Government. Sub-section (2)
of section 5 provides that " between the
dates referred to in sub- section (1), all suits
of the nature therein described shall be filed
before or transferred to an officer appoint-
ed by the Lieutenant- Governor under sec-
tion 2, of the Soothal Parganas Act, 1855
or section 10 of Regulation III of 1872.
In the present case if an officer had been
appointed under sub-seotion(2)of section 5,
then the Subordinate Judge ought to have
transferred the applioation to that officer.
It was a pending execution proceeding at
the time when the notification was issued,
and under sub- section (2i the , Court oould
only transfer such applications to the
officer appointed under sub-section (2) of
section 5, and it ought not to have rejected
the applioation on the ground of want of
jurisdiction.
The order of the learned Subordinate
Judge will, therefore, be set aside and he
will prooed according to the provisions of
aub-section (2) of section 5 of Regulation
III of 1872,
There will be no order for costs.
Adami, J, :— I agree.
Order set aside.
A.I.R. 1026 Patna 34.
FOSTER. J,
Bam Saran Singh — Petitioner
v.
Mohammad Jan Khan and another —
Opposite Party.
Criminal Ravision No. 680 of 1924,
decided on 6th January, 1925, from a
decision of the Sessions Judge, Gaya, dated
1st October, 1924.
(*) Grim, Pro. Code, 8. 202~-Isau9 of process
without recording reasons is not correct— Cross-
examination and arguments should not, as a rule,
be allowed in a case of inquiry under S. 202*
It IB certainly not. a correct procedure to defer
the iauae of process and order an enquiry without
recording reasons. It is also as a rule undesirable
that the enquiry should be prolonged by cross-
examination and arguments inter varies, the reason
being that if thia IB necessary it is obviously
advisable to follow the procedure of a trial and for
that purpose to issue prooeaa atonoe, At the same
time if a Magistrate having the duty of making an
enquiry under 8 kJ03 can make bis enquiry more
complete and oan inform himself of the foots more
lulty by having the accused in Court, there is ho
reason either in common sense or in law why the
ftoouned should not be called to the enquiry.
[P, 35, Ool. 5i,]
(b) Critn, Pro. Code, Si. 437 and X02~ Allowing
cross-examination in an fnquiry under 8. 202 is a
mere irrtgulwitv and further inquiry should not
be directed— Gtim. Pro. Code, 8 537.
Cross-examination and arguments inter paries
are out of place in an enquiry into the truth of
the oomplaint. Such departure from the strict
letter of the law eonjtitu«p9 a mere irregularity
and the High Court should not in the exercise of
its discretion direct a further eno'iiry. 14 Gal.
141, Dist. [P. 35, Col, 2.]
P, G. De-tor Petitioner.
Govt. Pleader and Aziz — for Opposite
Party.
Judgment:— The petitioner, Bam Saran
Singh, filed a oomplaint on the 24th of
1986
BAM 3ARAN SINGH V. MOHAMMAD JAN KHAN
Patna 3
July, 1934, charging the Sub-Inspector of
Worseleygao j and a constable of the Thana
with offences under sections 342 and 504 of
the Indian Penal Code. Possibly on the alle-
gations as they were expressed, section 247
I. P.O. would have been more applicable and
the charge was of a serious nature. The
burden of the complaint was tbat on the
20th July the complainant; who was the
newly appointed Sir Punch of a oirole
within the Police jurisdiction was called to
the Thana on official business connected
with his office. When he got thera the
Sub-Inspector informed him that he had
bean accused by one Barhu Sahu of theft,
and the Sub-Inspector put him under
arrest refusing bail although Bam Siran
Singh had with him a person ready to scand
bail by name Santokhi Singh. The con-
stable on the direction of the Sub- Inspector
handcuffed the complainant and pui him
in the hajut whare he was kapt from 9 A. M.,
on the 20oh till 9 P. M. on the 21st ; at that
hour an order from the Magistrate for Ram
Saran's release had been brought to the
Thana. Oa this complaint the Magistrate
passed the following order : —
' " I think a local enquiry by a First Glass
Magistrate is necessary. Accordingly I
direct a local enquiry under section 202 by
a Magistrate of the First Glass from S*dar
...Sand copy of the complaint and order to
S. P."
Later on, however, it appears that the
Magistrate himself held a local enquiry,
having previously notified to the Sub-
Inspector wbo had been accused that he
might ba uresent if he so desired. The
enquiry lasted several days. On the 8th
August 1924, the Magistrate dismissed the
complain!; under section 203, Criminal
Procedure Gode, giving nine reasons for so
doing. In the Sessions Courb a petition for
directing further enquiry was rejaooad in an
elaborate order reviewing the oasa. It
appears that in the Magistrate's Gourt the
accused was allowed to be present to cross-
examine the prosecution witnesses and to
advance arguments.
The petitioner comes to this Court with
a prayer t^afe further enquiry be directed.
His grievances ara (a) tbat the Magistrate
did not record reasons when passing thd
order under section 202, Criminal Proce-
dure Code; (6! chat the accused* should not
have baen allowed to cross examine the
witnesses, and (c) that if the complainant
had a prima facie case supported by sub-
stantial evideaoa, the C^urt had no option
but to issue process. It is certainly not a
correct procedure to defer the usue of
process and order an enquiry without
recording reasons. It is also as a rule
undesirable that the enquiry should be
prolonged by cross-examination and argu-
ments inter pirtes, the reason being that if
this is necessary it is obviously advisable
to follow the procedure of a trial and for
that purpose to issue process at once. All
the same time, it appears to me tbat if a
Magistrate having the duty of making an
enquiry under saot'on 202 can maka his en-
quiry more complete and can inform himself
of the facts more fully by having the ac-
cused in Court, there is no reason either in
common sense or in law why the accused
should nob be called to the enquiry. Bub
still I do not recede from the position that
cross examination and arguments inter
paries are out of place in aa enquiry into
the truth of tha complaint. The questions
are really first whether the departure from
the strict letter of the law constitutes an
illegality, and secondly, whether if it is not
an illegality but a mare irregularity this
Court should in the exercise of its discre-
tion direct a further enquiry. Toe learned
Vakil for the petitioner bas not put bafore
ma any authority for the proposition that
these departures from the letter of fthe law
are other than an irregularity. Ha has .
quoted a case of 1856— Baidya Nath Singh
v. Muspratt (I). In that case fcliera was a
complaint against the Assistant Superinten-
dent of Police and other Polloa Officers
and the Magistrate sent the complaint for
enquiry to that Assistant Superintendent of
Police. It is perfectly obvious tbat such an
order was highly illegal and improper. Thafr
is noc the case that is before ma now.
Another owe quoted has besn Balai Lai
Hooker jee v. Pashupati Chatter jee (2), In
that casa the departures from the provisions
of Oh. XVI of tha Criminal Procedure
Oj-le ara described as irregularities and
as procedure inconsistent with the
schema of the Legislature. Tha ir-
regularities there complained of were simi-
lar to those now put forward by tha
petition and the Court expressly held that
it is a matter of discretion whether in such
circumstances the Bale should be made
absolute. That marks the point at which
(li (1887J 11 O*i. 141. '
(i) (1916/24C.W.N, 137-25 C.L.J, 606-36 1.0,
833 -17 Or, LJ. 396.
36 Fatna BARHAMDEO RAI v. KING- EMPEROR (MaopbersoD, J.j
1626
authorities cease to have much weight,
as each case must be decided on its own
merits when we come to the question of
discretion. ID the v resent case on a cursory
glance I notice that most of the points on
which the dismissal of the complaint is
founded aro points that might have equally
well been made by the Magistrate in the
absence of the accused and the accused's
Pleader. The aienneeal of the complaint
appears to mo to he founded rather on the
weakness of the prosecution case than oil
the strength of the defence. The learned
Sessions Judge gave great attention to the
case and the length of his order is even
made a ground of complaint by the learned
Vakil for the petitioner. On the contrary
it appears to me to be clear that the learned
Sessions Judge appreciated the serious
nature of the case and gave it careful
attention, and I notice that be goes to the
length of finding that tie complaint is not
only untrue but even maiiciou*. In such
circumstances it appears to me to be out of
question to direct a further enquiry.
The petition is ditmieseri and the Rule is
discharged.
Petition dismissed.
A. I.E. 1926 Patna 36.
MAOPHERSON, j.
Barhamdeo' Bai and others — Petitioners
v.
King -Emperor — Opposite Party.
Criminal Revision No. 136 of 1925,
decided on 14th May, 1925, from an order
of the Sessions, Judge, Shahabad, dated
5th March, 1925.
(a) Crim. Pro. Cods, S. 4M — Accused
convicted of one (fftnce thcugh facts fcund wiuld
constitute mote itrious rfletct — High Ciwt wtuld
not interfere unless set twee «s inaatquate or
accused is deprived of right of apptal,
Where a Magistrate ocuviots BD Hccupcd person
of an offence falling wiflun HK jurisdiction though
the lactp fc.ui.'d wruld also constitute a more
serious cfitnce not \vitfcin bsB jurisdiction, his
proceeding are uot void ab im'.'eo and tbe Hiph
Court will not ordinarily interefere unless the
sentence appears inndtquate or unices the accused
has been deprived of tbe rifcht, c( appeal. 13 Bom.
602 and 24 Mad, 675, £c/, [P, 87, Col. 1.]
(b) Penal C(de, S. 3?9—Sirvant knr wing his
master had no right to ccmplainani' a goods and
assisting in removing, ccntmtls thtft.
Where accused, a servant of co-aocueed knew
perfectly well that his master was retocviBg the
goods of complainant without even a pretence of
right aim yet he assisted him in doing so.
Held that tbe servant clearly acted dishonestly
and was guilty of theft. 19 C.W.N. 974, Ditt.)
[P, 37, Col. 1 ]
(o) Witness- Cndib\litu— W.tntss cf the same
caste as accused no ground for dts btlitving him,
It is not a eoutd ground for disbeliew^g a witness
that he ie of the same caste or ccmnoumty as the
person in whose favour be deposes. [P. 37, Col, 1,]
2V. N. Sinha — for Petitioners.
Macpherson, J :-— This is an applica-
tion for revision of the conviction of the
petitioners under section 379 of the
Indian Penal Code and their sentences of
fine. They were tried by a eeoond class
Magistrate of Sasaram, an appeal against
whose decision was dismissed by the
District Magistrate of Sbababad, A motion
against the appellate decision \vas rejected
by the Sessions Judfe, Tbe petitioner
Barhamdeo Bai ifi father of the other two
petitioners and the fourth petitioner is hie
labourer.
The facts which have been found to be
established are that the complainant
was unwilling to continue the credit
which he had formerly allowed to Barbam-
deo Bai who resented the refusal. On
the day of occurrence the complainant
had brought to the front of Barhamdeo's
house a bullock cart on which to carry
home five bags of rice which he bad bought
some time before from Deodbari Misshv
The cart bad to be left at that point because
tbe road became too narrow for it to pro-
ceed. On the bags being brought Barham-
deo and the petitioners removtd them from
the cart to their house by force. Next
day the police found tbe carfc in front of
the house of Barhamdeo.
Mr. Nirsu Naram Sinha has advanced '
the following four contentions .in support
of the rule :
(1) Tbe offence disclosed by tbe evidence
which has been accepted by tbe Courts,
amounts to robbery, and so a second class
Magistrate cannot try it) ;
(2) The defence of the second petitioner
Gaya Bai was that he was ill and he exa-
mined two witnesses in support of it, but
neither the trial Court cor tbe appellate
Court has discussed 'their evidence at all ;
(3) The 4th petitioner beinn a servant of
Barharndeo* cannot be convicted without a
finding of guilty knowledge, and
(4) The defence witness No. 3 who
states that tbe cart found near Barhamdeo's
4926
JAGDIP SINGH V. HARK0 SINGH
Patna 37
door was sold by him to Barhamdeo
has been disbelieved on the illegal ground
that he is of the same caste as Barham-
deo.
As to the first point I am not prepared to
-say that a charge of robbery oouid not
stand. The evidence that the first peti-
tioner or perhaps the first! three petitioners
brought lathis seems to show that in order
to the committing of the theft; the offenders
voluntarily caused fear of instant hurt to
the complainant and his oartman, but
it has been held in Queen Empress v.
Gundya (1> and Emperor v. Ayr/an (2) that
where a Magistrate convicts an aooaued
person of an offence falling within his
jurisdiction though the facts found would
also constitute a more serious offenoa not
within his jurisdiction, his nrooeedingg are
not void ab initio, and the High Court will
not ordinarily interfere unless the sentence
appears inadequate or unless the accused
have been deprived of the right of appeal.
There are many unraportod cases of the
Calcutta High Court to the sama effect. In
my opinion the petitioners having been in
no way prejudice'!, the faot that they might
have been charged with robbery is not a
good ground for interference in revision
with the conviction under section 379.
As to the second point it would appear
that this defence was not discussed be-
cause it was not relied upon. Indeed tha
point was not even taken specifically in the
petition of appeal.
The third point is supported by a refer-
ence to the judgment of Woodroft'e, J- in
Eari Bhuimali v, King Emperor (3). The
circumstances are distinguishable. In that
case the master of the petitioners had at
least a colourable claim of right. In the
present case the petitioner No. 4 knew
perfectly well that his master was remov-
ing the Bags of rice of complainant without
even a pretence of right and yet he assist-
ed him in doing so and therefore clearly
acted dishonestly.
As to the 4bh point it may at once be
conceded that it is not a sound ground for
disbeliavinga witness that he is of the same
caste o( ootnmuaity as the person in whose
favour he deposes. The defence adduced
evidence in support of Barhamdeo's claim
that the cart is his. The learned District
Magistrate however aooepte^ the evidence
(1) (1889) 13 Bom. 502.
<2) (1901) 94 Mad. 676.
:{3| (1901-05) 9 0,W.N, 974-2 Or, L,J. 836,
as to the ownership of the cart adduced on
behalf of the complainant. He states
" The prosecution on the other hand have
shown that the complainant's oartman,
Bamdas Sundi, obatained the cart from
one Kampati Koiri. There is no reason
why the latter should have given false evid-
ence and ha has given bis evidence in such
a manner as to leave no doubt in my mind
that he was once the owner of this cart ".
In effect therefore the learned District
Magistrate considers the whole evidence
of both sides as to the ownership of the
oart and on a substantial ground prefers
the evidence given by lUmpati Koiri. Id
is urged that the appellate 'Court has also
not discussed specifically the evidence of
the first and fourth defence witnesses as to
the first appellant having a oart, but on
perusing their depositions I am not im-
pressed with their testimony and apparent-
ly it was not thought worth while to
place it before thu District Magistrate, tha
question being whether the evidence of
defence witness 3 or that of Raoidas and
Rampati t should ba believed. It is not
shown that the evidence on behalf of
petitioners has not bean adequately con-
sidered or that tha decision of the Courts
below is wrong on the merits.
In my opinion none of tha grounds urged
in support of tha rule are woll founded.
The rule is accordingly discharged.
Rule discharged.
A.I.R. 1926 Patna 37.
MULLICK AND ROSS, J J,
Jagdip Singh and others — Petitioners
vs.
Harku Singh and others —Opposite
Parties.
Civil Revision Case No. 419 of 1924,
decided on 5th May, 1925, from an order of
the Additional District Judge, dated the
31st July, 1924.
Government of India Actt 8. 1Q7— Er-parte
decree —Application for restoration —Application
decided according to law — High Cnurt, will not
interfere—Civ Pro. Qode, 0. 9, r. 13.
Unices a case of dental nf the right o! fair trial
can be m%de out High Court will riot interfere
under 8. 107 of the Government of India Aot,
Where the Court determines according to law the
question of faot whether sufficient cause baa been
made out there oan be no denial of the light of
Uir. trials [P, 38, Ool, 2j
98 Patna
JAGDIP SINGH V. HABEU SINGH (Mullick, J.)
1886
Sultan Ahmed, for Hasan Imam and
Messrs S N. Rai and Raghu Nandan
Prasad ~ for Petitioners.
Alt Imam and Sambu Saran—tor Op-
posite Parties.
Mullick, J. : — The strife was instituted
ontbeSlht March, 1921 and the Com-
missioner'H report was received on the
18th July, 1922. Thereafter adjournments
were t& ken by both sides and the Slat
August was fixed for hearing. On that
date the parties were not ready and the
15th October was put down for " per
emptory bearing." The parties again
applied for time and the 4th December
was fixed for final disposal. On that day
the plaintiffs applied for time but were
refused. The defendants of whom there
were 21, were also not ready and as their
Pleader Babu Paras Nath, who had been
instructed from the beginuing and who
should have conducted the case, was not
present, they engaged a new Pleader
named Babu Sbyamaldas Ghakravarty who
applied for time. The Court was willing
to give three days in order to enable
him to prepare the case, but this oiler
was nofc accepted by the Pleader and he
retired. Thnroupon the Court bepan the
examination of the plaintiff*' witnesses.
At 2 r. 11. nfuor two witnesses had been
examined Babu Paras Nath appeared and
applied for an adjournment. The Court
was willing fco give one day if the defen-
dants paid Rs. 10 as adjournment costs to
the plaintitts. Babu Paras Nafh declined
the offer and retired from the case. The
examination of the witnesses then proceed-
ed and vviis concluded the same day.
Judgment was reserved and on the 7th
December tho case was finally disposed of
and an ex-par le decree was made against
the defendants.
An application was then made to the
Subordinate Judge for restoration but with-
out success.
There was then an appeal to the Addi-
tional District Judge cf Monghyr, but he
also found that sufficient cause had not
been shown for restoring the case.
The present application is made in revi-
sion.
It is quite clear that section 115 of the
Civ. Pro. Code does not give us any power
to interfere. The Court below has exer-
cised its discretion and no question of juris-
diction arises.
Bat it is contended that we have wide
powers under section 107 of the Govern-
ment of India Act and that there has been
a denial of the right of fair trial. Here
also the petitioners must fail, for it is
not even suggested that the application
for setting aside the ex-parte decree
has not been properly tried. The Court
determined according to law the question
of fact whether sufficient cause had
been made out by the defendants and
it is not clear how there can have been
any denial of the right of fair trial. The-
following cases were cited on one side
or the other, but it does not appear that
any of them deals with a decision under
Order IX, rule 13 of the Civil Procedure
Code, Siva Prosad v. Tncomdas Cover ji (1)
Parmtshwar Singh v. Kailaspati (2)5,
Ganga Prasid v. Nandu Bam (3),
Kumar Chandra Kishore v. Basat AH (4),
Brindaban Chander v, Gonr Chandra (5),
Sheo Prasad Singh v. Shukhu Mahto (6),
Mam Lai v. Durga Prasad v7), and Sarju
Bala Debi v. Mohim Mohan Ghose (8),
The general principle is contained in the
Full Bench case of Parmeshwar Singh
v. Kailaspati (2), and unless a case of a^
denial of the right of fair trial can be
made out this Court will not interfere.
I think, therefore, that we are powerless
to interfere under section 107 of the
Government of India Act.
But apart from this legal difficulty the
application of the petitioners has no merits.
Now, the first ground urged for the
failure of the defendants to conduct their
oabo is that one of them named Sukar
Sinph had been put into jail. Now, it
appears that Sukar Singh was sentenced
to a term of rigorous imprisonment for
four years about 12 or 13 days before the
4th December. As bis trial must have
taken eome time, it is not explained why
the contingency of his being sentenced was
(1) (1915) 42Cal. 9*6-27 I.C. 917.
(9) 0916) 1 P.L.J. 8b6-l P.LW 95-351,0.
801- 1917 P.H C.C. l«17Cr. L.J 869 ,F.B.)
(3) (1916) 1 P.L.J. 465-20 C.W.N. 1060-37
I.C, 1519-8 P.LW. 65.
(4) 091R) 99 C W.N, 627«44 I. C. 768-97
CL.J 118.
(6) (19*0) 1 P.L.T. 467-66 I. 0, 155-1920
P H.0,0, 56.
(6) A.I.B. 1998 Patna 518-4 P,L T. 401-1
Pat, L.R 89.
(7) A.I.B. 1994 Patna 673-3 Pat, 980-5 P.L.T.
495-1&24 Pat. 254,
(8)A,1». 1925 Cal, 204-40 O.L.J. 191 -Sfc.
C.W.N, 991.
1086
JAGD1P SINGH 0. HARKU SINGH
Patna
not provided against. Nor is it explained
why the other defendants oould not prose-
cute their oases without his assistance. If
it is said that he had been looking afber
the case previously, then some explanation
should have been given as to what steps
the other defendants took after he was put
into jail to arrange for the conduct; of tha
case. No evidence is forthcoming on this
point. Moreover the defendants are in
possession of separate holdings of which
the plaintiff is seeking to take posses-
sion. They do not constitute a joint
family and most of them have filed
separate written statements. The defendant
Siri Singh was present in Court on the 4th
December and ito is not shown why he
oould not have instructed the Pieader. The
allegation that the defendants were help-
less without Sukar Singh has been found
by both Courts below to ba unfounded and
no fresh materials have been placed before
us in support of it.
The nexfc ground is that Babu Paras
Nath was not in Monghyr when the oasa
was taken up on tbe 4th Docember. There
is no explanation as to when be left
Monghyr anc why be wan absent on the
4th December. If the defendants were
really intending to go on with the case,
they would have given evidence to show
that they came to Monghyr in proper time
and that in spite of due ciilligenoe it was
impossible to instruct another Pleader. I
agree, therefore, that thu evidence does no'i
show that the defeuciants made any effort
to be ready. As for the Pleaders engaged
in the case, I can understand that Babu
Shyamaldas sbouid not have been willing
to undertake tb« case with a three days
adjournment, but Babu Paras Nath did
arrive at 2 p. M. and bis conduct seems
altogether unintelligible if the defendants
were really 'anxious that he should proceed
with it. It is not; understood why he gave no
explanation for bis latd arrival and why he
refused the one day's adjournment! that the
Court offered. Although the case had been
pending for over 18 months, no summonses
had been issued to ary witnesses for the de-
fence and it would, therefore, appear that
the defendants were able to bring the wit-
nesses whenever they liked. Why did they
not bring a single witness with them on the
date of hearing? Again the Cpurfc below
finds that? there was sufficient time to send
a man by train to Bamobanderpore and to
fetch the witnesses by the 5th or the
morning of the 6th December. Why did
the defendants not do this ? Why again
did they not instruct Babu Paras Nath to
go on with the cross- examination of the
plaintiffs' witnesses, for in that case the
defence witnesses would, it seems have had
quite enough time to arrive before the cross-
examination was closed.
Then it is said that the defendants
required time to file certain documents.
The case was pending 18 months and
obviously it is quite impossible to accept
this as a ground for adjournment. The oasa
turned principally upon the Commissioner's
report and this had been filed in July.
The defendants appear to make a grie-
vance of the fact that Babu Paras Nath
was not allowed even the'tbree days ' time
which was offered to Babu Shyamaldas.
The explanation of this is quite clear. Babu
Shyamaldas was new to the oate and,
therefore, required time to read the brief,
but that did not apply to Babu Paras
Nath who had been in it from the begin-
ning. Moreover the examination of the
plaintiff's witnesses having commenced,
the Subordinate Judge was right in not
interrupting it for long.
Why the defendants failed to make any
contest after the case had been pending so
long, it is of course impossible to explain
with any certainty and it may be that, as
is suggested, both parties had agreed that
they would not have the case beard on the)
4th Docember. It is quite impossible,
however, to carry on public business if such
arrangements are to prevail and to allow
the impression to grow that the High Court
will always come to the aid of a defaulting
suitor.
It is finally said that about 200 bighas
of land are involved and that the defen-
dants will lose their holdings. It seems
that they are raiyats without any right of
occupancy who claim under a proprietor
from whom the plaintiffs have got a title
by transfer. Tbe defendants are interested
in separate plots and there is no reason
why some of them at least oould not have
carried on the case if they had* a good
defence. The view of the Courts below
seems to have been that the defendants
were throughout adopting an obstructive
attitude and the failure on the 4th December
was merely a part of their general policy.
That may be so. But whatever the real
reason, sufficient cause has not been shown,
for restoring the case.
40 Ptttna EADHB LAL fl. BAST INDIAN RAILWAY (Mnlliok, A.C.J.)
1886
I would dismiss the application with
«osta : hearing fee two gold mohurs.
Ross, J. : — I agree.
Application dismissed.
* AIR 1926 Patna 40,
MULLICK, A.C.J. and KULWANT SAHAY, j.
Badhe Lai and another — Plaintiff a- Ap-
pellants
v.
East Indian Railway and others — De-
fendants-Respondents.
Letters Patent Appeal No. 16 of 1925,
decided on 15t.h July 1925, from a decision
of Das, J, dated 18th December 1924,
(a) * Ciu, Pro- Cads, 0 29, r. 2 -Suit against
Railway Company -Proper name to ^e d**cribed is
the one under which it tarries on business— If
through error Agent is made defendant and not
the company and company is real defendant— Suit
may proceed against company*
lu A Butt uKAirjst >* r eg into reel corporation it
should be described by itfi official niDin and Li>le,
In thn o«*se of an unincorporated or unregistered
Company the numes of the individuals must be
fliveu, or the ordinary name by whioh the Com-
pany is known and under whioh it carries on its
bupine.iH In the OWHH of a Riilway Company the
proper nurm und-r whmb the Company should be
sued 18 the name and (Uyla under whioh it carries
on its business. If the plaintiff deliberately
chooses to sue not the Company bus the Apeut he
cannot by any deoree wh'oh bu obtains in the suit
bind the Onmpiny. If, however upon a fair read-
ing of ihe pUmt, it is made out that the descrip-
tion of the defendant is u mere error and that the
Oompiny is tbo real defendant thea the fluifc miy
proceed against the Compauy. [P. 42, Ool, 1.]
M urari Prasad — for Appellants.
N. C. Sinha — for Respondents.
Mullick, A,Q. J —On the Hbh January
1922 the firm of Kalu Ram-Brijmohan
of Bombay consigned three bales of cloth
by Railway to the firm of Bamial-Laohman
Rain of Shttikhpura in the District of
Monghyr. While the goods were in transit
the latter firm assigned them to the present
plaintiffs Rvdho Lai and Ganga Prasad. It
is admittei that delivery was to he made
at Shaikhpura by the E*af. Indian Railway
Company. On the 9ih February 1922 the
Company in question delivered only one
bale and on the 24fcb Ootober, 1922, the
plaintiffs lodged a suit before the Munsif
of Jamui claiming compensation from fche
Agent of the East Indian Rail Way for the
loss of the two bales. The firm oi Ramlai-
Laohman Ram were sued as pro forma.
defendants.
The plaint whioh was filed on the 24th
October was not properly stamped and
was returned to the plaintiffs. On the
28fch October the plaint was re-filed with
a proper Gourt-fee and was accepted.
On the 21st November, 1922, the East
Indian Railway appeared and asked for
time to file a written statement. Time
was granted and the written statement was
filed on the 3rd January 1923.
After various adjourn mentis the case was
taken up on the 13fch December, 1923. The
defendant Railway then took a new ground
and urged that the suit was incompetent
against the ^gent and that if it was soughb
to substitute or add the Company, the time
for doing BO had expired. The Munsif
accepted this argumanb and held that tha
frame of the suit* was had and made a
decree in favour of the defendants.
The plaintiffs then went on appeal to the
Subordinate Judge of Monghyr who on
the 21st July. 1924, set aside the Munsif'a
order and remanded the suit for trial on
the merits.
A second appeal was then preferred to
the High Court and on tho 18feh December,
1924, Mr. Justice Das disagreeing with the
Subordinate Judge restored the order of
the Munsif and dismissed fche suit,
The present Letters Patent appeal is
against the order of Mr. Justice Das.
•The learoed Judge relying on the da-
oipiona iu Stnehi Ram- Bihar i Lai v. Agentt
East Mian Railway Co, (1) and East
Indian Railway Co. v. Ram Lakkan
Ram (2) h« Id that this was a case brought
against* the Agent of the Railway and nob
the Railway Company and that the plaint-
iffs were not entitled to any relief againad
the Qompan-r, and the learned Judge laid
down his view of the law in the following
words : "In my opinion when there were
two known persona in existence and the
plaintiff brings the suit against one of
them and afterwards applies to have the
other brought on the record as a defen-
dant on the ground that hs all along
intended to sue the other and that in
substance he sued the other, anil no ques-
tion of representation arises in the case,
it ig impovihlfl to maintain the view that
(1) 64 I. 0. 136 ; U P.L.T. 679.
(2) (1925) A.I.B. (Pat.) 37-78 I. 0 312 ; 3 Pa*.
930 ; 1994 P.H.0,0. 9-6 P.ti.T. 415.
1986
RADHE LAL 0. EAST INDIAN RAILWAY (Mulliok, A.OJ.) PatOE 41
the oase is one of mig-deaoription." There
is no reason for dissenting from (this state-
ment of the law. Ifc has been accepted in
other oases and also recently io Agent,
Bengal Nagpur Railway y. Behan Lai
Dutt (3). Tbe question now before us de-
pends not upon the correctness of the pro-
position as stated above but upon its appli-
cation to the facts of this oase. Was the
suit against the Bill way in substance or
not ? If it was a suit against the Agent,
then obviously no relief can be given
against the Railway Company but the
poinb is whether upon a consideration of
the plaint and the circumstances of the
oase it is possible to hold that in truth and
substance the plaintiff sued not the Agent
as a designated person but the Railway
Company as a corporate body, That is a
question of fact; and must ba decided upon
the evidence in the oaae. The decision in
the other cases cannot, therefore, be any
guide. Now the view that the learned
Subordinate Judge took in appeal was that
bbe suit was in substance one against the
Railway and that it wae competent to pro-
seed. Thia is a finding of fact which is con-
clusive in second appeal but; its is urged on be-
half of the respondent before us that there is
no evidence to support) it. Ik is necessary,
therefore, for us to see whether there was
any evidence upon which the learned Judge
was competent to coma to the conclusion
that this was really a case of mis-descrip-
tion,
In order fco coma to a finding upon this
point it is necessary to see what the plaint-
iffs did. In their plaint they describe the
firatparty defendant as the "Agent of the
East Indian Railway." In para. 5 they
state that the two bales were lost when
in the custody of the defendant first party,
In para 6 they state that they made the
•demand to the AgenD. In the relief portion
they pray for judgment against the defend-
ant first party as " Agent of the East
Indian Railway Company," In their ap-
plication of the 24tb Ootober, 1922 asking
for issue of process they describe the defen-
dant not as Agent bub as the East Indian
Bailway Company, la filing the deficit
Court-fee wich their pUint on the 28th
Ootober they againrep^at tbis description,
Let us now see what the defendant did.
The defendant who appeared qn the 2 1st
,{3) A.I.R, 1925 C*I. 716-901, 0, 426 -390, W.
N. 614-690. 783.
November, 1922 was not the Agent but
the Company. The defendant who filed
the written statement on the 3rd January
was again not the Agent, but the Company
and no objection was taken to the com-
petency of the suit until the 1 2 t,h December,
1923. It is poiotdfi out by thc< appellant
that if that ground had bean taken at the
earliest moment* the error oould easily have
been remedied within the period of limita-
tion which appears to have not expired till
about February 1923. Iia reply it ia urged
on behalf of the respondent that para. 1
of the written statement doos take the
objection. That paragraph runs as fol-
lows : — That the suit as framed is not
maintainable." It is clear, however, from
the fact bhattha Railway Ojmp any appeared
on tha 21st November and also filed a
written statement that thi* ejection had
reference, not to the designation of tha
defendant but toother grounia upon which
the suit of the plaintiff'^ was liable to fail.
Lst us next pee what the Court did.
In the order sheet ih describes the suit
as one between Radhe Lil, olaintiffa and
the East Indian Railway Oomnany and
others defendants. On the 2 1st November,
1922 the Court accepts a petition from tha
Railway Company for time and on tha
3rd January, 1923 it accepts the written
statement not from the Agent but from tha
Company. It is true that prooens was
issued upon the Agent but that was clearly
in consequence of tiho provisions of Sao-
feion 140 of the Indian Railways Act.
It is clear, therefore, that the plaintiffs
the Com pan* and the Court till the 13th
December, 1923 all thought that the suit
against the Ageat was but against tha
Railway Company.
Is this, therefore, a oase in which tha
plaintiffs have deliberately chosen to pro-
ceed not against the principal but his
servant? Clearlv the plaint differs from
that in E>ist Indian Railway Company v.
Ram Lakhan Ram (2) for here in the
prayer portion the plaintiffs claim against
the defendant first party as Agent and they
make it clear that they depira to prooeed
against the corporation and not against the
Agent in bis personal capacity.
In my opinion the faot.R of Um oase ara
suoh that the deoiaion in E \st Indian Rail'
way Company v. Ram Lakh in Ram (2) has
no application.
There was evidence on which the Sub-
ordinate Judge oould find that this was a
42 Patna
MT. WAJIBUNNIS8A BBGUM V. BABU LAL
198*
oaee of mis-description and his finding is
conclusive.
The appellant also urges that the Muneife
orders of the 2lafe November, 1922 and of
the 3rd January 1923 are really orders
substituting tbe Bail way Company as a
defendant in the suit. Order I, rule 10
of the Civil Procedure Code, would, there-
fore, apply and no question of limitation
would arise, Ifc is true that no formal
amendment of the plaint was made. This
should have been done but the omission
was an irregularity and I do not thick it
vitiates the order of the Subordinate Judge.
With regard to tbe general question
as to what IB the correct way of designating
tbe defendant in a claim against a Railway
Company the point has been argued but it
is unnecessary to deal with it in detail.
Tbe Civil Procedure Code, 1882 and tbe
present Code both contemplate that a re-
gistered corporation should be described
by its official name and title. In tne case
. of a« unincorporated or unregistered Com-
pany tho names of the individuals must be
given or tbe ordinary name by which the
Company is known and under which it
carries on its business. There are companies
constituted by Suture which are permitted
to eue or bo sued in the name of an officer or
trustee. A« fo this claae provision is made
in Rection 435 of the Code of 1882 but Order
XXIX of the present Code of 3908 is silent.
The omission, however, is remedied in the
Appendix to the Cede which makes it clear
that this class of Company may be sued
through the desi^nateii officer. Therefore,
in the case of the Ensb Indian Kailway the
proper tuitrio under which the Company
should he sued ie the name and style under
which it carries on its business. A suit
against the A^ent would be incompetent
and would fix no liability upon the Com-
pany. The Company has no registered
office in India but the Indian Railways Act
provides that an officer rained the Agent
may bo appointed in India upon whom
service may bo made of all notices and
processes addressed to the Company. The
appointment of euoh an officer, however,
does not in any way relieve the plaintiff of
tbe duty of suing the proper person and
of correctly describing him,
If a plaintiff deliberately chooses to sua
not the Ccmpany but feha Agenb he cannot
by any decree which be obtains in the suib
bind the Company. If, however, upon a fair
reading of the plaint it ia made, out that the
description of the defendant is a mere '
error and that the Company is the real I
defendant then tbe suit may proceed
against tbe company.
Here the Railway did in fact appear and
conducted the cases till the 12th December
1923 on the footing that they were the real
defendants in tbe suit.
In these circumstances the judgment of
tbe learned Judge of this Court must be
set aside and the appeal must be decreed
with costs, The order of the Subordinate
Judge will be restored and the case will
proceed to trial as directed by him.
Kulwant Sahay, J. :— I agree,
Appeal accepted.
A I.E. 1926 Patna 42,
DAWfcON-MlLLKR, C.J., AND
MACPHKKtiON, J,
Mt. Dili Wajibunnissa Begum — Plain-
tiff-Appellant..
v.
Babu Lai Mahton and others — Defen-
dants Respondents.
Second Appeal No, 1070of 1922, decided
on 18ih June 1925, against the decision of
the bub Judge, P&tna, dated 12th June,
1922.
(a) Btngal Tenancy Act 11885), S. 46, Sub-8. 7
—lit HI. at tnhanctd iait is payable jrcw ihe dtu*
of acceptance of agietment,
The enhanced rent is payable by tbe tenant from
the date vtheu be agreta to ph> the rent deter-
mined by ihu Couu. Although Sub 8. (7) does
not in terms eay from what date ihe enhanced
rent should be pajable yet, as his liability to pay
the enhanced rent only arises by reason ot ma
agreement, it eeema impossible 10 bold that be
WrtH under any liability to pay cent at the enhanced
rate before thut date, [P. 46, Col. 1 ]
(b) Btngal Tenancy Act U&65), S 61— Bonafide
deposit of whole amount is fail a ih^ugh in tact-
less than due.
Where there has been a Bona fide deposit in
respect of the whole amount due at the date ol tbe
deposit and not merely in respect of a portion
thereof, tba deposit IB validly made under the
section, even though it should turn out that tba
whole amount due bad not been .deposited. 20
O.L.J. 153, Foil. [P. 46, Col. 1,]
S, Ahmed, G. Dast A. L. Das% Guptot
A. H. Fakhruddin, K. Husnam and N.
Husnain-v-lor Appellant.
P, 0, Manuk and A. N. Das— for Bes-
pondenta.
\926 MT, WAJIBUNNISA BEGUM v. BABU LAL (Dawson Miller, G J.) Patna 13
Dawson-Miller, C. J: — The suit out of
wbioh this appeal arises was instituted by
the Plaintiff on the 4th May 1921 claiming
rent from the Defendants in respect of
a holding of 7 bighas 5 cottas of land in
Patna for the years 1325 to 1327 F. and
for the Pous and Chaifi kists of 1328 F.
together with damages at 25 per cent, per
annum. The rent was claimed at the rate
of Ks. 252-13-0 per annum,
The main defences to the action were
(1) that the amount of rent recoverable
was Bs 102 per annum and that for the
years 1325 to 1327-F. the rent at that rate
had been deposited in Court under the
provisions of section 61 of the Bengal Te-
nancy Act and a receipt obtained under the
provisions of section 62, sub-section (2) and
that the rent claimed for 1328 F. was not
pay able until Bbado in that year correspon-
ding to September 1921, wbioh date bad not
arrived when the suit was instituted, and,
(2) that tbe suit was barred by limitation
under the provisions of Schedule III,
Article 2 (a) of the Bengal Tenancy Act,
having been brought more than six months
after tbe date of service of notice of the
deposit.
It appears that in 1917 the Plaintiff
attempted to eject the Defendants as
trespassers but it was decided by tbe High
Court in April of that year that the status
of the Defendants was tbat of non occu-
pancy raiyats. Tbe rent tben payable was
Es, 102 per annum, On the 13th July,
1917 the Plaintiff filed in Court an
agreement under the provisions of
section 46 of tbe Bengal Tenancy Act for
the payment of an enhanced rent at the
rate of R«. 379 per annum and on tbe 18th
July, 1917 (9th Sawan 1324) the agreement
was duly served on the Defendants. The
Defendants refused to execute tbeagreement
and on tbe 5th November, 1917 the Plaintiff
instituted a suit before tbe Muneif of Patna
for ejectment of the Defendants under
section 46 16) of the Act. Under the provi-
sions of sections 46, eub- sections '6 to (10)
if tbe raiyat refuses to execute an agreement
tendered to him under tbe earlier provisions
of the section^ and the landlord thereupon
institutes a suit to eject him, tbe Court
shall determine what rent is fair and
equitable for the holding. If the raiyat
agrees to pay the rent so determined he
shall be entitled to remain in occupation of
bis holding at tbat rent for a term of 5
years from the date of tbe agreement but
on the expiration of that term shall be
liable to ejectment unless he has acquired
a right of occupancy. But if the raiyat
does nob agree to pay the rent so deter-
mined, the Court shall pass a decree for
ejectment and a decree for ejectment so
paesed shall take effect from tbe end of
the agricultural year in which it is passed.
The suit for ejectment was not decided by
the Munsif until tbe 4th February, 1920
when be found tbat a fair and equitable
rent for tbe holding was Rs 252*13-0.
On the 12th February, 1920 a no-bice was
served on tbe Defendants to accept and
pay tbe rent found to be fair and equitable
but they do not appear to have agreed to
pay the rent at tbe rate found by the
Munsif. Tbe Munsif's judgment has not
been produced before us but it may be
assumed tbat be passed a decree for
ejectment in accordance with the provisions
of section 46 (8) of the Act. No steps
however, were taken to eject the tenants
and they remained in possession without
any agreement to pay the rent determined
by tbe Court. I thitk the plaintiff was
entitled to put them to their election but
she failed to do so, and no agreement was*
oonao to by tbe tenants to accept the new
rent determined by the Court until a year
later as will presently appear.
The defendants appealed from the
Muneif's decision to the Subordinate
Judge. On the 19th September, 1920 the
appeal was dismissed. The defendants
then preferred a second appeal to the High
Courb and applied for a stay of execution
of tbe decree for ejectment. They were
in this difficulty that if they refused to
agree to pay tbe rent found equitable, they
would be liable to ejectment before the
decision of the High Court on appeal. If
they agreed to pay tbe rent found
equitable they considered, rightly or
\\roDgly, tbat their appeal to the High
Court could not proceed. In the result
they agreed to pay the rent found fair
and equitable by the Court stipulating that
it should be subject to the result of their
appeal then pending in the High Court.
Their agieement is dated the 10th
February, 1921, corresponding to the
18th Magb 1328 F. Tbe appeal in
'the High Court was decided on the
3rd January, 1923, the decision of the
lower Courts being affirmed and the
appeal dismissed. Pending this litiga-
tion, the object of which was to fix a fait
44 Fatna MT, WAJIBUNNISSA BEGUM v. BABU LAL (Dawson Miller, C,J.) 1980
and equitable rent which the defendants
could only refuse to pay under pain of being
ejected, the defendants deposited in Court
under the provisions of section 61 of the
Act the rent due at the old rate, namely,
Bs. 102 per annum, a short time after the
expiration of each 6f the three years 1325
to 1327 and notices of the deposit were
serve 1 upon the Plaintiff on each occasion
shortly after the deposit was made. The
notices of the deposits for 1325, 1326 and
1327 were served upon the plaintiff on the
15(>b Daoember, 1918, 15bh December,
1919 and the 24th Daoember 1920, respec-
tively.
The fired question for determination is
from what data is the enhanced rent pay-
able. The Plaintiff contends that under
section 46, sub-section (7) the enhanced
ronb is payable from the 18bh July, 1917
when the agreement mentioned in sub-
, section (1) was served upon the tenants,
fluh-secbion (7) reads as follows : — " If the
raiyat agrees to pay the rent so determined "
(that is, the fair and equibabla rent deter-
mined by the Court in a suit for ejectment
mentioned in sub-section 6), " he shall be
entitled to remain in occupation of his
holding ab that ronb for a term of 5 years
from the date of the agreement under the
conditions mentioned in the last foregoing
section, unless he has acquired a righb of
occupancy. " Har contention is that the
date of the agreement there mentioned has
reference to tho agreement tendered to the
tenant under sub-seobion (1). Ibis urged
that it would ha unjust where the rent is
below the fair and equitable rabe and tha
landlord claims enhancement under the
earlier clauses of the section to allow the
tenant by refusing to pay an enhanced
rent, to continue in possession at the old
rate until a suit has been brought and a
fair rend determined which, as in this
case, might take a long time, and that
once the fair rent has been determined by
the Oourb ic should take effect; from the
date when the enhancement !was first
claimed and an agreement tendered under
the earlier clauses of the section. The
defendants, on tho obher hand, contend
that the date of tha agreement in sub-sec-
tion (7) must rafor to the earlier words of
that sub-section which oonbemplaba an
agreement) by the raiyat to pay the rent
determined by the Court. They point out
that the agreement mentioned in the earlier
sub-sections (1) to (5) is nrarely a docu-
ment tendered to the raiyat for execution
whioh he may or may not execute at his
option and that in fact, until executed, it
is no agreement at all, and that if aub»
section <7) intended to refer to the date
when that agreement was tendered, ib would
have said so. Moreover the document?
tendered would not bear any date until its
actual execution. They further point out
that under sub-eeobion (3) if the agreement
referred to in sub-sections (1) and (2) had
been accepted and executed by the tenant
it would not take effect unbil the com-
mencement of the agricultural year next
following, and there is no reason for sup-
posing that where a raiyat agrees bo accept
the equitable rent found by the Courb after
a suit for ejectment, that agreement should
bake effect from an earlier data than would
have been the case had be accepted the pro-
posal put forward by the landlord before
litigation took place. Moreover the agree-
ment tendered under geotion 46, sub-sec-
tion (1) was bo pay rent ab the rabe of
Rs. 379 and ib would he unjust that havteg
refused to pay that rent, but afterwards
having accepted a smaller rate determined
by the Gourb, ho should have to pay the
enhanced rent from the date when the
larger rate was unjustifiably demanded.
Much may be said on purely equitable
grounds as to what the law ought/ to be,
bub we musb interpret the section accord-
ing bo the natural meaning of the words,
unless such interpretation would lead to
a manifest absurdity whioh ib may be
presumed the legislature did nob inbend.
Ib may be observed that section 46 refers
to two separata and distinct matters.
The firsb five sub-seobions contemplate an
amicable enhancement of the renb of a
non-oooupanoy raiyab wibhoub litigation.
Tha landlord proposes an enhanced rent
and tenders bo the raiyat an agreement; to
pay that enhanced rent whioh he may or
may nob execute at his option. If he
aocepbs the proposal then the enhanced
rent bakes effecb from bhe beginning of
the next agricultural year. If he does not
aooepb it then the landlord may sue for
ejectment. The sixth an£ subsequent
sub- sections relate to the procedure to be
adopted where* a suit for ejeobtiaent has
been brought. They provide thafl before
ordering ejectment the Oourb shall deter-
mine what ia a fair and equitable rent.
If the raiyat refuses to pay the renb so
found then ho may be ejected, bat it saetni
•f 996 MT. WAJIBUNNISSA BEGUM v. BABU LAL (DaweoD Miller, O.J.) Patna 45*
perfectly clear that be would nofc be liable
for anything more than the original rent
upto the date when he was ejected. If,
on the other hand, he agrees to pay the
rent go determined he shall be entitled to
remain in occupation of his holding at that
rent for a term of 5 years from the date
of the agreement. It seems to me clear
that the date of the agreement there men-
tioned is the date when he agrees to pay
" the rent found by the Court. There would
appear to be no more reason why he
should pay that enhanced rent from an
earlier date, if he accepts it, than there
would be why be should pay an enhanced
rent if he refuses to accept it and renders
himself liable to ejeotn ent, The agree-
ment ID this case was dated the 10th
February, 1921, and, in my opinion, the
enhanced rent; became payable from that
date. The result is that unless the suit is
barred by limitation the rent payable by
the tenants was at the rate of R?. 102 up
to the lOfch February 1921 which corres-
ponds to the 18th Magh 1328 F. and the
rent payable after that date is at r.he rate of
Bs. 252-13-0. The learned Subordinate
Judge considered that the enhanced rent
was not claimable until the 3rd January,
1923 when the High Court finally dismiss-
ed the appeal in the ejectment suit. But
it seems clear that the enhanced rent is
payable at the latest from the date when
the raiyat agrees to pay the rent deter-
mined by the Court. Sub-section (7) does
not in terms say from what date the
enhanced rent should be payable. It
merely states that the raiyat shall be en-
titled to remain in occupation of his hold-
ing at the enhanced rent for a term of
5 years from the date of the agreement.
But, as his liability to pay the enhanced
rent only ariges by reason of his agree-
ment, it seems to me impossible to bold
that he was under any liability to pay rent
at the enhanced rate before that date.
The facb that the defendants did not in
fact agree to pay the enhanced rent until a
much later date than tbab on which they
might have been put to their election
appears to h*vo been due to the failure of
the plaintiff to insist upon her rights. She
could have 'compelled the defendants to
pay the new rent or submit to ejectment as
soon as the Hunsii's decision was given
unless the Court ordered a stay, which
would only be granted on terms protecting
the plaintiff's rights.
It remains to consider whether the
claim is barred by the special limitation
prescribed in Schedule III of the Aot. If
the limitation there prescribed applies to the
facts ot the present case then it is clear
that the claim for rent for the years 1325
and 1326 F, is time-barred, for the notices
of deposit for those years were served on
the 15th December, 1918 and the 15th
December, 1919 respectively. The notice of
deposit of the rent for the year 1327 was
served on the 21th December, 1920 and
the learned Subordinate Judge considered
that the claim for rent for that year was
aleo barred. It appears to have escaped
bis notice, however, that the present suit
was instituted within six months of the
24th December, 1920, namely, on the
4th May 1921, any it was conceded in
argument before us that the rent for thaft
year is not barred.
The appellant, however, contends that
the claim for rent for the two previous
years is not time-barred on the ground
that Iht requirements of section 61 of the
Bengal Tenancy Aot were not complied
with. The section provides that in cer-
tain oaseR, which are applicable in the
present instance, the tenant may present
to the Court having jurisdiction to enter-
tain a suit for the rent of his holding an
application in writing for permission to
deposit in Court the full amount of the
money then due. The application must
state the grounds upon which it is made
and shall contain certain particulars as to
the name of the person to whose credit the
deposit is to be entered and it shall be
signed and verified in the manner pres-
cribed by section 52 of the Code of Civil
Procedure. Under section 62, if the Court
accepts the deposit, it shall give a receipt
for it under the seal of the Court and the
receipt so given shall operate as an
acquittance for the amount of the rent)
payable by the tenant and deposited as
aforesaid in the same manner and to the
same extent as if that amount of rent had
been received by the person entitled to it.
It is pointed out on behalf of the appellant)
that as the rent was not deposited until
the end of the year, interest became pay*
.able from the dates of the different kists
in each year and the amount of interest
was not dBposited. It has been found
that the rent was payable not at the end
of each agricultural year but kist by kist
and this is no longer disputed. It) follows,
16 Patna MT, WAJIBUNNISSA BEQUM «. BABU LAL (Dawson Miller, CJ.) 1986
therefore, that ad tbe end of the year some
interest would be due upon the unpaid
instalments and as the interest was not
deposited it is contended that the defen-
dants oannot be taken to have made a valid
deposit under section 61 of the full amount
of tbe money then due. The limitation
only applies to oases where the deposit
was made under section 61 and if no
deposit was made within the meaning of
that section the limitation period oannot
apply. The question for determination is
whether the deposit made in the circum-
stances stated was a sufficient compliance
with the section. The learned Subordi-
nate Judge considered that even if the
amount deposited fell short of the sum
. actually due to the landlord at the date of
the deposit it was a sufficient compliance
with the section. In support of hia find-
ing he relied upon the case of Sasibhusan
Dey v. (Imakanta Dey (1). In that case
the previous decisions of the same Court
were reviewed and the meaning and effect
of the section was considered at length.
The Court consisting of Mookerjee and
Beaohcroft, J J., held that, where there has
been a bond fide deposit in respect of the
whole amount due at the date of the de-
posit, and not merely in respect of a por-
• tion thereof, the deposit is validly made
under the section, even though it should
turn out that the whole amount due had not
been deposited. In my opinion that case
was rightly decided. The section appears
to me to provide for the case of a bonafide
deposit of what tho tenant considers to
be the full amount of the rent due at the
time of deposit. The deposit, however,
must be in respect of the whole rent due
and nob in respect of a portion only. It
may well happen that there id some differ-
ence between the landlord and the tenant
as to tbe amount of rant payable. In such
a case the landlord might refuse to accent
a sum which he considers falls short of
the rent payable. One of the oases to
which the section applies is where the rent
has been tendered to the landlord and he
has refused to accept it or grant a receipt.
That might well happen where there was
a bona fide dispute between the parties as
to the actual amount payable. In the pre-
sent case the tenants were contending
that the rend was due at the end of the
U)
U9U) 19 O.W.N.
0,L J, 163,
1113*25 I.G. 17 1-2
agricultural year and not kist by kist. If
they were right in that contention no in-
terest would be payable upon the earlier
kists. The bona fides of the tenants in this
case has not been impugned although the
Court has decided that the rent was pay-
able quarterly and not annually. It seems
to me that the intention of the legislature
was thbkt where a bona fide deposit has
been made in reap sob of the whole rent due,
then the matter must be decided by suit
at the instance of the landlord within six
months of the receipt of the notice.
Under section 62 a receipt givea for the sum
deposited acts as an acquittance to the
extent of the amount deposited and the
landlord can take the deposit out of Court
and sue for the balance if he contends
that; the total amount due has not been de-
posited, and I think that the intention
was that; in suoh a case tbe dispute
between the parties should be promptly de-
cided, otherwise the landlord cannot ques-
tion the sufficiency of the amount paid
into Court. If tha Appellant's contention
be accepted it would follow that section 62
could not operate if the amount paid in
were less by a few annas than the amount
actually due and no valid acquittance
could be given to the tenant. Again if the
Appellant's contention be accepted it is
difficult to see in what case the period of
limitation prescribed would be effective,
for if the whole amount actually due must
be paid in, so as to create a valid deposit
under section 61, it follows that any suit by
the landlord, whether brought within six
months or at a later period to recover the
rent, must prove iofructuous and there is
no necessity for prescribing a period of
limitation. If, on the other hand, the de-
posit, of a smaller sum than that actually
due is not a valid deposit within the mean-
ing of the section, again the limitation
prescribed is of no effect. In mv opinion
the oasa of Sasibhusan Dey v. (Jmakanta
Dey (1) was rightly decided and applies to
tbe facts of this case. I think the claim
for rent for tbe years 1325 and 1326 is
barred by limitation and for the year 1327
the Plaintiff is entitled to recover kist by
kist at the old rate of Rs, 102 with interest
at 12 per cent, credit being given for the
amount deposited. With regard to the
rent for t-he two kists of 1328 this is also
recoverable at the old rate up to the lObh
February, 1921 and after that date at the
rate of Bs. 252-13-0 together with interest
RAMB8WAR NARAYAN SINGH 0. MAHABIR PBA8AD
Patna 47
at 12| per cent. The Defendants are
willing that the amount paid into Court
(or the years 1325 and 1326, and which we
are told is still in deposit, should be paid
oat to the Plaintiff in satisfaction of the
rent for those years notwithstanding the
bar. There will therefore he an order
that the sums deposited for the years 1325
and 1326 be paid out to the Plaintiff, She
will also be entitled to take out of Court
the deposit made for 1327 in part satis-
faction of her claim for rent for that year,
The decree of the lower Appellate Court
will be varied in accordance with the deci-
sion above arrived at. The Appellant has
failed upon each of the main points argued
before us but has succeeded in so far as
the rent for 1327 is concerned and has suc-
ceeded in part as to the date from which
the enhanced rent shall be payable. She
has gained little advantage in so far as
the rent for 1327 is concerned as this has
been found to be payable at the old rate
and the sum deposited could have been
taken out of Court by her at any time. In
the circumstances I think that the parties
should each bear their own costs of this
appeal.
Macpherson, J. :— I agree.
Decree varied.
AIR 1926 Patna 47.
KULWANT SAHAY, j.
(Kumar) Rimeswar Narayan Singh —
Defendant- Appellant
v.
Mahabir Prasad and others — Plaintiffs-
Bespondants.
Appeal No. 643 of 1922, decided on29bh
April, 1925, from the Appellate Decree of
the Sub. Juage, Ranch! , dated 12th
April, 1922.
Chota Nagpur Tenancy Act (VI of 1920), 8, ML
—Suit to set aside an execution sale on the ground
of fraud is gcverned not by 8. 231 but by Limita-
tion Act, Art. 95,
S, 914 b<%r%a suit to set aside ft sale under Chap-
ter 16 of the Act except on the ground of fraud oc
want of jurisdiction. 3. 368 contains a provision
similar to (hat in 8. 914. 'These sections do not*
create right to institute a suit to set aside a sale for
a holding mtde under the Aofc, They £ar the insti-
tution oi suoh a autt except on the ground of fraud
or want of jurisdiction. The right to institute a
«ait to set aside a sale has not been created but
lias been taken away under the provisions of these
sections. The right exists in a person to bring a
suit to set aside a sale under the general law and
it was taken aw*y by those sections except the
right to bring a suit on the ground of the fraud or
want of jurisdiction. Therefore a suit to set aside
an exeouiion sale on the ground of fraud is not a
suit instituted under the provisions of tho Obota
N*gpur Temnoy 4ot as contemplated by 8. 231
of the Act ; and consequently tbe period cf limita-
tion is not the one provided by that section but
the one provided by Art. 95 of the Limitation Act
and the period of limitation is three years from
the time when tbe fraud beoame-knowa to the
plaintiffs. [P 48, Col l.J
B. G. De-tor Appellant.
N. Boy and Satdco Sahai — for Respond-
ents.
Judgment :— This is an appeal by the
defendant against the decision of the Subor-
dinate Judge of Eanohi reversing the
decision of the Munsif of EUziribagh and
decreeing the plaintiffs' suit. The suit wag
for setting aside a sale of a raiyati holding
held under the provisions of the Chota
Nagpur Tenancy Act. The sale wad sought)
to be set aside on the ground of fraud. Tbe
defendant who was the landlord and the
purchaser in the execution sale denied
that there was any fraud and contended
that the suit was barred by limitation.
The learned Munsif who tried the suit held
that there was fraud on the part?
of the decree-holder and that the sale was
vitiated on the ground of suoh fraud ; he,
however, dismissed the suit on the ground
of limitation. On appeal by the plaintiffs,
the learned Subordinate Judge has held
that the suit was not barred by limitation
and has accordingly decreed the suit and
set aside the sale. Against this decision the
defendant has come up in Second Appeal.
Tho principal question for decision in
this appeal is as to whether tho suit was
barred by limitation. Tho sale in execution
of the decree obtained bv tho appellant!
took place on the 3rd of December, 1917.
The plaintiffs' case is that the entire
amount due under the decree had been paid
off and bhe appellant acted fraudulently in
getting the sale confirmed, and that ha
came to know of the fraud for the first
time on the llth November, 19 L9, when
possession was delivered to the anpellant.
The suit was instituted on the 10th July,
1920. The Munsif held that tho period of
limitation was one year and that the
plaintiffs had knowledge o? the sale beyond
one year from the date of the suit and tbaft
fche suit was accordingly barred by limita-
tion. He' did nob in bis judgment state
48 Fatna
BAME8WAR HABAYAN SINGH t>, MAHABIB PBA8AD
188*
under what provision of the law he
held the period of limitation to he
one year. The learned Subordinate Judge
on appeal was of ouinion that the period
of limitation applicable to the suit was the
one provided for in Article 95 of the 1st
Fohedule to the Indian Limitation Ac6. It
has been contended, however, on behalf of
the appellant that t.he present suit was
governed by section 231 of the Ghota
Nagpur Tenancy Act and that the
period of limitation was one year from the
date of the accrual of the cause of action
and that in on the finding of the Munsif the
cause of action accrued to the plaintiffs at
least on 8th April, 1918, if not earlier, and
that the suit being instituted beyond one
year from that date was barred by limita-
tion, Now, in order tc make the provisions
of section 231 applicable to the present suit
it must first he established that the suit
was one instituted under the Cbota Nagpur
Tenancy Aot, Tho learned Subordinate
Judge is of opinion that section 231 has
no application to the present case inasmuch
as the suit was not one under the Act. I
am of opinion that the learned Subordinate
Judge was right and that the present suit
is nob one under the Cbota Nagpur Tenan-
cy Aot. Reliance has been placed by the
learned Vakil for the appellant upon the
provisions of sections 214 and 258 of the
Ohota Nagpur Tenancy Act and it has been
contended that the present suit is one
under the previsions of those sections. I
am of opinion that this contention is un-
sound. Section 214 bars a suit to set
aside a eaie under Chapter XVI of the
Aot except on the ground of fraud or
want of jurisdiction. Section 258 con-
tains a provision similar to that in sec-
tion 214. These sections do not create a
light to institute a suit to sot ustde a sale
of a holding made under the Act. They
bar the institution of suoh a suit
except on the ground of fraud or want
of jurisdiction. Tho right to institute
a suit: to eer> astrie a sale has not been
created buh has been taken away under
the pro-VHioiJS of these sections. The right
exists in a per>on to bring & suit) to set
aside a pale order the general law and
was not coui tried under the provisions of
the Chota Nagpur Tenancy Aot and suoh
right was tttktm ;iway by these sections
except the right to bring a auio on the
ground of fraud or want of jurisdiction.
Ibe present suit was, therefore, not a suit
instituted under the provisions ot the
Chota Nagpur Tenancy Aob as contemplat-
ed by section 231 of the Aot ; and conse-
quently the period of limitation is not the
one provided by that section but the one »
provided bv the Indian Limitation Aot. I
am, therefore, of opinion that the suit
must be governed either by the provisions
of Article 12 or by those of Article 95 of
the 1st schedule to the Indian Limitation
Aot. In my opinion the suit being for a
relief on the ground of fraud the Article
applicable is 95 and not Article 12 of the
Limitation Ace, and the period of limita-
tion ia therefore three years from the
time when the fraud became known to the
plaintiffs. In the present case the suit was
brought within three years even from the
date of the sale and was evidently within
time.
It has next baen argued that there was
no fraud as alleged in the plaint. I am of
opinion that the appellant cannot be
allowed to raise this question in Second
Appeal. It was found by the Munsif
that there was fraud on the part of
the defendant and that finding was
not challenged by the defendant; before
the Subordinate Judge as is expressly
stated in the decision of the Subordinate
Judge. It has been contended that the
fraud alleged was not in bringing about
the sale but in getting the sale confirmed
after receipt of the entire amount of the
deoree ; and it) is pointed out that under
the provision? of the Ghota Nagpur Tenancy
Act a sale is not required to be confirmed.
No doubt, there ie no provision in the Act
for confirmation of sale »nd in Lai Nil-
?nani Nath Sahi Deo v. Ba% Bahadur
Baldeo Das B;rla (1) it was held by
this Court that there was no provision in
the Aot for confirmation of a sale. Refer-
ence was made in that oase to the
expression11 confirmation of sale" ooour-
ing in clause (d) of section 209 of
the Aot ; but it is noticeable that the word
" date " was substituted in this clause for
the word " confirmation by the Bihar
and Oriss* Act (V of J920) and tbe word
" confirmation " now no looge^ oooura in
this section. The question of fraud, how-
ever, was not rai86<i by the appellant in
the lower Appellate Court, aud I am of
opinion th%t tha appellant oacnot be allowed
(J) (1930) I P.L.T. 146-6 Pafc. L, J. 101-55.1,0.
27-l920P,H,O.C, 73,
GANBSH LALL V. B1SBSAB PANDBY
Pstaa 49>
to raise the question here in this Second
Appeal. The only point argued before the
Subordinate Judge was the question of
limitation and this question appears to
bave been correctly decided.
This appeal is dismissed with costs.
Appeal dismissed.
AIR. 1928 Patna 49.
KULWANT SAHAY, j.
Oanesh Lo.ll — Defend ant- Appellant
v.
Bisesar Pandey — Plaintiff -Respondent.
Appeal No. 604 of 1922, decided on the
6th April, 1925, bgainst the Appellate
Decree of the Sub- Judge, Patna, dated 5th
June, 1922.
(a) Civ, Pro. Code, 8, 100— Construction of a
till* deed is a question of Law.
The construction of a document of title is a
point of law. [P. 49, Ool. J.]
(b) C\v. Pro. Code, 8. 100— Misreading of docu-
mentary evidence— Finding is not binding.
Where A finding of faofc is baaed on * piece of a
documentary evidence which has been completely
misread bv the Court, the finding i* not binding in
eeoond appeal. [P. 51, Col. 1.]
P. C. Manuk and Anand Prasad — (or
Appellant.
N, N. Sen — for Respondent.
Judgment :— This is an appeal on
behalf of the defendant and arises out of a
suit brought by the plaintiffs-respondents
for a declaration that the defendant has no
right to open doors on the south of his
house marked F in the sketch map filed
with the plaint on a lane marked E in the
map, on an allegation that the said lane
was the private property of the plaintiffs
and of the owners of the houses marked
B and C in (he sketch map.
The defendant denied the title of the
plaintiffs to the lane and asserted that it
was a public lane to which the plaintiffs
had no exclusive title and that the defen-
dant bad as much right to tbe lane as the
plaintiffs bad, and that be bad tbe right to
open the doors at the points marked G
and H in%the sketch map towards south
Of his opening on the lane,
The leaVned Muusif bund that the plaint
tiffs had got no right to tbe soil of tbe lane
and that they had only a right pf way over
it. Efe was of opinion that the lane was
not a public lane aa alleged by the defen-
1926 P/7 & 8
dant but that it* was a blind lane terminat-
ing at the southern extremity of the house
marked A in the map He held that the*
lane was not a private lane of the plaintiffs
only but that) the defendant had also the
right to use it. He accordingly refused to
give a decree to the plaintiffs restraining
the defendants from opening his doors at
the points G and H and dismissed the
suit.
On appeal the learned Subordinate Judge
has decreed the suit and has made a
declaration that the defendant has no right
to open the doors at the points G and H
or to open any other door into the lane-
marked E in the map which he declared to
be the private lane of the owners of the
houses A, B and 0 in the sketch map filed
with the plaint.
Againsb this decree the defendant has
come up in second appeal to this Court.
It is contended on his behalf that the
learned Subordinate Judge has made a
mistake of record in considering the docu-
mentary evidence in tbe case and has also
put a wrong construction upon Ex. 5
which is the title-deed of tbe plaintiffs.
On referring to the sketch map filed with
the plaint, it appears that the plaintiffs'
house marked A lies to tbe east of tbe
defendant's house marked F. South of the
plaintiffs' house is the house of Mahadeo
Pande marked B and to the south of
Mahadeo Pande'a house is the house of
Basant Misser marked 0. Between the
house of Mahadeo Pande and the defen-
dant's bouse there is a lane wbiob is said
to be a continuation of the disputed lane
marked E lying to the south of the defen-
dant's bouse marked F.
Tbe learned Subordinate Judge agrees
with the Munsif that the oral evidence
with regard to the ownership of the lane
is not satisfactory ; but he was of opinion
that the documentary evidence adduced by
the plaintiffs was distinctly in favour of
tbe plaintiffs and established their title to>
the lane. The first document that the
learned Subordinate Judge considers is
Ex, 5 a kabala dated tbe 30oh August, ~
1872. This is a title deed of tbe plaintiffs
and the construction of this document is a
point of law which can be taken in
second appeal. By this kabala (Ex. 5)
Mabadeo Pande, tbe owner of the house
marked B, sold a portion of his house to
the ancestor of the plaintiffs. That portion
has now been amalgamated with the*
50 Patna
GANESH LALL V. BISESAB PANDBY
1986
plaintiffs' old house, and the houee marked
A in the sketch is the old house of the
plaintiffs amalgamated with a portion
of the house B purchased under Ex.
5. The learned Subordinate Judge
refers to the eastern boundary of the
portion sold by Ex. 5 which was
stated to be the house of one Doman
and from this he inferred that there was
oo lane to the east of the plaintiffs' house
as alleged by the defendant. He than refers
to a description in the kabala, Exhibit 5,
to the effect that the main entrance of the
portion of the house sold lay to the south
and he says that this is the entrance as
shown in the sketch map as being the
entrance of the house A. This, however,
does not show the title of the plaintiffs to
the lane in dispute and there is no question
of mis-construction of this document and
the argument of the learned Counsel for the
appellant that the Subordinate Judge has
misconstrued the title-deed (Exhibit 5)
must fail.
The next document referred to by
the learned Subordinate Judge is a
khasra marked Ex. 15 and a map
marked Ex, 14. This khasra and
the map were prepared in the course
of a partition suit and it is nob a
khasra made at a public survey as stated
by the learned Subordinate Judge. Item
No. 211 in this khasra is the house marked
0 in the sketch map. This khasra shows
that the house marked G then belonged to
one Musammat Pano Kuer, widow of
Dwarka Pande, There are two entries in
Khasra No. 211. The first entry is that of
the house now marked 0 as the house of
Musammat Pano Kuer of which the length,
breadth and area are given in the columns
provided therefor. The next entry runs
thus: "Goshagali for egress and ingress
westward up to the road " ; and the length,
breadth and area of this Goshagali are also
given separately from those of the house.
The learned Subordinate Judge on a refer-
ence to the map finds that this Goshagali
is the lane marked E in the sketch map
which is the subject of dispute in the pre-
sent case. The learned Subordinate Judge
says that these two documents (Exs. 14
and 15) show that the title to the lane
was with the widow of Dwarka Pande who
was an agnate of the plaintiffs. The
learned Subordinate Judge says that this
plot No. 211 is entered in the khasra under
t|be column headed "Jagir Bishanprit, etc."
In this he is clearly wrong, It is not shown
in the khasra under the column headed
" Jagir Bishanprit, etc." In fact this
particular column is left blank against the
Khasra No. 211. It is contended by
Mr. Manuk that this is a mistake of record
and that the finding of the Subordinate
Judge to the effect that the lane in dispute
is proved to be the Jagir Bishanprit of
Dwarka Pande is based on the erroneous
impression that it is entered in the column
of "Jagir Bisbanprit, etc,," in the khasra
and that when there is no such entry in
the khasra, the whole decision of the
Subordinate Judge is vitiated as the finding
is based on a fact which is non-existent.
Further on in the judgment the learned
Subordinate Judge observed that although
the Goshagali was measured as a parb of
plot No. 211 it will appear that it was
the nikas of Mabadeo Pande and others
and Musammat Pano Kuer could not
obviously sell it away. Mr. Manuk con-
tends that there is an inconsistency
in the finding of the learned Subordinate
Judga His first finding being that Pano
Kuer had a title to the lane, the subsequent
finding that she could not sell it away is
inconsistent with that finding, The plain-
tiffs' oat?e was that the lane in dispute was
the brahmottar land belonging to their
ancestors and to themselves and the learned
Subordinate Judge has found that this
allegation is correct under the mis-concep-
tion that it is described in the khasra under
the column of " Jagir Bishanprit, etc.11
There being no such entry in the khasra
the finding of the learned Subordinate
Judge cannot be sustained inasmuch as it
is based on a mis-reading of the khasra.
This khasra (Ex. 15) was a very important
piece of evidence in the case and the learned
Subordinate Judge relies upon it very
strongly ; and one does not know what
would have been his decision if he had
read the khasra correctly.
The documents marked Exs. 13 *nd 7
which are next considered by the learned
Subordinate Judge do not prove the plain-
tiffs' title to the lane ; they only show that
the lane was the mkas or passage of egress
and ingress of the houses of Mah?deo Pande
and others. The learned Subordinate Judge
himself observes that the dooumen-ts Exs. 7,
17, 8, 11 and 12 referred to by him do not
prove the ownership of the lane to belong
to the plaintiffs. As regards the sab-deed
(Ex. 19) the learned Subordinate Judge
IS26
HARBANS NARAIN SINGH V. MOHAMMAD SA7BBD
Patna 5£
refers to the eastern boundary thereof
which is shown as Galimai nala Bisesar
Pande. This is tbe deed by whioh the
defendant purchased the house marked F.
Bisesar is one of the plaintiffs in this case
and from the description of the eastern
boundary of the houae marked F the learn-
ed Subordinate Judge comes to tbe conclu-
sion that the lane in dispute beiongs to
Bisesar Pande. It is, however, pointed out
by Mr, Manuk that the lane there referred
to is the lane to the east of the house
marked F which is not in dispute in the
present case. The dispute relates to the
lane lying to the south of the house marked
F and the description of the southern
boundary in this deed Ex. 19 is merely
gali amad raft, i.e., a lane whioh is a
passage for ingress and egress. This does
not show that the lane in dispute belongs
to Bisesar Pande and the different descrip-
tions of the eastern and the southern
boundaries in the same document are
remarkable.
There is thus a serious error in the judg-
ment of the Subordinate Judge as regards
Ex. 15 and, as I have said, if) is impossible
to say what the decision of the Subordinate
Judge would have been if be had correctly
read Ex. 15. Farther he has considered
only one of the boundaries given in Ex. 19
and has not considered the southern boun-
dary thereof whioh was very important. I
am, therefore, of opinion that the decision
of the learned Subordinate Judge cannot
be maintained. The decree appealed
against muati, therefora, be saa aside and
the appeal remanded to the Subordinate
Judge for disposal after reconsidering the
evidence in the oasa. Goats will abide the
result.
Decree set aside.
Case remanded.
A.I.E. 1986 Patna 61.
MAOPHBRSON, j.
Harbans Narain Singh and others —
Petitioners
v.
Mohammad Sayeed and others — Opposite
Party.
Criminal Revision No. 108 of 1925,
decided on 6th May, 1925, from a* decision
af the District Migistrate, Mongbyr, dated
Uth February. 1925,
Grim. Pro. Cod*, S. 245— Order passed after
looking into evidence and heanng arguments—
Order declaring right of one party to b« in posses-
sion and forbidding others from interfering with
the possession is one under 8. 115.
Where a M*gistr*te, on A police report being
received that there WAS A dispute regarding A pieoe
of laad and breach of peaoe WAH apprehended,
called for documentary evidence from the parties,
beard arguments and passed an order declaring
one party in possession and directing that if other
were to obstruct him, proceedings under 8. 1
would be started And referred tbe parties to oiv
Court :
Held, that the Magistrate acted judicially an
pissed without jurisdiction au order whioh b
oould only paes under 8. 146 and therefore i
should be vacated. [P. 52, Ool, 2 ]
K. B. Dutt and P. C. Bai— for Peti-
tioners.
Ntyamat Ullah—iot Opposite Party.
Judgment :— This is an application
against an order dated the llth January,
1925, of the Sub- Divisional Magistrate o
Monghyr.
Oa 19t,h November, 1923, an order under
section 144 of the Oriminal Procedure Oode,
was made absolute by a Dapufcy Magistrate
of Mongbyr against the petitioner, Harbana
Narain Singb and also the opposite party
Eita Singh with the result that the opposite
party Muhammad Ishaq was directed to ba
retained in possession of an area of 30 big has
whioh was the land in dispute between the
parties or a part of it. Tbe Magistrate
added that if the parties to the proceeding
created trouble after the expiry of two
months, action under section 107 or sec-
tion 145 of the Criminal Procedure Oode,
would be taken Harbans Narain moved the
High Court and on 1st February, 1924 this
Court set aside the order on the view that
it was not one whioh oould be properly
made under section 144. The learned
Judge further directed as follows ;
"if there is any apprehension of a breach
of the peace it will be open to the Magis-
trate to take proper proceedings according
to law."
On tbe 2nd December, 1924, the Police
submitted a report recommending action
under section 144 followed by proceedings
under section 145 in respect of a plot of 40
bighas (out of a large area of about 163
bighas) whioh apparently includes the area
of 30 bighas already mentioned, aod show-
ing the petitioners as first party, Muham-
mad Saiyid and others as second party.
Fazal Karim and Ishaq, already mentioned,
as third party and Rita Singh aa fourth
62 Patna
HABBAN8 NABA1H SINGH «, MOHAMMAD SAYBBD
party. On that report the Sub-Divisional
Magistrate passed the following order on
9th December.
"All parties should appear before me
with their documentary evidence on 20th
December. Meantime they should not
commit a breach of the peace by going
to the lands in dispute."
On 12th January he "heard the lawyers
for the first three parties " and two days
later passed the order of which revision
ie sought. It runs as follows : —
'The first party claim the land as
bakast, but there is DO documentary evi-
dence in support of their claim that this
particular land is bakast. The second
parly claimed settlement of 40 bighas of
the disputed land from the previous mahks
and produced rent )eceipts in support of
their claim. He was also sued by the late
maliks of 12 annas, etc., share of arrears
of rent. The third p&rty claims 30 bighas
out of the disputed land as his raiyati
but the rout receipts filed do not seem to
be reliable. The fourth party claim to
be sub-tenants of the second.
1 consider that the second party are in
possession 40 bighas of the disputed land.
The others are forbidden not (sic) to inter-
fere with their possession. If they do,
they will be proceeded against under
section 107, Criminal Procedure Code.
They had better go to the Civil Court if
they have any rights/'
Mr, K. B. Dutt on behalf of the petition-
ers contends that the order is a judicial one
and that this Court has jurisdiction to
set it aside. On behalf of the opposite
party it is suggested that the order is a
judicial one under section 144 which should
not be set aside as it has spent its force.
In his explanation the Sub-Divisional
Magistrate claims that bis order was an
executive one, and states that he thought
it necessary before taking action under
the Criminal Procedure Code, to hear the
parties but that after hearing them he did
not consider that any action under the
Code was necessary. Some support for
the view that the order is an executive one
might be derived from the fact that in the
copy of the order tiled with the petition the
designation " S. D. 0." is appended to the
initials of the Magistrate but those letters
do not appear in the original.
If the order was passed by him as a
Court, the Magistrate manifestly could nob
Avoid responsibility now by raying
be passed the order in an executive capacity*
It is, however, difficult to say what the
order really is. It does not indeed pur-
port to be passed under section 144 or
section 145 and the Sub- Divisional Magis-
trate apparently desired to avoid issuing.
orders under section 144 because this Court
had set aside a similar order, and also to
avoid taking proceedings under section 145
to which the order of this Court pointed,
which besides being troublesome too
often lead to nothing, as they have to be
set aside on technical grounds. But actually
the order passed differs little from the pre-
vious order which was set aside by this
Court (except in the fact that it does nob
purport to be made under section 144) and
that order was set aside on the ground
that though passed under section 144 it
was actually one contemplated by sec-
tion 145 which was passed without observ-
ing the formalities indispensaible under
the provision. It is difficult to see that
the order now challenged is anything else
than a thinly disguised order under
section 145, In substance, though not in
form, the Sub-Divisional Magistrate took,
action under the Criminal Procedure Code
and once again passed an order under
section 145. He decided a question of r
disputed possession and forbade inter-
ference with the possession of the party in
whose favour he decided, directing the
opposite parties to the Civil Court. He
oould not do this executively. The mere
fact that he proposed to enforce his order
by action under section 107 of the Criminal
Procedure Code, instead of by a prosecu-
tion under section 188 of the Penal Code
hardly affects the matter. A similar refer-
ence to section 107 had been made in the
illegal order under section 144 which this
Court bad set aside, I am constrained to
the conclusion that the Sub-Divisional
Magistrate acted judicially and passed
without jurisdiction an order which he
could only pass under section 145,
The Rule is made absolute and the order
of the 14th January is set aside. It is of
course open to the Magistrate to take any
proceedings to keep the peaoev which are
warranted by law, but he must face the
position squarely and realise tb^ta an order
contemplated by section 145 cannot be
passed by a short out such as was taken in
the present instance.
Rule made absolute*
1986
GOKUL TATWA V. RMPBROfc
Fatna 5$
A.I.R. 1928 Patna 63.
KULWANT SAHAY, j.
Gokul Tatwa and others — Accused-Ap-
plicants
v.
Emperor — Opposite Parby,
Criminal Revision No. 275 of 1924,
decided on 29fch June, 1924, against an
order of the Sessions Judge, Purnea.
Cnm. Pro. Codet S. 59—' In his view ' means
1 in his presence*.
The worda " in hia view*' in 8, 59 mean " in
presence of M or " within sight of " and not " in h?g
opinion'*. [P, 53, Ool. 2,]
S. N. Sahay—ior Applicants.
The Govt. Advocate — for Opposite party.
Judgment : — The petitioners have been
convicted for an offence under section 225
of the Indian Penal Code and sentenced to
pay a fine of Ra. 25 each. The prosecution
fltory is that on the night of the 27th of
October, 1923, the complainant Sakhiohand
Halwai was roused from his sleep by the
falling of a box in one of the rooms of his
-house Sakhiohand is said to have got up
and seen three men running away across
the courtyard towards the north. Sakhi-
ohand is then said to have gone to the room
and having perceived the presence of a man
inside the room closed the door with a
tatti and shouted " thief, thief " upon which
one Bmhai who is one of the accused in
the present case and two chauktdars Babu
Jan and Kishuni came followed hy the
other accused. Binhai and Sakhiohand
are alleged to have gone inside the room
and after lighting a lamp to have found
one Gena Tatwa, a servant of the petitioner
Gokul Tatwa, hiding himself beside a kothi
or granary. Sakhioband is said to have
arrested Gena and the petitioners are alleged
to have rescued Gena from the custody
of Sakhiohand The petitioners pleaded
not guilty and stated that the charge
brought against them was false. The learn-
ed Deputy Magistrate who tried the case
found that, the prosecution story was true
in material particulars, and he accordingly
convicted the petitioners and sentenced
them as stated abovev
Two points have been taken by the learrf-
ed Counsel for the petitioners. The first
point jiaken by him ia that upon* the findings
the custody of Gena Tatwa was not lawful
custody, Secondly, it has been contended
4hafc Gena Tatwa was tried on the charge
of tbeft and acquitted and it was found that
he had committed no offence, and tinder
these circumstances a charge of rescuing
him from lawful custody cannot be
sustained.
As regards the first point, s. 59 of the
Criminal Procedure Code authorises any
private person to arrest any person who in
his view commits a non-bailable and cogni-
zable offence. It has been argued that in
the present case according to the prosecu-
tion story Gena Tatwa did not commit any
non-bailable and cognisable offence in the
view of Sakhiohaod JTalwal and that,
therefore, the arrest of Gana Tafcwa by
Sakhiohand Halwdi was not lawful. Oa
the other band ib has been argued by the
learned Government Advocate that the
facts do show that Gena Tatwa did
commit? a non-bailable and cognizable
offence, namely, the offence under sec-
tion 379, Indian Penal Code, in the view
of Sakhiohand Halwai, and, therefore, the
arrest was lawful. The determination of
this question depeuds on the meaning of
the words "in hia view" in s. 59 of thr
Code. In my mind these words mean " in
presence of " or "within sight of " and the
section provides that if an offence is com-
mitted in the presence of or within tbesight
of any private person then such person •
is entitled to arrest the person committing
such offence. Ib is only when a non-bailable
and cognizable offence is committed in the
sight and in the presence of a private person
that such person is en tidied to arrest the
offender. The learned Government Advo-
cate, however, argues that the words in
his view mean " in his opinion," and that
although the offence might not be com-
mitted within the sight or in the presence
of a private person but if such person is of
opinion that such offence has been com-
mitted he is entitled to arrest. I am
unable to agree with this interpretation.
To my mind the Legislature did not intend
to give a private person authority to arrest
an offender if, upon information received or
from other circumstances appearing before
him he is of opinion that an offence baa
been committed. If I am correct in my
interpretation of section 59 of the Code,
then the arrest to Gena Tatwa by Sakhi-
ohand could not be a lawful arrest, because
no offence of theft was committed by Gena
in the presence and within sight of Sakhi-
ohand Halwai, all that was found was that
Gena Tatwa was found hiding himsail
$4 Patna KESHUB FBASAD SINGH v. HABIHAB PBASAD BINGE
behind a kothi in the bouse, and that would
not entitle Sakbichand to arrest him unless
bis biding could amount to a non- bailable
and cognizable offence. In the second
place the learned Counsel for the petitioners
has produced before me a certified copy of
the judgment of the case in which Gena
Tatwa was charged with the offence of
theft and was acquitted. It being found
by a competent Court that Gena Tatwa did
not commit the offence of theft, it follows
that bis arrest by Sakhiohand was not law-
ful. It has been argued by the learned
Government Advocate that the fact of
Gena Tatwa being acquitted on the charge
of theft will not make the arrest by Sakhi-
chand unlawful, if it is shown that in the
view of Sakbiohand, or in other words, in
bifl opinion Gena Tatwa did commit the
offence* This depends upon the interpreta-
tion of the words " in his view " and accord-
ing to the interpretation placed upon these
words by me the arrest of Gena Tatwa can-
not be said to be lawful. In this view of
the case I am of opinion that the convic-
tion of the petitioners under section 225 of
the Indian Penal Code cannot be sustained.
The conviction and sentence are set
aside. The fines, if paid, will be refunded,
Revision allowed.
A.I.R. 1926 Patna 64.
DAWSON MILLER, c.j. AND MAC-
PHER80N, J.
Keshub Prasad Singh — Defendant-Ap-
pellant;
v.
Ilarihar Prasad Singh and another —
PlaintilTs-Eespondents.
Privy Council Appeal No. 20 of 1924,
decided on 2nd June 1925. ,
(a) Patna High Court Rules, Part II, Chap.
Ill, rr. 12 and 8— Affidavit on an interlocutory
application- D eel ar am must state the source of his
belief.
When in an affidavit on an interlocutory appli-
cation the declarant makes ft statement of bis
belief be -phall. if tbe facts are ascertained from
another person, give such details of such person
as are nqumd by r. 8, If tbe foots are ascertained
from a document or copy of a document then be
must state the source from which it was procured
and shall state his belief as to the truth of such
facts, [P. 55, Ool, 1,]
(b) Practiu—Bigh Court" Stay of execution /or
costs is not ordered unless it is dear that the success-
ful party will have no chance of recovering the
Where a party baa been successful in a Court of
Appeal and has been awarded hia costs it is not
the practice of tbe High Court to stay execution
for costs except in oases where it is abundantly
clear that there will be no chance of recovering the
costs if they are allowed to go unprotected to the
person entitled to them. [P. 65, Ool, 1,]
L. N. Singh — for Appellant.
P. G. Manuk, B, B. Lai andfS, Dayal—
for Respondents.
Judgment. — This ie an application on
behalf of the appellant* to England asking
that the money deposited in Court to set
aside a sale in execution of the respon-
dent's decree for costs amounting to
Bs. 61,261 should remain in Court pending
the hearing of the appeal to the Privy
Council. There was a further execution in
respect of an additional sum for coste
awarded at a later period amounting to
Bs. 31,817. With regard to the first sum
the appellant has withdrawn his objection.
Therefore the respondent will be entitled
to take that sum out of tbe Court, the sale
being set aside. With regard to the smaller
sum of Bs. 31,817 the execution proceedings
have not yet terminated but the appellant
contends that the respondent if be receives
this money will not be able to re* pay it in
the eveiit of the appeal to the Privy Council
being successful, In support of that the
petition states that the appellant ie
informed and believes it to be true that the
opposite party have not sufficient property
over and above the property in dispute
which will enable the petitioner to realise
his just dues under the decree and costs
in case the Privy Council reverses the
decree of the High Court. He further says
that in the event of tbe decree being re-
versed by the Privy Council tbe petitioner
will not be able to realise anything by way
of restitution from the opposite party as
tbe petitioner is informed that he has nob
sufficient property to meet tbe obligation
arising out of the decree in case the High
Court's decree is reversed. In that petition
the source of the petitioner's information
is not stated. Tbe petition, however, is
supported by an affidavit: signed by one
Panohdeo Narayau who describes himself
as tbe karpardaz of the petitioner and
states : " I am fully aware of the facts stated
in the petition. The facts stated in the
petition are true to my knowledge." It is
very difficult to know exactly what that
affidavit is referring to. The facts stated
in the petition are that the petitioner has-
1986
ASHARFI DU1MAB V. MUHAMMAD DIKDALAL
Patna 55
been informed that the opposite party will
not be in a position to refund the money
if the appeal to the Privy Oounoil should
succeed. It may be that the person who
swore the affidavit is aware that the peti-
tioner was so informed but that is not suffi-
cient to entitle the Court to aot in a matter
: of this sort. The rules are clearly laid
down in the High Court rules, Part II,
Ch. Ill, rule 12 whioh state that when in
an affidavit on an interlocutory application
the declarant makes a statement of his
belief he shall, if the facta are ascertained
from another person, give such details of
such person as are required by rule 8. If
the facts are ascertained from a document
or copy of a document then he must state
the source from whioh it was procured and
shall state his belief as to the truth of such
faots. Here the only statement is that the
petitioner haa been informed of certain
things. We are not told where he gets his
information from and it makes it none the
better that somebody has sworn an affidavit
saying that the faots alleged in the petition
are true. The petition before us and the
affidavit are totally inadequate in our
opinion to entitle the Court to aot in such
a case.
But the matter does not rest there for
the respondent has himself filed a petition
supported by an affidavit in whioh he
states that! he has property in Bihar in
addition to the property in dispute worth
20 lakhs of rupees and he refers to au
admission made by the appellant in 1921
during the course cf execution proceedings
when the appellant had got a decree from
the Trial Court, in whioh the appellant
admits that the respondent had at that time
property in Bihar worth Rs. 9,85,000. It is
quite clear, therefore, that the respondent
is not devoid of means and even on the
petitioner's own showing he certainly is in
a position to restore this sum of Rs. 31,817
if the petitioner should succeed in his
appeal to the Privy Council. In our opinion
this application should be dismissed with
costs.
We wi^h to add that where a party has
been successful in a Court of Appeal and
has been, a warded hi^ costs it is not the
practice of this Court to stay execution for*
- costs except in oases where it is abundant-
ly clear that there will be no* chance of
recovering the costs if they are allowed to
go unprotected to the person entitled to
them. Tins application is dismissed and
the order of the 19th May directing (that the
sum paid into Court should remain there
pending the hearing of this application is
discharged. The respondent is entitled to
his costs of this application. Hearing fee
five gold mohurs.
Application dismissed,
AIR, 1826 Patna 66.
Ross, j.
Asharfi Dhimar — Petitioner
v,
Muhammad Dindalal— Opposite Party,
Civil Revision No. 502 of 1924, decided
on 3rd March, 1925, from an order of the
District Judge, Darbhanga, dated 30th
June 1921.
(a) Bengal Tenancy Act. S. 174 -Salt set aside—
No appeal lies at the instance of auction purchaser,
An order setting aside a eale under the provi-
sions of B. 174 is not appealable at the instance of
the auction-purchaser. Where however an appeal
preferred against such an order is entertained by
the appellate Court and the order is set aside, the
High Court will interfere in revision if the or dec
of the appellate Court is wrong on merits. [P, 66
Ool, a.]
(b) Bengal Tenancy Act, 8. 174 -Deposit made
fully but in slightly erroneous manner— Sale need
not be set aside.
A deposit under 8. 174 need not be made by
two separate chalan 6, one in favour of the decree-
bolder and the other in favour of the auction-pur-
chaser. Where, therefore, the total amount of the
deposit made by the judgment-debtor was correct,
the mere fact that tbe deposit was made on two
chalans as above and that the amount deposited
on the chalan in favour of the decree-holder was
slightly in excess and the amount deposited ontbfr
chalan in favour of the auction purchaser slightly
less, than the respective amounts due, does not
afleot the maintainability of the application to set
aside the s*le, [P, 56, Ool. 2 ]
Murari Prasad and Anirudhji Burmart
— for Petitioner.
Saiyid AU Khan — for Opposite party.
Judgment :— On the 16bh of February,
1924, a eale was held in execution of
a decree for rent and the holding was
purchased by the opposite party for Bs. 76.
Ou the 13bh of March, 1924, the petitioner
deposited in Oourt Bs. 59-0-6 under two
chalans, tbe first in favour of the decree-
holder showing, in its original form, the
deposit of Bs, 55*0 6 and the second in
favour of the auotion-purohasei showing,
in its original form, the deposit of Bs. 4.
The total amount deposited was, therefore*
Bs. 59-0-6, The amount of tbe decree wa»
66 Pftfeta
1SHAXPI DHIMAB t>, MUHAMMAD DINDA&AL
1BS6
Ba. 55-0 6 and the compensation due to
the auction- purchaser was Ba. 3-12-0. The
thalans were subsequently altered, by what
authority it does not appear, wiih the
result that the decree- holder's chalan
became one of Ha. 55-8*6 and the auotion-
purohaser's chalan one of Bs. 3 8-0, annas
8 having b^en transferred apparently from
the latter 60 the former. With these
chalans the petitioner filed an application
before the Court stating that he had to
pay the amount of the decree and compen-
sation and prayed that the chalans might
be passed and the sale be set aside. On
that day the Court ordered chalans to issue
to the judgment debtor for depositing the
decree money and costs with compensation
as prayed for. Oo the 24th of March, the
order passed by the Munsif was that the
decree money and costs with compensation
had been deposited under chalans specified
and that the sale should be set aside and
the case dismissed on full satisfaction.
Subsequently ita was brought to the
notice of the Court by the office that
although the total amount due by
the petitioner had been deposited, in
fact the distribution according to the
chalans in their final forms was incorrect,
too much having been deposited in favour
of the decree-holder and 4 annas too little
in favour of the auction-purchaser. The
Court then ordered on the 31st of March,
1924, that is beyond the period of limita-
tion prescribed by section 174 of the Bengal
Tenancy Act, that 8 annas deposited under
the decree-holder's chalan should be trans-
ferred to the auction- purchaser. Theauo-
tioo-turohaser appealed to the District
Judge against the order setting aside the
sale and the learned District Judge has
ordered an enquiry to be made into the
alteration in the chalans and has directed
that, if as the result of the enquiry the
Muneif finds that the judgment-debtor
was responsible for the alteration then
the sale must stand : but if he finds that
there has been fraud committed then he
is at liberty to pass final order in the case
on the merits as would seem to him fit and
proper.
The first point taken in this application
by the judgment-debtor is that no appeal
lay aUhe ID stance of the auction-purchaser
to the District Judge. This contention is
- established by authority and is conceded
by the learned Vakil for the( opposite
He contends, however, that if he
succeeds on the merits, this is a case in
which the Court should exercise its
jurisdiction in revision, even if no appeal
lay to the District Judge. This is a well-
recognized principle and il is, therefore,
necessary to look at the merits of the case.
On the merits the contention on behalf of
the petitioner is that the Court had accepted
the deposit and set aside the sale and the
money deposited was in fact more than
sufficient to meet the requirements of
section 174 ; and it was for the Court to
distribute the dues between the decree-
holder and the auction- purchaser. It is '
pointed out that there is no rule requiring
deposit to be made by two separate
chalans, and that the fact that the distri-
bution actually made in the two chalans
was slightly erroneous cannot affect the
title of the depositor to have the sale set
aside, when in fact the full amount due
had been paid ; and that it was for the
office of the Executing Court to make the
proper distribution between the parties.
The argument on behalf of the opposite
party is that the judgment-debtor chose to
make the deposit by two chalans and took
the risk of error ; that the deposit must be
made in a form which makes the money
immediately available to the person for
whose benefit the deposit is made; and
that the action of the learned Munsif in
re-distributing the deposit after the period
of limitation amounts to extending the
time which he had no jurisdiction to do.
Now the authorities that were cited for the
proposition that the deposit must be made
in a form immediately available have no
application on their facts to the facts of
the present case. The money was in
Court and was immediately available ; and
the fact that some clerical process had to
be gone through in the Court* before the
auction -purchaser could get bis 4 -annas
does not bring the case within the princi-
ple of the decisions referred to of which
the principal was Rahim Bux v. Nundo
Lai Gossami (1). Nor, in my opinion, was
time extended by the order of the 31st of
March. The money was alreadv in Court
and the transfer of 8-annas from one
chalan to the other, was merely ft clerical
matter which had nothing to do with the
extension of time. The deposit was made
within the1 time limited by law aqd the
fact that some action had to be taken in
(1) (1887) 14 Oal. ail*
49»6
HABNANDAK DAS V. ATT7L KU1CAB PBASAD
Patna 57
iha office 60 make the proper amount
available to tha auction-purchaser cannot,
in my opinion, be treated as an extension
of time. Apparently tbe office of tbe E&e-
onting Oourb was in error and the judg-
maot-debfcor was misled aa to tbe exact
sums payable to tbe decree bolder and to
tbe auction pure baser respectively, Bat he
had deposited tbe full amount required by
law and bis deposit bad baen accepted and
tbe sale has properly been set aside.
The order of tha 24th of March setting
aside tbe sale was, in my opinion, a proper
order and as no appeal lay at the instance
of tbe auction-purchaser from that order,
that order must be restored. Tbe result is
that the decision of the learned District
Judge must be sets aside and the order of
tbe Munsif setting aside the sala restored.
The petitioner is entitled to tbe costs of
this application ; bearing-fee one gold
mohur.
Application allowed.
A.I.R. 1928 Patna 67.
KULWANT SAHAY, j.
Harnandan Das — Applicant.
v.
Atnl Kumar PramcL and others — Oppo-
site Party.
Criminal Revision No. 397 of 1924,
decided on 9th September 1924, from an
order of tbe District Magistrate, Bhagalpur.
Grim, Pro Code, 8. 203— Order of dismissal—
Reasons for dismissal should be recorded.
Under 3 203, Cr, P. 0 u U mournbant upon
the Magistrate to record briefly his raaaou for
dismissing tbe complaint. [P, 57, Col 2.]
Amruddhaji Barman — for Applicant.
Judgment .-—This is an application
against an order passed by tbe Sub-Divi-
sional Magistrate of Madhipura dismissing
the complaint of the petitioner under
section 203 of the Criminal Procedure
Code. The order has been upbeld by the
District Magistrate of Bbagalpur when a
petition of revision was filed before him.
It appears tliat on the 27th November
1923 the petitioner lodged a complaint
before the Sub-Divisional Magistrate charg-
ing tbe accused persons who are the
opposite, party in tbe present application
with bavin* uprooted a banohoi tihwvjfi
or flag and demolished a platform naar tbe
.temple of Mahabirji of which tbe petitioner
alleges to be the skebait. He further
complained that the accused persons had
way-laid the petitioner while be was going
to the Police station to lodge information
about the occurrence and to have assaulted
him and snatched away his wrapper and a
sum of Bs 21 which be bad about him. The
learned Sub Divisional Magistrate bv bis
order, dated tbe 27th November, ordered
an enquiry to ba made by Babu Kali
Prasacma Banerji, Tahsildar of tbe Burd-
wan Estate, under section 202, Criminal
Procedure Code. Tbere was, however, some
delay, in tbe papers being sent* to Babu
Kali Prasanna Banerji, and b 'f ore the
order could be communicated to him be
had left tbe place for Burdwan. It appears
that the peshkar was responsible for this
delay. Thereupon one Babu Tej Narain
Sinha, Honorary Magistrate, wa* requested
to make the enquiry and submit a report.
He submitted bis report on the 9th
February. 1924, in whion be stated that
the allegation of the complainant about the
dhwaja being uprooted by the creatures of
the zemindar was true but that his other
allegations about the theft of money and of
tbe wrapper ware exaggerations. It further
appears from his report that tbe dispute is
going on between the petitioner and Atul
Kumar Prasad ah as Tub Kumar tbe
opposite party in the proceeding, who is a
zemindar of tbe village and that; in a suit
brought by the petitioner for declaration
of his title and possession of certain land
against Tub Kumar he baa obtained a
deoraa for possession and that it wan on
account: of tha dispute between the parties,
that Tub Babu ordered the dhwaja to be
uprooted and tbe platform to be demolished.
Now, on receipt of this report the learned
Sub-Divisional Magistrate by his order,
dated tha 12^ February, 1924, dismissed
tbe complaint under section 203, without
giving any reason whatsoever. His order
of the 12th February 1924, runs thus:—
11 Dismissed , ^action 203, Criminal Pro-
cedure Code, vide enquiry report."
Now, under section 203, Criminal Pro-
oedura Oo Ie, it was incumbent upon the
Sub Divisional Magistrate to record briefly
hia reason for dismissing tbe complaint.
' No reasons whatsoever are given in bin
order of the 12tn February, 1924. He
merely refers to tbe report of the Honorary
Magistrate but on referring to the report of
the Honorary Magistrate it appears that
the allegations of the petitioner about tha
68 Patna
BMFBBOB 0, PHAQUNIA BHUIAN
1086
uprooting of the dhwaja and the demolition
of the chabutra are correct. If that is so,
the matter ought to have been enquired
into. The learned Sub- Divisional Magis-
trate has sent a long explanation in reply
to the notice issued by this Court, but he
deals with matters which are wholly
irrelevant to the present application and
no one has appeared on behalf of tha
accused persons to show cause against the
present application. I think the order of
the learned Sub- Divisional Magistrate dis-
missing the complaint under section 203
is bad in law and ought to be set aside
and the case must be sent back to him
for disposal according to law.
Revision allowed.
* AIR, 1926 Patna 58.
POSTER, j.
Emperor — Complainant,
v.
Fhagunia Bhuian — Accused.
Criminal Reference No. 3 of 1923, deci-
ded OD llth September 1923, by the Ses-
sions Judge, Gaya.
(ft) Evidence Act, 8, 33— Evidence not taken
according to Cht 25t Grim. Pro. Code —Evidence it
not admissible,
Where the formalities prescribed in Lh, 25 of
Grim. Pro, Code nre not observed in recording
evidence, the accused cannot be Raid to have
bad opportunity to cross examine within 8. 33.
[P, 60, Col, 1,]
(b) Evidence Act, 8, 157— Evidence of raped
git I excluded— Evidence of her relatives cannot 60
used for corroboratwn.
If the evidence of a raped girl is excluded from
the case, the evidence of her relatives to the effect
that she aooueed a certain person of having raped
her cannot be used as corroborative evidence
under 8. 157. [P, 60, Col, l.]
* (o) Evidence Act, S. S— Evidence of raped girl
— Voluntary statements made immediately after
occurrence are relevant*
If the raped girl went to her relatives straight
after the occurrence and complained on her own
initiative about her rape, her conduct would have
a direct bearing upon and connection with the
occurrence, but if ehe only answered questions put
to bar, her statement would be mere hearsay.
[P, 60,. Col, 3,]
The Assistant Government Advocate — for
the Grown.
M. N. Pa J— for Accused.
Judgment :— In this case Phagunia
Bhuian was charged with committing rape
upon a small girl aged about 6 years by
name Saniohwa Bhuini, on the 7th of May,
1923, The Jury returned an* unanimous
verdict of not guilty, but the Sessions
Judge of Gaya found himself unable to
agree with the verdict and has referred the
case to the High Court under section 307
of the Criminal Procedure Code. The facts
are as follows : —
The child Saniohwa was playing near
the landlord's bouse in her village when
the accused (whose age is about 22 years)
came up and offered to give her cooked
rice if she would come with him. Tha
accused lifted her up, thrust a piece of
cloth into her moubh and carried her to ft
latrine immediately in front of the land*
lord'g house, that is, in front of Mirao
Khan's house. Another landlord of the
village, Warasat, lives in a house behind
Miran Khan's. Having taken the child
into the lafcrine the prosecution case con-
tinues he attempted sexual intercourse in
consequence of which a rupture was caused
to the vagina. The child went home and
informed her relatives. Her cloth was wet
with blood, and she was carried to the
thana bleeding, She was subjected to
medical examination, and the medical
evidence indicates that some one or other
had committed rape effecting penetration,
with the result of very serious injury to
her person. Saniobwa has died since she
deposed in the inquiring Magistrate's
Court. There are upon tbe record two
statements made by her ; the first is tbe
First Information looged ab 1 A.M. on the
8tb May, that is, about 12 hours after the
occurrence, at the Sberghati Police Station,
13 miles from the place of occurrence ; tbe
other statement is her deposition given on
tbe 21st May, in the inquiring Magistrate's
Courfc.
Tbe Sub-Inspector who recorded the
First Information went to fehe spot and
arrested the accused on tbe*day after tbe
date of occurrence and the Senior Sub-
Inspector subsequently took over charge
of the investigation the same day. Mean-
while the accused bad been eent to Gaya.
On the following day, the 9th May, the?
Senior Sub-Inspector went also to Gaya
and examined tbe accused, and on the same
day the accused was produced before a
Magistrate and made the follawing state-
ment : —
" Tbe girl was playing under the
kanota. 'I induced her to go with, me and
cohabited with her. When blood began to
flow I left her. I do nol know her
name."
1086
BMPBROR v. PHAQUNIA BHUIAN
Patna 59
In the Sessions Court this confession
was repudiated by the accused who stated
that he had been beaten by the landlord
who bad not paid him wages. He denies
that he had made any confession and he
denied having committed rape.
» The prosecution evidence, so far as it
ia concerned with the actual occurrence,
consists in the statement of a boy Budhoo
Khan, aged 6 years, who deposes that he
had been playing with Saniohwa and that
he saw her carried off by the accused
into the latrine, and saw her come out and
go home with blood upcn her clothes ; in
the depositions of Saniobwa's brother
Sukwa, brother's wife, Mularwaand father
Akkal, who described the child's condition
when she got home and the account that
she gave of what had happened ; and in
the deposition of Imam AH who states that
Sukwa came to him and told him what
had happened and showed him Sanichwa
lying unconscious afc home, whereupon
be went and arrested the accused and
brought him before the landlord, Warasat.
In the face of the medical evidence, it
is only possible to conclude that the
child Saniohwa was subjected to the
lustful violence of one or more male adults.
Her back, shoulders, and neck bore in-
juries which, taken with the rupture of
the vsgioa most infallibly point to a rape.
It is peculiar that no blood was found
in the latrine. This latrine is in itself
hardly a likely place for a man to effect a
rape, it being directly in front of the house
of Miran Khan. Its walls are dilapidated
and there is only one corner where the in-
terior is not visible from outside, The
learned Sessions Judge contends that if
there was a rape there would be no need to
change the place of occurrence ; but it is
obvious tbatnfa guilty person in to be
shielded, it might be necessary to change
the place of occurrence. Miran Khan's two
sons, Imam AH and Budhoo Khan, bave
given most important evidence in the case.
It ia noticeable that Imam AH did not
come into the investigation as a witness
until the llth of May, that is, the fourth
day of the investigation. The learned
Sessions Jutfge found Imam AH to be a
slow and stupid witness and ascribes the
fact that he was not examined on the first
day of t}ie investigation, to his 'slowness
and stupidity. Then be makes the remark,
which I find absolutey unconvincing, that
supposing a, false case was being manufac-
tured a witness like Imam AH would have
been pushed forward at the first opportu-
nity, Now Imam AH deposes that he took
the accused to Warasat Mian, one of the
maliks of the village. Warasat has nob
been produced as a prosecution witness.
The learned Sessions Judge is firmly of
opinion that the prosecution had no mala
fide intention in not examining Warasat,
and he calls attention to the fact that when
it was realized in the Sessions Court that
his evidence was necessary every effort waa
made to produce him, It appears to me
to be of secondary importance, to consider
whether the prosecution (which is the
Crown in this case) was in good faith or
otherwise. Tbe important facts are that
Warasat Mian has, on two occasions at
least, done something which has materially
affected the course of tbis case. Imam All
deposes that when he took the accused to
Warasat, Warasat made the accused wash
his loin cloth. This was represented to the
Sub- Inspector to be the reason why the
accused's loin cloth had no stains of blood.
Again, Warasat Mian has abstained from
coming to Court to give evidence of what
he knows about the case. As to one other
way in which he has possibly affected the
course of the investigation, namely, his
assault upon the accused, I shall have
more to say later.
The learned Sessions Judge has sum-
marised the evidence in, the case under six
headings : (1) the statement of the girl
herself, (2) the evidence of Budhoo Khan,
(3) the evidence of Saniubwa'^ relatives,
(4) the medical evidence, <5) the evidence
of Imam AH as to having seen blood on the
accused's dhoti, and (6) the accused's con-
fession. I proceed to deal with these,
with the exception of the medical evidence,
in their order.
Saniohwa's statement made in the Court
of the inquiring Magistrate was not read
over in the manner required by section 360
of the Criminal Procedure Code. In
section 354 it is prescribed that the
evidence of witnesses must be recorded
11 in the following manner, " and that
includes provisions of section 360. Now,
under section 208 of the Criminal Procedure
' Code the inquiring Magistrate must take
" in manner hereinafter provided " (tbis
refers to Chapter XXV of the Code) " all
such evidence as may be produced in
support of (he prosecution or in behalf of
the accused, or as may be called for by the
60 Patna
EMPEROR D. PHAGUNIA BHUUK
1996
Magistrate " and " the aooused shall be ab
liberty to cross- examine the witnesses for
the prosecution." Now, until the evidence
is taken in]the manner provided in Chapter
XXV.it is obvious that there is no occasion
for cross examination by the defence. Till
1 the evidence has been properly verified,
the defence cannot be considered to have
an opportunity to orofis examine ; so in
my oi)iniou section 33 of the Evidence Act
was not applicable to Saniohwa's deposi-
tion of the 21st May. The learned
Assistant Government Advocate has
frankly conceded that Saniohwa's evidence
mav go out of the case.
Now I come to the evidence of Budhoo
Khan. In the first place, Saniohwa in
her First Information and in her deposition
in Court denied that any one was with her.
In the First Information she states that
she was playing alone. In her deposition
she states that none was present when
the aooused took her to the paikhana. In
the second place, when I read this
deposition of Budhoo Khan it strikes me
as having the appearance of a mere
mechanical statement, He saw the child
picked up, taken into the paikhana and
then saw her come out and he accompa-
nied her to her house, He does not
describe what the aooused said to the girl,
or what the girl did, or what her
condition was when she came out of the
latrine and went home, He only
describes the condition of her clothes.
When questions were put outside the bare
narrative of the occurrence, he appears
to have answered at random: "This
happened in the afternoon, My father had
gone out to the field*. My mother was
at home, and sister, and no one else. We
began playing early. I went home and
bad a meal, she Hid not come to play again
after that. Phagunia was collecting cow-
dung, He abused me,
Q, Why?
No answer. After oolleating cow-dung
be fled, I told my brother.
Q. What did you say ? No answer.
This Budhoo Khan is, as I have stated,
the younger brother of Imam AH.
As to the evidence of Saniohwa's rela-
tives to the effect that Saniohwa aooused
Phagunia of rape, if Saniobwa'a evidence
is to be excluded from the case, this
evidence cannot be employed as oorrobo-
ration under section 157 of t^he Evidence
Act. As to whether it is evidence under
section 8 of the Evidence Act (vide
illustration (;), the question is a debateable
one whether Saniohwa's statements were
complaints. If the girl went to her *
relatives straight after the occurrence and
complained on her own initiative, there is
no doubt that her conduct would have a
direct bearing upon and connection with
the occurrence itself : but if she only
answered questions, her statement would
be mere hearsay.
Coming to the evidence of Imam AH
that he saw blood on the accused's dhoti,
I would first suggest that the evidence
can only amount to this, that Imam All
saw marks " as of blood " on the accused's
dhoti. This witness arouses my suspicions
not only because be came at » late date
into the case, but also because I find it
hard to believe his story. He arrested
the aooused and took him to Warasat
who forthwith began to beat] the accused
without questioning him expecting to say
why have you done tbia ? Then Warasat
told the aooused to wash his dhoti. All
this is an extraordinary narrative. It is
not clear why Warasat was so suddenly
violent, nor can I understand for a
moment why it oama into Warasat's head
to tell Phagunia to wash his dhoti, if
there was blood upon it. If there was no
blood, the washing of the dhoti might be a
useful step in the preparation of a false
charge against Phagunia.
Lastly, I come to the confession made on
the 9th of May. The evidence of Imam
AH shows that Warasau beat the aooused
and told him that ifc would be battier for
him to confess. This was on the 8"h May,
the Police Officers noticed injuries on
Phagunia's head, arms and legs, and on
the 14th May, th* Jail Sub-Assisfcanb Sur-
geon found 8 marks of violence on Phagu-
nia's person. Now, Phagunia was produced
before the Daputv Magistrate to be exa-
mined under S. 164 of the Or, P. 0. on the
9th of May. The Deputy Magistrate made
some show of careful enquiry as to the
VDluntary nature of the accused's confes-
sion, but he never asked the accused whe-
ther he had been beaten and he did nod
notice any of the, marks on hip person.
In this oritioism of the evidence my main
object; has been to show thah at every turn
through cbe evidence one's path is beset
with warning signals. The verdict of the
Jury was "not guilty," "giving the accused
the benefit of the doubt". The Jury
1886
OHAKAURI LAL V. DBO OHAND MAHTON
Patna 61
were immediately questioned as to the
principal points on which they were doubt-
ful. The questions could hardly have been
foreseen, and some of the reasons given
by the Jurors are not coco pie te or convin-
cing, bub in my opinion they did not act
unreasonably or insincerely in arriving at
their verdict of " not guilty."
For these reasons I decline to accept the
reference of the learned Sessions Judge.
I acquit Phagunia Bhuian and direct that
the accused be discharged from custody or
bail as the case may be.
Reference not accepted.
A.I.R. 1926 Patna 61,
KULWANT SAHAY, j.
Chakauri Lai — Plaintiff -Appellant
v.
Deo Chand Mahton and others — Defen-
dants- Respon dents.
Appeals Noe. 44 to 49 of 1923, decided
6n 15th April, 1925, from Appellate Decrees
of the District Judge, Shahabad, dated 14th
December, 1923.
(a*) Custom — Proof mutt be given apart from
cases in dispute.
A custom must be established independently of
and apart from cases in dispute, [P. 62, Col. 1]
(b) Occupancy holding— Acquisition o/ right by
custom— Mtre proof of long possession and planting
trees is insnj}hient*
The mere faot ot the defendants having occupied
the lands in dispute for over 40 years and tbe fact
of their having planted trees upon portions of tbe
land and of their being granted printed receipts
would not establish in law a custom that the
defendants who were sikmi tenants or under-
raiyals, have acquired the right of occupancy in
a land. [P. 6^, Col. 1]
6. S. Prasad and Anand Prasad — for
Appellant.
Ramanugrah Narain Sinha and N. S.
Bai — for [Respondents.
Judgment :— These are appeals by
the plamiitf and arise out of suits in eject-
mend upon a declaration that the defen-
ants are under-raij/atfs of the plaintiff who ia
an occupancy tenant of the laud in dispute.
The plaintilf served notice upon the de-
fendants under s. 49 of the Bengal Tenancy
Act asking'them to giver up possession, bub .
they have failed to vacate the land. The
plaintiff, therefore, brought the present suits
for reo6very of possession. The defence
was that the land in dispute was the
gujasta kasht of the ancestors of the defen-
dants and that the plaintiff was a tenure-
holder and not an occupancy tenant. The
defendants assert- that they are not stkmi-
dars or under-ratyatfs of the plaintiff, andr
therefore, are nob liable to ejectment.
The Munsif found that the plaintiff waff
an occupancy tenant and the defendants
were undsr-raiyals under him, and that the
land in dispute was not the kasht gujashta
of the defendants, and that the plaintiff was
not the tenure-holder. It was further stated
by the defendants in their written state-
ment that even as uuder-rat^ato they had
by custom acquired the rights of occupancy
in the land. The learned Munsif in deal-
ing with this point observed thab no evi-
dence had been adduced about such a
custom and that the defendants had failed
to prove that they had acquired occupancy
right in tbe land in suit. He, therefore,
made a deoiee in tbe plaintiff's favour and
awarded mesne profits to tho extent of
itrda of what the plaintiff claimed.
On appeal by the defendants the learned
District Judge has upheld the findings of
the Munsif as regards the title of the
plaintiff. Ha is of opinion that the Munsif
was right m his finding regarding the
status of the parties, namely, the status
of the plaintiff being that o! an occupancy
tenant and that of the defendants being
uuder-raiyats, The learned District Judge,
however, has come to the conclusion that
as under- raiyatst the defendants have
acquired a right of occupancy in the land
in dispute. With reference to the obser-
vation of the Munsif that no evidence
had been produced to prove the custom
set up by the defendants the learned
Judge says that this is so and having
regard to the nature of the case made by
the defendants, namely, that they were
occupancy tenants and not uudet-raiyats
of the land in dispute, no such evidence
could be expected on their behalf.
The learned District Judge has, however,
considered the faot that the defendants,
who are nine in number, assert that they
possess occupancy rights and he says fcbafc
if the assertion of all these tenants .regard-
ing their possession of occupancy rights
is accepted, then the usage in question,
namely, the usage under which the under-
raiyats acquire the right of occupancy is
established. Ha refers to the evidence of
the defendants themselves to the effect that
occupancy rights have accrued to them by
62 Patna
BIBI HAJO V. EAR SAHAY LAL (Miller, C.J.)
1926
virtme of their long possession and by
virtue of the faot that some of them have
planted trees upon the holding and by virtue
of the faot that the plaintiff baa been in the
habit of granting them printed receipts.
These three facts are, in the opinion of tha
learned Judge, sufficient to establish a
custom under which sikmi tenants or
unfor-raiyats acquire the right of occu-
pancy in a land. He refers further to the
faot that the defendants and their ancestors
have been in possession for periods varying
from over 40 to 50 vears and that the
holding in question had been haodei down
from father to son. In my opinion the facts
found by the learned District Judge are
not sufficient in law to establish a custom
of underratj/als acquiring occupancy
rights in the village. The nine oases re-
ferred to by the District Judge are oases in
dispute and they by themselves cannot
go to establish a custom. A custom
must be established independently of and
apart from the oases in dispute. Admitted-
ly there is no other evidence in this
ease to prove such a custom ; and, in my
opinion, in the absence of such evidence
the mere faot of tha defendants having
occupied the lands in dispute in tha
present oases for over 40 years and the
faot of their having planted trees upon
portions of the land and of Dheir being
granted printed receipts would not es-
tablish in law a custom, as set up by tha
defendants.
In my opinion the decision of the learn-
ed District Judge cannot ba supported and
must be set aside and the decree of the
Munsif restored. These appeals are, there-
fore, allowed wich costs here and in the
Court below. Hearing fee in this Court
will be assessed in each case at half the
usual rate.
Appeal allowed.
A.IR. 1926 Patna 62.
DAWSON MILLER, o,j. AND MCJLLICK, j.
Bibi Hajo and another — Appellants
v.
Ear Sahay Lai — Respondent.
Appeal No. 161 of 1924, decided on
17th Maroh, 1925, from Appaliats Order of
the District Judge, Pitna, dated 12ch May,
(*) Practice -Duty of Court— Court will not
initial* proceeding*.
It ia never the duty of the Court to initiate any
proceedings on behalf of the parties. [P. 63, Ool. 2.]
(b) Lira. Act, Art. 181 -Execution stayed by an
injunction— Right to execute revives on injunction
coming to a* eid—D-cretholdtr must apply for
revival within three years from accrual of right—
Lim. Actt Art. 182.
Where the execution of a deorae has been suspend-
ed by an injunction of a competent Court, the
right to execute revives aa soon aa the operation of
the injunction oeaaea. Therefore a subsequent appli-
cation for execution by decree-holder must be made
within three years of the accrual of right, i 0., the
rUte oa which the operation of injaaotion ceases
[P, 63, Ool, 37]
Khurshed Husnain, B. C. Mitra and Ali
Khan — for Appellants.
Naresh Oh. Sinha and B. N, Mitra — for
Respondent.
Dawson Miller, C.J. : — Tha question
for determination in this appeal is whether
an applioabioa file a on tha 7ch August,
1923, for execution of a decree is barred by
limitation. Tha Munsif found that it was
nob barred. Tha Subordinate Judge on
appeal found that it was and dismissed the*
application and the decree- holders have
preferred a second appaal to this Court.
Tha material facts are as follows : —
The appellants obtained a ran!; daoraa
against tha respondent on tha 2nd April,
1917, which was a [firmed on appeal on the
12th September, 1917. Execution proceed-
ings were first instituted in 1918, bub were
dismissed. A saoond application was made
on tha 23rd May, 1919 and certain proper-
ty of tha judgment-debtor was attached and
proclaimed for sala on the 15th September,
1919. Meantime tha judgment-debtor on
tha 15 ;h April, 1918, had instituted a title
suit numbered 136 of 1918, in the Court of
tha Munsif of Bihar against tha decree-
holders and others impugning tha decree-
holders' titla to tha land in respect of which
tha rentdaoraa had bean obtained and claim-
ing, amongst other reliefs, a declaration
that tha ranb decree was null and void. This
part of his claim was rejected by the Mun-
sif by his judgment dated the 10th March,
1919. An appeal was carried to the
Subordinate Judge of Patna and pending
the appeal the judgment-debtor obtained
an order from the Subordinate Judge in
September 1919, granting an injunction
restraining the sale in tha execution pro-
ceedings until the disposal of tha appeal
then before him. On tha 16th September,
1919, the Executing Court ordered the sale
to be stayed until the disposl |of the
H 986
BIBI HAJO V. HAB 3 AH AY LAL (Miller, C.J.)
Patna 63
appeal before the Subordinate Judge in
Said No. 136 of 1918, and on the 13th
November, 1919, the Executing Court
passed an order in these terms : " Lst
tbe ease be dismissed at present. " Tbe
Subordinate Judge of Patina delivered bia
judgment on appeal in Suit No. 136 on
the 9th June, 1920, He varied tbe decree
of tbe Munsif in oer tain respects but affirm-
ed tbab part of bis decision which rejected
tbe prayer for a declaration tbat tbe rent-
decree was null and void. The effect of bis
decision was to declare tbat the judgment-
debtor (tbe plaintiff in that suit) was not
liable to pay rent until certain conditions
had been fulfilled by the landlords. This
decision, however, did not and could not
affect the decree- holder's right to the pre-
vious rent payable under the rent-decree
of 1917 which still subsisted and was not
declared null and void. Tbe injunction
which had been granted restraining the
sale in execution pending the bearing of
tbe appeal in Suit No. 136 thereupon auto-
matically came to an end. An appeal from
the Subordinate Judge of Patna was pre-
ferred to tbe High Court, but no further
application for an injunction restraining
the execution proceedings was made. Tbe
High Court's decision was pronounced on
the 18th January, 1923, restoring tbe decree
of the Munsif and a further appeal under
tbe Letters Patent was dismissed on tbe
10th May, 1923. The present execution case
was instituted on the 7th August, 1923,
which is more than three years from the
date when the previous case was dismissed
in November, 1919, and more than three
years from tbe 9th June, 1920, when the in-
junction restraining execution came to an
end. It is, therefore, prima facie time-
barred.
Tbe learned Munsif in whose Court the
present application was presented was of
opinion that toe operation of the injunction
continued uo to tbe date of tbe dismissal of
tho Letters Patent Appeal in the High Court
in 1923 and that tbe present) application
was not barred. In taking this view I think
be was clearly in error The injunction
was for a limited period only and expired at
the termination of that period, namely,
when tbe appeal before tbe Subordinate
Judge of Pa to a was disposed of. No fresh
application was made and the injunction
was never renewed. He also thought that
tbe effect. of the Subordinate Judge's judg-
ment in Suit No. 136 was to suspend all
payment of rents past and future including
the rent covered by tbe previous decree. In
talcing this view he was again mistaken.
The right to recover the rent included in
tbe decree of 1917 could not be challenged
in the subsequent title suit unless the
deoreeitself was declared void, but this
parti of the claim was rejected throughout
and onoetbe injunction automatically termi-
nated on tbe 9th June, 1920, there was no
longer any bar restraining the decree-holder
from proceeding with his execution.
The Subordinate Judge of Patna before
whom the case went on appeal reversed the
decision of the Munaif taking tbe view
which I have just expressed. The decree-
holders have appealed to this Court from the
decision of the Subordinate Judge and con-
tend that tbe previous execution case was
never finally dismissed and is still panding
and that there is no limitation for an appli-
cation to proceed with a case temporarily
suspended. They further contend tbat it
was tbe Court's duty to restore tbe case and
call on tbe parties to proceed as tbe order
of the 13th November, 1919, in tbe previous
execution case was not a final dismissal of
thoae proceedings. In my opinion the effect)
of the order.of the 13th November,1919, was
to dismiss the execution case then pending
with an intimation that an application for
renewal might be made if and when tbe
obstacle should be removed. It was, bow-
ever, for tbe parties to move the Court for
a reinstatement It so advised. It is never
the duty of the Court to initiate any pro-
ceedings on behalf of the parties. An
application by tbe decree-holder was neces-
sary to put the law again iu motion and
even if the present application should be
treated as one in continuation of tbe pre-
vious application there must be some limi-
tation for such a proceeding. Assuming
that Art. 182 of the Limitation Act does I
not apply, and it does not help the appel-
lants, then Art. 181 must, I think, be appli-
cable and the period of limitation is three .
years froms the date when the right bo apply
accrued. The right accrued in this case on
the 9th June, 1920, when the injunction
was removed and the present application of
the 7th August), 1923, is time barred. 'This
view agrees with the decision of Boss and
Dass, JJ. in Lai Pasi v. Ramsaran Lai
'Chowdhry (1) dated the 17th January, 1924,
where exactly the same question arose for
A.I.B. (1) 1926 Fata* 998.
64 Patna
GOB1NDA BAURI V. KB1STO BAR DAB
1086
decision " It is argued for the respondent "
eaid BOBS, J., in that oaee " that the preseitf
application should he treated as a continua-
tion of the previous application. * *
But, in my view, there must be some limi-
tation to the continuation of execution pro-
ceedings and the limitation would appear to
be imposed by Art, 181." I see no reason to
differ from the view expressed in that case
and in my opinion this appeal should be
dismissed with costs.
Mullick, J. :— I agree.
Appeal dsmiased.
A.I.R, 1926 Patna 64.
KULWANT SAHAY, j.
Oobinda Bauri and others — Plaintiffs-
Appellants
v.
Kristo Sardar — Defendant-Respondent.
Appeals Nos. 943 and 950 of 1922,
decided on 8th May, 1925, from Appellate
Decrees of the Offg. Sub- Judge, Maubhum,
dated 23rd June 1922.
(a) Ghota Nagpur Tenancy Aot (VI ol 1908). 8. 139
—faction contemplate* eates where relationship
of landlord and tenant is admitted— Where Tenancy
ie not admitted suit for possession of occupancy
holding cannot be entertained by Deputy Commis-
sioner but can be maintained in Civil Oourt.
This section contemplates a case where the
relationship of landlord and tenant is admitted! to
exist between the parties I it does not contemplate
oaaes where there is a dispute as regards title.
Whera the relationship of landlord aod tenant is
not admitted a suit for possession of oooupanoy
holding on the ground of defendant's denial o( the
Tenancy right is not cognizable by the Deputy
Commissioner, and 8. 189 does not operate as a
bar to the maintainability of each a suit in the
Civil Oourt, [P, 65, Ool. 1,]
(b) Chota Nagvur Tenancy Act ( VI of 1908) , 8s 89
and 83 and 258 -Order under 8.89 of Attesta-
tion Officer can be revised by Settlement Officer and
such revision bars a suit in Givil Court by reason
of 5, 258.
AH orders whether by khanapuri officers or by
Attestation Officers have to be made during the
preparation of the draft Record ot Rights and nil
auoh orders parsed before final publication of the
Record of Rights are subject to revision under the
provisions of 8. 89 of the Act. The order of the
Attestation Officer is an entry made in the draft
Record of Rights within the meaning of S. 89
and therefore the Settlement Offijer has jurisdic-
tion to revise that entry under the provision* of
8. 89 of the Act and, therefore, 8. 368 which
provides that such an order of revision will be
final and shall have the force and effect of a decree
of Civil Court, operates as a bar to the suit in
Givil Court to Bet aside the order, [P, 66, Ool. 2,]
(c) Land Tenure— Qhaiioali ZV.a**— OcettpaHe*
righto.
Oooupanoy rights oannot be acquired in ghatwali
lands, (83 Oal. 630 and 1 O.L.J. 138, Foil)
[P. 67, Col. 1.]
A.K. Boy — for Appellants.
4. JB. Mukerji and B. B. Mukerji — for
Respondent.
Judgment : — These two appeals are by
tbe plaintiffs and arise out of two suits
brought by them (or declaration of their
title and for recovery of possession of
certain lands set out in tbe schedules
attached to tbe plaint. Their ease was that
the lands in dispute formed the ancestral
jote jamai right of the plaintiffs and that
the defendant, who is the ghatwal of the
village where the lands are situated, forci-
bly dispossessed them in Agrahayan 1327
B. S. and that, therefore, they claimed
recovery of possession on adjudication of
their title to the land.
Tbe defence of the defendant was that
the Oivil Court had no jurisdiction to en-
tertain the suit and that the suit was triable
in the Court of the Deputy Commissioner
alone ; that the suit was barred by limita-
tion ; that the plaintiffs had DO raiyati in-
terest in the lands ; that the said lands
were granted to the ancestors of the plain-
tiffs by way of maintenance and that on
the death of the maintenance- holders the
defendant had resumed the lands and taken
possession thereof ; that during the settle-
ment operations the plaintiffs tried to take
possession thereof as tenants but that by
an order of the Deputy Commissioner
possession had been delivered to the defend-
ant with the aid of the Police. It was con-
tended that the suit was barred under the
provisions of section 258 of tbe Chofta
Nagpur Tenancy Act.
The learned Munsif who tried the suit
held that the plaintiffs were, raiyats with
occupancy rights of the lands in dispute;
that the suit was maintainable in the Oivil
Court ; that it was not barred by section 258
of tbe Chota Nagpur Tenancy Act ; tbafc the
plaintiffs were in possession of the lands
till they were dispossessed by the defen-
dants through the help of the Police in
Agrahayan 1327 B. S,; that although the
lands in dispute were situated in a ghat-
wali village yet the plaintiffs dould acquire
oooupanoy right in the ghatwali lands. Ha
believed the receipts for rent produced by
tbe plaintiffs and decreed the 'suits fo
recovery of possession,
1986
GOBINDA BAUBI V, KRISTO SABD&R
Pattia 69
On appeal by the defendant the learned
Subordinate Judge has set aside tbe decrees
passed by the Munsif. He has held that
the suit was barred under the provisions
of section 258 of the Obota Nagpur Tenancy
Act, and that the plaintiffs had no right as
raiyats in the lands in dispute. Ha further
held that tbe plaintiffs could not acquire
occupancy right in ghatwali lands. He
has accordingly dismissed tbe suits.
The plaintiffs have come up in second
appeal to this Court/.
At the hearing of the appeals a prelimin-
ary objection was taken on behalf of the
respondent to tbe effect that the suit was
not maintainable in tbe Civil Court. The
learned Vakil relied upon the provisions
of section 139-A of the Cbota Nagpur
Tenancy Act, and be contended that the
suit being one for recovery of possession
by a tenant against bis landlord on tbe
allegation that tbe plaintiffs as tenants had
been unlawfully ejected by their landlord
iheir proper remedy was by an application
or a suit under clause (5) of section 139
of the Oh ota Nagpur Tenancy Act and
under the provisions of section 139-A
of tbe Act tbe Civil Court bad no
jurisdiction to entertain tbe suit. The
objection, in tbe form it has been taken,
here dees not appear to have been taken
in the Court below ; moreover it is not a
preliminary objection to tbe bearing of
the appeal but an objection on the merits
of the case relating to the jurisdiction of
the Civil Court to entertain the suit.
Having regard, however, to the frame of
the suit I am of opinion that this objection
is not sound. Section 139 provides that
certain suits and applications shall be
cognizable by tbe Deputy Commissioner
and shall he instituted and tried or heard
under the provisions of the Obota Nagpur
Tenancy Act and shall nob be cognizable
in any other Court except as otherwise
provided in the Act; and ol. <5) of the
section enacts that all suits and applica-
tions to recover the occupancy or posses-
tion of any land from which a tenant has
been unlawfully ejected by tbe landlord
or any person claiming under or through
the landlord is one of frhe suits which is so
cognizable by the Deputy Commissioner.
This section contemplates a case where
the relationship of landlord and tenant is
admitted to exist between the parties ; it
does not to my mind contemplate eases
1926 P/9 & 10
where there is a dispute as regards title. In
the present ease the relationship of land-
lord and tenant is not admitted ; tbe plaint*
iffs expressly stated in their plaint that the
defendant denied their tenancy right and
that he has been asserting that tbe plaint-
iffs had no right to the land in suit There
was a specific prayer in the plaint for
au adjudication of the plaintiffs' title as
occupancy raiyats of the land. Such a
suu, in my opinion, was not cognizable by
the Deputy Commissioner, and section 139
does not operate as a bar to the maintain-
ability of tbe suit in the Civil Court.
As regards the bar of section 258 of the
Chota Nagpur Tenancy Aot.the facts appear
to be as follows : — One Manu Bauri had
five sons. Tbe eldest son was Haru Bauri
who was the father of the defendant
Krishna Sardar. Tbe second son was
Nafar Bauri who was the ancestor of the
plaintiffs in Suit No. 986 which gave rise
to 8. A. No. 950. The third was Gokhul
Bauri the father of the plaintiffs in Suit
No. 985 giving rise to S. A. No. 943. The
remaining two sons were Oopal and
Mansaram. According to tbe plaintiffs
their ancestors first came and began
to live in village Dhakya and acquired
lands there as tenants* Manu and his
eldest son Haru subsequently became ghat-
wals of the village ; but before tbe acquisi-
tion of the ghatwali interest, the plaintiffs
assert that their ancestors bad already ac-
quired raiyati interest in tbe lands. During
the khanaputi operations the plaintiffs
were first recorded as tenants of the lands
in dispute under the defendant ; but, sub-
sequently, during attestation proceedings
the names of the plaintiffs were removed
from the category of tenants and recorded
in the remarks column as being in posses-
sion of the lands with tbe share of rent and
cess payable by them. Tbe defendant there-
upon went to the Deputy Commissioner ol
Manbhum and complained that he was the
ghatwal of the lands in dispute and that
he had been wrongfully dispossessed by
his relations, namely, tbe present plaintiffs,
and asked him for help to recover .poesefc-
flion of tbe lands. The Deputy Commis-
sioner by his parwana dated the lotb July,
1920, directed the officer- in-obarge of the
Police station to oust tbe plaintiffs from
the plots in dispute and to put the de-
fendant in formal possession thereof. The
defendant accordingly with the help of
the Polioe»obtained possession of tbe a ode
66 Patna
QOBINDA BAURI V. KB18TO 8ABDAB
1896
in dispute and the plaintiffs were thus dis-
possessed therefrom. Tbe defendants there-
after went before tbe Settlement Officer.
The learned Settlement Officer by his
order dated 31sb January, 1921, directed
that the possession of the plaintiffs in
respeot of the lands in dispute in the
khatifin as made under orders of the
Attestation Officer be cancelled. This last
order of the Settlement Offioer purports to
be under section 89 of the Obota Nvgpur
Tenancy Act, and it is contended that under
section 250 of the Act no suit can be enter-
tainel in any Oourt to vary, modify or set
aside either directly or indirectly any deci-
sion, order or decree of the Djputy Com-
missioner or Revenue Officer in any suit;,
application or proceeding under section 89
of the Act except on tbe ground of fraud or
want of jurisdiction, and that: every such
decision, order or decree has the force and
effect of a decree of a Civil Oourt in a suit
between the parties and, subject to the pro-
visions in the Act relating to appeals, the
order is final. The learned Munaiff came to
the conclusion that, the order of the Settle-
ment Officer dated 3 Let January, 1921
was not) an order under section 89 of the
Act inasmuch as section 89 pre-supposas a
proceeding under sections 33, 85 or 86 of
the Act, and as there was no proceeding
under any of these sections prior to the
order of the Slab of January, 1921, and,
therefore, according to tbe Mansif the order
purporting to be under section 89
was ultra vires and without jurisdiction and
that section did not apply to the present
oase. Tbe learned Subordinate Judge,
however, has held that there was nothing
in the record to show that there was no
previous case under section 83 but that even
if it were so, it would maka no difference
inasmuch as by the Amending Act, VI of
1920, < Bihar and Orissa) any entry in the
draft Record of Bights can be revised by
Abe Revenue Offioer 'if application be made
$o him within 12 months from the making
of the entry. He was of opinion that tbe
' entry m*de by the order of the Attestation
Offioer was an entry made in the draft
Record of Rights within the meaning of
section 89, and that therefore, the settle-
ment officer had jurisdiction to revise
that entry under the provisions of sec-
tion 89 of the Act and, therefore, section 258
•which provides that such an order of revi-
sion will be final and shall have the force
and effect of a decree of Oi?il Court, operates
as a bar to the present suit In my opinion
the view taken by the learned Subordinate
Judge appears to bo sound. The order of
tbe Attestation Offioar mast be taken to
be an order under section 83 of the
Act. All orders whether bv khanipuri
officers or by Attestation Officers have to
be made during the preparation of the
draft) Record of Rights aod all such
orders caused before final publication of the
Record of Rights are suojeob to revision
under the provisions of section 89 of the
AcG. Id is contended that the Revenue
Officer can reviaa the entries in the draft
Record of Rights whhin 12 months from
the miking thereof and in this case there
is nobbing to show whether the order of
the 3 1st of January, 1920, was made within
12 mouths of the order of the Attestation
Officer. Now, id must ba presumed that
tue Revenue Officer acted regularly and if
the bvr of 12 mouths as provided in sec-
tion 89 is to be availed of, it has to be
shown by the party pleading such bar
that there was a bar of limitation and thatf
the order had been passed beyond
12 months. There is nothing in the
record to show that this was tbe case.
The present suit, therefore, was barred
under section 253 of tbe Act.
Having regard to the suit being barred by
section 253 tbe other points raised in the
appeal do not really arise. As regards the
tibia sat up by tae plaintiffs tba learned
Subordinate Judge has coma to the finding
that there was absolutely no evidence on
the record to shoj? thac tbe ancestor of
the plaintiffs had acquired any tenancy
right before tbe acquisition of tbe ghutwal
interest. Ha finds on a consideration of
the evidence that tbe lauds in dispute were
held by the ancestor of tbe plaintiffs by
way of maintenance ; and that after the
death of tbe maintenance-holders the
defendant, wno is bheghatwil, was entitled
to take khas possession of the lands. He
moreover finds th*t tbe rent receipts pro-
duced by the plaintiffs ware not genuine
documents and there was no relationship
of landlord and tenants between the
parties. These ara findings of4 fact which
are conclusive in this second appeal.
As regards the question as to whether
ooouoanoy rights can be acquired in ghat-
wali lands the cases relied upon -by the
Subordinate Jnlge sunnorb his contention.
In Upendra Natk Razra v. Ram Nath
1926
NANDAN SINGH V. SIARAM SINGH
Patna 6t
Ohorodhury (I) id was held that occupancy
rights could not be acquired in ghvtwali
lands, The same view was taken in Mokesh
Majhi v. Pran Krishna Mandal (2), The
oases relied uoon by the Mausif do nod
r el a be bo ghitwili lands but to chaukidari
chakran laads *nd have no application to
the present o*se.
The appeals must be dismissed with oosts.
Appeals dismissed.
(1) (1903) 3* 'J»l. 6*0.
(2) (1905) 1 0, L, J. 138.
*A.IR 1928 Patna 67.
MYOPU8RSON, J.
Nandan, Singh and another— Petitioners
v.
Siaram Singh— Opposite Party.
Criminal R vision No. 153 of 1925,
decided on l^h M*y 1925, from an order
of the Session* JiHse, Muz*ffarpur, dated
the 2nd M*roh 1925.
(a) Oiw P™. Gifa, S. 145 -Jurisdiction —
Xton-Jnnier or m^jnnder of pirtids does not
affect j*risiictio>i,
Tin quaa«;i->n of miajoinder of parties doea not
ozdininly aflhot juris Motion. It ia a question of
procedure by whnh jurndiotion is not affected,
whather *» oary h*s b<™n wrongly included or
excluded, [P 6<3, Col. I ]
(b) Grim P o. Goto, 8. /45— Absent of notic*
to one of <h* wt'WfW.i ^001 not renter whole pro-
ceedings wit ho it j Hrfoiittlon*
Whera one of the membara of one of the parties
ia not 89tV3d wtb <i uoUoe the pr -needing are b»d
so far as th*t ra^mbar is aonoarnefl bat the invali-
dity of the proceedings *qi'n3t one ra^mb^r doea
not necessarily invalidtta the whole proceeding.
(P, 68, Ool. t,]
(o) Orim. Pro. 0«d*, S. 145 -Minnr mad« party
to order under 8^-8 (1 — Notice not served on
him— Jfiior is n>t a nflcasia'v p*rtyt 't
Whera a oaiaor w*9 mill party to the order
which w^i dr**M uu under 8db-3. (1) but no
notice w*s served on him,
Held, though the minor wvi a proper party
being interested in the dispute, he wi9 not a
necessary party especially as he would not be a
party lik°!y to cause a breach of the peace,
fP. 68, Ool. I]
P. C. fl™y-f°r the Petitioners.
B. P. Jimnir — for the Opposite Party,
Judgmetat — This Rale has been issued
to consider the queation whether the
Sub-Divisional Magistrate of Mu£aff*rpur
acted without inrUdioMoo in a proceeding
tinder section 145 of the Criminal Procedure
Qode, in which be decided against the
second party of which the petitioners
Nandan Si ugh and Hirdey Singh were
members.
The {nets are as follows : —
In a Collaborate partidon the division
was under order of the Board of Revenue
made upon the basis of the entries ia the
Record of Eights, (which show as bakasht
malik certain lands claimed by various oo-
sharera aa their raiyati lands; " without
prejudice to the question whether the pro-
prietors concerned have a raiyat', status or
not and without prejudice when possession
is given upon completion of the partition
to the rights of any parties in cultivating
occupation." Ddlivery of possession of
takhtas was given in 1922 and eaoh set of
co-sharer landlords took over the lands
within their own new takHta which were
shown as bakasht malik in the Rooord of
Bights. The joint family of the present
petitioners consisting of Nandan Singh and
Hirdey Singh adults, and Rirnloohan Singh
minor, took possession of bakasht lands
previously held by the opposite party and
the opposite (first) party took possession o!
bakasht lands previously held by the peti-
tioners. Tiereafter tho petitioners sold
their takhta and having no land left en-
deavoured to retake possession of the lands
formerly in their cultivation which had
fallen in the takhta of the opposite party
and had been taken possession of by them.
That the Magistrate rightly held thattha
opposite p*rty was in possession of the
lands iu dispute is iacontrovertrihle. II) is
urged, however, that his proceedings were
without jurisdiction in the following oir-
oumscanoes. He made party to fchn order
which he drew up un lor sub-seotion(l) not
only the petitioners bub their minor brother
Bimloohan. Tho process server, however,
returned the nofJoe issued on Runbohan .
under sub-seotiion (3) with fche reporb
'* Bimloohan Singh is a minor. Therefore, I
have returned the notice issued in his name
in whioh he is nob disoribe? a* a minor,'1
No further steps were 6>ikoa to serve notice
upon the minor and in the written state-
ment which the petitioners filed they took
obj action that the proceeding so far as it
concerned Hamloohan, was illegal because
. he was not repreaantei by a guaniian and
that as a result tha whole nrooeodmg waa
without jurisdiction. The Migu&rate took
no action upon this objection an i eventually
made an order under aub- section (6)
against all tihree brothers.
Pain a
DEBI DAYAt. SINGH V. MT, GANOO KTJER
Now this application IB made by the two
major brothers only and Kamloohan Singh
is no party to it. Ik may well be that the
proceeding having been taken without
notice to him and in biff absence is bad in
law, so far as he is concerned, for the
reason that the Magistrate had no jurisdic-
tion to pass tho order so far as it affected
him. But that is not to say that for that
reason the whole proceeding is without juris-
diction. The decision of the Full Bench
in Krishna Kamini v. Abdul Jabbar (I)
is authority for the view that the question
of nonjoinder and non-joinder of parties
does not ordinarily affect jurisdiction. It
is a question of procedure by which juris-
diction is not affected, whether a party has
been wrongly included or excluded. The
invalidity of the proceeding against one
member of the petitioner's party does not
necessarily invalidate the whole proceeding.
1 Tbeminor, though interested in the dispute
and a proper party, was not in the circum-
stances an essential party, especially as he
would not be a likely person to oauee a
, breach of the peace. Thus the proceeding
is not without jurisdiction in respect at
least of the persona who were actually
parties, and were not prejudiced, and it is
palpable that petitioners were not prejudi-
ced.
The Eule is, therefore, discharged.
Rule discharged.
(1) (1903) 30 Cal. J65-6 C.W.N. 737 (F.B.)
A.I R. 1886 Patna 68.
KULWANT SAHAY, J.
Debi Day a I Singh and others — Defen-
dants-Appellants
v.
Mt. Gango Kuer and others — PJaintiffs-
Bespondents.
Appeals Nos. 338 and 339 of 1922,
decided on 25th March, 1925, from Appel-
late Deotees of the Sub Judge, Second
Court, Gay a, dated 8th February, 1922,
(a) B* T. Act, 8. 103 (b)-Enlry in the Rtcord
of Rights as to the tenant's right to trees does not
carry the presumption of coirtctness.
The entry in the Record of Rights as regards the
fruits and timber of the trees which tho we that
the tenants are entitled to appropriate all the
fruits and timber of the trees and that the land-
lords are not entitled to anything, does nob carry
A presumption of correctness under 8,109 (6), 67
J, 0. 126, Foil [P. 70, Col, l.J
(b) Landlord and Tenant— Right to trees—
Tenant is to cut trees ani landlord is to appro-
priate wood.
The ordinary law is that the tenant has a right
to cut the troos and the landlord has the right to
appropriate the wood, [P. 70, Ool. 1.]
S. N. Dutt—tor Appellants.
Kailaspati — for Respondents.
Judgment :— These two appeals by
defendants Nos. 1 to 3 arise out of the
same suit. The suit was for a declaration
that two survey plots Nos. 900 and 901
recorded in khata No. 13 in Motiza
Ukarmha Salem, which contains 1.18 acres
of orchard land covered with a large
number of trees, formed the bhaoh holding
of defendants Nos. 1 to 3 and that the
plaintiffs and defendant No. 4 were
entitled to appropriate one-half share of the
fruits and the wood of the trees standing
on the land and that the entry of kabil
lagan in the survey papers was wrong.
There was a further prayer that if the
Court be of opinion that the plaintiffs could
not get the price of their share of the fruits
from defendants Nos. 1 to 3, then a
decree might be passed against the said
defendants for the price of the entire
landlords' share of the fruits. There
was an alternative prayer in the plaint
that if the Court was of opinion that)
the entry of kabil lagan in the Eecord of
Bights was correct, then a proper rend
might be assessed by the Court. The
defendants Nos. 1 to 3 filed a written state-
ment in which they denied the title of the
plaintiffs and alleged that the suit was bad
for defect of parties. They fuither alleged
that the orchard was held by them as
belagan or rent-free and no rent was pay-
able therefor, and that the plaintiffs or the
other landlords, were not entitled to a half
share of the fruits or the wood of the trees.
The learned Munsif found that the plain-
tiffs bad established their title, and that the
land was held by the defendants as bhaoli,
but he dismissed the suit on a finding that
the 16-annas landlords were not made
parties to the suit and that the suit was bad
under section 148- A of the Bengal Tenancy
Act. He held that the trees* were ijmal
amongst all the 16- annas proprietors of the
village and all those proprietors were neces-
sary parties to the suit,
There were two appeals before the Sub-
ordinate Judge against this decree— one by
the plaintiffs and the other by the defen-
dants Nos. 1 to 3. The learned Subordinate-
DHBI DAYAL SINGH V. MT. GANGO KUER
Patna
.Judge decreed the plaintiffs' appeal and
directed that; the defendant No. 4 be added
as oo-plaintiff and the amount of the bhaoli
rent to which the plaintiffs are entitled bo
determined by the Munsif. As regards the
defendants' appeal the learned Subordinate
Judge found that the land was held by
defendants Nos. 1 to 3 as bhaoli and that
the landlords were entitled to one- half share
of the fruits and the wood of the trees. He
accordingly dismissed the defendants'
appeal.
Defendants Nos 1 to 3 have therefore,
preferred the present two appeals to this
Court, and it has been contended on their
behalf that upon the findings arrived at by
the Munsif as well as by the Subordinate
Judge himself, the suit was not maintain-
able on account of defect of parties.
Secondly, it has been argued that the learn-
ed Subordinate Judge was wrong in hold-
ingthat the land was bhaoli and not belagan.
As regards the first point, it appears from
the allegations of the plaintiffs themselves
in their plaint that Mama Ukarmha Salem
was partitioned by the Civil Court into
seven takhtas. The plaintiffs and the de-
fe octant No. 4 were allotted one of these
takhtas to the extent of their original share
of 2 annas 8 dams 17 kauris 9 bauris. This
new takhta of the plaintiffs and the de-
fendant Mo. 4 is known as Takhta Sheikh
Bahim Baksh and is now treated as one of
16 annas. The plaintiffs alleged in the
plaint that since the partition which was
effected in 1898, the proprietor of one takhta
has no connection with the takhtas of the
other proprietors with the exception of the
lands and trees left joint under the said
partition. It has been held by the learned
Munsif that the trees standing on survey
plots Nos. 900 and 901 were left ijmal
amongst the proprietors of the entire
16-annas of fha village and were not parti-
tioned amongst them. This finding does
not appear to have been disturbed by the
learned Subordinate Judge, as in dealing
with the appeal of the defendants, he says
that no raibandi was fixed in the partition
for the trees in dispute because they were
left ijmal anaongat the proprietors. If that
is so, then the plaintiffs and the defendant
.No. 4 did not form the Qntire body of land-
lords who are entitled to the rent of the '
orchard in dispute. In dealing with the
plaintiffs' appeal the learned Subordinate
Judge has lost sight of this f aob. He has
treated the plaintiffs as wall as the defen-
dant No. 4 as toe 16 annas proprietors en-
titled to the rent of the orchard fn dispute.
He has not come to any specific finding as
to whether or not the trees in dispute were
partitioned in the Civil Court partition and
allotted to the takhta of the plaintiffs and
defendant No. 4, or were left ijrnal
amongst) the entire body of proprietors of
the whole village. The observation about
the trees being left ijmal made by the
learned Subordinate Judge when dealing
with the appeal of the defendants is not a
specific finding upon this point. He was
there considering the question as to whe-
ther the land was bhaoli or rent-free and
he met the argument of the defendants
that no raibandi bad been fixed for the
trees by observing that this only meant
either that the trees did not belong to the
maliks but to the tenants or that they were
left ijmal. I am of opinion that having
regard to the faot that the Munsif bad dis-
missed the suit, not only on the ground
that it was bad under section 148- A of the
Bengal Tenancy Act, so far as the defen-
dant No. 4 was concerned, but also because
the other proprietors of the entire village had
not been im pleaded as parties, the learned
Subordinate Judge ought to have ocme
to a specific finding as to whether or not
the other proprietors are necessary parties
in the present suit. His decree, therefore,
passed in the appeal of the plaintiffs musfc
be set aside and the case remanded
to him for a finding as to whether
the trees on the plots in dispute were
left ijmal amongst the proprietors of the
entire village in the Civil Court partition
and as to whether the present suit oould
proceed in their absence.
Second Appeal No. 339 is, accordingly,
allowed and the case remanded to the
Court of Appeal below for disposal accord-
ing to law. Costs will abide the result.
As regards the appeal of defendants
Nos. 1 to 3 the finding of the learned Sub-
ordinate Judge that the laud was bhaoli
and that the landlords were outitled to
have the fruits and the wood of the trees
is a finding of faot which cannot be inter-
fered with in second appeal. The learned
Counsel for the appellants has, however,
argued that the entry in the Record of
Eights as regards the fruits and timber of
the trees, in dispute is kul-haq-raiyat
which shows that the tenant defendants
are entitled to appropriate allthe fruits and*
timber of the trees and that the landlord*
Patna
80BHIT MALLAH 9. EMPEROR
1926
are not entitled to anything. The learned
Subordirate Judge is right when he holds
that this entry in the Record of Bights
does oot carry a presumption of correct-
ness under section 103 'b) of the Bengal
Tenancy Act. The ordinary law that the
tenant has a right to cut the trees and that
the landlord has the right to approbate
the wood is accepted by the learned Counsel
for the appellants, but he argues that the
Question as to whether the tenant is enti-
tled to appropriate the timber is cne of the
incidents of the tenancy which th? R* venue
Officer in paring the Eecord of flights was
entitled tort cord under section 102 'h) of
the Bengal Teranoy Act. The learned Sub-
ordinate Jtd^.e is of opinion that it is not
one of the incidents of tie tenancy, but it
amounts to a custom or usage varyirg the
common law and that the Revenue Officer
in preparing the Record of Bights had no
power to record the existence of any such
custom, and that the entry of kul-hoq-
raiyat in the Record of Rights is not an
entry which carries with it the presump-
tion of section 103 (b}. This opinion of the
learned Subordinate Judge is supported by
the decision of this Court in Suresh
Chandra Rai v. Sitarom Stngh (1 and the
entry of kul hog raiyot in tbe Record of
Bights is only a j iece cf evidence admissi-
ble under section 35 of the Indian Evidence
Act, which the learred Judge has taken
into consideration as such.
As regards the plaintiffs' claim of half
share of tbe fruits, tbe learned Judge has
believed the plaintiffs' witnetfte and has
held that the orchard was bhooli and tbe
land-lordf were entitled to recover a half
share of the fruits. These findings being
based upon a ccnpideration of tbe evidence
in tbe we nro conclusive and the Second
Appeal No. 338 is, therefore, dismissed
with costs.
Appeal dismised.
(1) (1920) 57 I.C.
*A,I.B. 1988 Patna 70.
ADAMI AND MACPHERSON, jj.
Sobhit M allah— Petitioner.
v.
Emperor — Opposite Party.
Criminal Revision No. 341 of 1924,
decided on 22nd July 1925, from an order
of the Sessions Judge, Mtz<*flarpur.
• Cr<w. Pro. Cede, 6. 250 3 - Total amount of
commentation is the basis 10 cttctce an inability.
There is nothing in B. 2CO to tbtw that aa
appeal will only ie when tbe ctmptDf-aticn dire fr-
ied to be paid to each individual arcmed is more
than Re. 60. Ut.der Bub 8tc (3/ a c« n.^lhiraDt^ho
hae been ordered by a Magistrate 10 ^t»y ccmpen-
Eation excetcirg R* tO bus ibe nghi oi appeal* 2t
is tbe total amtuut of ccnopemation directed to
be paid by tbe cdnplairatii wbitb n uet form tbe
basis cf ibe deciticu whether an apital Jiea or not.
[P. 71, Col. l.]
K. N. Moitra—lor Petitioner.
B. C. De. for T. N. Sahay—tor the
Crown.
Judgment : — Tbe only questicn which
arises in this case is wLeilitr an appeal
lies against an order lasted ty 8 Magis-
trate of tbe First Cla&t utder 8. 250,
Criinirial Procedure Cede directing the
ccmplaJLant to pay to eacb ci tbe several
accused as ccmpenEatiou a sum Jess than
Rs. 50 tbe aggregate eum to be paid to all
tbe accused amounting to more than
Re. 50. In tbe present cate tbe Deputy
Magistrate oroered ccmieDtaticn oi RB. 25
lobe paid to eacb of tbe eleven accused
per&cne, tbe aggregate thus amounting to
Re. 275.
Tbe learned Set si one Judge, xvben the
appeal was brought before him ogainst the
order of cc mi elation, held tbat no ac peal
lies under cl. \3) of !S. 250 tclt^s ibe com-
pensation to be (aid to aty ere accused is
overRs. 50. In eup|.crt of ibis finding,
tbe learned Seseiors Jurge Ftetcs tbat he
holds tbat Sub S. »3) of B. 250 JB control-
led by the voiding of Sub S. (2) of thafe
section. It is difficult to uudeibtaitd what
grounds he has for bis finding for even if
Sub-section (2> does control Sub-tection (3)
, there is nothing to show that an'af peal will
only lie when the compensation directed to
be paid to,each individual accused is more
than RB. 5*0. Sub- section (3) elates tbat a
complainant who baa been ordered by a
Magistrate to pay compensation exceeding
1986
SADHU SAO 0. AWADH BIHAR BARAN SINGH (Da 8, J.) Patna Tl
Bs. 50 baa the right of appeal. It ia quite
evident that it ia the total amount of com-
pensation directed to be paid by the com-
plainant which must form the basis of the
decision whether an appeal liea or not.
The compensation is a fine which the
complaisant has to pay for instituting a
false and frivolous or vexatious case and
his right to appeal clearly depends on the
total amount of that compensation. It is
obvious that the creterion is the amount
of compensation directed to be paid in the
case. Section 250 begins with tbe words
" If in any case " and in Sub-s. <4) we read
the words "when an order for payment of
compensation to an aocueed person is made
in a case "
Tbe prepeuii caee must go back to the
learned Sessions Judge in order that he
may bear and decide tbe appeal according
to law.
Petition accepted.
Case remanded.
A.I.R. 1826 Patna 71.
DAS AM) ADAMI, jj.
Sadhu Sao — Defendant- Appellant
v.
Awadh Bihar Saran Singh and others —
Respondents,
Appeal No. 815 of 1922, decided on
8th April, 1925, from tbe Appellate Decree
of the Add). Subordinate JucJge, Patna,
dated 7th June 1922.
Bengal Tenancy Art, 8. 87— No Abavdcnwevt
where tenant usutru< tuaniy mortgages his holding
but still resides in the village.
Where tbe transfer. IB ky vay of usufructuary
mortgage, tbe JhEcIcid, tbccgb be bae not con-
aerjtfd, IB cot crd'Barily entitled to recover posses-
sion of tbe bcldii g, urJtes there bas been ?a) an
•baQdcrmect witbir eectiou 67, or (6 a relin-
qtriet merit of'tbe bcldirg, or le) a repudiation of
tbe tenancy. [P 73, Co). 1.)
ID order to mnke cut. a caee of abacd-
DXDCDt ucder 6, 67, ibe latdlcrd muefe
establish, Pint, that ibf rc^at baa volcntBriJy
abandoned hie midfrce without cciice to bim J
Qtccndly, tbai be baa rot arm pf d for payment of
hie rent ae it fa))* cue, arc, Thirdly, tbat be has
ceased to cultivate hie hcldii p tuber by b'meelf
or by ecnu. otbrr perKD. Where therefore tbe
tenant executed a usufructuary mortp&fce, but be
still rciidgd io (he village and tbe equity of
redemption still veetcd in Lim.
Held, that there was DO abandonment within
S, 87. [P. 73, Go). 9,]
8. Dayal—to* Appellant.
8. N. Boy — for Respondents.
Das, J. :— This appeal is on behalf of thfr
defendants and it arises out of a suit insti-
tuted by the plaintiffs-respondents for
recovery of possession of certain kashi
lands specified in the plaint, Tbe Courts
below have differed in opinion, the learned
Subordinate Judge in the Court below
having given the plaintiffs a decree sub-
stantially as claimed by them.
Tbe admitted facts are as follows : —
Defendant 2 had a holding under the
plaintiff in touji No. 2299. He executed
a usufructuary mortgage in favour of
defendant No. 1 and pub him in possession
of tbe entire holding. There was a con-
troversy in tbe Court of first instance on
the question whether tbe document
executed by defendant No. 2 in favour of
defendant No. 1 was one of mortgage or
one of sale. Both the Courts below have
concurrently come to the conclusion that
the document was one of mortgage. The
plaintiff ooatends tbat defendant No. 1 has
abandoned the holding by executing the
usufructuary mortgage in favour of defend-
ant No. 1 and by giving up possession
and ceasing to pay rent. It appears,
however, tbat defendant No. 2 is a
resident of mouza Kalapur and that be has
three holdings in Kalaiur, one in touji
No, 4353, one in toui% No. 2699 and one
in touji No. 4366 ; We are concerned
in this litigation with the holding in touji
No. 2699, but it is not disputed before us
tbat the tenant is stil) in possession of two
other holdings, it is true, under different
landlords, but in the same village. The
holding with which we are concerned in
this litigation consists entirely of agri-
cultural lands and as tbe learned Subor-
dinate Judge has found, there is no bouse
which forms part of the holding. But
the holding in touji No. 4366 consists of
a hoDFe and a plot of agricultural land ;
and it is not disputed before us that defend-
ant No, 2 is etiil in occupation of
his beuFe in village Ealatur, touji
No. 43C6.
The conclusion at which the learned
Subordinate Judge fcas arrived may be
stated in his own words :
" In tbe present caee, tbe tenant part*
with possession of bis holding, without
arranging fcr payrcentof rent to the land-
lord by himself. He has bis bomesread and
holdings under other landlords, and baa
abandoned the holding in tbe only way in
which hq can give effect to bis intention)
T9
IUDHU SAP V. AWADH BtHAB 8ABAN
(D*8, J,)
1800
to abandon the holding, namely, by cea-
sing to cultivate and omitting to pay rant
In these oiroums&anoes, I am of opinion
that there has been an abandonment,
and I hold that the appellant must)
' succeed."
Ibis settled law that where the transfer
is by way of usufructuary mortgage, the
landlord, though he has not consented, is
not ordinarily entitled to recover possession
of the holding, unless there has been (a)
an abandonment within the meaning of
section 87. of the Bengal Tenancy Act, or
(b) a relinquisnment of the holding, or (c)
a repudiation of the tenancy. It is not
contended in this ease that there has been
either a relinquishment of the holding or a
repudiation of fchax tenancy ; but* it is
strongly contended on behalf of the res-
pondents that there has been an abandon-
ment within the meaning of section 87 of
fche Bengal Tenancy Act. Bub as has been
held in this Court, the first condition to
constitute abandonment under section 87
of the Bengal Tenancy Act is the voluntary
abandonment of his residence by the
raiyat. In this case it is not disputed that
the tenant has nob abandoned his residence.
The learned Subordinate Judge in the
Oourb below has taken the view that
abandonment of the residence must mean
abandonment of bis residence under the
same landlord, so that where a tenant has
not any residence under the landlord who
is seeking to recover possession of the hold-
ing, it is sufficient for tbe landlord to prove
that the tenant has not arranged for pay-
ment of his rent as it falls due and has
oeased to cultivate his holding either by
himself or by some other person. The
learned Subordinate Judge points out that
if any other construction were placed on
the words of section 87 " there will be the
anomalous position that there can be
abandonment by a non-resident tenant,
that is to say, a tenant who does not reside"
in the village in whioh he has his holding
and the learned Subordinate Judge comes
to the conclusion that) tbe holding and the
house of the tenant must be under the
same landlord.
With all respect I am unable to agree
with this view. The question is one of
forfeiture ; and there is no injustice in
requiring a case of forfeiture to be strictly
proved. The essence of abandonment is the
giving UD of .the residence without nofrioe
Ao fche landlord. I confess that I do not
appreciate the difficulty that seems to have
oppressed the learned Subordinate Judge.
He says that any other construction would
involve the consequence " that there can-
not be an abandonment by a non-resident
tenant " ; and he points out that " there
is no point in giving notice of abandon-
ment to a person under whom the house
is held, when the holding is hold under a
different landlord". But section 87 does
not provide for any notice to be given to
the landlord ; it points out the consequence
of a raiyat abandoning his residence with-
out notice to his landlord when the
abandonment is accompanied by other
acts mentioned in the section. " Abandon-
ment of the residence " is an unequivocal
act showing an intention not to return
and it is a matter of no consequence that)
the residence is under a different landlord.
In my opinion, the section means what it
says, and in order to make out a case of (
abandonment under section 87, the land-
lord must establish, first, that the raiyat
baa voluntarily abandoned his residence
without notice to him ; secondly, thati he •
has not arranged for payment of bis rent
as it falls due, and, thirdly, that he has
ceased to cultivate hia holding either by
himself or by some other person. In the
present case the tenant has executed a
usufructuary mortgage ; but he still resides
in the village and the equity of redemption
is still vested in him. On what ground oan
we say that there is abandonment
within tbe meaning of that term as used
in section 87 of the Bengal Tenancy
Act?
In my opinion the decision of the learned
Subordinate Judge is erroneous and I must
allow this appeal, set aside the judgment
of the Court below and restore the judg-
ment of the Oourt of first instance. The
result is that the suit is dismissed with
costs in all the Courts.
Adami, J. — I agree.
Appeal allowed.
1086
LAUBEflTlUS BKSA V. DUKHI KOBRI
Patoa 79
AIR 1826 Patna 73,
JWALA PRASAD, J.
Laurentius Ekka and others — Plaintiffs-
Petitioners
v.
Dukhi Koeri and another — Defendants-
Opposite Party.
Civil Revision Nos, 3RI and 382 of 1923,
decided on 13bh Maroh, 1924, from an order
of the Sub Judge, Ranohi, dated 9th
June 1923.
(a) L&gil Practitioners— Advocate can b* verbally
appointed and cai present an duplication on behalf
of clients without vikalatnama—Civ. Pro. Code,
0. 3t r. I,
An Advocate, unlike a pl.3*dsr, nan bo verbally
appointed to aot on behtlf of bid client, and whan
so appointed, under R, 1 of 0. 3 be oan appear,
plead and aot, There is nothing to prevent an
advocate, eitl.rr ia th i H gh Court or in the
subordinate Courts, to present, AD application on
behalf of his oli^at without. ;un piwer of appoint-
ment or vakalatnfima given to him in writing.
There is nothing ia the L.'gii Priofcr/oners1 Aot
also against this view. 9 All. 617 Pod [P, 74,
Col, 2,]
(b) Limitation Actt 8. 5 -Petition out of time —
No reason for delay shown en the face of id— •
Petition is not ewer tain able.
It ia a well reongnisR 1 priaonla that a petition
filed out of time must HQO.V on the fane of it the
reaooo for delay, anrf there must further be an
express prayer for condonation of the delay under
the section, [P, 75, Ool. kJ.j
(o) Compromise *y pleadtr without instructions
from party and without hi< consent —Valid if bona
fide in the interests of the party.
On principle, there does not seem to be any
reason for interfering with a compromise consented
to by a ph icier duly authorized in this behalf,
unleen fraud or collusion is imputed to the pleader,
[P. 76, Ool, 1.]
Harihar Prasad Sinha — for Petitioners.
Sambhu Siran — for Opposite Party.
Judgment — This is an application
against an or'der of the Subordinate Judge
of Ranohi, dated the 9bh June, 1923, rejeot-
ing an application of the petitioners present-
ed under Order 47, rule 1 of the Oivil Proce-
dure Oode for review of a Judgment, dated
the 23rd December, 1922 passed by him.
The petitioners were plaintiffs in the case
and sought *o recover possession of the dis-
puted land on a declaration of their title
thereto as 4heir ancestral Bhuinhari land.
The defendants, on the other hand, claimed
to be in possession of tbe property under
a purchase made by their father in 1873
from one Sheikh Bhukun, an auction
(Purchaser of .the land. Tbe plaintiffs'
suit was dismissed by tbe Munsif,
and the appeal filed by them was placed
in the file of the Subordinate Judge for
disposal, The arguments of both sides
concluded on the 20th December. On the
23rd December a compromise petition
was filed before the learned Subordinate
Judge. The petition was signed by the
defendants and their pleader, and on
belmlf of tbe petitioners their pleader
signad the same. By the petition of
compromise the Bhuinhari title of the peti*
tioners was admitted and acknowledged
by fcbe defendants, and fche defendants were
allowed to hold the disputed land as ooou»
panoy raiyats under the plaintiffs on pay*
ment of rent at the rate of Re. 3 per acre,
the rent being revis^ble at the time of the
preparation of the Kecord of Rights, The
appeal was disposed of in terms of the
compromise petition per judgment of the
Court, dated the 23r<i December 1923.
Tne petition for review of the judgment
was tiled on behalf of the petitioners on
the5sh June. In it, it was alleged that after
the arguments were over, the petitioner
No, 1, who was in charge of tbe case on
behalf of the plaintiff-;, had left Ranchi for
hia village in order fco maka preparation for
the Christmas festival in his charge, and
he oarne bank to Rinohi in the first week
of January and learn*, that the appeal was
disposed of in terras of tbe compromise
referred to above. Ifc was alleged in the
petition that tbe compromise pnMbion waa
filed without his knowledge and without in-
structions to his Pleader anfl tbat it was
prejudicial to the plain biff*' interest.
The compromise petition was signed by
the petitioners themselves, and counter-
signed by their Counsel Mr. Roy. On the
9oh of June 1923 the Court rejected the
application for review holding: (1) that it
was out of time and <2) thus it; was not in
proper form. As to tha latter ground, the
learned Subordinate Ju^ge observed, that
Mr. Roy being Counsel (Advocate) could
not move the petition unle*** he was
instructed by a Plainer and after the latter
had signed it, and tbat if Mr. Roy wanted
to present the petition and thereby act as a
pleader, he should have filed a Vakalatnama.
In support of this view tha learned
Subordinate Judge has cited the case of
Mr. B. N. Misra, an Advooate of this Court,
who practises in Oubtaok. I have looked into
tbe file of the oaf e. Mr. Miara applied for
refund of sqme money on bebalf of his olicmt
74 Patnm
LAUBBNTIUS BKKA 0. DUKHI KOEBI
and filed a petition for that purpose under
hie own signature, without filing a Vakalat-
oama. The learned Chief Justice
(Sir Edward Ohamier) observed that if
Mr. Miera wanted to perform the functions
of a Pleader be trust file a Vakalatnama.
This view bas been maintained in this
Court in several oases, and thus a practice
has been established of not allowing refund
of money to an Advocate unless be is
especially authorised and files a Vakalat-
nama. This would be so under the
provisions of the Stamp Law which
especially require that a refund of money
can only he made to a person holding a
power of attorney, duly stamped, from the
person on whose behalf the withdrawal
is sought : [Article 48 (0) Schedule I of the
Stamp Aotj. But the Counsel in the pre-
sent case did not want any refund of
money on behalf of his client ; he only
applied for review of judgment. Tho
petition for review in the prepenfc case
was duly signed by all the petitioners,
and it was moved by Counsel Mr. Eoy,
who appeared for the petitioners who
were also present in Court at the time.
The rules as to the presentation of an
application are to he found in Chapter III,
page 13 of the H gh Court Rules, and in
Chapter I, Pait I, paj:e 5 of the General
Rules and Circular Orders for the Sub-
ordinate Couitb. Rule 4, clauses (iii) and
(iv) of Chapter III of the High Court
Rules, says that a petition shall be signed
and dated either by the petitioner or
declarant or his pleader and presented
either by the petitioner or declarant or
his recognized agent or bis pleader or
some person apponted in writing in
each case by Buch pleader to present the
same. The Note to that rules says : —
" Hero and tLrrji&brut tbepe ruUe nnlepA there
is anjtbn g rtpujajHf.t m ib« FUtject or context
'pleader' mtanb 'Bovccnte, vakil or attorney,'
Therefore a petition must be signed
and presented either by the petitioner
himself or an advocate, vakil or attorney
of this Court, In the present case the
petition was signed by the petitioners
themselves. They were present in Court, abd
it was signed and presented by Mr. Roy,
Advocate, on their behalf. Therefore
if the petition were filed in this Court it
would have been in order, It is, however,
contended by Mr. Shambbu Saran that, as
it was presented before the learned Subor-
dinate Judge, the Advocate in question
could nob present it. Rule 2, clause (3)
Chapter I of the General Rules and Circular
Orders, however, states that a petition
to be presented in the lower Courts may be
signed by the person presenting it, and
rule 3 says that if the person presenting it
is not a pleader or Mukhtar he shall, if so
required by the Court, be identified*
Therefore, a petition in the Subordinate
Courts may be signed and presented by a
party or by his pleader " Pleader" has
been defined in the Code of Civil Pro-
cedure, section 2, clause '15 to mean any
person entitled to appear and plead for
another in Court and to include an
advocate, vakil and attorney of a High
Court. This rule refers only to the
functions of appearing and pleading, and it
is said that it does not include acting.
Rule I of Order III of the Civil Proce-
dure Code says : —
" Any appearance, application or not in or to any
Court, required or aufehori«ed by Uw to be made
or done by a party in fluoh Court, may, except
where otherwise expressly proved by any law
for the time being in feme, be made or done by
tbe party in person, or by bit* recognised agent,
or by a pleader duly appoin ed to act on bis
behalf,"
Rale 4, clause (1) of that Order says : —
" Tbe appointment of a pleader to make or do
any appearance, application or ant for any
person eball be in writing, and aball be signed
by euob person or by his recognised agent or by
pome other person duly autbo.is^d by power of
attorney to act in this behalf."
Clause O) of rule 4 dispenses with the
appointment in writing in the case of an
advocate of any High Court, and an advo-
cate is not required to present acy docu-
ment empowering him to act.
Therefore, an advocate, unlike a pleader,
can ho verbally appointed to act on behalf
of bis client, and when so appointed, under
rule 1 of Order III be can appear, plead
and act, Hence Mr. Roy need nob have
filed any Vakalatnama, an big authority to
present tbe petition of revision on behalf
of tbe petitioners. So far as the law and
tbe rules are concerned, there is nothing
to prevent an advocate, either in the High
Court or in the subordinate /Courts, to
preeent an application on behalf of his
client without any. power of appointment
or Vakalatnama given to him in writing.
There is nothing in the Legal Practitioners'
Act also afeainet this view.
Section 7 of the Letters Patent of thi*
Court conferred upon the Court power
1986
LAURBNTIU8 EKKA V. DUKHI KOBBI
Patna 76
M to approve, admit and enrol such and eo many
Advocates, Vakils and Attorneys as to the eaid
High Court may Been) meet ; and such Advocates
Vakils and Attorneys shall be and are hereby
authorized to appear for the suitors of the said
High Court, aod to plead or to act or to plead an
act, foe the said suitors, according as the eaid
High Court may by its rules and directions deter-
mine, and subject to euoh rulee and directions, "
In Section 8 of the Letters Patent; it is
further declared that this Court
11 shall have power to make rules from time t°
time for the qunl fioaticn *nd admission of prope*
persons to be advocates, Vakils and Attorney s-at-
Law of the said Htgn Court, and shall be empowered
to remove or to suspend from practice, on reason-
able OftUPe, the paid Advocate*, Vak)le or Attor-
neye-at-Law, and no ptrson whatsoever but such
Advocates. Vukils or Attorneys shall be allowed
to appear, plead or act on his own behalf or on
behalf of a co-euitor.
Section 119 of the Civil Procedure Code
enacts that
"Nothing in this Code shall be deemed to
authorize any perpou on behalf of another to
address the court, m the exercise of it" original
Civil jurisdiction, or to examine witnepeee, except
where the Court ebull have in the exercise of
the power ooukrred by its charter authorized
him eo to do, or to interfere with the power of
tbeHigh Court to muke rules concerning advo-
catco, VakilB &nd attorneys",
No rule has been framed in this Court
prohibiting an Advocate from presenting
an application or acting on behalf of his
client.
Under section 4 of the Legal Practi-
tioners Act (Ac; XVIII of 1879)
"Every person tow or hereafter entered as an
advocate or Yak l rn tbo roll of nr»y High Court
Under the Lettrrn Patent constituting euch Court
shall be entitled to practise in all the Courts
aobordicate to ibe Court on the roll of which
be is entered " etc.
Thus, if an Advocate on the roll of this
High Court is entitled to sign and present
an application and to act on behalf of bis
client in tbe'Higb Court itself, by section 4
of the Letters Patent referred to above he
will be entitled to \ raotise in all the Courts
subordinate to this Court. The word "Prac-
tise" in the section has been advisedly used,
and unless prohibited by any special rule
right to appear, Head an act.
Mr. Shembhu Saran has referred us to
the case of Ram Taiuck Barrtk v. Strikes-
suree Dosste (1).
That case, EO doubt, supports his con*
tent ion, but that case relates to the prac-
tice in the Calcutta High Court under the
rules framed by that Court prohibiting
U) (1870) 18 W,
Advocates of the Court from acting on
behalf of their clients either on the
Original or on the Appellate Side and all the
arguments advanced by Mr. S»mbhu Saran
were considered and fully met by a Full
Bench of the Allahabad High Court in the
case of Bhahtawar Singh v. Sant Lai. (2)
Their Lordships in that case observed
"It does not appear to us necessary to enter
upon a discussion of tho ptaotioe that prevails and
regulates the profession*! status and proceeding!
of counsel in England, as it seems to us to be
altogether beside the question we have to deter-
mine, namely whether enrolled advocates of
this Court are, »P Hucb prohibited fr< m doing all
Ruoh acts as admittedly may be done by the
Vakils",
Accordingly their Lordship* held that
under the Letters Patent of the Allahabad
High Court and its rules an Advocate can
appear, plead and act.
Now the Letters Patent of this Court
and the rules framed by UB are on similar
lines as those of the Allahabad High Oourb.
I am, therefore, inclined to adopt the view
taken by the Full Bench of that Court,
and to hold that the learned Subordinate
Judge was wrong in his view that the
petition of review presented to him by
Mr. Boy, Advocate, on behalf of the
petitioners was not properly presented,
The first ground upon which the learned
Subordinate Judge rejected the application
of the petitioners, however seems to be
substantial The petition was filed much
out of time. The appeal was disposed of
on the 23rd December ]922, and tho
petitioner No. 1 canoe to know of it in the
first week of January 1923 when he came
to Eanohi to inquire about the case. The
review petition should have been filed
about the 23id of March 1923. It was
however filed on the 5th of June 1923,
This enormous delay has not been explained
in the petition for review presented to the
subordinate Judge.
It is a well recognized principle that a
petition filed out of time must show on the
face of it the reason for delay, and there
must further be an express prayer for
condonation of the delay under Section 5
of the Limitation Act. On the face of ii
the petition was time barred, and the
Court below was right in holding that it
was not entertainable.
Again, the petition does not impute
improper conduct on the part) of the
(9) (1887)9 All. 617-1887 A.W.N, 168 (I,B.)
7(5 PWtna MT. 8HBO DANI KUBR V. BAMJI UPADHYA (Sen, J.)
1986
pleader who filed the compromise petition,
and unless that wa« done the action taken
by the pleader on behalf of the petitioners
could not be challenged, for under the
Vakalafcnama the pleader had full power
to compromise the case, vide Sadhu
Saran Rai< Anant Rai. (3) The recent
decision of their Lordships of fche Judicial
Committee in the case of Sourtndra Nath
Mittra v Herambd Nath-Bandopadhyat
[AIR. 19M P. 0. .95] may be use-
fully cited though the facts of the case
are not very similar to those of the present!
one. On principle, there does not seem
to be any reason for interfering with a
compromise consented to by the pleader
duly authorized in this behalf, unless
fraud or collusion is imputed to the plead-
er. No suoh collusion or fraud has been
. pleaded in the petition, No doubt, ignor-
ance of the compromise, want? of instruc-
tions to the pleader, and possibly fraud
practised by the opposite party have been
vaguely stated in the petition, These are,
however, not sufficient to affect the com-
promise filed in the present caste. Again
the petitioner No. 1 says that he was look-
ing aft»er the case and went away on the
23rd December 1922 to make arrange-
ments for the Christmas festivities, but
there were about ten other petitioners and
there is no reason why the petitioners other
than petitioner No. 1 oould not remain in
Banchi to look after the case.
For all these reasons I dismiss the
applications; hearing fee two gold mohurs
for both the applications.
Application dismissed.
(3) A T,R 19J3 Patna483,
A.I.K. 1926 Patna 76.
AUAMI AND SEN, Jj,
Mt. Sheo Dani Kuer— Plaintiff-Appell-
ant
v.
Ramji Upadhya and others — Defendants-
Beapondents,
Appeal No. 1385 of 1922, decided on
24th June 1925, from the Appellate Decree
of the Sub Judge, Saran, dated 26fah
August 1922,
(a) Words—" Malik " in a will does not nacess-
arily confer absolute estitt,
The use of the word malik in a will does not
O«o«M*rily imply that (be estate oouUtrad i« *n
abiolute •aUtt, Tfeo ward maiifc ia not A Item of
art, it does not necessarily define the quality of
entate taken by the donee, A.I.R. 1922 P, C. 193
Appl. [P. 77, Ool. 1.]
(b) Will — Construction — D we* dea:ribed as
Malik Mokimit and pirmi'tAd tn morigaq* the
property m case of necessity -Will co \fert an
estate of a Hindu worn in ani nit abwlule ss'ate.
la a will where it was Btafcefl that at times of
real necessity the dinee would be at libarty to
mortgage the properties or otherwise deal with the
same and out of the income and produaa of the
properties to find me»as (or her livelihood and
there iff not a word in the will to tbow that the
testator ever contemplated that the corpus of the
property would be alienated by the donee in any
way, and the donee was described aa malik
mskamit. [P. 77, Col. 1.]
Held, that what was really intended to b* con-
ferred upon the donee wan the estate of a Hindu
womin subject to alienation only in the event of
legal necessity, [P, 77, Col. 2,]
Haresioar Prasad Singh for Bhagwan
Prasad — for Appellant.
Harnarain Prasad — for Respondents.
Sen, J. : — There ia only one point in
this appeal and that is whether upon a
proper ooostruofcion of the last) Will of one
Sheogopal Upadhya fcha property in dispute
passed to bhe plaintiff's mother, Kishun
Kuor absolutely or only for life.
It appear? that Sheogopul had two sons
both of whom predaoeased him. Sheogopal
died leaving one Baoha Kuer, the widow of
his son Anmaul Upadhaya and Kishun
Kuer the widow of his aon Rataa Upad-
haya. In hia Will, Sheogopal provided that
the property in question should bo enjoyed
by Baoha Kuer so long asahe might live, and
that Baoha Kuer should be able to maintain
herself out of the property, but that she
would have no power or right to make any
sort of transfer of the same ; and on her
death the property would coma to the
possession of Mt. Kishun Kuer.
As regards the oharaoter o'f the enjoy-
ment of Mt. Kishun Kuer provided for
in the Will, there is a great daal of
dispute between the parties. The apnellanb
before us contends that there are words of
disposition whioh would clearly amount) to
conferring an absolute estate upon Kishun
Kuer, whereas the respondenf contends
that there are certain terms in the Will
whioh would olearly^show that th# intention
of tha testator was not to confer an absolute
estate bat only the interest of a limited
owner. A* great deal of stress is laid upon
the use of the words "maltk mokamit. ' The
learned Vakil (or tha appellant contends that
1926
NATHAN PR AS AD SHAH V. KALI PR AS AD SHAH
Pafna TT
the very use of the word rnalik shows fcbafc
tho estate that was purported to be granted
to Kishun Kuer was an absolute estate and
that once that absolute estate was conferred
upon Kisbun Kuer then the restrictions
laid down in tbe iater portions of the Will
would be of no avail. Various rulings are
cited in support of this proposition, but the
matter is now beyond all douhttbat theuse
of the word mahk does not necessarily im-
ply that the estate conferred is an absolute
estate, Aa observed by their Lordships
of the Judicial Committee in the case of
Bkaidas Shivdas v. Bat Gulab (l) the word
mahk is not a term of art, it does not
necessarily define tbe quality of estate
taken, but in the context of tbe Will before
their Lordahipa in that case.their Lordships
thought that the estate conferred was an
absolute estate, Therefore, the real ques-
tion before us is as to whether, reading the
context, the word mahk mokarmt in tha
present case indicates that an absolute
estate was intended to be given to Kishun
Kuer. I think it is clear that the testator
did not intend to give an absolute estate to
Kishun Kuer for he observes that " it shall
also be within the power of the said Kishun
Kuer that at times of real necessity she will
meet the same by mortgaging and giving in
zurpeshgi portions of the lands ; further she
will do what she likes and from the income
and produce of the abave she will afford
her livelihood, perform pilgrimages have
Khata Puran etc. etc."
Now, if the testator really intended to
grant an absolute estate it would be
entirely unnecessary for him to state that
at times of real necessity the donee would
be at liberty to mortgage the properties or
otherwise deal with the same and out of
the income and produce of the properties to
find means for her livelihood, There is not
a word in the Will to show that the testator
ever contemplated that the corpus of the
property would be alienated by Kisbun
Kuer in any way.
The learned Vakil for the appellant
points out that tbe words "she may do what
she likes" indicate that tho testator intend-
ed to give jjer absolute powers of disposal
over the property. That) does not appear
to me to be a correct construction of the
words, for they musfa again be taken to-
gether with tbe context and judging from
the manner in which those expressions
have been used, it seems to me that what
the testator intended to say was that she
would be at liberty to do what she chose
with tbe income and produce of the pro-
perty. At any rate, it does not appear
that those words would confer upon the
devisee tbe power to deal with the corpus.
In view of the fact that no absolute estate
was conferred upon Kishun Kuer, the ques-
tion does not rise as to whether there were
in the later portions of the Will expressions
repugnant to an absolute estate which
would, therefore, have to be declared to be
invalid and of no effect. Taking tbe instru-
ment in its entirety, I am of opinion that
what was really intended to be conferred
upon Kishun Kuer was the estate of a
Hindu woman subject to alienations, only
in the event of legal necessity.
In the circumstances the appeal must be
dismissed with costs.
Adami, J.~ I agree.
Appeal dismissed.
(I) A.I.R, 1999 P.O. 193,
*A,I.R, 1926 Patna 77.
ADAMI AND SEN, J,T.
Nathan Prasad Shah — Defendant-
Appellant
v.
Kali Prasad Shah — Plain tiff- Respon-
dent.
Appeal No. 1220 of 1922, decided on
24th June 1925, from the Appellate Decree
of the District Judge, Santhal Parganas,
dated 14th July 1922.
(a) Lease— Construction— I jar a deed is a mort-
gage and haq ajin is not rent—Interest on haq ajiri
cannot be claimed unless there is a stipulation in
the deed,
Under ibe terms of tbe deed it was agreed that
the Ijaradar should remain in possession of tbe
Ijara property, and out of the fixed annual rent, he
should pa; Government revenue aud rcad-ctes into
tbe Government Treasury every year, should
deduct and appropriate to himself certain sum
every year in lieu of interest on tbe fiarpeshgi
money and bhould pay the remaining sum every
year as haq ajiri to tbe owner,
H0ld, that tbe haq ajiri payment was not rent,
thai tbe deed waa a usufructuary mortgage and
that the person in possession held as mortgagee
and not as a tenant. The haq ajiri wae due from
him as mortgagee under an arrangement with the
mortgagor and was not due from him as tenant,
and further that. the hag ajiri not being rtnt, no
78 Patna
NATHAN PBA8AD SHAH V. KALI PRASAB SHAH
1996
interest WAS payable on it, as there was DO etipula-
lion in the deel for payment of interest thereon,
1 P.L.W, 795 Rtl, [P. 79, Col. 1.1
(b) Cic, Pro. C<xis 0. <9, r . 6 ^EguitaSle sst
off can be claimed though, time-barred.
A time-barred debt truy be oUiraed by w-ty ot
equitable set off 1J O.W.N. 60 and 19 C.W.N.
1183 Poll. [P. 79, Ool. Q,]
(o) Lflise — £»r-i-pe<jb$t — D^mqe to ijara pro-
par^ ts <o the corpus and ctmoimta'iw for excwi-
fan in iw/i property cannot be oliwd by ija^aiar
from third person but can be claims! from ths
owner.
Bxoavition of ijara property is a damage to the
corpus of the property aud the ijaradar is not
allowed to Uke away any portion o( the soil, nor
oan he olaim ootnpeis'Uion from a third person
foe euoh ei™v<%tion but oan olaim from the
owner. [P, 79, Ool. 2.]
D. C. Verma and Bam Prasad — for
Appellant),
O. S Prasad and N. C. Sinha—tor Res-
pondent).
Judgment :— In 1907 the plaintiff who
is proprietor of village kixbfi Syedpur
in tha Stnbhal Pargfvnaa, executed and
registered an i; im deel granting certain
proprietary rights in the village in favour
of the defendant for a term of seven
years in consideration of an advance of
" Ri. 26,000. Under the terra* of the deed
it) waa agreed that the ijaradar '* should
remain in possession of the ijara property,
and out of R-i. 1,630 8 the fixed annual
rent, ho should pay K*. 41156 aa
Government revenue and road-oega into
the Government Treasury every year,
should deduct and appropriate to himself
every year, Ra. 975 in lieu of interest on
the zarpeshgi money and flhouH pay the
remaining «um of Ri. 294 3-0 every year
as haq ajiri" to the plaintiff.
The defendant failed to pay the haq
ajiri for several years in succession and,
therefore, the plaintiff instituted the suit
out of whioh this second appeal arises,
claiming the haq ajiri for the years 1320 to
J.325 Fdslis both inclusive together with
interest at the rate of 12 per cent per
annum. After the defendant had filed his
Britten statement the plaintiff amended
the plaint, withdrawing the claim in
reapeot to the year 1320 Fasti.
The defendant did not) deny that the
haq cijiri was due for the years 1321 to
1325 Faslis but he contested the, olaim for
interest and also sought to set-off against the
demand in respect of haq ajiri certain pay-
ments alleged to have been made by him
to the plaintiff. Of these it is only neces-
sary to mention two, namely, (1) a pay-
ment of R*. 150 realized f-om one Rai
Bahadur Baikuntha Nath San, who had
excavated a tank in the village without)
permission and (2) a sum of R*. 240-5-6
due as rent! for thb six years in respect of
lands in the village held by the plaintiff as
raiyat under the ijaradar and Rs. 120 due
as interest on the said arrear rents. The
other items sought to be set-off have been
disallowed by the lower Courts and no
appeal is pressed before us in regard to
them, This defendant alsos^t up the bar
of limitation against the claim for haq
ajiri for 1320 to 1323, and urged that
Mt, Sita Sahuan should have been
joined aa plaintiff.
Tbe Subordinate Judge found that the
plaintiff was entitled to the haq ajiri
claimed for the years 1321 to 1325 inclusive
and that, though the ijara deed contained '
no stipulation for the payment of interest
thereon, the haq ajiri being rent, the usual
rate of 12 per cent, ought to be paid. With
regard to set-off, the Subordinate Judge
disallowed all the items except that rela-
ting to the rent of the plaintiff's raiyati
holding, but even that olaim w*s found
excessive, since the rent for 1320, 1321 and
1322 was not recoverable, the olaim being
barred by limitation. A sum of Ra. 117
was allowed to be set-off as rent, oess and
interest.
On appeal the learned District Judge
held that the haq ajiri was rent and aa such,
according to the custom in the Santhal
Parganas, interest was payable on arrears
at the rate of 12 per cent. He upheld the
decision of the Subordinate Ju^ge that the
proprietor and nod the ij'iradir waa enti-
tled to the IU 150 paid by Rii Bahadur
Baikuntha Natb San, and rejected the
claims to set-off other than that allowed
by the Trial Court. He thus dismissed
the appeal.
Tbe only points pressed in appeal before
us are (1) that haq ajiri is nof rent and,
there being no stipulation for interest on
jit, the Courts nelowwere wrong ib allowing
interest ; (2> that, though the defendant
would not be able to seek bia remedy by
suit in respect of the arrears of rent for
1320 to 1323 that remedy being barred by
limitation, the debt still subsisted and he
NATHAN PBASAD SHAH V. KALI PRA8AD SHAH
Pfttna 79
<was entitled to have the arrears of all six
years set off againab the plaintiff's claim
and (31 bb*b bhe defendanb, as ijaradar with
full proprieiarv ngaba graob^i bv &ba ijara
lease, was entitle! to tha R*. 150 paid as
compensation for bha wrongful excavabion
of a tank.
At first sight, ainoe the ijara speaks
of the haq ajiri as being one of the
component; uarcs of the R*. 1,630 8 which
is described as the fix ad aantnl rent,
there would ha an inclination to decide
that the lower G)uros ware oorreab in
finding that interest was payable on it as
rent. It; is argued that zirpeshyi lei.se is
not a mare oonoraob for oulGivatiion bub it
also provides security for money advanced,
and in tha prasenb case it was arranged
that bha aoproprUbion of R<*. 975 every year
by the ijirfidir furnished bhe security for
the advaaoa, while the Ra. 294-3 took the
form of renb for bha right bo oulbivaba or to
collect rent from bhe raiynts. The ques-
tion, however, whether in such a oasa as
this, hiq njiri is ranb ban b^en daoidad by
this Oourb in tha o*sa of Birhvnieo Nzrain
Singh v. Rim mini Praiad Singh (l).
That case was similar bo bha present}
one; there, in consideration of R*. 12,000
oerbain zemindari righbs ware made over
to a parson wno maia tha advance at what
was dasnribad w a fixai anaual rental of
Rs, 3034. Oib of this R*. 8034 bhe
person who made the advance was to deduct
Bs. 620 on aooount of interest on the
zarpeshgi and wag to p%v R^. 83 4 annually
to tha person who received tbe advance,
Obapm%n an! A -kingon, JJ. held that
this hiq ajiri uayraenb* of Ra, 83 4 was
not rent, bnat bhe dead wvs a usufruc-
tuary mortgage and that bhe person in
possession bai i as mortgagee and not as
tenant ; bhe hiq ajiri was due from him
as mortgagee under an arrangement
with the mirbgagor and was nob due
from him a* tenant. Wa see no good
reason to differ from bha above decision and
following it, must decile that, the hiq njiri
not being rant, no interest was payable on
it, as there was no stipulation in bhe deed
for pavmem> of interest bhereon.
As regards tha se^off of the arrears of
rent pavabfe by the plambiff bo bhe defend-
ant, the learnad Subordinate Judge was
clearly mi*bikm in holding bh.it the set
off of the rent of the years 1920 to 1922,
inclusive, was barred by limitation. The
case of Sheo Swan Singh v. Mahabir (2)
is an authoriby for holding bhab in a suit
like bhe present one bhe ranb of lands held
by tha mortgagor and forming part of the
mortgaged property can be sea-off and that
such rants may be sab-off, even though
they mav ba barred by limitation, Gaja-
dha,r Mahton v. R ighubir Oope (3) and
Ramdhtri Singh v. P.irminu'i i Singh (4)
also decide that) a tima-barred debt) may
ha claimed by way of equitable set-off,
Tha dafendanb-appallanb musb be allowed
bo sefj-off bhe reab of tha six years 1320 to
1325 F.ishs ab bhe rate of R*. 29-8-0 a
year, that is bo say R), 177 and road oess
and interest ab bha rab3 of 12 par cent, per
annum.
Tha last point pressed before us is with
regarJ bo tha sura of R*. 150. It appears
thab Rai Bahadur Bukuntjba Nabh Sen
wiohout permission excavated a bank in the
village ; bobh bha pUinbiff and bhe defen-
anb book prooae lings in Oourb against
him, but tha mibter was settled by the
payment of Rst 150 which bhe plaintiff
receive! Ib is contended that, afl the deed
of ijara gave bo the defendant all the rights
of bha proprietor during the oerm of the
ijara, bhe defendant was entitled to get the
money a? temporary proprietor, and,
because bhe excavation of bhe tank deprived
him of parb of bhe u^ufruob, he is entitled
to compensation. If he was entitled to
compensation on thi-? ground ha would have
to seek ib from bhe plaintiff who mortgaged
the properby to him and not from the
abrangar wno trespassed. The ooobenbion
cannot be supported, the damage was
damage to the corpus of bhe property, and |
the ijaradar wDuld nob be allowed to take
away any portion of bhe soil.
On tbe findings I have oome to the
appeal must bo allowed in parb and the
decree of bhe lower Oourb muab be modi-
fied to this extant, thab the plaintiff-
respondent will ba declared to be not
entitled bo interest and tha sum of Rs. 705
will be deducted from the amount decreed;
also bha appellant will ba declared to be
entitled to set off Rs. 177 as rent of the
plaintiff's holding for the six years 1320
to 1325, bobh included, with road-cess
and interest at the rabe of 12 per cent.
'!) (1918) 1 Pat. Ii W. 795-1918 P.H.0,0, 31*
(3) (1905) 3* 0*1, 576-9 O.L.J. 79.
(3) (1907) 190.W.N 60.
(4) (1913) 19 O.W.N, 1183.
80 Patna PRASANNA KUMAR BANERJI v. K, OHABAN MANDAL (Das, J.)
per annum ; this sum of Rs, 177 and the
roadoesB and interest will be further
deducted from the sum decreed as payable
to the plaintiff by the lower Courts,
The parties will get costs proportionate
to their success in all the Courts,
Decree modified.
A.I.B, 1026 Patna 80.
DAS AND ADAMI, J,T.
Prasanna Kumar Banerji and others —
Appellants
v.
Kalyan Oharan Mandal and another —
Respondents.
Appeal No. 688 of 1922, decided on 20fch
April, 1925, from Appellate Decree of the
Sub-Judge, Purulia, dated 7th April,
1922.
— Moghli—T/ia word does not constitute
rent.
The teem " Moghli" is a word of doubtful mean-
ing and ab the beat imports no more than that
the rent ceased represents a proportion of the
Government revenue. In no souse of the
term does it constitute rent. (20 C.W.N. 1135,
Rtf.) [P, 80, Col. 2 ]
A. K. Hoy — for Appellants.
A. B. Uukerji and B. B< Mukherji — for
Bespondents.
Das, J — The only question in this appeal
is whether the transaction of the 3rd
Aghran 1285 B.S. was one of sale or one
of lease. The document is described as a
khas kobala ; and there is very little doubt
to my mind that the parties regarded the
transaction as one of sale. The considera-
tion money was arrived at on a calculation
of the annual profits of the lands conveyed.
It was ascertained that the annual profit)
was Rs, 7-13-0; and deducting therefrom
Rs. 1-10 payable by the transferor as the
moghli the net profit wad found to be
Rs. 6-12-0. The transferor conveyed the
land to the transferee for a considera-
tion which was settled at 18 times the
net annual profits of the lands, The
critical passage in the document runs as
follows: —
" I have myself got the following lands as
bounded below, namely," and the bound*
aries are given, " ID all three items of
lands about 17 bighas in area, the annua
profits of these lands amount to Re. 7-13-0
only, out of which deducting Re. 1-1-0
moghli, annual rent is Rs. 6- 12 0 only and
receiving the sum of Rs, 121 8-0 only as
18 times of the annual profit 1 sell the said
lauds to you. From this day forth you
become fully entitled to the said lands and
are empowered to sell and make a gift of
the same and paying yearly Re. 1 1 0 only
moghli to me and 10 my heirs and legal
representatives from 1286 B S. you become
entitled from this day from generation to
generation by cultivating the same yourself
or by settlement of tenants and to that I or
my heirs and representatives shall never
make any objection."
It is contended cm behalf of the appellants
that the respondents were the holders of a
subordinate interest since Re. 1-1-0 was
payable by them as moghli to the appellants;
but! ic is to be pointed out) that this moghli
of Be. 1-1-0 was payable by the appellants
who were the transferors to their superior
landlord and did not constitute a profit in
their hands when paid by the respondents
to them. The term " moghli " is a word of
doubtful meaning and at best imports
no more than that the rent assessed repre-
sented a proportion of the Government
revenue. [Nawagarh Coal Co. Ltd. v. .
Behai Lai Trigunait (!>.] There is very
little doubt that the sum of Re. 1-1-0 repre-
sented the proportion of the Government
revenue assessed on the lands conveyed. ID
no sense of the term does it constitute rent.
That being so, there is nothing to show
that the respondents where the holders of
a subordinate interest in relation to the
appellants. In my opinion they are the
holders of co-ordinate interest.
In my opinion the question was correctly
decided by the learned Judge in the Court
below and I must dismiss this appeal with
costs.
Adami, J.: — I agree,
Appeal dismissed.
(I) (1917) 20 O.W.N, 1135-1 P.L.J, 275-81
1,0. 450-2 P,L,W, 824,
1926 BANJIT NARAIN SINGH v. RAMBAH VDUR SINGH (Buckmll, J.) Patna 81
**A.I.R.1926Patna81
ADAMI AND BCCKNILL, JJ
Ranjit Sarain Smqh and otf^js— Ap-
pellants
v
Rambahadur Sinqh and otlien — Kes-
pondents
Cnminal Appeal No 133 ot 19J1, De-
cided on 10th Kovembei 19iT>, liom the
decision of the Dist. J , Gaya, 1)'- 10th
July 1925
-Mr (a) Criminal P C , .S 47f»-/i— fc'n %/ ( fiiin /
nju^tng to wt&e comfta'nt — JLppilla'e Cuint allow -
ii^g apitettl and itself mal\nnj a tamjdttint —
half of them knowing that thev were forged, arc
matters which Are to b# contemplated as the sub-
ject of thi prosecution following the complaint and
ar: not the subject matter of the pioceeding to
issue a complaint. (P 80 C. 2]
s, .Sf N. Bow ami Jtf. K. Nand-
— lor Appellants
(iovt. -lf/iwft/i»-*-for Respon.
An app A\ lies under S 47d-I5 of thi» (1iimm.il
P C to thp High Cum t from AH ipp>ll.ito ordtr
of the District Judge miking <i complaint \vhich
the hrst Court might himvlf h.i\e m,idt» but, rt-
f used to maki' ['j I,ali 5(> J)i<* ('* /i<'» ft <•? 1925
Aft ti wed ] Upon A proper construe. turn of Ss 47(5,
470-A and 476-15 t.ikuitf for the NIKO of illiisti.ition
tin three .wending Courts ,is Muusif, District
Judge a.id High Couit thine \\ould h • .111 appeal
from the District Judge to the High Court (A)
where the Munsif has refused on application made
Co him under S 470 to make <i complaint, \vhert
there has b^en an appeal to the District Judge and
•where the District Judge disagreeing with the
Munsif has made a. complaint (b) \vhere undtr
S 470-A the Muusif has taken no action suo
inotu and lias not been .isked to taivf an> action
the District Judge has (a) on application to him
made a compliant, (b) on application to him has
refused to make a complaint. The same reason-
ing would appl\ to anv other rhain of three Courts
(contemplated l>\ S 17b) of »isu ndmg jurisdiction
[I1 85, C 1, 2]
<fc (b) Ctlnunal P C , N 470- MaK'niitoni/valnf
«s ducretionai if — Jliyh Court dunild Ind'ijeie in
The question whether a complaint should be1
made under S 470 Criminal P C is almost m\a-
mbly a mattei of discretion, and the High Court
m under those circumstances alua>s loath to inter-
fere except in extraordmar) case s. A J. 11. 1924
JJnm. 347 Rel. on
Where the trial Court and first appellate Court
conclude that certain documents are not g< nuine
and the District Court makes a complaint for pro-
secution it has sufficient ground to make a com-
plaint and itfe order \\ould not be set aside bv the
High Court. [P 85, C 2J
(t) Criminal P C., fi. 476— Court Venn all ij talid*
att'on on appl'cation bit jxirt'.c^.
If it was always to be left soleh to the self-act-
ing motion of the Courts concerned to institute a
complaint, much of 8. 476 \\ould be surplusage ,
as it is frequeytlv onH upon application made to
it that a Court either under S 476 or S 176-4 of
the Criminal P. C. takes action. fP. 80, C. 2J
(d) Criminal PC., S. 476-±gM<»sfirm as to forged
na'urc of document Is to be decided in jprnwu/fona
following complaint and not before making one.
The questions, \\hethrrthe document*- declared
by the Court trjing suit as not gtnume \vere
forged or not, b\ or on behalt of the petitioners or
whether thA* were used in any way b> or on bc-
1926 P/ll & 12
Bucknill, J —This was a matter refer-
red to a Bench b> ^Licpherson, •)., on the
Jnci Sejiteinber last , it had come before
In in when sitting as vacation Judge as a
proceeding which i>uij>oUed to he an
iip)ieal from a decision ol the District
Jwlpp ol (irt>a, dated Jul\ 10th last. The
natiiio ol tlio nuittei ma\ bo thus sum-
ma LI /cd
The icspondents to the pi'occodint* now
hetoio us brought in 1!)V23, a inonov suit
a^.iuist tho Jst petitionei I'oi a shaio in
eeitain hhaoh pioduco icnt ol some 53
l)Tt*has ot hakasht lands , rho 1st peti-
fionci (ap])olLint heie) ))lcaded paMiiont
.ind in suppoit ol tins defence lolcned to
certain receipts and papeis ot account
winch weio ]>iodiiced on his behalt and
which woic cither in pait 01 in \\bole
exhibited in evidence b> tho I'ctitionois
J and 3.
The Munsil (2nd (Joint) ol Ga>a who
tned tho KUI t gave judgment in tho ics-
])ondents' favoui, for he \v as (to use his
o\\n woids) "not satisfied that the signa-
tmesonthe receipts and tho JSu)haotas
\\ore the genuine signatincs ol those poi-
sons" (whose siynaturos tboy weio allowed
to be) tho decico was dated 21st July
Tho 1st petitioner appealed, the appeal
was heard on 5th .February lystfi and was
dismissed by tho Additional Sessions
Juditc and Subordinate Judge 3rd Court,
(lava, v»ho, agreeing with tho Munsit that
the loceipts and bujhaotas weie not genu-
ine, dismissed the appeal.
Almost immediately altoi this appeal
had been dismissed, the respondents, on
Ifith February 19&") applied under S 47G
of the Ci P C to tho Munsif, lind . Court
ot (ia"\a (\\ho was ho \\ever not tho same
individual as that Munsif who had tned
the suit in 19^4) requesting him to hear
the paitics and to make a complaint un-
dei the pro\r,ions of S 476, Cr. P. C.,
against the j>etitioners They suggested
that the petitioners ought to be prosecu-
ted under sections of the Indian Ponal
Code such &s S. 467 (forgeiy of a receipt)
82 Patna KANJIT NABAIN SINGH v. RAMBAHADUR SINGH (Buckntll, J.) 1926
and S. 471 (using as genuine a forged
document). This Munsif, however, after
hearing the parties, refused on 23rd April
1925) to make any complaint as requested.
The Munsif seems to have thought that
as there was no direct finding of forgery
hy either the trial or appellate Courts
and as neither of those Courts had thought
fit to take any step proprio motit under
the provisions of S. 476, he himself should
not think it desirahle to take any action.
From this decision the respondents, exer-
cising fcheir right, under S. 476-B of the
Cr. P.O. appealed to the District Judge of
Gay a who on 10th July 1925 took a diffe-
rent view to that expressed hy the Munsif;
he considered (to use his own words) that
"A good case for prosecution had heen
made out and that the prosecution should
he sanctioned." He added " I therefore
institute a complaint against Eanjit Singh,
Ajodhya Singh and Bagho Singh (the ap-
pellants here) for their prosecution under
Ss. -171 and 193 of tho Indian Penal Code
or any othor section or sections that may
apply and forward it to the District Ma-
gistrate." This action was as a matter of
procedure, quite properly taken in accor-
dance with S. 470 B of the Criminal P. C.
Prom this decision the appellants have
purported to appeal to this Court. It was
entered as Criminal Appeal No. 133 of
1925. It was admitted as an appeal hy
Jwala Prasad and Macpherson, JJ. on
24th July 1925. It came, as I have al-
ready said, before Macpherson, J. sitting
as Vacation Judge ; the question was rai-
sed before him hy tho Crown as to whe-
ther in a caso such as this an appeal lies
to this Court and as there appeared to he
some doubt as to this point and some pos-
sible conflict of decisions, the learned
Judge referred tho matter to a Bench.
It may at once be stated that applica-
tions to this Court under S. 476 B of the
Criminal P. C have1 at times been madl
both as appeals and in Revisionae
jurisdiction ; and in other High
Courts also. For example in this
Court in Gajaram Marwari v. The King-
Emperor (l) and Bhuki Sao and Ttamdhani
Sao v. King Emperor (2) (which were
heard together) the general features of the
position were somewhat parallel to those
displayed in the matter now under consi-
deration : one Mahabir Sao applied to a
Magistrate who had under the provisions of
(1) "Criminal Appeal No722 of \925.
(2) Criminal Appeal No. 87 of 1925.
S. 203 Criminal P. 0. dismissed a complaint
made by another individual asking that
that complainant and two others should
be ordered by the Magistrate to be pro-
secuted by virtue of the provisions of S. 476
of the Cr, P. C. The Magistrate refused
to make a complaint. Mahabir thereupon
appealed to the Sessions Judge who diffe-
red from the Magistrate and himself made
the complaint requested under S. 476-B.
Criminal P. C. The 3 persons thus ordered
tobe prosecuted thereupon appealed to this
Courb ; no question was ever raised at any
stage of the proceedings as to there being
no right or possibility of an appeal. The
cases were admitted, as appeals by Kul-
want Sahay, J., and myself on 4th February
19^5 and were heard as appeals on 16th
April 1925 by Macpherson, J. and myself ;
the appeal in the case of one appellant
was allowed and in the case of the other
two rejected.
I need not refer, I think, to cases which
have come up as applications in revision ;
for it is common ground that such have
occurred.
In Criminal Appeal No. 115 of 1925
Macpherson, J., apparently decided a case
similar in general features to the present
one as an appeal ; the Magistrate in that
case had refused to make a complaint, On
appeal under S. 476 B. The Sessions Judge
differed from the Magistrate and himself
made the complaint ; the person ordered
to be prosecuted appealed to this Court ;
the appeal came before Macpherson J sit-
ting as Vacation Judge and the point that
no appeal lay was specifically taken, Mac-
pherson J. then expressed the opinion that
sitting singly he ought to follow the ex-
pression of opinion given by Mullick, J. in
Fanjdar Eai v. King- Emperor (3) and hold
that an appeal did lie ; but, whilst ex-
pressing this view, he decided to reject
the application on its merits whether it
was rightly to be regarded as an appeal or
as an application in evisional jurisdiction.
And, in the present case, as has already
been observed, the same learned Judge, at
a later date, (i.e., on 2nd September 1925)
the same point being more specifically per-
haps raised by the Crown, referred
the matter to a 'Bench. In the Lahore
High Court in the case of Mohammad
Idris v. The Crown & another (4) the ques-
tion as to whether an appeal lies* from a
(3) Criminal Rev. No. 5 of 19-J5 ~ '
(4) A. I. K. 1925 Lah. 922
1926 EA.NJIT NARAIN SINGH v. EAMBAHADUR SINGH (Bucknill, J.)
Patna S3
decision under S. 476 B. Cr. P. C. has been
discussed and decided by Martineau and
Zafar Ali, J J. In that case their Lordships
held that no appeal lies under S. 47-6B.
9! the Cr. P. C. to the High Court from
an appellate order of a District Judge
making a complaint which the Sub-Judge
might himself have made but refused to
make. This was a reference to a- Bench
made by Scott-Smith, J. who was doubtful
as to whether an appeal lay under such
circuui stances.
This case, is of course, directly in point
here ; but it has been suggested to us that
the decision is not legally correct. The
judgment is very short and was given on
October 24th, 1924. It simply reads thus:
" This question referred to us in this
appeal and in Appeals Nos. 233 and 286 of
1924 is whether an appeal lies to this
Court from an appellate order of the
District Judge making a complaint which
the Subordinate Judge might himself have
made under S. 476 of the Criminal Pro-
cedure Code. S. 476-B. of the Code gives
a right of appeal only when a Court has
made or refuted to make a complaint
under S. 476 or S, 476-A. and neither of
those sections relates to a complaint made
by a Court on appeal from an order of a
Subordinate Court refusing to make a com-
plaint. We, therefore; answer the question
referred to us in the negative. The
appeals will be laid before the referring
Judge for disposal ''
In the Calcutta High Court a case
similar in features to the present one has
been dealt with in Bevisional Jurisdiction
and the decision of the Sessions Judge
reversed (Kalisad lian Addya v. Nani Lai
Hazra) (5), but the question of the possi-
bility of an appeal did not there arise.
It is, I think, necessary now here to
•explain the argument which has been well
placed before us upon this question by the
learned counsel who has appeared for the
appellants. He draws a distinction in
different sets of circumstances between
the possibility of an appeal lying from a
decision given by an appellate Court under
the provisions of S. 476-B. He argues
that then? may be different positions as a
result of a proceeding under S. 476-B. in
appeal. The first portion is when the
original tribunal has made a complaint
(i. e., ordered a prosecution un^er S. 476)
the person ordered to be prosecuted has
appealed under S. 476 B and the
(5) A. I. B. 1925 Cal, 721.
appellate Court has allowed the
appeal. In such a case he admits that
there is no further appeal ; though
revision by the High Court' may
be conceivable. This position has been
the subject of a decision in the Bombay
High Court in the case of a criminal
appeal : Somabhai Valabhlhai v. Aditbhai
Parshotam (6). In that case a Subordi-
nate Judge had on the application of one
Somabhar under S. 476 Cr. P. C, issued a
a complaint and directed the prosecution
of certain persons ; they appealed to a
Sessions Judge who allowed the appeal.
Somabhar appealed to the High Court.
Macleod, C. J., and Shah, J.rlield that there
was no appeal. In their judgment their
Lordships state "We are clearly of opinion
that no appeal lies under the provisions of
the Code against an order made by the
Court to which the Court making a com-
plaint is subordinate," It will be observed
that the point raised before us as disclosed
by the 4th position (vide infra) was not
before the Bombay Court nor decided by
it. The 2nd position is when the original
tribunal has refused to take action under
S. 476 ; the applicant has appealed under
S.476-B. the appellate Court has dismissed
the appeal ; he thinka that in this case too
there is no further appeal ; though
again revision by the High Court is con-
ceivable. The 3rd position is when the
original tribunal has made a complaint ;
the person ordered to be prosecuted lias
appealed, the appellate Court has dis-
missed the appeal ; he thinks that in this
case too there is no further appeal ; though
once more revision by the High Court s
possible. The 4th and, of course, last
possible position, is that existing in the
present case, the original tribunal has
refused to make a complaint ; the appli-
cant has appealed and the appellate Courfc
has itself made a complaint. It is argued
that in such case the party ordered to be
prosecuted has a right of appeal ; and
revision also might be possible ; except
that if an appeal lies revisional juris-
diction would not, it is imagined, be exer-
cised.
This is the position upon which the
Lahore High Court lias given the decision
quoted above ; but it seems that a con-
trary view has been expressed in this
Court by Mullick, J., in Faujdar Bai v.
King-Emperor (3).
(6) A. I. «, 192± Bom, 317 r
81 Patna RANJIT NARAIN SINGH v. RAMBAHAEKJR SINGH (Bucknill, J.) 1926
In that ca*e the circumstances were as
follows : — An application was made under
8. 476 Criminal P. C. to a Sub-Deputy Col-
lector to make a complaint against one
Faujdar Rai directing his prosecution for
the offences of using a forged document
and giving false evidence. The Sub-Deputy
Collector after enquiry, refused to take
any action. The complainant appealed to
the Collector under S. 476-B, Criminal P.
C. The Collector disagreed with the Sub-
Deputy Collector's view and himself made
ti complaint. Faujdar Rai thereupon
appealed to the Divisional Commissioner
who held on 30th March 1925, that
no appeal lay. From the Commissioner's
decision Faujdar Rai applied to this Court
in revision ; not against the Commis-
sioner's decision that no appeal lay but
against the Collector's complaint. The
first point taken was that the High Court
had no jurisdiction to interfere with the
Collector's order, but Mullick, J., rejected
this contention : his Lordship then dealt
with the matter in revision and allowed
Faujdar' $ application. But, so far as is
here material, the most important matter
in the judgment lies in the following
observations ; the learned Judge writes :
" There is a third point raised, namely,
that the learned Commissioner was wrong
in declining to hear the appeal preferred
by the petitioner. I think the contention
must be accepted. S. 476-B of the Criminal
P. C. appears to contemplate that, if an ap-
pellate Court sets aside the order of the
Original Court, the party prejudicially
affected has a right of appeal to the Court
to which appeals from that appellate
Court ordinarily lie. In this case there-
fore the Commissioner had jurisdiction to
hear the appeal from the order of the
Collector and to set it aside if necessary
and I am asked to direct that the criminal
prosecution should not proceed till the
Commissioner has disposed of the appeal.
In my opinion it is not necessary to make
any such order as I think I have juris-
diction to interfere under Ss. 115, Criminal
P. C., and 107 of the Government of India
Act."
If this view is correct the same reason-
ing would apply in the present case and
the person against whom the appellate
Court (i. e., the District Judge) has under
S. 476-B, made a complaint could appeal to
the High Court.
It is important in endeavouring to come
to a correct decision upon this question to
examine carefully the provisions of Ss.
476, 476A and 476-B in order to ascertain
what is their proper construction. I may
here say that as a result of such investi-
gation as I have been able to make I have
not been able to ascertain that in the Re-
port of the Joint Committee on the Bill
to make in the Criminal Procedure Code
the amendments now comprised in S. 476-B
or in the debates when the Bill was in
the Legislature the question now arising
was in any way envisaged ; and indeed
it was hardly likely that it should have
been, in view of its somewhat involved
nature.
S. 476 contemplates that a Court may
either of its own motion or on application
make a complaint. 8. 476-A contemplates
that an appellate Court may make a com-
plaint if its subordinate Court has taken
no action under S. 476 suo motu or has
not rejected any application made to it to-
do so. S. 476-B gives a right of appeal to*
an appellate Court under certain circum-
stances.
(a) Where the appellate Court's sub-
ordinate Court has refused on application
made to it under S. 476 to make a coin-
plaint ;
(b) where an appellate Court has re-
fused on application made to it under S.
476-A to make a complaint ;
(c) where the appellate Court's sub-
ordinate Court has made a complaint
either suo motu or on application, i.e., in-
cluded in the words or against whom
such a complaint has been made ";
(d) where an appellate Court has itself
made a complaint.
In following out the effect of this it
will be simplest to illustrate by reference
to Munsif, District Judge and High Court
as instances of original, appellate and
superior appellate Courts.
It would seem clear that in case
(a) where a Munsif has refused an ap-
plication made to him under S. 476 to
make a complaint an appeal lies to the
District Judge by the applicant, the posi-
tion does not fall within 4T6-A but within
476*B. At the appeal no complaint has yet
been made ; the District Judge may take
the same view as tjie Munsif and dismiss-
the appeal. In such case there is no sort
of prescribed procedure for an appeal to-
the High Court. On the other hand the
District Judge may disagree with the
Munsif and himself make a complaint and
the complaint then is amenable to the
1926
BAN JIT NARAIN SINGH Y. BAMBAHADI/R SINGH (Buckuill, J.) Patna 85
provisions of S. 476 ; that is to say, it is,
•under S. 476-B, subject to appeal to the
High Court ; for S. 476-B, reads : " Any
person against whom a complaint under
S. 476 has been made by any Court."
In the case mentioned the District
Judge is making the complaint under S.
476, the District Judge's Court is subordi-
nate to the High Court within the mean-
ing of S. 195, sub-S. 3 of the Criminal P. C.
and therefore the appeal lies to the
High Court. As to (b) the Munsif has
<done nothing and has been asked
to do nothing. The District Judge
has either suo motu or on application
made a complaint. All this is under S.
476-A. The complaint is amenable to tho
provisions of S. 476 ; clearly the com-
plaint can under the provisions of S.
476-B be the subject of appeal to the High
Court from the District Judge. For the
•only complaint is by the District Judge.
As to (c) the Munsif has suo motu or
on application made a complaint ; clearly
there is an appeal to the District Judge
under S. 476-B. The District Judge may
uphold the Munsif's view ; but in dis-
missing the appeal he (the District
Judge) makes no complaint ; and it is
only against the complaint that so far as
*(c) is concerned a right of appeal is given.
But the District Judge may direct the
withdrawal of the complaint ; but even
so the District Judge makes no complaint;
and it will be once more observed that it
is only when the District Judge makes the
•complaint that the provisions of S. 476
apply to it.
Lastly as to (d) : the Munsif has done
nothing and has never been asked to do
anything under S. 476, But the District
Judge has made a complaint either suo
motu or on application under S. 476-A ;
to this complaint the provisions of S. 476
•4ire applicable ; and under S. 476-B such
a complaint can be the subject of appeal ;
'but to what Court ? Obviously only to the
High Court because it is from the District
.Judge.
In my opinion, therefore, upon a proper
construction of Ss. 476, 476-A and 476-B
and still retaining the illustration of the
three ascending Courts as Munsif, District
Judge and High Court there would lie .
an appeal from the District Judge to the
High Court, (a) Where the I^unsif has
refused on application made to him under
S. 476 to make a complaint, where there
has been an appeal to the District Judge
and where the District Judge, disagreeing
with the Munsif, has made a complaint,
(b) where under S. 476-A (the Munsif
has taken no action suo motu and has
not been asked to take any action) the
District Judge has (a) on application to
him made a complaint, (b) on application
to him has refused to make a complaint.
I can see no possibility of an appeal
lying under any other of the positions
referred to.
The same reasoning would of course
apply to any other chain of three Courts
(contemplated by S. 476) of ascending
jurisdiction. Being therefore of opinion
that in the present case an appeal does
lie, one must therefore examine the cir-
cumstances under which the District
Judge was induced to make the com-
plaint.
I think it is desirable to remark, as is
pointed out by Macleod, C. J., and Shah,
J., in the case decided in the Bombay
High Court, that the question whether
a complaint should be made under S. 476,
Criminal P. C., is almost invariably a mat-
ter of discretion ; and the High Court is
under those circumstances always loath
to interfere except in extraordinary cases.
It is necessary, therefore, to look first
at the original judgment given by the
Munsif in the suit which he decided in
July 1924. The action was brought by
the plaintiff for recovery of his share in
the produce of certain bakasht lands in
possession of the 1st petitioner. The only
substantial defence which appears to
have been put forward was that the de-
fendant had in fact paid what was due ;
there were other questions raised, one of
which was that part of the lands were
raiyati lands and part bakasht and that
the plaintiff could not sue in one and the
same suit for rent for both kinds of lands.
This point is only of importance because
in support of the plea of payment the
defendant produced certain documents
of account (bujhaotas) in respect of the
alleged payment of what was due with
regard to the bakasht lands and certain
receipts in respect of the raiyati. lands.
The Munsif undoubtedly held that these
bujhaotas and receipts were not genuine.
It would not be, I think, right for me to
enter in detail upon the reasons why the
Munsif came to this opinion (in case it
might be thought that I was expressirg
any view of my own as to the authenti-
city of these documents), but I niay state
86 Patna KANJIT NARAIN SINGH v. RAMBAHADUR SINGH (Bucknill, J.)
that, apart from observing that, so far as
he could judge from the caligraphy, he
was not satisfied that the signatures pur-
porting to have been made on behalf of
the plaintiff were genuine, he gave several
other grounds in support of that view.
For in-itanc-) with regard to the bujhaotas
he suggested that they showed a set off
in the defendant 's favour, in respect of
the alleged share of a third party, for the
inclusion of which there appeared to be
no sort of justification ; again, he thought
that under the circumstances, which dis-
closed litigation still existing between the
parties with regard to the lands in ques-
tion, it was highly improbable that clear
receipts and bujhaotas would have been,
as the defendant alleged, granted to him
by the plaintiffs, or indeed that the de-
fondant would under such circumstances
have in fact paid what was alleged to
have boon due to the plaintiffs. He con-
cludes his summing up of the case in the
following words : ' Considering all this
I disbelieve the defendant's plea of pay-
ment and hold the bujhaotas and
receipt filed by him hot to be genuine."
The defendant appealed and it does not
appeir that the Mun^if was then asked or
thought fit to take any action under the
provisions of 8. 170 of the Criminal P. C.
The appeal was decided by the Additional
Sessions Judge and Subordinate Judge of
the 3rd Court of Gaya on the 5th
February. The appeal was dismissed.
The learned Judge, who again points out
that, in view of the disputes which
were going on between the parties, it was
highly unlikely that the plaintiffs would
grint receipts which would have im-
p'jr l'(d their position in the other liti-
gation which was principally concerned
with a partition suit and who further
draws attention to certain intrinsic im-
probabilities in connexion with the
genuineness of the bujhaotas and re-
ceipts, agreed with tho Munsif that
neither tho receipts nor the bujhaotas
were genuine. As I have mentioned be-
fore, v.ery shortly after the appeal had
been concluded, application was made by
the plaintiffs to the Munsif of the Court
before which the original suit had been
tried, asking that action should be taken
under the provisions of S. 476 Criminal
P. C. The Munsif before whom this
application came was not the same
individual as the Munsif whq had tried
Che case. He seems to have thought in
his decision, given on the 23rd April last
refusing to take action, that no prima
facie case of forgery or the like had been
made out. He observes that neither the
trial nor appellate Court had specifically
found that the documents were forged
and comments upon the fact that neither
of those Courts had apparently thought fit
of their own motion to direct a prosecu-
tion. I need not point out that such,
reasoning is not exhaustive ; for, if it was
always to be left solely to the self-acting
motion of the Courts concerned to institute
a complaint, much of S. 476 would be
surplusage ; and indeed, it is well known
that it is frequently only upon application
made to it that a Court either under S.
476 or 476-A of the Criminal P. C. takes
action. The Munsif proceeds to state
that although the Courts expressed the
view that tho documents were not genuine
it does not follow that they were forged ;
it is again, to my mind, obvious that the
questions whether the documents were
forged or not by or on behalf of the
petitioners, or whether they were used in
any way by or on behalf of them (they
the petitioners), knowing that they were
forged, are matters which are to be
contemplated as the subject of the prose-
cution which has now eventually been
ordered. The Munsif, however, remarks
that the mere fact that neither the trial
nor appellate Court took any action of
their own motion under S. 476 Criminal
P.C. proves that the matter was not consi-
dered sufficiently serious to justify a.
prosecution ; I have already pointed out
that this is fallacious reasoning. The
Munsif, lastly, observes that the fact that
the plaintiffs asked the Court to issue a
complaint shows malice and grudge ; but-
it is hardly to he understood necessarily
that such is the case ; or otherwise it
would be difficult to envisage an instance
where any private individual could suc-
cessfully make an application under the
provisions either of S. 476 or 476-A of
Criminal P. C., I do not therefore, think
that the reasoning upon which the Munsif
bases his refusal to make a conn plaint can
be regarded as sound.
The applicants ^appealed to£he District
Judge of Gaya, and on the 10th July last
the learned Judge differed from the
Munsif and instituted a complaint. He
points out that both the trial and the
appellate Courts had clearly found that
the receipts and bujhaotas were not
BAM AUTAR PANDE v. SHANKER DAYAL (Adami, J.) Patna 87
1926
genuine, and he observes that the c one iu
sions at which those Courts had arrived
appeared to him to be based upon some
good grounds : he also refers to some of
those grounds. To my mind it is extremely
difficult to see how it is possible for this
Court to, interfere with the decision to
which the District Judge has come, and I
may say, indeed, that had I been in the
position of the Munsif before whom the
application was made I have little doubt
but that I should have adopted the view
that a complaint ought to have been in-
stituted.
The learned counsel, who has appeared
for the appellants here, has urged against
the order of the District Judge instituting
a complaint against his clients a variety
of circumstances upon which he bases an
argument that the reasons which were
given by the trial and appellate Courts for
thinking that the receipts and bujhaotas
were nob genuine were mistaken. He
points also to the fact that a second appeal
against the appellate decree of the Sub-
ordinate Judge preferred to this Court has
been admitted. It is true that in their
application before the Munsif, asking him
to institute a complaint, reference is made
to the fact that the Government Examiner
of documents had reported upon them in
their (the applicants') favour and it would
seem that the opinion of the expert ex-
aminer was before the Munsif when the
application was made to him. The
Munsif, however, does not pay much
attention to this report as he rightly
points out that the expert has not yet
been cross-examined. The value of the
expert's opinion, however, and the other
matters which have been referred to by
the learned counsel for the appellants
here are matters which it seems to me
can only properly be gone into during the
course of the prosecution proceedings
which have been directed. To my mind
there was no undue delay in the appli-
cation to the Munsif. It is impossible for
this Court to hold that the District Judge
of Gaya has wrongly or unreasonably
exercised l|is discretion. Two Courts have,
rightly or wrongly, held that the docu-
ments in .question are, not genuine and,
under those circumstances, if the District*
Judge thinks that there is a case which
ought to form the subject-matter of a
prosecution it is not in my opinion an
occasion upon which this Court should,
unless extraordinary circumstances were
•visible which do not appear here, interfere
with what has been done.
Under those circumstances, in my view,
the appeal should be dismissed.
Adami, J. — I agree.
Appeal dismissed.
if if A. I. R. 1926 Patna 87
ADAMI AND SEN, JJ.
Earn Autar Pande and others — Appel-
lants.
v.
Shanker Dayal and others — Bespon-
dents.
Appeal No. 845 of 1922, Decided on
23rd June 1925, against the appellate
decree of the Dist.-J., Shahabad, D/- 30th
June 192^.
* * (*) Civil P. C., S. 11— Competent Court—
Suit dismissed but one ist>ue decided against defen-
dant — Defendant appealing — Appellate Court
wrongly holding appeal incompetent but deciding
tlie Issue in defendant's favour — Finding is res
judicata.
An usufructuary mortgagee brought a suit
against mortgagor for possession. He applied for
an amendment to add alternate p*ayer for re-
covery of debt but his application was retused and
his suit dismissed. Court held that consideration
had poised. On appeal by defendant Court held
that no consideration passed but the appeal was
wrongly dismissed on the ground that defendant
was successful^ in lower court and no appeal lay.
Plaintiff brought a second suit fur money
decree for the debt, llel d\ that the first suit
operated as rejudicata. liaghunath Kurmi
v. Deo Narain Ltai ($. A. H19 of H>16, Patna)
Poll. [P. 89, C. 1J
* (b) Civil P. C., O. 2, It. 2-~Cau*es of action
dijjeictit but su^tantial evidence common to both —
Relief* atising from both sJiould be claimed in the
same suit.
In a suit by usufructuary mortgagee for posses-
sion under the terms ot tiie mortgage, the relief
under Transfer of Property Act. S. Gb (b) for money
decree in the alternative should be prayed for ;
otherwise it is barred by 0. 2, K. 2, Civil P. C.
[P. H'J, C. 1]
C. C. Das and D. N. Varma—ioi
Appellants.
Parmeshwar Deyal — for Respondents.
Adami, J.— The plaintiff in the case
out of which this second appeal
cornos to us took a mortgage from Basudev
Kai and Shankar Deyal Rai in con-
sideration of an advance of Rs. 950. He
was to take possession of 3 high as of
raiyati land and to enjoy the usufruct in
lieu of interest ; no date was fixed for
repayment, but the mortgagor was to be
entitled to recover possession by payment
of the amount advanced on the 30th Jeth
in any year. The unsufructuary mort-
gage bond*was executed on August llth,
88 Patna
RAM AUTAR PANDE v. SHANKER DAYAL (Adami, J.)
1926
1914. In 1919 a dispute arose regarding
the possession of the land which resulted
in proceedings under 8. 145 Criminal
F. C. In those proceedings it was
decided that the plaintiff mortgagee and
his lessee were out of possession. There-
upon the plaintiff instituted a suit for
recovery of possession on the strength of
his mortgage bond. His only prayer in
the plaint was for recovery of possession.
After the close of the case, however, he
put in a petition that he might amend the
plaint by an alternative prayer for
recovery of the mortgage debt. The
learned Munsif rejected this petition and
thereafter dismissed the suit on the ground
that the property mortgaged was joint
family property and that the Defendant
No. 3 had not joined in the mortgage and
that the plaintiff had failed to prove any
legal necessity. The Munsif held that the
mortgage was genuine and consideration
had passed. In his judgment the learned
Munsif stated that a money decree could
not be allowed as there had been no
prayer for it ; he said that he left the
point open and plaintiffs may seek their
remedy, if so advised, against Defendants
1 and 2 for the money actually advanced.
Against this judgment and decree an
appeal was filed by Defendants 1 and 2
against the decision that the mortgage
bond was genuine. There was a cross
appeal by the plaintiff asking for a money
decree. This cross appeal was dismissed
by the learned Subordinate Judge because
the cross appeal was not sufficiently
stamped. As to the appeal, the learned
Subordinate Judge held that no con-
sideration had passed, but he proceeded
to find that no api>eal lay because the
defendants had been successful in the
Court below and therefore there was
nothing to appeal against.
The present plaintiffs on the basis of
the statement made by the Munsif, that
they might seek their remedy for the
money actually advanced, instituted the
present suit on the 17th August 1921,
praying for recovery of the debt under
the bond of 1914.
The learned Subordinate Judge dis-
missed the suit first : on the ground that a
money decree had been asked for in the
previous suit and refused and that the
provisions of S. 11 of the Civil Procedure
Code barred the present suit; and secondly,
on the ground that as the plaintiff had
opportunity in the previous suit of
asking for the relief and had not taken
that opportunity, O. 2 B. 2, of the Civil
Procedure Code precluded him from suing
for the relief.
On appeal the learned District Judge
has upheld the finding of the Subordinate
Judge. ,
Before us Mr. Das takes up the point
that S. 11 of the Civil Procedure Code
cannot operate because, though the Sub-
ordinate Judge on appeal held that no
consideration passed, that finding can
have no strength as res judicata since the
Subordinate Judge found that no appeal
lay and dismissed the appeal.
The second point taken by Mr. Das is
that the lower Courts are mistaken in
thinking that 0. 2, R. 2 will operate. His
contention is that the cause of action in
the previous suit and the cause of action in
the present suit are wholly different. He
says that in the previous suit the cause of
action was the dispossession of the plain-
tiffs and the prayer was only for recovery
of possession, whereas in the present suit*
the plaintiff is merely asking for the
repayment of a debt incurred under the
bond. He contends that it cannot • be
argued that in the previous suit the plain-
tiff could have asked for a money decree
on the basis of S. 68 clause (b) of the
Transfer of Property Act, because it wan
found in that suit that there was no
mortgage, and in fact the Court in the
previous suit, having come to that finding,
could not have given relief under S. 68
clause (b).
1 will deal with the second contention
of Mr. Das first. It is quite plain that
when the plaintiff instituted his first suit
claiming the bond to be a mortgage bond
and asking for recovery of possession, it
was open to him to claim for the repay-
ment of the mortgage money under S. 68
clause (b). That relief was open to him
and he did not claim it. His prayer for
an amendment of the plaint was rejected
and the remark of the Munsif in his judg-
ment can hardly be held to amount to the
grant of leave to institute a suit for
money. It is quite true that ^he Munsif
having found that there was no valid
mortgage would ' be unable to grant a
decree under S. 68, clause (e). It is true
too that the cause of action for recovery
of the money as a debt due under the
bond would be different from the cause of
action in the mortgage suit asking for
1926
UMA JHA v. CHETU MANDER (Das, J.)
recovery of possession, for the facts to be
proved would not be similar in the two
cases. In both, however, the bond would
have to be relied on. The trouble to ray
mind is, if Mr* Das* arguments are ac-
cepted and it is held that the present suit
is merely a suit for a debt due on the
bond, limitation will come in for the bond
was executed on the llth August 1914
and the suit was not instituted till the
17th August 1921 and the suit would be
barred. There is no doubt in my mind
that in the previous suit the plaintiff
should have asked for the relief allowed
by S. 68, clause (b) of the Transfer of
Property Act- He certainly cannot ask
for that relief now.
With regard to S- 11 of the Code of
Civil Procedure, the learned Subordinate
Judge came to a direct finding on an issue
between the parties that consideration
did not pass in 1914. The reason given
by the learned Subordinate Judge for
dismissing the appeal was not altogether
a good reason. It was necessary to decide
the point whether consideration passed
between the parties and the learned
Munsif came to a decision on that point
which was against the interest of the
defendants. If no appeal had been brought
the finding of the Munsif would have
operated as res judicata against defen-
dants, and therefore as decided by
Mullick,J. in the case of Bac/hunath Kurmi
Dwnarain Rai (l) the defendants had a
right of appeal although the suit against
them had been dismissed. I think, there-
fore, that S. 11 of the Civil Procedure
Code will operate and bar this second
suit, it having been found that no con-
sideration passed on the bond of 1(J14.
I would, therefore, dismiss this appeal
with costs.
Sen, J. — I agree.
Appeal dismissed.
(1) S. A. No. 1419 of 191G.
* * A. I R. 1926 Patna 89
DAS AND Boss, JJ.
Uma Jhh— Plaintiff — Appellant.
v.
Ghetu Mandcr and others — Defendants
— -Respondents.
Appeal No. 66 of 1923, Decided on 4th
November 1925, from the appellate
decree of the Suh-J., Bhagalpur, D/. 25th
October 1922,
Patna 89
(a) Registration Act, S. 77—5. 77 doe*
no/ affect equitable jurlsdlctl&n of Courts to decree
specific performawc of contracts to sell — Specific
Belief Act, S. 12.
Though independently of S. 77 of the Registra-
tion Act a suit to compel registration of a docu-
ment does not lie, the Registration Act does not
touch or affect the equitable jurisdiction possessed
by the civil Courts to pass a decree for specific
performance by the execution and registration of
a fresh document whe»"e circumstances exist enti-
tling the plaintiff to such a decree : 9 Cal. 150 and
12 C. L. J. 464, Applied. [P 89 C 2]
if (b) Transfer of Pro^rty Act, S. 54— Unre-
gistered deed Is admissible in a suit for specific
performance — Registration Act, 8, 49.
Although a kabala, which has not been register-
ed is inoperative as a kabala yet it is admissible in
evidence in a suit to enforce specific performance
of the contract which must be deemed to have
preceded the execution of the kabala. [P 90 C 1]
N. C. Sinha. and B. B. Gliose— for Ap-
pellant.
S. N. Sail ay— to? Respondents.
Das, J. — The question for our decision
in this case is whether the plaintiff
is entitled to a decree for sj>eci-
fic performance in the peculiar circum-
stances of the case. It is not disputed that
the Defendant No.l received Rs. 300 from
the plaintiff and executed a kabala in
respect of the disputed property in favour
of the plaintiff on the 14th December
1916. The document, however, was not
registered ; and it appears that Defendant
No. 1 subsequently sold the disputed pro-
perty to the defendants third party. The
specific relief claimed in the plaint is that
"the Court may direct defendants first
party to get the same" namely the kabala
'registered within the time fixed by the
Court, that in the event of their failure
to have registration done even on the
direction of this Court the Court may get
the said kabala registered."The jurisdiction
of the civil Court to direct a document to
he registered is a qualified one and only
arises if certain essential conditions are
satisfied. These conditions have not been
satisfied in this case, and the plaintiff was
clearly not entitled to the si>ecific relief
claimed by him.
But tins conclusion, in my opinion does
not decide the case. The Registration
Act does not touch or affect the equitable
jurisdiction jrcssessed by the civil Courts
to pass a decree for specific j>erformance
where circumstances exist entitling the
plaintiff to such a decree. This was the
view taken by the learned Munsif. The
learned Subordinate Judge has taken a
90 Patna
KANHAIYA LAL v. MT. SUGA KUAR
1926
different view and has relied upon the
decision in Edun v. Mahomed Siddik (l)
in support of his view. That case decided
that, independently of S. 77 of the Begis-
tration Act, a suit to compel registration
of a document will not lie — a decision
with which we entirely agree. The ques-
tion raised in this case is whether the
plaintiff is entitled to a decree for specific
performance of the agreement to sell
the disputed property to him ; and on
this question the decision of Mukherji, J.
in Surendra Nath Nay'*. Chowdhury v.
(hpal Ch under Ghosh (2) entirely supports
the view of the learned Munsif, As was
pointed out in that case, it is not a suffi-
cient performance of the contract for the
defendant merely to execute a conveyance:
for until the kabila is registered, it is
inoperative in law. The execution of the
kabala by the defendant not having con-
verted the executory contract into an exe-
cuted contract, the plaintiff is clearly
entitled to a decree directing the defen-
dant to carry it into execution. It was
contended before us that the agreement
between the pirties having been reduced
into writing, the only evidence of that
agreement would be that furnished by the
document, and that the document is in-
admissible in evidence as it was not re-
gistered in accordance with law. I know
of no authority which decides that an
agreement for sale has to be registered
under the Begistration Act. The true
view is that although a kabala which has
not been registered is inoperative as a
kibala, yet it is admissible in evidence in
a suit to enforce specific performance of
the contract which must be deemed to
have preceded the execution of the
k thai a.
It was then contended that the
plaintiff has not asked for a decree
for specific performance and that this
Court ought not to convert a
suit for registration into a suit for spe-
cific performance. The argument, in my
opinion, is a technical one, and ought not
to weigh with us. All the material facts
entitling the plaintiff to a decree for spe-
cific performance are pleaded. These
facts were found in favour of the plaintiff
by the learned Munsif and were not
challenged before the Subordinate Judge.
That being so.'the plaintiff was clearly
[1888] 9 Oal. 150=11 C. L. R. 440.
[1910] 12 C. K J. 464.
entitled to succeed before the learned
Subordinate Judge.
The decree passed by the learned
Munsif, is however not strictly in ac-
cordance with law. The learned Munsif
directs the Sub-Begistrar of Banka
to register the kabala. As I have
already pointed out, the civil Court
has no jurisdiction to pass a decree
of this nature independently of S. 77 of
the Begistration Act. The plaintiff is,
however, entitled to a decree for specific
performance by the execution and regis-
tration of a fresh document within three
months from the date hereof.
We allow the appeal, set aside the
judgment and decree passed by the Court
below and vary the decree passed by the
Court of first instance in the manner in-
dicated above. If the defendant should
fail to execute and register the document
within the time allowed, the Court of
first instance will do so on behalf of the
defendant.
The plaintiff is entitled to his costs
throughout.
Ross, J. — I agree.
Appeal allowed.
* * A I. R 1926 Patna 90
DAS AND ADAMI, JJ.
JKanhaiya Lai Sahu — Plaintiff — Ap-
pellant.
v.
Mt. Suga Ruai — Defendant — Bespon-
dent.
Appeal No. 94 of 1922, Decided on 29th
May L925, from a decision of the D. J.,
Darbhanga, in original decree D/- 3rd
January 1922.
Tfr ^ (a) Hindu Laic — Adoption — Karta putra
is not In better position than dattaka putra —
Karta putra does not. inherit any person except
the adoptive father — Karta putra does not by mere
adoption get a right to succeed, to the estate of
adoptive father — Natural born son excludes alto-
getlier the karta putra.
It is a very strong thing to say that a karta
putra who retains his status in/, his natural
family and loses no right in that family is in a
bettor position than a datta putra who un-
doubtedly loses his status in his natural family
and who is liable to be defeated in his adoptive
family by the birth of a natural born son. The
modern tekt books refer to the adoption of a
karta putra as an adoption in the kritrima form ;
but this is not quite correct. All that is neces-
sary is the consent of the adoptee, which involves
the adoptee being an adult. He does not lose the
1926
KANHAIYA LAL v. MT. SDTGA KUAR (Das, J.)
Patna 91
rights of inheritance in his natural family, and
takes the inheritance of his adoptive father, but
not of his father's father or other collateral
relations nor of the wife of his adoptive
father or her relations. It is no part of the
contract that the adoptee should succeed to the
estate left by his adoptive father. A dattak son
who loses his status in hia natural family has no
absolute right to the estate of his adoptive father.
He is liable to ba defeated by a gift inter vivos or
by a devise made-by his father in favour of another
parson. He is also liable to be defeated, if not
absolutely, certainly to the extent of important
shares in the estate by the birth of a natural born
sou subsequent to the adoption. Succession to the
estate of the adoptive father is not inherent in
the status of a karta putra. Where a natural
born son is in existence he is entitled to exclude
every other kind of son from sharing with him
in the estate of his father : 1 Sel. EC p. 11 ; 6 I. D.,
Old *erie<<. page 8, Expl. and doubted.
[P 91, C 1, P 92 01 and 2, P 98, C 1. P 94 C. 1]
K. P. Jayaswal, S N. Gupta and Md.
Hasin Jan — for Appdlant.
S. M. Mullick and L. K. Jli a — for Res-
pondent.
Das, J.— Although I differ from the
learned District Judge in regard to both
the questions decided by him, I think
that the decree pronounced by him is
right and that it ought to he affirmed.
The plaintiff claims to have been
adopted by Khub Lai as his karta putra
on the 26th January 1915. Khub Lai
died on the 28th December 1915 and a
posthumous son Hanuman Prasad, was
born to him who, however, died shortly
afterwards. The plaintiff contends that,
notwithstanding the birth of a posthu-
mous son, he is entitled to succeed to the
estate of Khub Lai to the exclusion of
the defendant, who is the widow of Khub
Lai and who is in possession of the
estate not as the heiress of Khub Lai,
but as the heiress of her deceased son.
Hanuman Prasad. Two questions were
raised in the litigation : first, the ques-
tion of fact, namely whether the plaintiff
was adopted by Khub Lai as his karta
putra and ; secondly the question of law,
namely, whether, assuming that he was
so adopted, he is entitled to succeed to
the properties in the events which have
happened. The learned District Judge
held that the adoption was not proved
and decided the question of fact in favour
of the defendant. In regard to the other
question raised before him, he thought
that the plaintiff would have been
entitled to l/4fch share in tfye estate of
Khub Lai had he succeeded in proving
bis adoption. In my opinion the plaintiff
has established the factum of his adop-
tion, but he is not entitled to succeed to
the estate of Khub Lai havir.g regard
to the fact that a son was born to Khub
Lai subsequent to the plaintiff's adoption.
I will first deal with the question of
fact. Khub Lai had three daughters,
Tapeshwar Kuer, Dhano Kuer and
Muneswar Kuer, of whom Dhano Kuer
and Muneswar Kuer were alive at the
date of the alleged adoption. The plain-
tiff is the son of Tapeshwar Kuer who
died many years ago. Khub Lai had
also a son who died in his infancy. It
is the common case that Kanhaiya Lai,
the plaintiff, was brought up as a son
by Khub Lai and was the object of his
love and affection. He certainly looked
upon him as his son and referred to
him as his son to all his friends. The
plaintiff lost both his father and mother
in his infancy, and, as I have said,
was brought up by Khub Lai and was.
married at his expense. The learned Dis-
trict Judge accepts the case of the plaintiff
as inherently probable. He also thinks
that " the story told has been told in a
consistent way and there is not much
contradiction in the same." He says
that he " might have been disposed to
accept their evidence " but for certain
circumstances of the case to which he
refers, 1 will presently refer to these
circumstances myself ; it is sufficient for
me to point out at the present moment
that in the view of the learned District
Judge the story told by the plaintiff i*
inherently probable and is supported by
evidence which is consistent. [After
discussing the evidence his Lordship
remarked] :
I hold that the plaintiff has established
that he was adopted by Khub Lai as-
his karta putra.
The next question is whether in the
events which have happened the plaintiff
is entitled to succeed to the estate of
Khub Lai. The plaintiffs case is : first,
that he has the right to succeed to the
estate of Khub Lai by virtue of the
contract at the time of the adoption;
and, secondly, that in any everit he is.
entitled to succeed to a share of that
estate. The defendant's case is that the
only contract between the parties waa
as to sonship and that he took no estate
by virtue of that sonship although he
might have succeeded to one had a son
not been born to Khub Lai. It is, in my
opinion, a. very strong thing to say that
a karta putra who retains his status in
92 Patna
KANHAIYA LAL v. MT.»SUGA KUAR (Das, J.)
1926
his natural family and loses no right
in that family is in a better position
than a clattak putra who undoubtedly
loses his status in his natural family
and who is liable to he defeated in his
adoptive family by the birth of a natural
born son. The modern text books refer to
the adoption of a Karta Putra as an adop-
tion in the Kritrima form ; but it seems to
me that this is not quite correct. I do
not however, propose to enter upon this
question as it is not material to this litiga-
tion. Ifc may be that the system as to
Karta putra is an extension of the Kritrima
form of adoption ; but there is no doubt
whatever that the system as we now know
it in Mithila is the invention of that very
ingenious person, the Mithila Brahmin
•who is so anxious to preserve unsullied
the purity of his genealogical table. The
•difficulty with which the Mithila Brahmin
was faced was this : where an adoption
took place the name of the adoptee had to
be removed from the genealogical table of
his natural family and a question might
be raised whether the genealogical table
with the correction was an honest docu-
ment. He, therefore, devised the system-
the system of Karta putra — under which a
person on adoption did not lose his status
in his natural family, though he acquired
«, status as the son of his adoptive father.
No ceremonies or sacrifices are necessary
to the validity of this particular form of
adoption. All that is necessary is the
consent of tho adoptee which involves the
adoptee being an adult. As I have said,
he does not lose the rights of inheritance
in his natural family, and takes the in-
heritance of his adoptive father, but not of
his father's father or other collateral
relations nor of the wife of his adoptive
father or her relations. The following
passage in Colebrooke's Digest (Book V,
Ch. IV, Sec. 10, cited in Sarkar's Adoption
2nd edition, page 447) is of interest as
stating the position in this particular form
of adoption : "Sons are thus adopted in
Mithila; the practice of adopting sons
given by their parents was there abolished
by Sridatta and Pratihasta, although the
latter had been himself adopted in that
manner, Their motive was, lest, a child
already registered in one family, being -
again registered in another, a confusion of
families and names should thence ensue.
A son adopted, in the form so briefly
noticed in the present section, does not
Jose his claim to his own -family, nor
assume the surname of his adoptive
father ; he merely performs obsequies, and
takes the inheritance." The reason for
this particular form of adoption in Mithila
is also explained by Macnaghten as follows
(Macnaghten's Hindu Law, Vol. 1, 95-100):
" But according to the doctrine of Vachas-
pati, whose authority is recognized in
Mithila, a woman cannot, even with the
previously obtained sanction of her hus-
band, adopt a son after his death, in the
Dattak form ; and to this prohibitory rule
may be traced the origin of the practice
of adopting in the Kritrima form, which
is there prevalent. This form requires no
ceremony to complete it, and is instan-
taneously perfected by the offer of the
adopting, and the consent of the adopted
party. It is natural for every man to
expect an heir, so long as he has life and
health ; and hence it is usual for persons,
when attacked by illness, and not before,
to give authority to their wives to adopt.
But in Mithila, where this authority
would he unavailable, the adoption is per-
formed by the husband himself ; and re-
course naturally had to that form of adop-
tion which is most easy of performarce,
and therefore less likely to be frustrated
by the impending dissolution of the party
desirous of adopting," The rights of tho
adopted son would seem to depend on the
contract between him and his adoptive
father, and the question is what is that
contract ?
Mr. Jayaswal strongly contends before
us that it is part of the contract that the
adoptee should succeed to the estate left
by his adoptive father, I have investiga-
ted this matter with some care and I find
it difficult to accept this proposition. As
I have said, a Dattak son who loses his
status in his natural family has no abso-
lute right to the estate of the adoptive
father. He is liable to be defeated by a
gift inter vivos or by a devise made by hi^
father in favour of another person. He i^
also liable to be defeated, if not abso-
lutely, certainly to the extent of important
shares in the estate by the birth of a
natural born son subsequent to the adop-
tion. What reason is there f of suggest iu^
that a karta putra is in a better position
than a Dattak soti ? It is not suggested
that the contract in regard to this parti-
cular fornj of sonship involves a contract
by the father to devise the estate to the
adoptee. If that were established, it
might be urged that the adoptee might
1926
KAXHAIYA LAL v. MT. SUGA KUAR (Das, J.)
Patna 99
claim specific performance of the agree-
ment against the person in actual posses-
sion of the estate agreed to be devised
to him. If that were the position
of Mr. Jayaswal, the answer would
be that the plaintiff was admittedly
a minor at the date of the adop-
tion, and whatever the position may
be in Hindu Law, a person in a British
Court cannot sue for specific performance
of an agreement entered into at a time
when he was a minor. But if it is not
the case of the plaintiff that there was a
contract to devise the estate to him, what
else can there be in the argument ? It
surely cannot be suggested that anyone
can alter the rule of succession laid down
by Hindu Law. To succeed in his argu-
ment Mr. Jayaswal must establish that it
is the rule of Hindu Law that a karta
putra must succeed to the estate of his
adoptive father and that it is not open to
his adopted father to defeat his interest
either by a gift inter vivos or by a Will to
•take effect upon his death. For this pro-
position there is no authority, and I am
unable to accept it.
^Ir. Jayaswal relies upon a decision in
Kullean Singh v. Kir pa Sinyh and Bholee
Sinyh (l). In answer to a question put
by the Court in that case the pundit thus
described the ceremony of adoption in
this particular form : " Let the person
(intending to adopt) first consult a Brah-
min, and, having discovered a propitious
moment, let him, in the presence of the
Brahmin, and of some friends or relatives,
place something in the hand of the person
to be adopted, and say to him : ' Be thou
my adopted son, my goods and effects shall
become thy property.' The person adopted
will reply : I agree to become thy son' ".
Mr. Jayaswal relies upon the fact that it
is part of the contract that the adopted
father says : " My goods and effects shall
become thy property," and so they will,
unless the adoptive father makes a gift of
the goods and effects or gives them away
by his Will to take effect on his death. In
my opinion the passage upon which Mr.
Jayaswal velies does Dot establish that
succession to the estate of the adoptive
father is inherent in the, status of a karta
putra.
But apart from any other view it seems
to me that this is not a very cdrrect way
of describing the ceremony. We have two
latter cases : Mt. Sutputte v. Indranaund
U) 1 S^l. Rip. 11=6 Indian Decisions, O. 8. «*
Jha (2) and Ooman Dat v. Kunhia
Singh (3). In both these cases the cere-
mony is thus described : " The prescribed
form for adopting a Kritrima son is as
follows : In an auspicious hour let him
bathe, and also cause the person whom he
wishes to adopt to be bathed ; let him
present something at his pleasure, and
say : * Be you my son' ; and let the son
answer, ' 1 am become your son/ Then
let him, according to custom, give a suit
of clothes to the son. These are the legal
conditions of adoption," and then it is said
in the case in 2 Select Report at page ^24
that " The adopted son will inherit the
property of his adoptive father, even
although the latter leave a widow." This-
is accepted by Mayne as the ceremony in
the Kritrima form of adoption. He says-
as follows : " At an auspicious time, the
adopter of a son, having bathed, addressing
the person to be adopted, who has also-
bathed, and to whom he ^has given some
acceptable chattel, says : ' Be my son'. He
replies : * I am become thy son'. The
giving of some chattel to him arises
merely from custom. It is not necessary
to the adoption. The consent of both
parties is the only requisite ; and a set
form of 'speech is not essential :" (see S.
20G.) It seems to me therefore that it can-
not he urged that the plaintiff takes the
estate of Khub Lai by virtue of his original
contract with him.
The next question is whether he is
entitled to any share in the estate of Khub
Lai. This question admits that the
natural born son was the proper person to
succeed to the estate of Khub Lai ; but
the question still remains whether the
adopted son is to be altogether excluded.
Now, on this question different Smriti
writers have laid down different rules ;
but we are concerned with the rule in the
Mithila School. After quoting the vari-
ous Smriti writers, Bachaspati Misra, who
is of paramount authority in Mithila says
as follows : " Mann and other legislators
have said that, notwithstanding other
kinds of some sons, the- legitimate son
alone receives the whole estate of his
father, but they have also declared that
the other sons are sharers of the estate.
To remove this contradiction it must be
understood that, if the legitimate son be
(2) 2 Sel. Rep. 222—6 Indian Decisions, 0. 8.
529.
(3) 3 SeL Rep. 192- : 6 Indian Decisions, 0. S.
824.
Patna
SRIPAT SINGH v. NABESH OHANDKA BOSE
1026
virtuous, he shall receive the whole estate
without giving a share to the others ; but
if he he void of good qualities, and
others possess them, they are entitled to
have their respective shares, as has been
stated above." In my opinion this is con-
clusive of the rights of the parties in this
litigation. It was contended on behalf of
the appellant by Mr. Jayaswai that in
order to entitle a legitimate son, by which
I understand a natural born son, to suc-
•ceed, he must show that he is virtuous ;
but the question does not arise because
the natural born son in this case died soon
/ifter his birth and it cannot bo suggested
that he was not virtuous. If this parti-
cular form of adoption be the same as the
kritrirna form of adoption, then this pass-
age in Vivaria Chintamani (Tagore's Edi-
tion page <287) is conclusive of the rights
of the parties. If, on the other hand, this
particular form of adoption is not the
samo as kritrima form of adoption, as I
urn inclined to think, the rule laid down
by Bichaspati Misra must still apply
sinco he lias made it clear that where a
natural born son is in existence, he is
entitled to exclude every other kind of son
from sharing witli him in the estate of his
father.
In my opinion tiio suit was rightly dis-
missed by tho learned District Judge and
I must dismiss this appeal with costs.
Ad ami, 3.— I agree.
dismissed.
if A.I R. 1926 Patna 94
DAS AND ADAMI, 33.
Sri pat Singh and oJ/i<?rs— -Defendants—
Appellants.
v.
Naresh Chandra BOSK and others —
Plaintiffs — Respondents.
Appeal No. 91 of 1921, Decided on 27th
May 1925, from Original decree, of the
Sub.-J., Purnea, DA 8th October 1920.
(a) Hindu Law — Damdupat — Rule does not
.apply to muffaill.
The rule of darndupat is not applicable to the
muffasil. Though the mortgage bond may be
executod in Calcutta, yet, if tho bond comprised
properties which are in the muffasil the rule cf
darndupat cannot be applied. [P. 96, C. 1]
if (b) T. P. Act, S. ±8— Property mortgaged for
paying Government revenue — Court directing
jnortgage to have priority over pre-existing mort-
gage— Latter mortgage Is postponed. "
Where a Kecsiver of property is authorised by
the Court to mortgage the property and raise a
loan for paying Government revenue and
the Court orders the mortgage to have priority
over a pre-existing mortgage and the money
is utilised for the payment of revenue and to
save the property from sale, the mortgage so
sanctioned by the Court has priority over the
pre-existing mortgage. [P. 97, C. 1]
(c) Benami — Onus of proof is on party setting
up plea.
An ostensible purchaser must be assumed to be
the real purchaser until the contrary is shown.
[P. 98, C. 2]
1t (d) T. P. Act, S. 74 — Puisne mortgagee not
tmplcaded in suit by prior mortgagee — Puisne
mortgagee cannot redeem the property merely by
paying the amount for which the property was
purchased in auction.
The right which a puisne mortgagee, who was not
joined as a party to the suit of the prior mort-
gagee, has, is what he could have claimed if he
had been a party to the suit, namelv, a right to
redeem the prior mortgage with a view to enforc-
ing his own mortgage. [P. 100, C, 1]
(e) T. P. Act, S. 60 — Integrity of mortgage can-
not be broken except by consent of all persons
interested or by mortgagee — Consent of parties
may be inferred from circumstance*.
The mortgage being one and indivisible security
for the debt and every part of it, the mortgagor
cannot redeem piecemeal, unless the integrity of
the mortgage has baan broken up by the act of
the mortgagee. This rule will operate so as to
prevent the mortgagor from claiming the right
to redeem any particular property which may be
included in mortgage security or the purchasers
of fragments of the equity or redemption from
claiming the right to redeem the fragments in
which they may be interested and save as a
matter of special arrangement and bargain entered
into between all the persons interested, neither
the mortgagor nor the mortgagee, nor persons
acquiring through either partial interest in the
subject, can, under the mortgage, get relief,
except in consonance \\ith the principle of indivi-
sibility.
A person had a mortgage on two properties.
with regard to one of them, by the consent of the
parties and by i rder of Court a subsequent mort-
gage was created which was to have priority over
the former mortgage. [P. 100, C. 2J
Held : that by this arrangment the parties must
be deemed to have given up the right to claim
the integrity of the mortgage.
(/) T. P. Act, S. SI— Puisne mortgagee with
notice of former mortgage cannot claim beniflt of
S. 81.
A second mottgagee is not entitled to the
benefit of S. 81 if he had notice of the previous
mortgage. He is entitled to have the accounts
taken on the footing of his mortgage and to a
decree giving him the right to proceed against
the surplus sale proceeds of the praperty.
[P, 101, C. 1]
if (g) T. P. Act, S. 52— Scope
A transfer made by order of Court is an <*xcpn-
tion to the section. [P, C.]
P. C. Manulc, S. M. Mullick and Harih ar
Prasad — for Appellants.
Hasan Imam, S. P. Sen, A. R. Boy,
S. N. Bose and S. C. De — for Respondents!
1926
SRIPAT SINGH v. NARESH CHANDRA BOSE (Das, J.)
Patna 95
Facts.— On the 10th May 1884 Lach-
mipat Singh and Chatrapat Singh execu-
ted a mortgage of Parganna Sripur in the
District of Purnea and the house and
premises No. 127, now numbered No. 147,
Cotton Street in the town of Calcutta, in
favour of Jadulal Mullick as a security
for a sum of money lent and advanced by
Jadulal Mullick to them. Bibi Jamehar
Kumari, Defendant No. 4, is the widow
of Chatrapat Singh, and Sripat Singh and
Jagatpat Singh, Defendants Nos. 14 and 3,
are the sons of Chatrapat Singh and they
represent the interest of the original
mortgagors in this litigation.
On the 7th June 1889 Srimati Saras-
wati Dassi, the widow and administratrix
of Jadulal Mullick, instituted a suit, being
Suit No. 253 of 1889, in the Original Side
of the Calcutta High Court to enforce the
mortgage bond of the 10th May 1884.
She obtained a preliminary decree on the
1st August 1889 which was made absolute
on the 19th January 1891.
On the 22nd March 1895, the Official
Receiver of the Calcutta High Court was
appointed Receiver of the mortgaged pro-
perties with liberty to mortgage the pro-
perties, which were the subject-matter of
the litigation, to raise a sum of money for
payment of Government revenue in res-
pect of Parganna Sripur. The order of
the Calcutta High Court expressly pro-
vided that the mortgage bond to be exe-
cuted by the Official Receiver was to have
priority over the mortgage bond of the
10th May 1884 in respect of Parganna
Sripur.
On the llth May 1895, the Official
Receiver of the Calcutta High Court, as
Receiver of the mortgaged properties, and
under express order of the Calcutta High
Court, borrowed Rs. 17,000 from Hari
Charan Bose and as a security for the
repayment of the money advanced with
interest thereon mortgaged both Parganna
Sripur and 147, Cotton Street, to him.
On the 2nd March 1896, Saraswati
'Dassi, the decree-holder in Suit No. 253
of 1889, assigned all her rights under the
decree to Bibi Jamehar Kumari in con-
sideration of the sum of Rs. 1,10,000 paid
by Jamehar Kumari to her.
On the 26th March 1896 the Calcutta
High Court passed an order .giving the
Receiver liberty to raise a further loan of
Rs. 6,000 on second mortgage of larganna
Sripur, such mortgage to have priority
over the mortgage of the 10th May 1884
in respect of Parganna Sripur.
On the 26th May 1896, the Receiver
borrowed a sum of Rs. 6,000 from Brin-
daban Chandra Dutt and executed a
second mortgage of Parganna Sripur in
his favour. Brindaban Chandra Dutt has
been cited as the 5th defendant in this
litigation.
On the 10th April 1897 the Registrar
of the Calcutta High Court put up 147,
Cotton Street, to sale pursuant to the
decree in Suit No. 253 of 1889 and
Jamehar Kumari, the substituted decree-
holder, purchased the property, free from
all encumbrances, for the sum of
Rs. 50,000.
On the 10th April 1910 Hari Charan
Bose died leaving the plaintiff as his only
son and heir under the Hindu Law by
which he was governed.
On the 9th May 1919 the suit, out of
which this appeal arose, was instituted
by the plaintiff to enforce the mortgage
bond of the llth May 1895 and, in addi-
tion to the persons already mentioned, the
Official Receiver of the Calcutta High
Court was joined as the first defendant
in the suit.
Das, J. — [After stating facts as set out
above his Lordship proceeded]. Various
contentions1 were raised by the defendants
in their written statement and they havs
all been dealt with by the learned Sub-
ordinate Judge. As between the plain-
tiff and Sripat Singh and Jagatpat Singh,
the main questions appear to have been,
first, whether the plaintiff's suit was
barred by limitation ; secondly, whether
there was legal necessity for the loan, and
thirdly, whether the plaintiff was entitled
to interest exceeding the principal sum
advanced. The question as to whether
the mortgage bond was genuine seems also
to have been raised in the Court below.
That question has been answered by the
learned Subordinate Judge in favour of
the plaintiff and Mr. Manuk appearing
on behalf of defendants, Sripat Singh and
Jagatpat Singh, very properly accepts the
decision of the learned Subordinat6 Judge
on this point.
In regard to the question of limitation,
Mr. Manuk contended that the mortgage
in suit was not an English mortgage ; but
it seems to us that it is unnecessary for
us to express any opinion on this point
since upon the finding of the Court below
there can* be no doubt that the suit is n0
96 Patna
SRIPAT SINGH v. NARESH CHANDRA'BOSE (Das, J,}
1926
barred by limitation. There were vari-
ous payments from time to time made by
the mortgagor and the question in the
Court below was whether these payments
were genuine payments or whether the
hooks of the Official Eeceiver were not
forged in order to save the suit. All
these payments were made by the Official
Receiver and the cash book of the Official
Receiver undoubtedly supports the case
of the plaintiff. The last payment was
rnarle on the 8th July 1910 and the pay-
ment before that was made on the !28th
February 1900. It was contended in
the Court below that the entries made
in the cash book of the Official
Receiver were not genuine. Mr. Manuk
has inspected the books of the Official
Receiver and has very properly admitted
those payments. lie concedes that the
suit is not barred by limitation and I do
not propose to discuss the question
any further in regard to the question of
legal necessity. Mr. Manuk confined his
arguments to the question of interest
claimed in. the suit. The interest claimed
is 1C) per cent, per annum with six
monthly rest. In my opinion the interest
claimed is very moderate and there is no
reason to take the view that the interest
is excessive.
In regard to the last question raised,
the argument is founded upon the rule of
damclupat. The Calcutta High Court has
uniformly held and we agree with those
decisions that the rule of darndupat is
not applicable to the muffasil. It is
cjuite true that the mortgage bond was
axecuted in Calcutta, but the bond com-
prised properties which are in the muffa-
sil and I am of opinion that we cannot
apply the rule of damdupat in a case
heard in Purnea.
The question as between the plaintiff
and Jarnehar Kumari is as to who is en-
titled to priority in respect of the mort-
gaged properties. Jamehar Kumari is the
widow of one of the mortgagors ; but she
took an assignment of the rights of the
decree-holder in Suit No. 253 of 1889 in
her favour. The extreme contention ad-
vanced on her behalf is that she is entitled
to priority over the plaintiff's mortgage
in respect both of Perganna Sripur and of
the Cotton Street property. She contends
that so far as the Cotton Street property
is concerned, she purchased it at the
Registrar'? sale free from all encum-
brance , and ihac siie is entitled to retain
it and to repel the attack made on it by
the plaintiff in this litigation. In re*
gard to perganna Sripur she contends
that the utmost that can be said in favour
of. the plaintiff is that he is entitled to
redeem her. The extreme contention on
behalf of the plaintiff is that he is en-
titled to priority over the interest of
Jamehar Kumari, first, because the
money advanced by his father saved the
property from loss or destruction ; and,
secondly, because Jamehar Kumari is the
benamidar of Chatrapat Singh. In regard
to the last contention it is to be pointed
out that the plaintiff did not suggest any
case of benami in his plaint. Indeed he
alleged in the 5th para, of the plaint that
his father released No, 147, Cotton Street,
Calcutta from all claim in respect of his
mortgage and the plaint as originally filed
certainly suggested that the plaintiff did
not seek to enforce the mortgage by the
sale of the Cotton Street property. This
is a question in which the plaintiff is not
really interested ; for it appears that
Parganna Sripur is sufficient to meet his
claim. But Brindaban Chandra Dutt,
who has a second mortgage of Perganna
Sripur is vitally interested in this ques-
tion ; and he undoubtedly alleged a case
of benami in his written statement.
Brindaban Chandra Dutt contended that
Jamehar Kumari was a benamidar for her
husband who was then alive, that Hari
Charan Bose did not release the Cotton
Street property from all claim in respect
of his mortgage and that he was entitled
to have the debt of the plaintiff satisfied
out of the Cotton Street property which
was not mortgaged to him so far as such
property would extend.
Now clearly the plaintiff is entitled to
priority in respect of Perganna Sripur. It
is not disputed that Government revenue
to the extent of Rs. 16,000 in respect of
Perganna Sripur was payable on the 28th
March 1895 and that the Receiver had
no funds in his hands out of which he
could have paid the Government revenue.
Perganna Sripur was therefore in im-
minent danger of being sold for non-pay-
ment of arrears of Government revenue*
In these circumstances the Calcutta High
Court passed an order with the consent
both of the plaintiff and Chatrapat Singh
that the Receiver should raise a loan to
pay the Government revenue. The mate*
rial portion of the order of the Calcutta
High Court runs as follows
1126
SRIPAT SINGH v. NABESH CHANDRA BOSE (DAS, J.)
Pallia 97
And it is further ordered with the
like consent that the said Receiver be at
liberty upon such terms and conditions
as to rate of interest or otherwise as he
may deem necessary to raise a sufficient
sum by mortgage of the said properties
comprised in the mortgage to the plain-
tiff for the purpose of paying the Govern-
ment revenue payable in respect of the
said zamindari Parganna Lot Sripur on
the twenty-eighth day of March instant
and that such mortgage be executed and
registered by the said Receiver for and on
behall of the defendant and such mort-
gage to have priority over the existing
mortgage of the said zamindari Parganna
Lot Sripur."
In pursuance of this order the Receiver
borrowed Rs, 17,000 from the plaintiff's
father on the security of both the pro-
perties and there is conclusive evidence
that with the money so raised he paid
the Government revenue and saved the
zamindari property from destruction.
The evidence is also conclusive that the
Receiver spent the entirety of the money
so raised in paying Government revenue
and in meeting cerfcain incidental expenes.
In my opinion the plaintiff is entitled
to what the Courb gave him, namely, a
first charge on parganna Sripur. An ad-
vance was made by the plaintiff in order
bo save pargana Sripur from loss or de-
struction ; and on principles which are
well recognized in our Courts the advance
[3O made is payable in priority bo all other
charges of earlier dabe. In my opinion
the decision of the learned Subordinate
Judge on this point is right and must be
affirmed.
The next question is with reference to
the Calcutta property. Mr. Manuk, ap-
pearing on behalf of Jamehar Kumari,
strongly contends that the Calcutta p*o-
perty is not within the scope of the suit
and that the learned Subordinate Judge
should not have given any direction with
reference to it. As I have pointed out,
the plaintiff undoubtedly said in the
plaint that his father released the Cal-
cutta property from all claim in respect
of his mortgage. He instituted the suit
in Purnea and Mr. Manuk relies upon the
allegation in the llth ]5ara. of the plaint •
which runs as follows : —
"The property in suit being situated in
zillah Purnea, thanas Bahadurganj and
Kasba and district Purnea within the
local limits oi the jurisdiction of this
1926 P/ 13*14
Court, the cause of action arose in
thanas Bahadurganj and Kasba on the
26th March 1896."
I have no doubt whatever that at the
time when the plaintiff instituted the
suit he was under the impression that he
had no claim to put forward with refer*
ence to the Cotton Street property ; but
he specifically asked that in default of
payment by the defendants " the said
mortgaged premises or a sufficient part
thereof be sold under the direction of
this Court." He filed the original mort-
gage bond with his plaint which showed
that " the said mortgaged premises " con-
sisted of the zamindari property and the
Calcutta property.
Now, as I have said, the plaintiff is not
so much interested in this question as
Brindaban Chandra Dutt is ; and Brin-
daban denied that the plaintiff's father
released the Calcutta property from all
claim in respect of his mortgage. There-
upon the plaintiff enquired into the
matter and on the 17th December 1909
he applied for amendment of the plaint.
In his petition he stated that on enquiries
made by him he had ascertained ' that
as a matter of fact the late Hari Charan
Bose did not execute any release in the
year 1910, or in any other year and the
allegation relating thereto in the said
para. 5 is a mistake. " He asked for
amendment of the plaint first by striking
out from para. 5 the words of which ex-
ception was taken by Brindaban Chandra
Dutt and by adding the following state-
ment in the plaint, namely, " that your
petitioner has been informed and be-
lieves that the said Premises No. 147,
Cotton Street, Calcutta, was sold by the
Registrar of the Calcutta High Court free
from all encumbrances on the 10th day of
April 1897 under an order of the said
High Court made in the said Suit No. 258
of 1889 and dated the 5th day of April
1897, and the Defendant No. 4, Srimati
Jamehar Kumari, was declared the
highest bidder and purchased for
Rs. 50,000. "
I am unable to agree with the Conten-
tion of Mr. Manuk that the Calcutta pro-
perty was not within the scope of the
suit. I quite agree that the plaintiff
when he filed the plaint did not think
that he had any claim to put forward in
respect of the Calcutta property, but he
undoubtedly asked the Court to puss a
decree for the sale of " the said mortgaged
Patn*
SRIPAT SINGH v. NARESH CHANDRA BOSE (Das, J.)
192S
premises, " if there was default of
payment by the defendants within the
time allowed by the Court, and he
showed that " the said mortgaged pre-
mises " included the Calcutta property.
He was undoubtedly labouring under a
mistake when ho said that his father had
released the Calcutta property from all
claim in respect of his mortgage ; but he
corrected his mistake ; and there is no
reason to take the view that the Court is
not entitled to give him such relief as he
may be entitled to in regard to the
Calcutta property.
The next question is as to what relief
the plaintiff is entitled to in regard to
the Calcutta property. Jarnehar con-
tends that she has purchased the property
free from all encumbrances and that she
is entitled to hold it free from the
encumbrance created in favour of the
plaintiff. Mr. Manuk points out on her
behalf that the mortgage in favour of the
plaintiff's father was executed on the
llth May 1895, that is to say, four years
after the final decree was passed in Suit
No. 253 of 1889 and his extreme conten-
tion is that he is entitled to have what
the Court gave him, namely, the property
free from all encumbrance. It was
faintly suggested by Mr. Manuk that the
mortgage in favour of the plaintiff's
father was affected by the rule of lis
pendens ; but in this Mr. Manuk is
clearly wrong as the mortgage in favour
of plaintiff's father was made under the
order of the Court in Suit No. 253 of
1889. The case clearly comes within the
exception recognized in S. 52 of the
Transfer of Property Act.
The plaintiff, or to be more accurate,
Brindaban Chandra Dutt, supports his
case on two grounds : first, on the ground
that the mortgage in favour of the plain-
tiff's father was made pursuant to the
order of the Court ; and, secondly on the
ground that Jamehar Kumari was a
benamidar for her husband Chatrapat
Singh. So far as the first point is con-
cerned, it is clearly without substance.
The Calcutta property was not in any
danger at all ; and the money lent by the
plaintiff's father did not save that pro-
perty from loss or destruction. In the
second place, the order of the High Court
gave the priority to the plaintiff's
mortgage over the bond of the 10th May
1884 in respect of farganna Sripur only.
The Court clearly recognized that it
would be unfair to give the plaintiff's
bond priority over the bond of 1884 in
respect of the Calcutta property. In my
opinion the first contention advanced on
behalf of the plaintiff fails and must be
overruled.
I now come to the question of benamr
which has been specifically raised by
Brindaban Chandra Dutt in his written-
statement. The learned Subordinate
Judge decided this issue against Jamehar
Kumari ; but, with all respect, I am>
unable to agree with his decision on this
point. Jamehar Kumari is the* ostensible
purchaser of the property. An ostensible
purchaser must be assumed to be the real
purchaser until the contrary is shown.
The onus is accordingly on the plaintiff
to establish that the property was pur-
chased by Chatrapat Singh in the name
of his wife Jamehar Kumari.
Now what is the evidence on which the
Subordinate Judge relies in support of
his finding as to benami ? In the first
place, he refers to certain judgments and
decree made in suits to which Jamehar
was a party, but to which neither the
plaintiff nor Brindaban was a party.
The facts in connexion with that suit,
Suit No. 496 of 1910, are as follows :
One Askaran Baid obtained a decree
against Chatrapat Singh, and in execution
of that decree he attached No. 147, Cotton
Street, as belonging to Chatrapat. Jamehtr
Kumari thereupon laid a claim to that
property and the claim was disallowed.
Thereupon she instituted a suit which
was Suit No. 496 of 1910 in the Original
Side of the Calcutta High Court for a de-
claration that she was the absolute owner
of the property and that the same might
be released from the attachment effected
at the instance of Askaran Baid. The
Court of first instance dismissed her suit
basing its decision on various judgments
and decrees which were not inter partes.
The case went up in appeal and Sir Law-
rence Jenkins, giving the decision of the
appeal Court, approached the case from
the only standpoint from which it could
be approached, namely, whether Jamehar
Kumari had clearly established that she
was the real purchaser, having regard to
'the fact that the claim case had been de-
cided against her. In the course of his
judgment, • Sir Lawrence Jenkins said as
follows : "I recognize that the value
of this opinion, namely, the opinion of
the learned Judge in the Court oi first
1926
SRIPAT SINGH v. NABESH CHANDRA BOSE (Das, J.) Patna 99
instance, is in some measure discounted
by the fact that it was in part based on
the view expresed in earlier litigations,
a class of evidence that wes used by the
learned Judge to an extent that the law
does not permit. But apart from this
evidence, there are circumstances which
clearly call for explanation and the onus
in this case is on Jamehar to show affir-
matively that not only the ostensible but
the real title also "is in her. She is a
plaintiff who is calling in question in a
suit contemplated by the Code (O. 21,
K. 63), an adverse decision of the Court
given, it is true, in a summury proceeding
but conclusive, subject to the result of this
suit. This is a suit, therefore, to alter or
set aside a summary decision or order of
the Court, and it is method of obtaining
review. The plaintiff in the circum-
stances of this case cannot discharge the
burden of proof cost on her by merely
pointing to the innocent appearance of the
instruments under which she claims. She
must show that they are as good as they
look." It is obvious that the decision
in the earlier litigation upon which the
learned Subordinate Judge has relied was
based on the question of the onus of proof,
it being held by the Court of appeal that
Jamedar Kumari failed to establish that
she was not only the ostensible but the
real owner of the property.
In rny opinion the judgment in that
suit is inadmissible in evidence against
Jarnehar. In the present case the onus
is clearly upon the plaintiff to prove that
the apparent title is not the real title,
and, in my opinion, the question must be
•decided on the evidence recorded in this
case, not on the evidence which was re-
corded in Suit No. 4=96 of 1910. This be-
ing the position what evidence has the
plaintiff adduced to prove that Jamehar
is the benamidar of her husband ? The
learned Subordinate Judge says as follows:
" Besides the judgment and decree we
have also got evidence proving that Cha-
trapat used to hold each year a meeting
of his own caste people in No. 147, Cotton
Street, that Chatrapat had also recently
mortgaged the house No. 147, Cotton
Street, to one Bhagwan Das." The only
evidence on the point is that of Ahir
Chand Barman who was examined on be-
half of the defendants. It is to be noted
that the plaintiff has adduced no evi-
dence on this point at all apart from
tendering in evidence the plaint filed by
Jamehar Kumari in Suit No. 496 of 1910
and the judgments and decrees of the Cal-
cutta High Court in that suit. Ahir Chand
says in his evidence that the property be-
longed to Jamehar Kumari who made a
gift of it to her two sons by a deed of gift
in 1918. In cross-examination he ad-
mits that Chatrapat mortgaged No. 147,
Cotton Street, to Bhagwan Das and that
there was a suit on that mortgage in the
Calcutta High Court. He also admits as
follows : " On the invitation of Chatrapat
a meeting of punchaiti of the Jainas used
to be held in Calcutta in Katik and Fa-
goon each year and always during'Chatra-
pat's life time and that punchaiti some
times used to be held in 147, Cotton
Street, and also ( then adds ) sometimes
in the house of Kesho Das Sital Chand
Chowdhury." This is all the evidence on
the question of benami. In my opinion
this is wholly insufficient ; and the learn-
ed 'Subordinate Judge should have de-
cided this issue in favour of Jamehar
Kumari. I admit that the case is sus-
picious, but suspicion cannot be regarded
as a substitute for legal proof.
That being so, the plaintiff cannot
claim priority in respect of the Cotton
Street property. Jamehar Kumari, on the
other hand, contends that the plaintiff
has no claim to put forward in regard to
the Calcutta property as she has purchas-
ed it free from all encumbrances. In my
opinion, the contention of Jamehar
Kumari on this point must be overruled,
The plaintiff was not added as a party to
the suit and his right to redeem could not
be extinguished except by adding him as
a party to the suit, Jamehar as the pur-
chaser of the property represents the in-
terest both of the mortgagor and the
mortgagee. Now both the mortgagor and
the mortgagee were consenting parties to
the order of the 22nd March 1895 which
gave the Receiver liberty to raise money
by a mortgage of the properties which
were the subject-matter of the suit. Nei-
ther the mortgagor nor the mortgagee
could be heard to say that there was
nothing to redeem since the final decree
was passed so far back as the 19th Janu-
a*ry 1891. The security created in fa-
vour of the plaintiff was the result of the
consent order of the 22nd March 1895,
and in my opinion, the position of the
plaintiff in regard to the Cotton 'Street
property must be that of a puisne mort*
100 Patna
SRIPAT SINGH v. NABBSH CHANDRA BOSK (Das, J.)
1926
gagee who was not added as a party to
a mortgage action by the first mortgagee
against the mortgagor. In my opinion,
the plaintiff is entitled to redeem and
$o sell the Calcutta property free from all
encumbrances or to put up for sale his
right of redemption which is undoubtedly
property and is capable of being sold.
But then arises the important question
as to the terms upon which redemption
should take place should the plaintiff
elect to sell, not his equity of redemption
in regard to the Cotton Street property,
but the property itself. Mr. Hasan Imam
contends that, as Bibi Jamehar Kumari
purchased the Cotton Street property for
Ks. 50,000 we should direct that upon
payment by the plaintiff to Bibi Jamehar
Kumari of the sum of Bs. 50,000 he
would be regarded as the holder of the
first charge on the Cotton Street property
with power to realize it in the usual way.
I am unable to agree with this conten-
tion. The right which a puisne mort-
gagee, who was not joined as a party to
the suit of the prior mortgagee, has, is
what he could have claimed if he had
been a party to the suit, namely, a right
to redeem the prior mortgage with a view
to enforcing his own mortgage. In order
to determine the rights of the parties we
must place them in the position which
they occupied before the Cotton Street
property was put up for sale, and it is
obvious that we cannot allow redemption
on the terms suggested by Mr. Hasan
Imam. Mr. Susil Madhab Mullick ap-
pearing on behalf of Jamehar Kumari, on
the other hand, contends that an account
should be taken of what is due to Jame-
har Kumari on the footing of the mort-
gage of the 10th May 1884 and that re-
demption can only take place in terms of
the plaintiff paying to Jamehar Kumari
what may be found due to her on the
taking of such accounts. Now the posi-
tion of the parties with regard to the
mortgages may be re-stated. Although
the mortgage in which Jamehar Kumari
is interested as assignee is prior in date
to that of the plaintiff, priority in res-
pect of the Sripur property was given to
the plaintiff by an order of the Court to
which all the parties consented. The re-
sult is that though prior in date, Jameha
Kumari is a subsequent incumbrancer in
respect of the Sripur property by her own
act or the act of her assignor. In regard to
the Cotton Street property, Jamehar
Kumari is clearly the prior encumbrancer.
This being the position Jamehar Kumari
tells the plaintiff as follows : "Althougrh
I have no' objection to your realizing your
security by the sale of the Sripur property
only I must insist on my security being
valued as a whole if you claim the right
to redeem my prior mortgage in regard to
the Cotton Street property." Now the
general rule is that a mortgage being one
and indivisible security for the debt' and
every part of it, the mortgagor cannot re
deem piecemeal, unless the integrity of
the mortgage has been broken up by the
act of the mortgagee. Now this rule will
operate so as to prevent the mortgagor
from claiming the right to redeem any
particular property which may be inclu-
ded in the mortgage security or the pur-
chasers of fragments of the equity of re-
demption from claiming the right to re'
deem the fragments in which they ma^
be interested, and the rule is firmly estab-
lished, that save as a matter of special
arrangement and bargain entered into
between all the persons interested, neither
the mortgagor nor the mortgagee, nor per-
sons acquiring through either partial . in-
terest in the subject, can, under the mort-
gage, get relief, except in consonance with
the principle of indivisibility already re-
ferred to.
But the question is not of the plaintiff
acquiring a partial interest in the subject
and claiming the right to redeem that in-
terest. He has got a mortgage of both
the properties, and, though subsequent in
point of time, his interest is that of a
prior mortgagee in regard to Sripur. Now
if the general rule applies, the position of
the plaintiff must be substantially that of
a subsequent incumbrancer both in regard
to Sripur and the Cotton Street property.
Jamehar Kumari says : " My security
must be valued as a whole and redemp-
tion can only take place on terms of your
paying me the whole of the mortgage debt
due to me." Plaintiff replies : " If you
compel me to adopt that position, you are
virtually depriving me of my priority in
regard to Sripur." In my opinion, hav-
ing regard to the consent order of the
22nd March 189?, each of -the parties,
namely, Jamehar Kumari and the plain-
tiff must be deemed to have given up the
right to claim the integrity of the mort-
gage security as against the other. ' By an
arrangement between the parties, the
plaintiff is the holder of the equity of
1926
SBIPAT SINGH v. NABBSH CHANDRA BOSB (Das, J.)
Palna 101
redemption in regard to the Cotton Street
property, and Jamehar Kumari is the
holder of the equity of redemption in re-
gard to Sripur and, in my opinion, the .
equity between the parties cannot he
worked out except by holding that there
was an arrangement between them where-
by the interest of each of the parties as
representing the equity of redemption was
separated and defined. It is well esta-
blished that, where this is so, the rule as
as to the indivisibility becomes inappli-
cable. In my opinion the plaintiff is en-
titled to redeem the prior mortgage of
Jamehar Kumari by paying a proportion-
ate amount of the mortgage debt due on
the Cotton Street property, and Jamehar
Kumari is entitled to redeem the prior
mortgage of the plaintiff by paying a pro-
portionate amount of the mortgage debt
due on Sripur, and the value of the pro-
perties must be taken to be that at the
date of the mortgage transaction in ques- .
tion. It is obvious that if either claims
the right to redeem, an enquiry as to the
value of the properties at the date of the
transaction must be undertaken by the
Court and the mortgage debt must be pro-
perly apportioned having regard to the
result of the enquiry. As Jamehar
Kumari has been in possession of the
Cotton Street property for some time she
will not be credited with interest from
the date she took possession of the proper-
ty which may be taken - to be the 6th
March 1898. v
The only other question is whether
Brindaban Chandra Dutt is entitled to
have the debt due to the plaintiff satis-
fied out of the Cotton Street property so
far as such property will extend. He re-
lies upon S. 81 of the Transfer of Proper-
ty Act, but clearly he is, not entitled to
the benefit of the section since he had
notice of the mortgage • in favour of the
plaintiff's father. He advanced money
with his eyes open and with full know-
ledge of all necessary facts : and it is im-
possible for him now to claim the benefit
of S. 81 of the Act. He has asked for a
decree in thjs suit, and I think he is
clearly entitled to have the accounts
taken on th$ footing of his mortgage and
to a decree giving him tlie right to pro-
ceed against the surplus sale-proceeds of
Sripur. There being no question of mar-
shalling in this case, the plaintiff is en-
titled to elect against which of the two
properties he should first proceed. If he
elects to put up Sripur to sale and if there
should be a surplus after satisfying his
entire claim, Brindaban Chandra Dutt
will be entitled to proceed against the sur-
plus for the realisation of the debt due to
him. Neither the plaintiff nor Brindaban
Chandra Dutt is entitled to a personal
decree against those who represent t he
interest of the mortgagors, and to this
extent the decree of the lower Court must
be set aside.
The decree passed by the Court below
must be varied by providing as follows : —
(1) Let the following accounts be taken :
(a) an account of what will be
due to the plaintiff for principal and in-
terest on. the mortgage of the llth May
1895 and for his costs of the suit on the
day next hereinafter referred to ;
(b) an account of what will be due to
Brindaban Chandra Dutt for principal
and interest on the mortgage of the 26th
May 1896 and for his costs of the suit on
the day next hereinafter referred to ;
(c) an account of what will be due to
Bibi Jamehar Kumari for principal on
the mortgage of the 10th May 1884 and
interest from the date of the mortgage to
the 5th March 1898 ;
(2) that if the defendant Bridaban
Chandra Dutt pays into the Court the
amount due to the plaintiff six months
from the date hereof, the plaintiff shall
assign his mortgage to him and that in
default thereof, he shall be debarred all
right to redeem the property, provided
that he will be entitled to proceed against
the surplus sale proceeds, if any, of par-
ganna Sripur hereinafter expressly pro-
vided ;
(3) that in case of such foreclosure and
if the defendant Bibi Jamehar Kumari
pays into Court the proportionate share
of the amount so due to the plaintiff in
respect of parganna Sripur six months
from the date hereof, the plaintiff shall
assign his mortgage to her, and that, in
default thereof, shall be debarred all right
to redeem the property ;
(4) that in case of such foreclosure, and
if the defendants Sri pat Singh and Jagat-
pat Singh pay into Court the amount so
due to the plaintiff six months from the
date hereof, the plaintiff shall deliver up
to the defendants Sripat Singh and Jagat-
pat Singh or to such person as they
appoint all documents in his possession or
power relating to the mortgaged property
and shall, if so required, re- transfer the
102 Patna
PEBBIRA v. B. I. RAILWAY
1926
property to the said Defendants free from
the mortgage and all encumbrances creat-
ed by the plaintiff or any person claiming
under him but that, in default of such
payment, and if the plaintiff pays to
Bibi Jamehar Kumari the proportionate
share of the amount due to Bibi Jamehar
Kumari in respect of the Cotton Street
property six months from the date hereof
the mortgaged property or a sufficient
portion thereof be sold, and that the pro-
ceeds of the sale after defraying thereout
the expenses of the sale be, paid into Court.
(")) that the sale-proceeds be applied in
payment of what is declared due to the
plaintiff as aforesaid, together with sub-
sequent interest and subsequent . costs and
that the surplus sale-proceeds of the
Sripur parganna (if any) be applied in
payment of what is declared due to the
defendant Brindaban Chandra Dutt as
aforesaid together with subsequent inter-
est and subsequent costs, and that the
balance (if any) be paid to the defendants
Sripat Singh and Jagatpat Singh :
(6) that should the plaintiff fail to pay
Bibi Jamehar Kumari as provided in the
fourth clause hereof, parganna Sripur as
mortgaged to the plaintiff be sold and
that the proceeds of the sale after defray-
ing thereout the costs and expenses of the
sale be paid into Court and applied in the
manner provided in the preceding clause
hereof.
And this Court doth remit this case to
the Court below for the taking of the
necessary accounts and for determination
of : (l) what is the proportionate share of
the mortgage debt due to the plaintiff in
respect of parganna Sripur ; and (42) what
is the proportionate share of the mort-
gage debt due to Bibi Jamehar Kumari
in respect of the Cotton Street property.
Adami, J, — I agree.
Case remitted.
A.I. R. 1926 Patna 102
DAS AND ADAMI, JJ.
H. O. Pereira — Petitioner.
v.
East Indian Railway — Opposite Party.
Privy Council Application No. 15 of
1925, Decided on 23rd June 1925, against
the decision in First Appeal No. 23 of
1925.
% ^C Civil P. C.t S. 109— Final order— Order
allowing appeal under 8. 5, Limitation Act, 1$ not;
but order refusing to allow would amount tot final
order.
Order extending the time for presenting an
appeal to the High Court under 8. 5 of the Limi-
tation Act, and thus admitting the appeal is not a
final order within the meaning of S. 1C9, Civil P.
C., though an order refusing such extension would
amount to a final order. [P. 102, C. 2]
S. N. Bose — for Petitioner.
N. C. Sinha, N. G. Ghose and B. B.
Mukerji — for Opposite Party.
Judgment. — This is an application for
leave to appeal to His Majesty in Council;
and the only question which we have to
decide is whether the order complained of
is a final order within the meaning of
S. 109 of the Civil Procedure Code. The
order to which objection is taken in
substance extended the time for presenting
an appeal to this Court under S. 5 of the
Limitation Act. A final order within the
meaning of the section is an order which
finally decides any matter which is di-
rectly at issue in the case in respect to the
rights of the parties. We quite agree
that if we had refused the application
made to us under S. 5 of the Limitation
Act, that refusal would have operated as
a dismissal of the appeal, and, subject to
the other provision of the section, the
order would be appealable, not indeed as
a final order but as "a decree passed on
appeal." But where time is allowed under
statutory sanction, and ^he appeal is
admitted, the case obviously stands on a
different footing. We have not decided,
finally or otherwise, any of the matters in
controversy between the parties in the
litigation. All that we have done is to
remove the bar under the Limitation Act,
thereby enabling this Court to take
cognizance of the appeal and to decide the
rights of the parties. We must accord-
ingly refuse the application with costs.
Hearing fee : five gold mohurs.
Application refused.
1926
SATYA NIBANJAN v. SUSHILA (Ross, J.)
Patna 103
A. I. R. 1926 Patna 103
DAS AND Ross, JJ.
Satya Niranjan Chakravarty and others
— Plaintiffs — Appellants,
v.
Sushila Bala Dasi and others — Defen-
dants— Respondents.
Appeal No. 86 of 1921, Decided on 26th
May 1925, against the original decree of
the Sub-J., Jamtara, D/- 30th June 1924.
(a) Landlord and Tenant — Mines and minerals —
Right to, vests In landlord unless expressly divest-
ed.
The mineral rights are in the zamindar and he
is not divested of them by a Jease of the land un-
less the minerals are expressly granted. [P 109 01]
(b) Land Tenure — Ghaticalt tenure — Gliatwal
can be a mourashl mokarrarldar — Distinction bet-
ween ghatwali within and outside Regulation poin-
ted out — Bengal Ohatwali Land Regulation (29 of
1814).
A person may be a mourashi mokararidar and
also a ghatwal. [1918 P. H. C. C. 805 and A. I. R.
1924 P. C. 5, Ref.] The distinction between a
ghatwali within the regulation and ghatwali
. which is outside the regulation -is that in the for-
mer case there is no tenure between the zamindar
and the ghatwal who holds direct from the Govern-
ment, while in the latter the tenure exists. In the
former case, while the lands of the ghatwali are
etill deemed to ba within the zamindari, the zamin-
dar no longer pays the Government revenue for
them and has, therefore, no claim to the under-
ground rights ; his only right connected with these
lauds is to receive the difference between the rent
paid by the ghatwal and the amount of the
Government revenue which was assessed on this
part of the zamindari. If the Government does not
claim the mineral rights there is no one to whom
they can belong but the ghatwal. But in the latter
case the zamindar still pays the Government re-
venue on these lands and if the ghatwal claims the
minerals he muse show some transaction which
grants him the -minerals either expressly or by
necessary impl:cation. [P 105 C 2 ; P 106 C 1]
(c) Criminal P. C., S. 145— Party.
A party's son having no possession or title is
Hot bound by order against his father. [P 104 C 1]
Syed Hasan Imam, C. C. Das, L. M.
Ganguli and N. C. Ghosh — for Appellants.
B. N. M itter, Naresh Chandra Sinha
and B. J9. Gh osh — for Respondents.
Ro88, J: — The plaintiffs are the owners
of 12 annas 7 gandas share in four taluks :
Jamjuri, Nagori, Chhota Ashna and Bara
Ashna in fcargannah Kundahit Kareya in
the Santhal Pargannas. They allege that
the principal defendants took the settle-
ment of these taluks from their predeces-
sors at an annual rental of Rs. 706 (sikka.)
They themselves, being the zamindars,
have all the sub-soil rights in the said
taluks and the defendants have no right
to the sub-soil or to the minerals. In 1912
the plaintiffs brought a suit for a declara*
tion of their title to the minerals, but this
suit was dismissed by the Subordinate
Judge and on appeal, by the High Court
on the ground that the Specific Relief Act
did not extend to the Santhal Pargannas
and on the ground that as no overt act
was alleged against the defendants the
plaintiffs were entitled to no relief. There-
after, in June 1917, the defendants pre-
vented the plaintiffs' agent from boring
for minerals. They, therefore, claim a
declaration of their right to the sub-soil
and pray for a permanent injunction and
damages.
The defence was that there had been a
proceeding under S. 145 of the Criminal. P.
C,, regarding the right to the sub-soil of the
disputed taluks which was decided against
the plaintiffs and, as the present suit was
not brought within three years of the
decision in that case, it was barred by
limitation. The defendants claimed that
the mineral rights belonged to them. They
alleged that Nagori and Jamjuri consist-
ing of 60 mouzas formed ghatwali tenures
belonging to the predecessors of their an-
cestor Mahadeo Sadhu, and that Chhota
Ashna and Bara Ashna consisting of 35
mouzas formed ghatwali mouzas belonging
to Ratan Singh and Gobinda Singh who,
however, abandoned them, whereupon they
were settled with Mahadeo Sadhu by
Raja Bahadur Uz-Zaman Khan on the 15th
of Baisakh 1189 at a rental of Rs. 706
(sikka) by a sanad. They 'claimed that
under this sanad, as well as under the legal
incidents of Birbhum ghatwali tenures,
Mahadeo Sadhu had acquired a mokarrari
mourashi istemrari and transferable inter-
est in the said tenures with full rights in
the surface and the sub-soil. They further
pleaded that Raja Ram Ranjan Chakra-
burty and Rani Padma Sundari Debi, pre-
decessors of the plaintiffs, brought a suit
No. 60 of 1892 for enhancement of the
rent of the disputed taluks against the
Defendants Nos. 1 and 2 and the father of
Defendant No. 3, and that this suit was
compromised in terms which admitted the
said defendants to be entitled to all sorts
of rights in mokarari right in respect of
the disputed mouzas.
Sixteen issues were framed and the Sub-
ordinate Judge recorded evidence on all the
issues. But he decided only the twelth
issue "was there any decision under S. 145
of the Criminal. P. C. of the disputed
104 Patna
SATYA NIBANJAN v. SUSHILA (Boss, J.)
1926
mouza and is the suit barred by limi-
tation ?" He held that the suit was barred
and, therefore, dismissed it. The plaintiffs
appealed to the High Court which, with-
out deciding the issue of limitation, re*
manded the case for a decision of the
other issues. The remaining issues have
now been decided in favour of the plain-
tiffs ; except tho issue on damages but as
they failed on the issue of limitation, their
suit was dismissed and they have appealed.
(The judgment here dealt with the
evidence about the existence of an order
under 8. 145 Or. P. C. and continued.)
Even if there had been a judgment of this
kind it could have no effect in barring the
present suit because the first party to the
proceedings was the present plaintiff who
at that time had neither title nor pos-
session because his father was alive and was
the owner and possessor of the estate :
Babajirao Gambhir Singh v. Laxmandas
Guru Baghunath Das (l) and Bolai Chand
Ghosal v. Samiruddin Mondal (2). I am
unable to believe that Ex. J. is a genuine
document or that there was a proceeding
or a decision under S. 145 of the Criminal
P. C. J, therefore, hold that the suit is
not barred by limitation on this ground.
It was further contended, however, that
the suit is barred by six years' limitation
because the cause of action for a declara-
tory decree was alleged in the suit of
1912 to have arisen in 1317, that is, 1910,
whereas the present suit was not brought
until the 3rd of December 1917. Similarly
it is argued that the limitation for an in-
junction is six years and that this relief is
also barred. But the suit of 1912 was
dismissed on the ground that there was no
overt act on the part of the defendants and,
therefore, no cause of action. The present
suit is for an injunction on a declaration
of the plaintiff's title and the overt act
which was alleged took place within six,
months of the filing of the suit. The suit
is, therefore, not barred by limitation on
this ground. The appeal of the plaintiffs
must' therefore, succeed unless the objec-
tions by the defendants result in the dis-
missal of the suit on the merits.
I shall now deal with these objections.
As already stated, the first title which
the defendants set up is the title by the
sanad granted by Eaja Bahadur Uz~Zaman
Khan (Ex. 1). This is a short document
(1) (1904] 28 Bom. 215=5 Bom. L. R, 932.
(2) [1892] 19 Cal. 646,
which purports to settle with Buplal
Sadhu, son of Mahadeo Sadhu, as an an-
cient ghatwali, mokarari taluks Jarnjuri,
Nagori Ashna Chota and Bar a within
Tappa Kundahit Kareya the jama of the
95 mouzas being Rs. 706 (sikka) annually.
It declares that the grantee and his heirs
have every right to remain in possession
of the said taluks and mouzas including
hills and mountains, jungles and pits, cul-
tivated and waste lands of the entire
mouzas above and below (zer-oo-bala) the
taluks with all rights. The document i&
dated the 15th of Baisakh 1189 and is in
the Persian language. The signature is
illegible but it bears a seal with the name
of Bahadur Uz-Zaman Khan. The learned
advocate for the defendants relies on this
document, The learned counsel for the
plaintiffs contends that the document is a
forgery, both on the internal evidence and
on the fact that in a long course of litiga-
tion the document was never produced
when its production was to have been
expected. (The judgment then dealt with .
evidence indetail and proceeded). The con-
clusion seems to me to be inevitable that
this document is not document upon which
any Court can act. I hold, therefore, that
the defendants have failed to establish
their title to the minerals of the taluks in
suit by express grant.
The second title relied upon by the de-
fendants is that the lands in suit are a.
Birbhum ghatwali. There are numerous
references in the judgments in the earlier
litigation about this property, which, have
been referred to above, to its being a ghat-
wali. Thus in Ex. L the District Judge
held that the mahals were ghatwali mah~
als. The provincial Court at Murshidabad
held that the lands had not been proved
to be ghatwali, but the Sadar Dewani
Adalat in view of the respondents' admis-
sion of the appellants' right to the posses-
sion of the lands the ghatwali taluks in-
dispute, on condition of payment, of the-
actual jama, ordered that the appellants
should be put in possession of these lands
and should perform the ghatwali duties..
So in Ex. M the 'provincial Court upheld
the decision of the District Judge that the
defendants should^ on paymenjk of the
Annual jama, perform the duties of ghat-
wali. In Ex. N the following passage
occurs in the judgment of Eobertson, J.,.
which eventually prevailed " Though the
disputed mouzas are not the ghatwali
mahals settled by the Government under
1926
SATYA NIBANJAN v. SUSHILA (Boss, J.)
Pataa 105
Regulation XXIX of 1814 and it appears
that the settlement of those was not made
by the Government servant, it seems that
before the Settlement Tappa Khon-
dahit Kareya which includes the disputed
mauzas having been sold by auction the
Government servant had nothing to 'do
with the question of the ghatwali affairs
thereof. But it is evident from the exis-
ting papers especially from the criminal
Court rubakaris and parwanas produced
by the appellants that according to the
rules and custom the predecessors of the
respondents' father and the respondents
with their own employees had been super-
vising the ghatwali duties and performing
the police duties and they are bound to
guard the paths and thoroughfares and res-
ponsible for occurrences and liable to
damages on account of stolen property like
the ghatwal of the mahals settled by the
Government". Stockwill, J., in his judg-
ment, pointed out that the mahal was not
a ghatwali mahal "as described in Regula-
tion XXIX of 1814 and was not settled
along with other ghatwali elakas, from
the copy of the rubakari of the Judge of
Zila Birbhum and the copy of the ruba-
kari of the Collector, dated the 15th
August 1834 which are received in this
Court on requisition." In Ex. P it was
held that these mahals being ghatwali
mahals could not be sold in auction. But
in a later judgment (Ex. Q) it wes decided
according to the decision of the High
Court that the second class of ghatwalis
could be sold in auction. These classes of
ghatwalis were defined in that judgment
as first the ghatwali right mentioned in
Regulation 29 of 1814, the rent whereof is
paid direct to Government but in spite of
the same it is considered to be a part of
the zamindari of Birbhum, and they pay a
portion of their fixed rent to the Raja of
Birbhum. The second class of ghatwalis
at first belonged to the first class ghat-
walis, L e., those who were in possession
in the said manner in that right on con-
dition of service but they instead of pay-
ing rent to the officers of Government pay
rent to tha zamindar. The third class of
ghatwalis are like chakran and chauki-
dari lands find they hold possession of the
same on condition of service." The argu-'
ment is that although the lands in suit
may not be a Birbhum ghatwali within
the meaning of Regulation XXIX of 1814
yet that Regulation did not alter the
status of the ghatwalis. All these ghat*
walis had their origin in the same
circumstances and all Birbhum ghat-
wals as such had a right to the mine-
rals. Alternatively it is argued that if
this is not shown yet, the Legislature in
Act V of 1859, which was an exposition
of the law as it stood, acknowledged that
the ghatwalis under Regulation XXIX
had the mineral rights and there is no
ground for distinction between the first
and the second classes. Reliance was
also placed on the record of rights of
Bara Ashna (Ex. 27), Chhota Ashna (Ex.
28), Jamjuri (Ex. 19) and Nagori (Ex.
30) where the names of the Sadhus are
shown as maurashi mokarraridars in
Part I which deals with proprietary
rights and duties. Clause 10 of Part I
states that * The proprietor shall enjoy
all the rights and shall perform all the
duties of a proprietor according to the
customary or enacted laws locally in
force, except as restricted by the record
of rights." S. 12 of Regulation III of
1872 gives the Settlement Officer power
to enquire into and decide and record
the rights of zamindars and other pro-
prietors, and also any other landed rights
' to which by the law and custom of the
country any person may have local or
equitable claim. S. 25 makes the record
after a period of six months from the
date of publication conclusive proof of
the rights and customs therein recorded.
Mr. McPherson in para. 88 of his Set-
tlement Report expressly refers to mine-
ral rights as being also covered by Part
I, S. 10. The;learned Subordinate
Judge has relied upon the record of
rights as showing the defendants to be
maurashi mokarraridars and has inferred
from this that they were not ghatwalis.
This argument is unsound, because a per-
son may be a maurashi mokarraridar
and also a ghatwal, as for instance in the
Handwe case [Keshobati Kumari v.
Satya Niranjan Cliakraberty (3) and
Kumar Satya Narain Singh v. Raja
Satya Niranjan (4)] . But the argument
for the respondents, that because^hey are
recorded in Part I as mokarraridars and
Cl. 10 declares that the proprietors shall
enjoy all the rights of a proprietor (which
by implication include mineral rights),
therefore they have the mineral rights
appears to me inconclusive. Both the
proprietors and the mokarraridars are
(8) [1918] P. H. 0. 0. 80fc
(4) A. I. B. 1994 P. 0. 5.
106 Patna
SATYA NIRANJAN v. SUSHILA (Boss, J.)
1926
recorded in this part and there is no
reason why the mineral rights would
belong to the mokarraridars and not to
the proprietors ; it is not suggested that
they helong to hoth and as they are not
expressly recorded a<* belonging to the
mokarraridars, the question as between
the proprietors and the mokarraridars
must be decided independently of the
record of rights, vl take it then as
established that these lands are ghat-
walis which are not within Kegulation
XXIX of 1814 both because no settle-
ment was made with the ghatwals such
as is referred to in the? Kegulation and
because it is admitted that the rent is
paid not to the Government but to the
zamindar. What then is the position as
regards minerals ? Act V of 1859 applies
only to ghatwalis within the meaning
of the regulation and even with regard
to them it does not confer the mineral
rights but merely proceeds on the
assumption (which may be erroneous)
that they have these rights. The dis-
tinction between a ghatwali within the
regulation and a ghatwali which is outside
the regulation is that in the former
case there is no tenure between the-
zamindar and the ghatwal who holds
direct from the Government, while in
the latter the tenure exists. In the for-
mer case, while the lands of the ghatwali
are still deemed to be within the zamin-
dari, the zemindar no longer pays the
Government revenue for them and has,
therefore, no claim to the underground
rights ; his only right connected with these
lands is to receive the difference between
the rent paid by the ghatwal and the
amount of the Government revenue
which was assessed on this part of the
zamindari. If the Government does not
claim the mineral rights there is no one
to whom they can belong but the ghatwal.
But in the latter case the zamindar still
pays the Government revenue on these
lands, and if the ghatwal claims the mine"
rals he must show some transaction
which grants him the minerals either
expressly or by necessary implication.
It is not suggested that in the present
case there is any such transaction. The
ghatwal, whatever the origin of his
estate may have been, undoubtedly and
admittedly holds, and for more than a
century has held, of the zamindar and
unless the minerals have been expressly
or by necessary implication granted to
him (and of this there is no evidence)
they must be held to have been reserved.
In short, the position of the ghatwals of
the second class is indistinguishable from
that of the Digwars of Jharia and what
Lord Macnaghten said of the Digwars in
Durga Prasliad Singh v. Pro jo Nafk Bose
(5) is exactly applicable to the position
of the defendants in the present case :
" The two mauzas are within the plain-
tiff's zamindari. Both the Courts below
have so held. The Permanent Settlement
was made with the zamindar of Jharia.
No separate settlement was made with
the Digwar of Tasra, if there was a
Digwar of Tasra at the date of the Per-
manent Settlement which seems more
than doubtful. No attempt was made
to prove that the mineral rights now in
question were vested in the Digwar be-
fore or at the time of the Permanent
Settlement if the lands were then held
on Digwari tenure. Nor is there the
slightest evidence tending to show or to
suggest that the zamindar ever parted
with his mineral rights to the Digwar.
Mineral rights were vested in the ghat-
wals of pargannah Sarhat, in the north-
western part of the Birbhum zamindari,
but those ghatwals paid their rent direct
to the Government, and in other respects
they were in a very peculiar position,
They were dealt with by Regulation
XXIX of 1814. They obtained the right
to lease the minerals by Act No. V
of 1859. With every respect to the learn-
ed Judges of the High Court no infer-
ence can be drawn from Jthe circum-
stances of their case that the Digwars
in Manbhum had similar rights or
powers."
The learned Subordinate Judge has
laid down five tests of a Birbhum ghat-
wali tenure and has held that the
defendants have failed by all these tests.
It is certain that rents are not paid
direct to Government and that the pro-
perty has been partitioned on at least
two occasions between members of the
family once in 1834 when Gourhari
Sadhu and Buplal Sadhu, tjie sons of
Mahadeo Sadhu took respectively 6 annas
and 10 annas shares in the taluks, and
again in 1899 in t'ne compromise (Ex. 7)
referred to above. I hold, therefore, that
(5) [1912] 39 Oal. 696=39 I. A. 183=16 0. W.
N. 482=(1912) M. W. N. 425=11 M. L. T.
487=9 A. L. J. 462=15 0. Ifc J, 461=14
Bom. L. B. 445=23 M. L. J. 26 (P. C.).
1926
SATYA NIBANJAN v. SUSHILA (Boss, J.)
Patna 10?
as ghatwals the defendants have no right
to the minerals.
The learned advocate for the defen-
dants, however, strongly relied upon the
third title, the petition of compromise in
the suit of 1892 (Ex. J-l) as an acknow-
ledgment by the plaintiff's predecessor
that the defendants had every right and
interest in the lands in suit. The learned
Subordinate Judge in his judgment has
quoted the material part of this document
in the original Bengali and has given a
translation. The words upon which the
defendants rely are ' the words " the en-
tire property detailed in the said schedule
in all respects with all the rights and
interests therein," and they contend that
these words include the sub-soil rights.
Now, in order to understand the effect of
the compromise, it is necessary to read it
along with the pleadings in the suit,
The plaint (Ex. B) was simply a plaint
in a suit for enhancement of 'rent. In
the written statement (Ex. 10) the de-
fendants pleaded that they were tenure-
holders at a fixed and permanent rate
liable to pay sikka Bs. 501 for Nagori
and Jamjuri and sikka Bs. 205 Chhota
Ashna and Bara Ashna and that the
permanent nature of their tenure had
been repeatedly admitted and acknow-
ledged by the plaintiffs and that the
plaintiffs' suit for enhancement of rent
was not maintainable under S. 11 of
Begulation III of 1872. This being the
scope of the suit it is difficult to see how
any admission with regard to sub-soil
rights can be read into the document by
which it was compromised. To read the
document in this way is to put the plain-
tiffs in a worse position than they would
have been in if their suit for enhance-
ment '.of rent haft been dismissed. No
luestion of sub-soil rights was in issue
or could have been in the contemplation
of the parties. The plaintiffs simply ad-
mitted that they could not enhance the
rent and the construction which the
learned advocate for the defendants seeks
to place upon this document cannot, in
my opinjpn, be supported. The passage
on which reliance is placed contains the
words " mokarrari satwa " that is " in
"mokarrari right" and It seems to me that
these words govern the whole clause.
They lay down the ambit within which
the rights are defined and the agreement
comes to nothing more than this that the
defendants have every possible right that
a mokarraridar can have as such. The
defendants read the words as admitting
that they enjoy every sort of right but
only as mokarraridars, that1 is, on condition
of payment of the reserved rent ; but to
read the words in this way, in my opinion,
begs the question as to what is meant
by the mokarrari right because it
implies that the mokarrari right imports
the whole estate subject to the payment
of a reserved rent. The argument is
sought to be supported on the doctrine in
Abdul Aziz v. Appayasami Naicker (6)
and Lloyd v. Guibert (7), namely, that
"the rights of the parties to a contract
are to be judged by that law which
they intended or rather by which
they may justly be presumed to have
bound themselves." It is further conten-
ded that this is a case of contract and not
of grant and that the cases which decide
that where there is a mokarrari lease, the
•minerals remain in the lessor unless
granted expressly or by necessary impli-
cation do not apply, as the parties must
be understood to have contracted under-
standing that the law was that a mokar-
raridar had the minerals.
The first case referred to was Sriram
Chakravarti v. Hari Narain Singh Deo
(8) in which it was decided by the Cal-
cutta High Court that a permanent
tenure-holder would possess all under-
ground rights unless there was something
express to the contrary. The learned
Judge in deciding that case relied upon a
passage in Mitra's Land Law of Bengal to
the effect that "a person holding under a
permanent lease in which there was no
reversion to the landlord, has the right to
open mines," and reliance was placed
especially upon a passage in the judg-
ment of Pratt, JM where he said : 'But
in this Province the grantors of such
tenures consider that they have parted
with all their interests in the soil and
are entitled only to the quit-rent re-
served." Now it is to be observed that no
authority is given for this dictum while
the statement in Mitra's Land Law of
Bengal is expressly made as the opinion
of the learned author and not as a state-
ment of the Common Law. When this
case came before the Judicial Committee :
(6) [1904] 27 Mad. 131=81 1. -A. 1=8C.W.N.
186=6 Bom. L. B. 7=8 Sar. 568 (P.O.).
(7) [1865] 6 B. and 8, 100=1 Q, B, J15=35
L. J. Q. B. 74=13 L.T. 602.
<8> [1906] 33 Gal. 54=3 0. L. J. 59~10 C. W.
N. 425.
108 Patna
SATYA NIBANJAN v. SUSHILA (Boss, J.)
1926
Kumar Hari Narayan Singh v. Sriram
Chakravarti (9), the decision of the High
Court was reversed, and the passage in
Mitra's Land Law of Bengal was referred
to but preference was given to the state-
ment of the law in Field's Introduction
to the Bengal Regulations, page 86, where
he says: "The zamindar can grant leases
either for a term or in perpetuity. He is
entitled to rent for all land lying within
the limits of his zamindari and the rights
of mining, fishing and other incorporeal
rights are included in his proprietorship."
Their Lordships observed that : "It would
seem, therefore, that Mr. Field did not
regard his letting the occupancy right as
presumptive evidence of his having parted
with his property in the minerals," and
they decided that the zamindar must be
presumed to be the owner of the under-
ground rights in the absence of any evi-
dence that he had ever parted with them.
Field's statement of the law was taken to
be the correct statement of the Common
Law on the subject.
The next case referred to was Megh Lai
Pandey v. Raj Kumar Thakur (10) in
which it was held by the High Court
that the mokarrari lease of a mauza "mai
huk hakuk" conveyed minerals which
were not expressly reserved. This deci-
sion was reversed by the Judicial Com-
mittee in Girdhari Singh v. Megh Lai
Pandey (11), where it was held that the
expression "mai huk hakuk" in a mokar-
rari lease of land did not add to the true
scope of the grant nor cause mineral
rights to be included in it. Their Lord-
ships observed that : "On the assumption
that the expression means 'with all right's
or may be properly amplified as 'with all
right, title and interest/ such expressions
in their Lordships' opinion do not increase
the actual corpus of the subject affected
by the pattah. They only give expressly
what might otherwise quite well bo
implied, namely, that corpus being
once ascertained there will be carried
with it all rights appurtenant thereto,
(9) [1910] 87 Cal. 723-371. A. 186=11 C.L.J.
658=7 A.L.J. 633=12 B.L.R. 495=8 M.L.
T. 61=(1910) M.W.N. 809=20 M.L.J. 569=
14 C.W.N. 746 (P.C.).
(10) J1907] 84 Cal. 858=5 C.L.J. 208=11 C.W.
N. 527.
(11) [1918] 45 Cal. 87=44 I.A. 246=22 M.L.T.
858=15 A.L.J. 851=88 M.L.J. 687=8 P.L.
W. 169=26 C.L.J. 584=(1917) M.W.N.
282—22 C.W.N. 201=7 L.W. 90=20 Bom.
UR. 64.
including not only possession of the sub
ject itself, but it may be of rights of
passage, water or the like which enure to
the subject of the pattah and may even be
deriveable from outside properties. It
must be borne in mind also that the es-
ential characteristic of a . lease is that
the subject is one which is occupied and
enjoyed and the corpus of which does not
in the nature of things and by reason of
the user disappear. In order to cause
the latter specially to arise, minerals
must be expressly denominated, so as
thus to permit of the idea of partial con-
sumption of the subject leased. Their
Lordships accordingly are of opinion that
the words founded on do not add to the
true scope of the grant nor cause mineral
rights to be included within it." Simi-
larly in Sashi Bushan Misra v. Jyoti
Prasad Singh Deo (12), it was held that
a talabi brahmottar grant at a fixed rent
did not carry with it the mineral rights in
the soil and that mineral will not be held
to have formed part of the grant in the
absence of express evidence to that effect.
Finally in Raghunath, Roy Marwari v.
Durga Prashad Singh (13) it was held that
where a zamindar grants a tenure of land
within his zamindari and it does not .
clearly appear by the terms of the grant
that the right to the minerals is included,
the minerals do not pass to the grantee.
The only case which was cited on behalf
of the defendants as expressing what they
contend to have been the Common Law
on the subject was All Quadir Syed v.
Jogendra Narain Roy (14), in which it
was held that a patni lease which con-
tained the words "darabust zamindari
hakook" conveyed mining rights. That
decision stands by itself and it relates to -A
patni lease which may give rise to differ-
ent considerations, and moreover, where-
as in the document now under considera-
tion the words are "haq hakuk darabust
mokarari" the words in the patni lease
were "darrabust zamindari hakook." Now
while it is true that the cases above re-
ferred to are cases on the construction of
(12) [1917] 44 Cal. 585=44 LA. &=21 C W
N. 877=15 A.L.J. 209=32 M.L.J. 245=
(1917) M.W.N. 226=25 C.L.J. 265=1 P.L.
W. 861=21 M.L.t 808=19 Bom.L.R. 416=
6 L.W. 2 (P.O.).
(18) [1920] 47 Cal. 95=46 LA. 158=17 A.L.J.
597=36 M.L.J. 660=28 C.W.N. 914=26 M.
L.T. 76=80 C.L.J. 160=21 B.L.K. 895=10
L.W. 847 (P.C.).
(14) {1912] 16 C.L.J. 7.
1926
COMMR. OF INCOME-TAX v. SHIVA PBASAD
Patna 109
deeds of grant, they lend no support to
the contention that the Common Law of
the country by which the parties to the
present contract may be presumed to
have bound themselves was that the
minerals passed to the mokarraridar. If
such was the Common Law, it should
have been proved either by evidence or
by numerous decisions which would have
shown that this law was so notorious that
nothing else could have been contempla-
ted by the parties. The Judicial Com-
mittee has consistently held that this is
not the law in Bengal and there is nobh-
ing in any of the cases to afford any
ground for supposing that it was ever
believed to be the law. On the contrary
it has baen held that the law has always
been otherwise, namely, that the mineral
rights are in the zamindar and he is not
divested of them by a lea.se of the land
unless the minerals are expressly granted.
Consequently the words in the petition
of compromise must be construed in their
natural sense, namely, as acknowledging
in the defendants all the rights that a
mokarraridar as such can have and these
rights do nob include the right to the
minerals. The third title set up by the
defendants, therefore, also fails.
There remains only one small point
which was urged on behalf of the defen-
dants, that as the plaintiffs are only co-
sharers to the extent of 12 annas 7 gandas
while one of the defendants Chain
Kumari is nob only guardian of one of
the Sadhus, a minor, bub is herself pro-
prietor of a small share, the plaintiffs are
not entitled to an injunction. Now the
plaintiffs do not claim any injunction
against Chain Kumari as proprietor. She
is not said by the defendants to have
given to them any right to work coal. If
she herself is working coal no injunction
is sought against her. Injunction is
sought against strangers. The defendants
do not allege that they have taken any
settlement from Chain Kumari and evi-
dently they cannot do so because this
would go to the root of their own alleged
title. Tkere is no substance in this ob-
jection.
The result, therefore, is that the appeal
is decreed with cost's. The title of the
plaintiffs to the sub-soil of the taluks
Jamjuri, Nagori, Chhota Ashna and Bara
Ashna, to the extent of their interest, is
declared and it is further declared that
the defendants have no right to the
minerals of these mauzas; and it is ordered
that an injunction do issue permanently
restraining the defendants from working
coal or other minerals lying on or under
the said taluks, and from obstructing the
plaintiffs in exercising their rights to the
sub-soil in the said taluks. As the learn-
ed Subordinate Judge found that no
damage had been proved, there will be no
decree for damages. The plaintiffs are
entitled to their costs in both Courts.
Das, J. — I agree.
Appeal dismissed.
* A. I. R. 1926 Patna 109
DAWSON MILLER, C. J., AND JWALA
PRASAD, J
Commissioner of Income" tax, Bihar and
Orissa.
v.
Shiva Prasad Singh — Opposite party.
Misc. Judicial Case No. 136 of 1924,
Decided on 27th April 1925, referred by
the Commissioner of Income tax.
% Income-tax Act (1922), S. 12— Taws payable
under Act 3 of 1914 and Act 4 of 1920 are not to
be defaulted from royalty In determining assessable
income.
The taxes payable by tha assessae under the
Jharia Watar-supply Act (B. and 0. Act 8 of 1914)
as well as the Bihar and Orissa Mining Sattlements
Act (B. and O. Act 4 of 1920) cannot ba deducted
from the royalty received by him in assessing the
tax payable under the Income-tax Act : 34 Cal.
257 and 6 P. L. /. 62 Appl. [P. 119, 0. 1]
Sultan Ahmad (Govt. Advocate) — for
the Commissioner, Income 'Tax.
N. C. Sinha and #, B. Ghosh— far the
assessee.
STATEMENT OF THE CASE BY THE
COMMISSIONER OF INCOME-TAX,
The question for the decision of the
High Court is whether an assessee who is
assessed under S. 12 of the Income-tax
Act, 1922, on income from "other sources"
(consisting of royalties on coal), is entitled
to have deducted, before the taxable
income is determined, the cesses paid by
him to the Jharia Water Board and the
Mines Board of Health.
2. The facts are undisputed : the
assessee is a zamindar who derives consi-
derable income from royalties on ooal ;
under the Jharia Water-supply Act and
the Bihar and Orisaa Mining Settlement
Act, cesses are imposed on owners of
mines and receivers of royalty. Under
the Water-supply Act, the oess is assessed
110 Patna'CoMMR* OP INCOME-TAX v. SHIVA PBASAD (Dawson Miller, C. J.) 1926
on the actual amount of royalty received
during the preceding calendar year, and.
under the Mining Settlement Act, the
demand is a percentage (at present 20 per
cent.) of the average,of the preceding three
years' road -cess demand.
3. In my opinion such cesses are not
deductible expenses under the law. Under
H. 12 (2) of the Act, the only permissible
allowance is any expenditure (not being
in the nature of capital expenditure)
incurred solely for the purpose of earning
the income. The Patna High Court held
in Case No. 102 of 1920 [Raja Jyoti Pra-
md Sinyh Deo, In the matter of ({)} thafr
road -cess could not be deducted before
determining the assessable income from
royalty (this was a decision under the
Income-tax Act of 1918, but for the
present purpose the relevant sections of
the Income-tax Acfc of 1922 are practically
identical). It is admitted on behalf of
the assessee that this decision would
apply to the present case if he were
assessed to these local cesses on his net
income and not on his gross income. His
position is that if he receives Us. 5,000
royalty and in turn pays Bs. 4,000 in
royalty to a superior landlord he is as-
sessed to water-cess on Ks. 5,000 and not
on the net income of Es. 1,000. This argu-
ment would not in any case apply to the
cess payable to the Mines Board of Health
which is based on the road -cess which is
in turn calculated on the net profits. But,
in my opinion, the argument has no vali-
dity even as regards the water-cess. In
the case already referred to, the Court
held that the payment of cess (i.e., road-
cess) is a necessary expense arising in
connexion with the ownership of royalties
but it is in no sense an expenditure
incurred for any purpose incidental to the
making of the income. This remark
applies equally to the cesses now under
consideration. Moreover, income-tax is
assessed on the net income ; in the exam*
pie given above income-tax would be
assessed on Es. 1,000, less the expenses
incurred }n collecting the Rs* 5,000.
In K.M. Selected Coal Company of Man-
bhum ; In the matter of (2), the High Court?
of Patna held that the cesses in question
could be legitimately deducted from the
profits of a colliery (an assessment of a
business under S. 10) before determining
"li)Tr921]6Pat.LTJ. 62=2 Pat. L, T. 188=
(1921) P. H. 0. 0. 81.
(2) A. I. H. 19524 Patna 670.
the assessable income. But that case
definitely and deliberately distinguished
from the previous one mainly on the
ground that the local cesses were not
rates levied after the profits had been
ascertained. In fact the colliery business
pays on its raisings and despatches, irres-
pective of whether it made any profits
at all.
Dawson Miller, C. J.— This matter
comes before us on a case stated by the
Commissioner of Income-tax under S. 66
(1) of the Income-tax Act, 1922. The
assessee in the case is the Kaja of Jharia
who derives a considerable income as the
owner of royalties which he receives
under mining leases, of which he is the
lessor in the Jharia coal-fields. The
question for our opinion is whether in
arriving at the taxable income derived
from that source the assessee is entitled
to deduct certain cesses or rates imposed
upon the owner of such royalties under
two local Acts, known as the Jharia
Water-supply Act, 1914, and the Bihar
and Orissa Mining Settlement Act, 1920.
Under the former Act a cess is leviable
within the area prescribed both upon the
owners of coal mines and upon the holders
of royalties from those mines. In the
case of mine-owners who are themselves
working the mines the cess is a cess on
the annual despatches of coal and coke
from the mine and would be payable apart
altogether from whether any profit is-
derived from the actual working of the
mine. In the case of a person receiving
royalties from mines the cess is paid
upon the royalties received at a certain
rate which is determined by the Board
with the approval of the Local Govern-
ment subject to a maximum of 5 per cent*
on the assessed amount of royalty. Under
the latter Act of 1920 a somewhat similar
rate is imposed under S. 23 both upon the
owners of mines and upon persons who
receive any royalty, rent or fine from such
mines. In this case the assessment is-
based, in the case of owners of mines, on
the actual output of their mines, and here
again the assessment in the .case of
owners is apart from any profit that may
or may not be derived from the, working
of the mine. In the" case of receivers of
any royalty, rent or fine, their assessment
is calculated on a percentage of road-cesa
payable by such persons. At present the
amount is one-fifth, or 20 per cent, of tha
average yearly road-cess payable by s
1926 COMMR. OP INCOMETAX v. SHIVA PRASAD (Dawson Miller, 0. J.) Pfttna 111
Persons in respect of their royalties during
*he last three years.
The only question which arises for
decision in the case is whether under
S. 12 of the Indian Income-tax Act these
cesses or taxes can be deducted in arriving
at the taxable income for the purpose of
income-tax. It was decided in the case
of Jyoti Prasad Singh Deo (l) that in-
come derived from royalties came within
S. 12 of the Income-tax Act which relates
to income derived from other sources "
and not under S. 10 which applies to
income under the head of " business/'
The deductions which may be made from
the different classes of income men-
tioned in the Act are stated in detail in
the different sections dealing with the
different heads of income, and under
S. 12 which applies to the present case it
is provided that the tax shall be
payable by an assessee under the head
" other sources" in respect of income,
profits and gains of every kind and from
every source to which this Act applies if
not included under any of the preceding
heads. By 01. (2) of the section — and
this is the important part of the enact-
ment— such income, profits and gains shall
be computed after making allowance for
any expenditure (not being in the nature
of capital expenditure) incurred solely for
the purpose of making or earning such
income, profits or gains, provided that no
allowance shall be made on account of any
personal expenses of the assessee. Now
the only allowances or deductions which
are permissible in the case of income de-
rived from " other sources" referred to in
S. 12 are those already mentioned in
01. (2) of that section, namely, any
expenditure incurred solely for the pur-
pose of making or earnipg any income,
profit or gain. It is contended in this case
that the deductions leviable under the two
Bihar and Orissa Acts to which I have re-
ferred are expenditure incurred for the
purpose of making or earning such income.
The case of the K. M. Selected Coal Com-
pany of Manbhum (2), was relied on in
support of ijiis contention. But the rea-
sons for that decision do not apply in this
case. There the assessee was the lessee
of the mines and the income taxed was
profits derived from business. The local
taxes as already stated in such a case are
levied on the output or despatches apart
from the profits of the business and
whether a profit is made or not; must be
taken into account in ascertaining whether
there is a profit which is subject to
income-tax.
The present case appears to me to be
governed by the principle adopted in the
earlier case of Raja Jyoti Prasad Singh
Deo (1). In that case this Court decided
that in determining the taxable income
derived from royalties, cesses payable
under the Cess Acts, that is to say road-
cess and public works cess, cannot be
deducted in arriving at the taxable income
under the head of "royalties" and the only
question is whether there is any distinc-
tion between the case of a road-cess and
the case of the cesses imposed under these
two Acts. In that case it was argued, as
has been argued here, that the taxes
should be deducted in order to ascertain
what was the actual income. It was
pointed out, however, that the cess was
leviable upon exactly the same income as
the income-tax itself and, following the
case of Manindra Chandra Nandi v.
Secretary of State (3), which held that
income-tax could not be deducted in order
to ascertain the amount upon which the
road-cess was leviable, this Court held
that, similarly, you could not deduct the
road-cess in order to ascertain the amount
upon which the income-tax was leviable
because both taxes were imposed upon the
same income ; and it was there pointed
out that the liability to pay the road-cess
resulted from the income having been
made, and the payment of the cess could
hardly be said to form a necessary part in
the earning of the income which must
come into existence before the liability to
cess arises, and, although the payment of
cess was a necessary expense arising in
connexion with the ownership of royalty,,
it was nevertheless in no sense an expen-
diture incurred for any purpose incidental
to the making of the income. No argu-
ment has been adduced before us in this
case which distinguishes the case of the
cesses imposed under these Acts from the.
ease of road cess. It seems to me that in
both cases the cess is imposed upon exactly
the same income and the mere faofc
that income-tax is also imposed on that
income is in itself no reason why the
cesses should be deducted in order to-
ascertain the taxable amount of income
any more than it is why the income-tax
should be deducted inorder to ascertain the
amount of cess. I can see no distinction
(3) [1907] 34 Gal, 267=5 0. L, J. 148. "**
112 Patna TILAKDHARI v. ABDUL WAHAB (Dawson MILLER, C. J.)
1926
in principle between the present case and
the case of Eaja fyoti Prasad Singh Deo
(1) and in my opinion the Income-tax
Commissioner arrived at a proper conclu-
sion in the case which he stated for our
opinion.
Jwala Prasad, J.— The royalties
derived by the owners of lands containing
minerals give rise to the following
taxes : —
(1) Cess levied under the Cess Act (IX
of 1880, 13. C.) as amended by the Bihar
and Orissa Act I of 1916. That cess is a
cess on the annual net profits derived
from the mines contained within the
zamindari in the shape of royalty ;
(2) Cess levied under the Jharia Water-
supply Act (Bihar and Orissa Act III of
1914) on royalties derived from mines,
and
(3) A tax under the Bihar and Orissa
Mining Settlements (Bihar and Orissa Act
IV of 1920) assessed on the local cess
payable by the zamindar who owns the
lands in which the mine is situated.
It is thus clear that the sources of the
three taxes are the same, namely, the
amount of royalty received by the zamin-
dar and each of1* them is to be assessed
irrespective of what is paid under the re-
maining two Acts. Therefore the pay-
ments made with respect to any one of
the aforesaid taxes cannot be taken into
account in the assessment made for the
tax payable under the other Acts. The
result is that the taxes payable by the
assessee in the present case under the
Jharia Water-supply Act as well as the
Bihar and Orissa Mining Settlements Act
cannot be deducted from the royalty
received by him in assessing the tax
payable under the Income-tax Act of 1922.
I, therefore, agree with the order of my
Lord the Chief Justice.
A. I. R. 1926 Patna 112
DAWSON MILLER, C. J., AND FOSTER, J.
Tilakdhari Lai and another — Appel-
lants.
v.
Abdul Wahab Khan and others — Bes-
pondents.
Appeal 'No. 280 of 1921, Decided on
6th March 1925, against the original dec-
ree of the Sub.-J., Monghyr, D/- 28th
April 1921.
Adverse possession — Cosharers—Mere exclusive
possession of a portion for purposes of manage-
ment Is no ouster — 2 specific denial of other co-
sharer's right to possession Is necessary.
Possession of one -coshater lawfully acquired
in the first instance may become adverse to the
others, but mere occupation even f r>r a long period
creates no presumption of ouster. There must be
open and notorious acts indicating a claim to ex-
clusive ownership in denial of the rights of the
other cosharers before adverse possession can be-
gin to run. The only difference batween the
possession of a co- owner, and other cases is, that
acts, which, if done by a stranger, would per se be
a disseisin, are in the case of tenancies-in-com-
mon, susceptible of explanation consistently with
the real title ; acts of ownership are not, in ten-
ancies-in-commou, acts of disseisin ; it depends
upon the intent with which they are done and
their notoriety ; the law will not presume that
one tenant-in-common intends to oust another ;
the facts must be notorious and the intent must
ba established 'n 'proof : [24 C. W. N. 1057, Bef.]
The appropriation of profits cannot be regarded
as notice to the cosharers that their title was
repudiated : 32 All 389, Kef. [P. 116, C. 2]
P. C. Manuk, L. K. Jha and S. M.
Nairn — for Appellants.
Sultan Ahmad , N. N. Sen and P. K.
Mukharji — for Eespondents.
Dawson Miller, C. J.— The appel-
lants in this case instituted a suit for
partition of an estate comprising four
mouzas and bearing Tauzi No. 4920 on
the revenue roll of the' Collector of Mon-
ghyr. The appellants are admittedly
entitled to a share in the estate amount-
ing to a fraction over 7 annas of the
whole. The defendant first party, Abdul
Wahab Khan who alone has actively resis-
ted the claim for partition, and who may
be referred to as the respondent, is enti-
tled to a 3-annas share whilst the remain-
ing defendants classed as second party
defendants are entitled amongst them to
the remainder amounting to a fraction
over 5 annas.
The estate was at one time part of a
larger mahal but more than forty years
ago, at some date not definitely specified,
it was formed into a separate revenue
paying estate bearing the tauzi number
already mentioned. At the earliest time
to which the evidence relates it belonged
to three persons named Hansraj Singh,
Tota Bam Singh and Bhakan Singh who
admittedly held it in coparcenary. It is
the case of t he ! respondent that these three
original proprietors separated and by a
private arrangement partitioned the pro-
perty between them by metes and bounds,
each taking a third share but that certain
of the uncultivated lands remained
1926
TiLAKDHABl v. ABDUL W AHAB (Dawson Miller, C. J.)
Pate* 113
Since then it is also said, that their suc-
cessors or at least the successors of one of
them have on more than one occasion
made sub-divisions of their interests hy
formal partition. If this state of affairs
can he made out then the plaintiffs would
not be entitled to a partition of that which
has already been transferred into separate
ownership. The respondent also claim*
title by adverse possession of the land
now in his actual possession. It is upon
these questions that the determination of
this appeal depends.
The Subordinate Judge accepted the
evidence of the respondent's witnesses as
sufficient to prove that a partition had
previously taken place between the origi-
nal proprietors and considered that the
evidence of the appellant's witnesses was
to some extent corroborative of the res"
pondent's ca-je. Pie also appears to have
thought that the Record of rights finally
published in 1903 supported the case of a
previous partition. Ho further found that
the respondent had acquired a title by
adverse possession to that part of the
estate in his actual possession.
Th^ plaintiffs have appealed and con-
tend'that the verbal evidence in support
of the respondent's cine is not reliable and
that the documentary evidence and I ho
record of rights entirely support their
case.
It is necessary to brar in mind that
it is not disputed that for a number of
years the different proprietors have had
separate collections of rent from the ten-
ants on certain portions of the land which
rents they have appropriated to their
exclusive use without claim to participa-
tion by other co sharers. In other por-
tions of the land the tenants have paid
their rent to each of the proprietors or sets
of proprietors according to their shares in
the estate, as wo Id he the case where
there is joint ownership, whilst other
lands again have remained joint being
uncultivated, and these are recorded as
gair-mazrua in the Record of rights,
It is the appellants' contention that the
estate originally consisted of three kinds
of land, (a) kamat lands in the private and
exclusive cultivation of the proprietors, (b)
mal lands or 'lands in tlfe possession of
cultivating tenants, and (c) uncultivated
lands including dhab jhil and jungle.
There can be no doubt that some forty and
odd years ago or thereavout» during the
time of Hansraj Singh ard his eo-proprie-
1926 P/15&16
tors some arrangement was come to where"
by possession of a portion of the lands was
distributed between them. Whether this
was merely for purposes of management
or in pursuance of a formal partition of
estate is the main question for decision.
The appellants say that it was only the
kamat lands that xvere thus divided and
that the arrangement come to was for
purposes of convenient management and
a ^ a modusvi vcndi without any formal
partition of the estate by metes and bounds,
a thing not uncommon with regard to the
proprietors' private lands in cases of joint
ownership. The rnal or rent-paying lands
on which tenants wore settled, according
to the appellant's c ise, were not dealt
with in this manner, each tenant continu-
ing to pay rent as heretofore to the pro"
prietors jointly according to their respec-
tive shares whilst the uncultivated jungle,
jhil, and dhah lands also remained unappro-
priated. The kamat lands which are
proprietors' private lands and over which
the acquisition of occupancy rights by
raiyats is restricted by the provisions
of S. 116 of the Bengal Tenancy Act, may
in cases where they are settled but not
from year to year or for a term of years,
become subject to occupancy right in the
tenant and thus lo-?e their original charac-
ter. It is the appellants' caso, that this
change, has in course of time, taken placo
which partly accounts for the fact that
rents are in some eises paid to a single
proprietor or set of proprietors represent-
ing the shave or interest in a share of one
of the three original owners, whilst in
other cases waste lands have become lit
for cultivation and have been settled by
one o: other of the proprietors with the
tenants who pay rent exclusively to him.
There is nothing to show that the rents
so paid have ever been proportionately
distributed between the different land-
lords, but this, it in contended, would
not in itself operate as an ouster ; nor
d>es it necessarily indicate a formal
partition. The appellants point to the
fact that over a considerable area of the
estate the ronts are paid to the pro-
prietors jointly. This area, they say,
firms the original mal lands and nega-
tives a partition by metes and bounds,
for had a partition taken place, such
1 mdfi would inevitably have been divided
a* no one ever heard of a partition which
left undivided the lands in possession of
cultivating tenants paying rent for their
Hi fata*
TAI/AKDHARI v. ABDUL WAHAB (Dawson Miller, C. J.) 1926
They also rely 'upon the fact
that the lands in regard to which the
respondent has now exclusive collection
of rents are consider ibly in excess of his
proportionate share of 3 annas which
could not he the case if there had been a
rateable distribution of the property by
metes and bounds forty years ago.
The respondent on the other hand con-
tends that the existing features may be
explained by the fact that original^ a
portion only wa^ under cultivation and
the rest was |,arti land or dl-ab or jhil
land uncultivated and not partitioned,
but that this in time came to be re-
claimed and settled with tenants by one
or other of the proprietors on behalf of
all, the tenants paying their rent to each
proprietor according to bis share. Tho
defendant's witnesses in order to demo-
lish the plaintiffs' theory have sworn that
there never were any kamafc lands in the
estate at all, but the documentary evi-
dence is conclusive on this point and
shows tl at kamat lands exist* d and 1 ave
retaimd their old name although their
characteristic features have changed.
They endeavour to explain the dispro-
portionate si are held by the respondent
by raying tl at he took an inferior cla^s
of land from his tran sferrer, one of the
original proprietors, and consequently got
a larger area.
Tl o present state of affairs may quite
possibly he explained on either hypo-
thesis. But there are, in my opinion,
certain facts in the case which point
strongly to the absence of any formal
partition having taken place. If a formal
partition into separate puttis had been
eihcted we .should expect to lind at
least some document to support it, but
none has been produced.
It is sa.d that khe^ras were prepared
at the time of the original partition as
well as at the subsequent partition bet-
ween the respondent's father and Bam
Kishun, the son of Hansraj Singh, but no
trace of them remains.
The respondent's estate on the death of
of his father was under the management
of the Court of Wards which surely
would have preserved these valuable
documents had any such existed. One
witness suggests that the respondent's
khesra was stolen by one !Nabi Buksh.
Ho admits that although the thief was
known no attempt was made to prosecute
him or to recover it back. Another
witness a Sub-Inspector of Police who was
dismissed from the service in 1912 says
that Nabi Buksh was prosecuted for steal*
ing some papers from the box of Nawab
Khan after his death.
Such documents as there are point to a,
conclusion favourable to the appellants.
The respondent's title-deed of j888 by
which his father purchased his interest-
from Ram Kishun the son of Hansraj, one
of the three original proprietors, al-
though it recites the batwara partition by
which the present estate Tauzi jNo. fc9*0
was separated from the parent mahal
some time earlier, makes no mention of
any subsequent partition between the
three original proprietors although it:
must have happened only some ten years
or so earliej* on the respondent's case..
What IS awab Khan, the father of the res-
pondent purchased was a 3 annas share
out of the 5 annas odd share of Rain
Kishun and not any specific lands defined
by metes and bounds. The deed also-
mentions mal and kamat lards.
In the suit brought by the Court of
Wards on behalf of the respondent and.
his family against certain tenants under
S. ll) , of the Bengal Tenancy 'Act
in 19(K for additional rent in respect of
encroachments, the plaint states that
amongst the proprietors there is a dis-
tribution of tenants, a very different
thing from partition, and that some ten-
ants are joint among the maliks of 16
annas. It further states that the di fen-
dants (the tenants in that suit) have culti-
vated baharsi and parti lands belonging,,
not to the plaintiffs, but to the proprietors
without their permission and prays for
additional rent for the additional area.
Included in the reliefs sought is a prayer
that the plaintiffs may be held competent
to realize the same. Thjs surely indicates
a consciousness that the tenants, although
paying their rents to them by the distri-
bution, were not the tenants of land in
their exclusive ownership, and implies
that, apart from the, distribution arranged
between the owners, it would be necessary
to make the other proprietoijs plaintiffs.
In other words it indicates an agency
on the part of the plaintiffs in tl at
suit, bringing thfe case within1 the provi-
sions of S. 188 of the Bengal Tenancy
Act,
Again in 19^7 Abdul Wabab Khan, fchfc
respondent, sued one of the tenants for
rent. In the plaint be describes himself
TILAKDHARI v. ABDUL WAHAB (Dawson Miller, C. J.) Patna
took settlement was the land originally
partitioned between the three proprietors
which was cultivable land. He admits
that he had rent receipts, but he did not
produce them and pretends that he does
not know if his land is described as kamat
in those receipts.
The next witness Darbari says that
there was a partition bet.ween the original
proprietors of cultivated lands and lands
tit for cultivation and the rest was left
ijmal. He saw the amlas measuring tho
lands and he heard from people that a*
hatwara was being made. He was cutting
grass at the time. He had given evidence
before the Deputy Collector, but he had
no recollection when it was put to him of
what he said on that occasion about this
partition.
None of the other witnesses carry th&
case any further. A few more particulars
are given about the later partition bet-
ween Nawab Khan and Ram Kishun but
these also are far from satisfactory. There
is not a scrap of documentary evidence to
support it and evon if a division had been
made between ftawab Khan and \ is ven-
dor this would not be binding upon the
other proprietors unless there had already
been a partition of his vendor's share from
that of the other proprietors.
The witnesses are not agreed 'as to the
respective positions of the different puttis.
Isone of them can speak as to the position
of the different puttis under the partition
between the throe original proprietors.
They contradict each other as to the posi~
tion of the puttis subdivided between
ISawab Khan and Ram Kishun. They say
that boundary marks were placed, but
there is no longer any trace of them. They
deny that there were any kamat lands
which is conclusively proved to be f tlse.
They suppress their rent receipts for no
apparent reason, but other receipts of other
tenants paying rents exclusively to the
respondent were produced by the appel-
lants and these show that their holdings
were kamat lands.
One of the witnesses, Dl^autal Gone, says
that when the subsequent partition bet-
,ween Ram Kishun and Nawab Khan took
place in mauza Dhamara, the whole of
the lands in that mauza were measured.
If Ram Kishun or Hansraj, his father,
had already separated from the other two
and got their own putti, the measurement
of the whole village was quite
1926
as a share* holding proprietor of 3 annas
out of 16 annas and states that his collec-
tions are separate from other cosharers,
and he claims the whole rent as apper-
taining to his share. Surely this was
meaningless if there had been a partition
and the land had been divided amongst
the 16 annas proprietors. It must be re-
membered that it is the respondent's case
that whb\*e the rent is paid exclusively to
a single proprietor, the land for which
rent is paid is his exclusive property by
the partition.
Finally the record of rights also shows
that the proprietors are all jointly inter-
ested in the whole estate. There is only
one khewat for them all, although they
have in certain cases separate accounts
with the Collector. Had there been a
partition, this matter must have been
brought to the notice of the Settlement
Officers in preparing the record of rights
finally published in 1903. and a khowat
would have been prepared for each pro-
prietor or set of proprietors with a sepa-
rate denominational number but this was
not done,
Ip view of these documents which ap-
pear to me to point only to one conclu-
sion, the evidence of partition given on
behalf of the respondent should be closely
scrutinized. In so far as it relates to the
parti tion .between the original proprietors,
it is of the flimsiest character. It is spoken
to by men who were not particularly in-
terested in it and who took ho part in it,
but merely saw some measurements tak-
ing place and were told that it was a par-
tition.
The first witness upon this point after
stating that it took place says that he was
10 or 15 years old at the time and has no
recollection at all about it.
The next witness Dhautal Gope says he
saw the amlas measuring the lands and
they said that they were making a parti-
tion. He was not present at the kacherry
where he says the partition took place.
He does not know which putti was given
to which of the parties.
The next \vitness, Bahore Das, says that
raiyati lands and lands fit for cultivation
were divided between the proprietors in
his .presence. After the subsequent parti-
tion between Ram Kishun and ISawab
Khan he took settlement of 5 bighas from
Nawab Khan. This land was covered over
with jungle when he took settlement.
This hardly looks as if that of which he
116 Patna TILAKDHABI v. ABDUI. WAHAB (Dawson Miller, C. J.)
1926
unnecessary and would not have taken
place.
In view of the documentary evidence I
feel quite unable to accept this class of
evidence as reliable. The appellants' wit-
nesses admit that the original proprietors
separated in mess and partitioned their
house and that there was a distribution of
the kanmt lands for purposes of convenient
management as frequently happens in
fmch cases but they deny a partition by
metes and bounds. In some instances they
use language which, if taken apart from
the context, might imply a partition, but
allowance must be made for this class of
witnesses whose language is not always
chosen with discrimination. There can
be no doubt as to their intention and the
evidence recorded is the result of both
question and answer as taken down by the
Court.
Upon a review of the whole of the evi-
dence I am of opinion that no partition
ever took place by motes and bounds bet-
ween the proprietors.
With regard to the plea of the respon-
dent that he has acquired a right by ad-
verse possession, 1 also think his case
fails. Every cosharer has the right to
enter upon and occupy the common pro-
perty and this in itself does not raise any
presumption of a denial of the rights of
the other cosharers. Nor is possession
in such cases adverse. All the more so is
this the case where they all agree for
the purposes of convenient management
that a certain area shall be occupied by
certain cosharers. It may be conceded,
however, tbat possession of one co-sharer
thus lawfully acquired in the first instance
may become adverse to the others, but
mere occupation oven for a long period
creates no presumption of ouster. There
must be open and notorious acts indicat-
ing a claim to exclusive ownership in
denial of the rights of the other co-sharers
before adverse possession can begin to
run. As stated by Mook^rjee, Acting C. J.
in 19 0 in Balaram Guria v. Shyama
Cliaran MondaJ (l), "The law will never
construe a possession tortious, unless
Irom necessity ; on the other hand it will
consider every possession lawful, the com-
mencement and continuance of which is
not proved to be wrongful; and this upon
the plain principle, that every man shall
be presumed to act in obedience to his
(1) [1921J 24 C W. N. 1057-33 C.L.J. 344.
duty, until the contrary appears. Ir
other words, the only difference betweer
the possession of a co-owner, and other
cases is, that acts, which, if done by a
stranger, would per se be a disseisin, art
in the case of tenancies-in-common, sus-
ceptible of explanation consistently with
the real title ; acts of ownership are not,
in tenancies-in-common, acts of disseisin;
it depends upon the intent with which
they are done ard their notoriety ; the
law will not presume that one tenant-in-
common intends to oust another ; the
facts must be notorious and the intent
must be established in proof." In that!
case two out of the four co-tenants had
been in possession for fifty years paying
rent and taking the profits. It was held
that the two absentee co tenants had not
lost their interest by adverse possession.
Whether the principles enunciated were
correctly applied to the facts of that case
is immaterial. The principles referred to
appear to me incontestable. In the present
case I can find nothing in the evidence
to indicate an ouster or even an intention
on the part of the respondent or his
predecessors to assert openly ard clearly
a hostile title. The respondent's title-
deed by which he purcha-ed what would
appear to be an undivided share in the
estate and his suits against the tenants
which indicated a claim to collect rents
us agent of all the proprietors poirts
strongly in the opposite direction, ai d the
Kecord of Eights of 1903, which shows at
the most a separate collection from cer-
tain of the tenants is not only consistent
with the appellants' case but seems
to me to prove conclusively that the co-
sharers at that time at least were joint
proprietors of every portion of the estate
as indicated in the khewat. The only
fact which stands out in favour of the
respondent on this part of the case is the
failure to distribute the rents collected by
him in excess of his share and the appro-
priation of the proceeds of the sale under
the Land Acquisition Act. This may bar
the appellants' right to their share in
those profits ard proceeds 'beyond the
limitation period but it cannot, in my
opinion, deprive them of their proprietary
rights. "The appropriation of profits can-
not be regarded as notice to the co-sharers
that their title was repudiated." [See
per Stanley, C. J. and Banerji J., in Ear
v. Binda (9).1 WMht I find
12) [1910] 82 All. 889=^7 A. L. J. 298.
TlLAKDHARI 7. ABDtTL WAHAB (Foster, J.)
1926
certain indications that the respondent
considered himself a cosharer only and
nob a separate proprietor, 1 can find noth-
ing necessarily indicating a repudiation of
tho rights of the other co-owners in the
land which he now claims as his own.
In my opinion the appeal should he
allowed with costs to the appellants
payable by the respondent first party, here
and in the trial Court.
The decree of the trial Court should be
get aside and in lieu thereof a preliminary
decree for partition by metes and bounds,
of the appellants' share as stated in the
plaint should be passed.
Foster, J.— I agree.
This is an appeal by the plaintiffs in a
partition suit. The plaintiffs, as part
proprietors of Touzi Estate No. 4920 in
the Monghyr Gollectorate, sue for the
division of the lands between themselves
and the defendants. The estate comprises
four entire villages, Damhara, Hardia,
Balkunda and Bhutauli (otherwise known
as Malpa). In itself it was created out"
sido the memory of the present litigation
by a partition of Tapa Chautam into three
parts by the Collector. Out of the numer-
ous * parties now holding title as pro-
prietors of this Touzi Estate No. 4920,
only one of the defendants, Mr. Abdul
\Vahab Khan, has seriously contested the
case, the others praying thafc if a partition
be made they may be given separate
takhtas. Mr. Abdul Wahab Khan's case
is that this estate was partitioned some
40 years ago between the three pro-
prietors of that time, Totaram Singh,
Bhukhan Singh and Hansraj Singh (who
had a son Bam Kishun Singh); and that
these divisions have been sub divided on
several occasions thereafter. He admits
that there is still an undivided area with-
in these four villages, but he accounts for
that by saying that the lands were not
at the time of partition fit for cultivation
though they have in some parts subse-
quently become cultivable. He admits
that he is in possession of better and more
extensive lands than the other parties
but he ascribes that to the fact that his
father Nawab Khan took as his divided
portion lands which for various reasons
were considered to be of little value, but
which have since been improved by labour
and physical change. He also contends
that he hai acquired title to the lands
which he holds in separate possession by
adverse possession. He concedes that if
Patna II?
the Court thinks it proper to partition the
said Touzi estate, the ijroal portion only
may be partitioned. It appears that the
pldintiffs had before this present suit
moved the Revenue Court for a Collecto*
rate partition,, but the application was
rejected. We are not informed what
were the reasons for this decision. The
fundamental fact before us is that the
proprietors or groups of proprietors have
now separate collections of rent from
specifically defined holdings of tenants
over an area which is a considerable part
of the four villages, the residue being joinb
a state of affairs which has subsisted for a
long time. The most important question in
this case will be whether tho lands the
rents of which are collected separately by
tho proprietors, are held in several or con-
current ownership ; in other words, whe-
ther the defendant Mr. Abdul Wahab
Khan is correct in asserting that he has
an exclusive title in the lands the rents of
which according to the Record of Rights
of 1903 are paid exclusively to him. As
T have stated already, these four villages
belonged originally to Totaram Singh,
Bhukhan Singh and Hansraj Singh. At
some date, of which we are not informed,
these three persons separated in rness and
admittedly partitioned their dwelling
house, i We are informed by the defendant's
witness Darbari that Totaram died first
then Hansraj and then Bhukhan. Now
each one of these three persons transferred
the wholo or part of his interest. The
predecessor-in- interest of Mr. Abdul
Wahab Khan was Ram Kishun Singh, son
of Hansraj Singh, deceased. His convey*
anco was made in 1888 to Nawab Khan,
Abdul Wahab's father, and it passed a
three anna* share out of 5 anna^ It gandasi
of the whole estate. It seems to me to be|
a fact beyond question that Hansraj Singh
was collecting rents separately from a
known number of holdings and that he
was interested jointly with Totaram and
Bhukhan in the ijmal collections and
lands, but this conveyance of 18H8 of a
three annas share to the defendant's
father does not purport to be a conveyance
by metes and bounds of any specified
lands, or of a share within specified
bounds. I may mention here, as I shall
have to discuss the passage later on, that
the property conveyed is described as "my
whole and entire three annas pucca share
which U a fraction of 5 annas 14 gandas
pucca (the kuchha whereof by the parti-
llsPatna
TILAKDHAIU v. ABDUL WAHAB (Poster, J.)
1926
tion is 8 annas 16-gandas taking it to be
16 annas) in revenue paying Mahal Malpa
Touzi No. 49 ,0." The other parties in-
cluding the plaintiffs trace their title to
one or other of these three persons To-
taram, Hansraj and Bhukhan. Bam
Kishun'* remaining -annas ll-gindas is
now owned by two ladies. Looking at the
Becord of Rights of 1903 we see that
Nawah Kuan's son, then under the Court
of Wards of estate Batan, had separate
collection of the rents of many holdings
as well as joint interest in the ijmal lands,
and the general evidence seems to prove
that Ram Kishun Singh and Isawab had
•sometime subsequent to the purchase of
1R8R, for purposes of collection, distribut-
ed tenant^ between themselves.
So the two main issues in the case were
whether there had been a previous parti-
tion, so as to debar in whole or part the
plaintiffs from suing in the present suit,
tind whether the contesting defendant can
rnako out a separate title by adverse poses-
si on. The suit \vas tried by the Sub-
ordinate Judge of Monghyr. He hold that
the defendant bad proved the previous
partitions which he alleged, and lie also
held tl^at the defendant has been in
udvorse possession of tho lands in his
separate possession through his own
tenants for over 30 yoa s openly and in
denial of the rights of his cosharer. He
did not consider that the plaintiff would
be entitled to partition tho lands which
were still in joint possession when he had
sued for partition of the whole estate. He
therefore, dismissed the suit. Tho plain-
tiffs appeal.
I shall first consider the question whe-
ther there was a partition between
Hansraj Singh and his two cosharers, some
forty years ago, as alleged There is, so
far as I can find, no document exhibited
which clearly points to such a partition.
On the side of the plaintiffs the cadastral
maps aro put forward as showing, when
eompiml with the Settlement Khatian of
1903, that the holdings from which
separate collections of rent are made do
not lie in three compact blocks. For in-
stance, the red plots, those in which the
contesting defendant has sej)arate col-
lections are in many cases isolated and?
soattrred ; and so with the other co-
sharers' plots. In such circumstances,
there would be a great chance of confusion,
so it is surprising to find that this defen-
dant's title deed of 1888 is a mere trans-
fer of a share in the village and not of
lands denned by metes and bounds. At least
the vendor Bam Kishun would have been
expected to define the boundaries of his
own patti of 5 annas 14 gandas. When the
vendor was making assurance of title he
would surely not, if he was owner of a
separated portion of the mahal, have
averred that no settlement at reduced
rent had been executed in favour of any
person in the whole mahal, and under-
taken personal liability for any such sub-
sequently discovered. No doubt there is
the mention of pucca and kutcha shares
by partition, but this fact must be taken,
for its explanation, in conjunction with
the whole expression of the document as
well as other facts. In Ex. X, the plaint
in a proceeding of 1903 under S. 105 of
the Bengal Tenancy Act, the plaintiff
(this very defendant) suing alone asserted
that there is distribution of tenants
amongst the proprietors, and a particular
proprietor realizes independently the rent
of a particular tenant. He does not
assert anything more than actual collec-
tion of rent and makes no mention of a
partition ol the mahal. In fact he claims
that the tenants are liable to pay rent for
the encroachments made upon lands be-
longing to tho proprietors without their
permission. So there is a distribution of
tenants and no more, a common enough
phenomenon in large estates held in
temmcy-in -common. Such a distribution
was undoubtedly made two years or so
after the conveyance of 1888, between
Earn Kishun Singh and Nawab Khan, and
no doubt the distribution was formulated
upon the kacha shares, JNawab Khan
getting 8 annas 16 gandas and Raj Kishun
Singh 7 annas 4 gandas of the total rental
of the tenants under Ram Kishun *s
separate collection. It has been shown
that the plaintiff's purchases of shares in
the village (1904 to 1900 Exs. 2, 8, 5, 7)
were similar to that of the contesting
defendant in this respect, that there was
no specification of separated lands within
the mahal. Nor is any one of the very
numerous conveyances thatt must have
taken place, considerably increasing the
original number of 3 cosharers, produced
to show a statb of several ownership.
There are in the khewat of 1903 twenty
cosharers, with nine separate revenue ac-
counts. In 1917 Mr. Abdul Wahab Khan
alore sued tenants for arrears of rent,
alleging separate collection of rents from
1926
TlLAKDHARI V. ABDTO WAHAB (Foster, J.)
the tenant defendants. This is equivocal,
it does not necessarily assert separate
•ownership. We do not know what were
the results of these suits. We do know
that, a few months after the institution
of these suits, this defendant put in his
objection in the Collectorate partition
-case that preceded the present suit, al-
leging the existence of divided pattis,
(Ex. 35). So the existing question was
then sub judicc.
As regards the question whether the
separate collection of rents is to be attri-
buted to a separation by partition of the
shares of the proprietors, there is an im-
portant matter which calls for notice. The
plaintiffs assert in the plaint that the
bakasht lands in the village are the pro-
perty of the proprietors, but are not held
in due proportion to the shares of the
proprietors. The contesting defendant in
his written statement asserted that the
lands of which separate collections are re-
corded in the Record of Eights are not
kamat lands. The description of the land?
may have arisen as an issue in the case
under the Estates Partition Act. Certain-
ly 8. 77 indicates in the Explanation that
kamat lands though held severally shall
not be deemed to be lands held in several-
ty as representing several interests ; and
that the private arrangement which is to
give a right to preference of a particular
proprietor in a partition in respect of
certain lands refers only to those lands
held on a bona tide division of lands
held by tenants. Now, we know
th-it frequently the possession of
karaat lands, the private and common pro-
perty of the landlords, is allotted without
reference to the shares, One landlord
may be an absentee ; bis farm servants,
ploughs and bullocks are not in the vil-
lage, and it is not worth his while to put
them there. If lands are waste but re-
claimable, his co-sharers, unless and until
they become openly hostile to his title,
will not, by reclaiming the lands (an
ordinary process in estate management^,
be able to assert adverse pos session. This
is, so far as I can judge, the reason why
the Estates Partition Act excludes prefer-
ential cUims in respect of landlords' pri-
vate lands*. *
The plaintiffs' witnesses all describe as
kamat the lands of which the collection
of rents is several. Tbe defendants' wit-
nesses refuse to admit the existence of
.kamat. The Record of Bights (1908)
make no mention of kamat, or its anti*
thesis, mai ; it makes no distinction betA
ween lands belonging to the proprietors
personally and lands in the raiyati stock.
In fact it implies that there is no subsist-
ing kamat, because it states uniformly
that the tenants have occupancy (kaimi)
rights. I refer to S. 116 of the Bengal
Tenancy Act.
The matter is one that is not only his-
torically important. If, forty years ago,
Totaram Singh and his two co sharers
held a large area of kamat, a considerable
part of which had to be reclaimed, they
might for convenience of management, but
not necessarily for severance of title*
divide it up, If by subsequent settlements
with raiyats the landlords' title to these
kamat lands came to be diminished by the
intrusion of occupancy rights, the lands
might still be, in the mouths of laymen,
such as the villagers who have given evi-
dence, described, with an eye to their
origin, as kamat ; whereas the Record
of Rights could never give room to
such an incongruity. But if the lands
\vere in their origin kamats we have an
explanation of the long-standing distri-
bution of management.
1 find conclusive documentary -evidence
that there were originally extensive
kimat lands, largely waste, increasingly
reclaimablo, in these four mouzas, and
that they were held in separate possession
by the co sharers. The defendant's and
the plaintiffs' title-deeds mention ksimat.
The defendants' plaint of 1903 mentions
land " belonging to proprietors." The
certificates under the Public Demands
Recovery Act, 1901, specify kamat lands.
Going on through the documents in Part
III, I could multiply instances of the
existence of kamat. Mai is mentioned on
page 84. My finding is that there is a
very considerable area of these four vil<-
lages which is clearly ancient kamat, but
now obsolete as such, owing to the accrual
of raiyati 'rights Unequal possession of
such karcut lands can, in ordinary experi-
ence, be expected in India.
Now, let us consider more particularly
the conditions of this mahal of four vil-
lages. Admittedly there has always been
a considerable area 'uncultivated but re-
claimable. The total area of the four
villages is very large, and when • there is a
large proportion of kamat, one can under-
stand that the retention of separate .rent
collecting and managing staffs by the varr
ISOPatn*
TILAKDHABI v. ABDUL WAHAB (Poster, J.)
1926
ous proprietors might be necessary under
tenancy -in-common, just as much as under
several ownership. Another thing to re-
memher is that here we have not a case
of exclusive possession. The cosharers
are receiving some of the rents separately ;
hut that does not prima facie ir.dicate any
denial of title. But in fact, wl en all the
co harers have been, so to speak, sitting
at the same table since they came into
possession, consuming the profits for so
many yearn, I do not see how the Court
can deem the condition of the property
to have altered by course of law. In all
Huch cases as this where one tenant in
common gathers more from the common
property than what he is entitled to keep,
the legal conclusion is only that the co-
sharers who have suffered by this tem-
porary exclusion can sue for accounts ;
there is no necessary corclusion of hostile
possession. The khewat of the He cord of
Eights of Bhutan! i (1903) is exhibited in
full. It contains ono serial number for the
score or so of cosharers. This inticates
that each of these cosharers has an inter-
est in every part of the village. I do not
see how it can ho construed otherwise.
R. 48 of the Rules under the Bengal Ten-
ancy Act (which have the force of law)
prescribes that the khewat shall show
" the character and extent of propric tary
interest." Jn the Survey Manual there are
also some Board's Rules which in tl cm*
selves are not very clearly expressed, have
not the forco of law, and are intended as
general instructions. \\ e do not know what
particular rules were adopted in this
Monghyr Settlement. But in view of R. 48,
arid in viow of the fact that the- character
and extent of separation in proprietary
interest is usually shown by serial numera-
tion, it seems reasonable- to hold that
the form of this khewat irdicates con-
current ownership throughout the whole
village.
The defendants' oral evidence as to the
partition has yet to be discussed.
His case is that Hansraj and his two
cosharers divided each of the four vil-
lages into three pattis by way of partition,
and that Hansraj's share amounting to 5
annas 15 gandas separated by metes and
bounds devolved upon his son Ram
Kishun. Ram Kishun sold three annas
out of this to Nawab Khan and very
shortly afterwards made a new partition
with the 5 annas 15 -gaud as patti. Then
Bam Kishun sold the residue of his share
comprised in the patti of 2 annas and odd
and again effected partitions with the
purchasers. About these last partitions
the witnesses are surj risingly silent. I
proceed to consider broadly the evidence
as to the earlier partitions.
The witnesses are fairly well agreed
that Hansraj Singh's partition took place
about 45 years ago, so we must expect
only the elderly witnesses to be able to
talk about it. The seventh witness for
the defendant says that he was 10 or 15
years of age at the time and he has no
recollection at all of the partition. The
eighth witness was aged £0 at the time:
but he cannot say which j atti was given
to which of the three cosharers. The
next witness is aged CO. Like most of the
other witnesses he cannot name or de-
scribe the Amin who did the measurement.
He was, he says, present at the partition
as a Jeth raiyat for eight days. One plot
was dealt with at a time and allotted.
Each of the three patwaris was taking
notes. It is noticeable that nowhere in
the- documentary evidence is there any
copy of these notes, nor any reference to
them. The next two witnesses, aged £8
and (:0 respectively, were bystanders and
repeat vague hearsay. The last witness
on this point, I^o. Ii4, is aged 72 years. It
is surprising that he has so little- to say
about the partition. All that he contri-
butes to the evidence is a statemert,
which he shortly after withdrew, that
the three cosharers had each his kamat
land in his patti, and he defines kamat
lands as lanels cultivated with the malik's
plough and cattle. 1 am of opinion that
this evidence does not kufltce to prove a
fact which must have been notorious. It
is to be remembered that these villages
cover a very extensive area and that the
partition would have cost, time and labour
and money.
The allegeel partition between Nawab
Khan and Ram Kishun has more evidence
than the alleged earlier one. The sever th
witness for the defendants states that
ISawab Khan and Ram Kishun were joint
for one year and then had a, partition.
The partition khesras (or lists of plots)
were written on behali of the two parties.
He is a tenant bf Bhutauli' just like
defendant's \Vitness £o. 12, but these two-
men contradict each other as to the rela-
tive positions of the two pattis. This
witness and some other witnesses speak
of boundary marks having been placed,
1926
TlLAKDHARI V. ABDUL WAHAB (Foster, J.)
Patnai21
which, of course, in such an intricate
allotment of plots in an extensive area
was advisable and ab the same time labori-
ous ; but those boundary marks had dis-
appeared when the survey and settlement
commenced in 1900. The Witnesses
Nos. 8 and 12 assert that in the course of
this partition between Kawab Khan and
Bam Kishun the total area of the respec-
tive villages was measured. This is an
astonishing rtatement, if we are to believe
that already these villages had been
divided by tnetes and bounds into three
separate properties in the former parti-
tion. Obviously if Bam Kishun had a
separate patti it was only necessary to
measure that patti for the purpose of
sub-dividing it. Witness Ko. 15 makes
an important statement that in this parti-
tion copies of the khesras were given to
each of the parties. The partition was
not made in his presence. Kawab Khan's
copy of the khesra was stolen. The defen-
dant does not account for the non -produc-
tion of Bam Kishun's copy, nor has Ram
Kishun been called though he is still alive.
As with the alleged previous partition.
we find hearsay and indefinite evidence.
It appears to me that this evidence of the
alleged second partition is wholly insuffi-
cient and unconvincing.
Much is made by the defendant of
the statements of the plaintiff's wife-
nesses in their cross-examination. They
have certainly never admitted that these
four villages were divided by partition.
They have admitted, and I am quite
prepared to believe them ; for the record
of rights and all the evidence support
them — that there were some separate
collections by the cosharers. It appears
from the evidence of the patwari that
there are seven separate collections in
these villages. As the defendants stated
in the proceeding under S. 105 (1903)
there has constantly been a distribution
of tenants among the proprietors. The
proprietors were originally three in num-
ber, but in the course of time, as a result
of alienations in detail, there camo to be
seven groups of separate collections.
There is no question that at the same
fcime a considerable area in these villages
remained 'ijmal under joint collection.
Admittedly in respect of these ijmal lands
fchere has been no exclusion of any parti-
cular co?barer. No doubt the legal
incidents of the old kamat have disap-
peared, but it appears to be satisfactorily
shown that in the time of Totaraov
Hansraj and Bhukhan there was a large
kamat jagir within each of these four
villages. This would account for sepa-
rate possession by various cosharers. It
is a more cheap and efficient method to
divide the administration of the com-
mon estate than to place the entire
management in the hands of one person*
The practical defect of distributed admin-
istration is t^at when the estate becomes
more sub-divided, it is increasingly diffi-
cult to call all the co-iharers together for
adjustment of account, and adjustment
can hardly he made between less than all*
Tins unsatisfactory state of affairs may
continue till one of the cosharers with
a large interest takes upon himseif to
demand a partition.
There has been some talk in the case
on the defendant's side of improvements
to the property effected at the cost of
the defendant's father Nawab Khan. It
is curious that both in his objection peti-
tion (Ex. S5) in the estates pa-tition case
of 1918 aiul in the mouth of his wit-
nesses the defendant attributes these im-
provements solely to his father, who after
all, died as long ago as 1891. No im-
provements since then have been assorted.
There is no documentary evidence of speci-
fic improvements. The oral evidence in
meagre. It is not quite dear from the
witnesses' statements what niothnd
Nawah Khan adopted in encouraging
reclamation. The actual payments de-
posed to, as made by Nawab Khan, aro of
trifling amounts, where the amount in
stated. It should be remembered that
the defendant's explanations of the dis-
proportionately 1 u-go area from which he
is collecting separate rents is that hig
father took waste lands in plenty whilst
Bam Kishun took cultivated lands ; and
the waste lands which were got so
cheaply in the partition have now been
reclaimed and become valuable. Learned
counsel for the plaintiff has drawn up a
tabulated statement abstracted from the
record of rights showing a total area of
all the mouzas of 8314 bighas 'and he
finds from this record of rights that the
defendant's three annas share has sepa-
rate collection from holdings of 760
bighas whereas the plaintiff's separate
collection of 5 annas 15 gandas comes
from holdings covering 51 ^ bighas. In
such circumstances it is surprising that
the evidence of the alleged extensive
JITENDBA v. JASODI S\HUN (Adami, J.)
1926
reclamation is so meagre. It is probable
that when the administration of the land-
lord's estate was allotted batween the
cosharers, the eosharer with the best
and the strongest administration would
get the lion's share in the steadily in-
creasing reclamations for the reason
that the tenants would he more disposed
to come to him than to others for a settle-
ment of the lands. Mr. Abdul Wahab
Khan's estate was for a long time in the
Court of Wards.
Much argument has been expanded on
tho side of the defendant in connexion
'with the separate receipts by cosharers
of compensation money when lands were
acquired in 1902 for the railway* It
appears that the revenue officials paid
the landlords' compensation in the case
whore lands were under separate collec-
tion of rent to the landlord receiving the
rent ; and in the result the plaintiffs got
ni considerably smaller amount of money
th in the Court of Wards, acting on behalt
of Mr. Abdul Wahab Kh.in. I do not
think that any deduction from this fact
-oan be pushed very far. No doubt all
through those years the defendant has
•bvien owing the plaintiff's their propor-
tion ite share in his excessive re.ilizakions.
The learned Subordinate Judge's dis-
cussion of Issue No. 9 depends to an
important extent on his previous finding,
with which 1 disagree, that there had
been a partial partition of the defendant's
share. The separate receipt of compen-
sation in the land acquisition proceed-
ings is relied upon and also the record
of rights as showing adverse possession.
Jcinnofcfind any open exclusion of his
cosharor's title in any act of the defen-
dant or his father. As between co-
sharers, something more than mere
separate possession is needed to prove
aid verse possession. Nowlu-re can I find
ti'ny open repudiation of the eosharer 's
title. The admitted fact that the record
of rights was made peaceably without a
dispute would show the opposite.
There are plenty of authorities, which
it appears to me needless to cite, for tho
proposition that the Couro should not
readily presume a tortious possession as
between co-tenants ; and that the appro-
priation of profits by one pirticular co-
sharer cannot be reasonably regirded as
Notice to the other cosharers that their
title is repudiated. I may remark that
this does not appear to me to be a case of
long exclusive possession raising a pre-
sumption of ouster or conveyance. Herd
the f icts are known and the possession
has all along been by all the coshaters
though unequally distributed. So I dis-
tinguish such cases as Gangadhar v.
Par ashram (3).
Appeal decreed.
(3) [1905] 29 Bom. 300 7 Bom. L. R. <i52.
* AIR 1926 PatnaI22
ADAMI AND SEN, JJ.
Jitmdra Natli Chattrrjer and others —
Defendants — Appellants.
v.
Nt. J a soda tiahun and another —
Plaintiffs — Respondents.
Appeal No. 13 U of 1922, Decided on
1st July 1925, from the appellate decree
of the Dist. J., Bhagalpur, D/- 27th July
1922.
(a) 7>a*r — dmnfr-netJon — Contract to hold prc-
miw for 11 years and after tha> to hold a1 thrice
the rent or to take frc^h wtthment is enforceable. —
Contract Act, S. 74.
An ejectment suit was compromised. The pro-
visions of compromise wore that up to 11 years the
defendants \vvro to hold the premises on a rent of
Rs 400 par yo,ir and that if the defendants wantad
to occupy the premises after the expiry of 11 years,
without Liking a fresh sjttlement, they would
have to p-iv rent at Rs. 100 p.ir month.
Held : that what the parties intended \vas thati
if tho defe da ts wanted to occupy the premises
after the expiry of 11 years, they could either take
a fresh settlement or re nain i i occupation without
a fresh settlement on a ro t of Rs. 100 pcjr month
which the parties at that time thought would ha n
fair rent uftur the lap.^ of 11 years and that the
terms were not penal and therefore they were en-
forceable : 17 C. L. J. 590, .!/>?>/.
[P 123, C. 1 ; P. 124, C. 2.]
^ (b) Contract Act, S. 74 — Decree* whether
on compromise or contest — Doctrine of penalty
does not apply.
The doctrine of penalties is not applicable to
stipulations contained in decrees, whether passed
on compromise or oontebt : 10 Bom. 435, Bel.
on. [P. 125, C. 1.]
Hasan Imam, S. 37. Mitlliclc &nd S. C.
Maztwidai — for Appellants.
. P. C. Uanuk, S. N. Palit and *N. N. Sen
— for Respondents.
Adami, J. — The plaintiffs in this case
sued the defendants for house rent at .the
rate of Rs. 100 per month with interest
from January 1918 to December 1920;
1926
v. JASODA SAHUN (Adami, J.)
Patna 1 231
1*3 It appears that some 11 or 12 years
previous to the suit the predrcessor of the
plaintiffs had sued the defendants and
sought to eject them from the premises
which are within the Municipality of
Bhagalpur. The suit was compromised,
and in April 1907, a decree was passed in
terms of the compromise. Clauses 4, 5, 7
and 8 of the compromise included in the
decree are k> the following effect : —
" (4) That from January 1907, to De-
cember 1917 the defendants shall be enti-
tled to occupy the premises mentioned in
the plaint and pay rent at four hundred
rupees per year (Rs. 400 per year) payable
in four instalments of Rs. 100 each from
January 1907 to December 1917, and the
plaintiff shall have no right to eject the
defendants from the premises for that
period, namely, before December 1917.
The defendants will, however, be at
liberty to vacate the said premises at any
time within the said period of 11 years on
•giving six months notice to the plaintiff.
" (5) That if the defendants want to
occupy the premises after the expiry of
19^7, without taking afresh settlement,
they shall have to pay rent at Rs. 100 per
month.
" (7) That when the defendants give
up the premises, they shall be bound to
restore the premises to the condition in
which it was at the time it was first set-
tled with them.
4< (8) That the plaintiff shall he bound
to keep the premises in good repair during
the period of the said 11 years.
After 1917, the defendants continued to
occupy the premises ; they did not take a
fresh settlement and held over until the
date of the suit.
The defence to the suit was that Cl. (5)
was a covenant for renewal and the
stipulation that the defendants would
have to pay Rs. 100 per month, if they
wanted to occupy the premises without
taking a fresh settlement, was by way of
a penalty ; they claimed the right to con-
tinue paying rent at the rate of Rs. 400
a year.
.The question in the suit was whether
01. (5) was a renewal clause and whe-
ther the stipulation as to payment of rent
at Rs. 100 per mdnth was by way of
penalty. The learned Subordinate Judge
held tbat 01. (r>) did rot contain a cove-
nant for renewal of the lease, but that
a fresh lease with fresh terms and rent
could be taken at the expiry of the term
of the lease. He held that the defendants
did not execute any fresh kahuliyat, nor
did they give notice to the appellant of
their intention of doin^ it. He decreed
the plaintiff s suit,
The learned District Judge came to the
same opinion ; he held that there was no
covenant for renewal and that 01. (fi)
was not «, penalty clause. He allowed
interest only from the itfth December
19iiO, when a notice was served on the de-
fendants by the plaintiff.
Mr. Hasan Imam before us argues that
01. ( >) contains a covenant for renewal
and that the stipulation as to payment of
a monthly rent of Rs. 100 is penal. He
conterds that 01. (5) means that the
defendants have the right to a renewal of
the lease on the same terras if they do not
want to take afreih settlement, and that
the stipulation as to payment of the
monthly rert of Rs. iOO is intended only
to force them to take a fresh settlement.
At least if his contention is that the de-
fendants have a right to renew the lease,
on the same terms if they do not want a
fresh settlement, it is difficult to under-
stand what action the penalty would be
attached to unless it is a failure to take a
fresh settlement. He relies on the cases
of Guru Prasana Rlattacharji v. Madhu-
sudan Cliowdliry (i) ; Secretary of State
for India v. A. II. For hen (2) ; and Lani
Mia v. Mohamed Was hi Mia 0:), with
regard to the question of renewal. In my
opinion, none of these three decisions
altogether meets this case
In the first one the real question at
issue was with regard to the meaning of
the words dosra bundbast, that is to say,
whether they meant a second settlement
on the same terms or a different settle-
ment. The words in the lease were : " On
the expiry of the term I shall take, a
11 dosra bundbast ; the lease was in
Beng.ili. It was held that, where there
is a cove nant for renewal, if the option
does not state the terms of the renewal,
the new lease would be for the same pe-
riod ard on the same terms as the original
lease in respect of all the essential condi*
tions thereof except as to the covenant for
renewal itself.
In the second case the lease provided
that after th6 expiry of the term
the lessor would have power to resettle
(1) [1922] 26 C.'wTN. 901^=85 C.L.J. 87.
(2) [1912] 16 C.L. J. 217.
(3) [1916] 20 C.W.N. 948.
124 Patna
JITENDRA v. JASODA SAHUN (Adami, J.)
1926
the land with the lessee on a fair rent.
It was held that the last clause
was intended to be a covenant for re*
newal and thab the Government was enti-
tled only to alter the rent on renewal.
In the third case the lease contained a
covenant that upon the expiry of the
term the tenant would take a fresh
settlement and that the landlord would
grant him sujh settlement.
Kone of these ca*es as I have said,
meet* the present ca^e. It is clear from
the clauses I have cited thab the lessee
wa* given three option*, he could either
leave the premises ab the end of the term,
or he could take a fresh settlement, mean-
ing thereby a settlement on fresh terms
a-) to rent, or he could hold on at a rent
which was arranged to be at the rate of
Rs. 100/-a month.
The decree and the compromise were
drifted in English and the meaning of a
fresh settlement is clear. It meant that
the parties would meet and agree to
the terms on which the lease was to be
renewed, The clauses taken as a
whole show that the plaintiffs were
indifferent whether the defendants left at
the end of the 11 ye MM or stayed on. It
was agreed that, if they did want to stay,
they must either t iko a fresh settlement
or remain on paying a rent, which the
parties evidently agreed would he a fair
one after the lapse of 11 years, at the rate
of Rs. JOO/- per month.
The case is almost exactly similar to
the case of Ganp'it Singh v. Jasodhar
Singh ([). There the kabuliyats stated
that after the expiry of a term of 5 yeirs
the defendant would cease to have any
right to retain possession, but, in case he
failed to execute a freih kibuliyat, the
landlords should have power to realize
rent at Rs. 5/- per bigha on the strength
of the said kabuliyabs, and the defendant
would have no objection to that. It was
held that the plaintiffs were entitled to
demand rent at the rate of Rs. 5/- a
bigha and the stipulation of payment of
rent at that rate was not a penalty by
reason of' the non-execution of fresh
kabuliyats. It has been sought to com-
pare this last cited case with the case of
Mir Abdul Azi* v, Karu (•>). but the latter
is quite a different case. *It was there
provided that, the tenant should give up
the Iwl on the erfpiry of the term and, if
* (4) t
i 0.1 *J. 690.
(5) [1918J 18 C.LJ. 96.
upon the expiry of the term he claimed
a right of occupancy or caused a claim to
be put up by any other person, he would
be liable whilst holding over to pay a
higher rent. It was held that the clause
as regards the payment of higher rent
being in the nature of a penalty was not
enforceaMe. The penalty in that case
was for the tenant's action in setting up
a right of occupancy and claiming to be
not liable to 6 j< ctment. That case too
does not affect the question of renewal
but only that of penalty. In my mind it
is quite clear that what the parties
intended was that, if the defendants
wanted to occupy the premises after the'
expiry of 1917, they could either tike a
fresh settlement or remain in occupation
without a fresh settlement on a rent of
Rs. 100/- per month, which the pirties at
thab time thought would be a fair rent
after the lapse of 1 1 years.
With regird to the question of penalty,
it is hard to understand how the clause
as it is framrd could be construed to
intend a penalty. There was no obliga-
tion on the defendants to ocsupy the
house or to t.ike a fresh settlement and a
penalty under S. 71 of the Contract Act"
will only follow some breach or obliga-
tion, There is no obligition in the
present case. Mr. Has in Imam has relied
on the case of Join Pitrpont Morgan v.
Babu Eamj ir am (6) where it was held
that, whore a lease contains a stipulation
that the lessee shall pay mesne profits
at an unduly high rate on failure to give
up the land, which formed the subject
matter of the lease, on the expiry of the
term, the Court has power to alter the
rate agreed upon as being in the nature
of a penalty ; but in thab case there was
an obligition for the tenint to leave afc
the end of the term and the penalty
was to cover any action of the raiyat in
refusing to give up the land on the ground
that he had an occupancy right.
However, in the present case it has to-
be remembered that 01. (5) forms part
of a decree, and I need only refer to the-
case Shirektili Timapa Hegda v* Mahq,-
blya (7). It was there held that the1
doctrine of penilties was nob applicable
to- stipulations contiihed in decrees. In
that judgment Birdwood, J. cited the
following remarks made by West, J. in
(6) [1920] 5 P.UJ. 302~(1920) P.H.0.0. 168=
1 P.L.T. 810.
(7) [1866] 10 Bom. 435.
1926
ASHLOKE V. BODHA GANDEBt (Ross, J,)
Pallia 125
the case of Balprasad v. DLarni&ar
SiMaram (8). "The principles which
govern the enforcement of contracts and
their modification, when justice requires
it, do not apply to decrees which, as they
are framed, emhody and express .such
justice as the Court is capable of conceiv-
ing and administering. The admission of
a power to vary the requirements of a
a decree once passed would introduce
uncertainty and confusion. Ixo one's
rights would, at any stage, be so establish-
ed that they could be depended on, and
the Courts would be overwhelmed with
applications for the modification on
•equitable principles, of orders made on a
full consideration of the cases which they
were meant to terminate. It is obvious
that such a stite of thing* would not be
far removed from a judicial chaos ; and as
ordinary decrees are thus unchangeable,
so we think are those in which, through
a special provision for the convenier.ee of
parties, their own disposals of their dis-
putes are embodied. The doctrine of
penalties is not appliciblo to such a class
of cises ; and those who, with their eyes
open, have madt- alternative engagements
|a-id invited alternative orders of the
Court, must, if they fail to perform the
one, perform the other, however greitly
severe its terms may br. "
The defendants, therefore, cannot put
forward the doctrine of penalties in the
present cise considering that they held
•their premises under the terms of tho
icom promise embodied in the decree.
"With regard to the question of interest
which forms the subject of the cross-
appeal, in my opinion the learned District
Judge was quite correct in disillowing
interest previous to the isTfch December
1920, not because the interest should be
reckoned only from the date of notice but
because the increase in the rent is so
large that I think it is only fair that the
-defendants should not be called upon to
pay more by way of interest.
I would dismiss the appeal and cross-
rappeal with costs.
Sen, J. — I agree.
Appeal dismissed.
(8) [1886] 10 Bom. 437 N.
X A. I. R. 1926 Patna 125
Ross, J.
Ashloke Singh and others — Defendants
— Appellants.
v.
Bodlia Ganderi — Plaintiff — Respon-
dent.
Appeal No. 91 of 1923, Decided on 8th
July 19:^5, from the appellate decree of
the Sub.-J., Arrah, D/- 2nd August
1922.
^ Transfer of Property Act, S. 3~Mango tree
gtf'ed — Intention of the gift wa< that
donee *hould enjoy fruit — The tree is immovable
property — UegMratlon Act, S. 2.
The question whether a tree is a standing
timber is a question cf intention. If tho intention
is that the plaintiff should enjoy the fruit of tho
tree a"d not cut it down as timber, then it i«
immovable pn p rty and could only be conveyed
by a registered r strument ; 20 Mad. ft8, Pott.
(Erirjll* h ca<t-law d hewed). [P.12G, C.I.]
L i^slmi Narain Singh and Rarjoo
Prasid — for Appellants.
Parmesnwar Dayal — for Respondent.
Ross, J. — Tho subject-matter of this
suit is a mar go tree. Tho plaintiff
respondent sought a declaration of his
right to, and recovery of possession of the
tree which he said bad been given to him
by ono of the proj riotors of the village
by an unregistered and unstamped chithi,
dated the 12th of Kartik 131"). The
defend ints pleaded that the plaintiff had
no right to the tree and that the chithi
being unstamped and unregistered was not
admissible in proof of his title.
The learm d Munsif dismissed the suit
on the ground that the chithi operated as
a deed of gift r<liting to immovable
property; that there was no evidence
that the mar go tree was taken only as
standing timber ; but that the posses-
sion and enjoyment of the fruits of the
tree by the pliintiff went to show that
the plaintiff wanted to take an interest
in immovable property, and that there-
fore the ohithi ought to have been
stamped ard registered. The chithi was
not produced, but it was admitted that
it was neither stamped nor registered.
The Munsif therefore held that the plain*
tiff had failed to establish his title to the
tree. The learned Subordinate Judge
reversed this decision. He held that the
plaintiff had been in possf ssion of the
tree from 1319 until 13*7. As the chithi
was not produced, he was of opinion
126 Patna
ASHLOKE V. BODKA GANDEBI (Ross, J.)
1926
that the leg*! position came to this
that the plaintiff got the tree under an
oral gift acomptnied by delivery of pos-
session. HH held that under the defini-
tion* in the Transfer of Property Act and
the Indian Registration Act " standing
timber " is not immovable property ;
that in this part of the country planks of
mingo wood are often used for miking
leaves of doors and windows and similar
other purpotes ; and that therefore the
tree was standing timber, and con-
sequently there was no necessity for a
stamped and registered instrument. He
therefore held that the plaintiff acquired
a go >d title by the or.il grant and decreed
the suit.
The question in the appeal is
whether the mango tree is moveable
or immovable property. The learned
advocaoe for the appellants contended
th it the question is a question " of
intention. If the intention was that
the plaintiff should enjoy the fruit of
the tree and not cut it down as timber,
then it was immovable property and
could only be conveyed by a registered
instrument. Reference wis made to S. 3
of the Transfer of Property Act, where it
is declared that " Imrnov tble property
do js not include stindmg timber, grow-
ing crops or grass " and it Wis argued
that these three terms must be treated as
ejuidem generis with the common idea
of immediate severance. In Shephard
and Brown's Commentary on the Transfer
of Property Act, the learned commen-
tators say : " In excepting standing
timber, growing crops, and gra<s from
the category of immovable property,
regard has probably been had to the fact
that they are all things urn illy con-
templated as severable, or n ended to be
severed, from the soil. W ion such
severance is not intended, but on the
contrary it is contemplated that the
purchaser of the trees should derive
some benetit from their further growth,
it is an interest in immovable property
that the purchaser takes. " In S - of
the Indian Registration Act " Immov-
able property " is defined as including
obtain things. " but not standing timber,
growing crops nor grais. " Rustomji in
his Commentary on this Act says ; " If
trees are sold with a view to the pur-
chaser's keeping them per manor tly stand-
ing and enjoying them by taking their
fruits or otherwise, the sale would be a
.sale of immovable property. The
matter was very fully discussed in Mar-
shall v. Green (l) where the question
was whether a contract for the sale of
growing timber was within the fourth
section or the seventeenth section of the
Statute of Frauds, that is, whether it was
for a sale of an interest in land or of a-
chattel. In his judgment in that case Lord
Coleridge, C. J., said,"l find the following
statement of the law with regard to this
subject, which must be taken to have re-
ceived the sanction of that learned Judge,.
Sir Edward Vaughan William -j, in the
notes in the last edition of Williams
Saunders upon tl'e case of Ditppa v. Mayo*
p. 39 ). The principle of these decisions
appears to be this, that wherever at the
time of the contract it is contemplated
that the purchaser should derive a benetit
from the further growth of the t ling sold
from further vegetation and from the
nutriment to be afforded by the land, the
contract is to be considered as for an in-
terest in land : but where the process of
vegetation is over, or the parties agree
that the thing sold shall be immediately
withdrawn from the land, the land is to-
be considered as a mere warehouse of the
thing sold and the contract is for goods. ""
Here the contract was that
the trees should be got away as soon as
possible, and they were almost immedi-
ately cut down. Apart from any decisions
on the subject.and as a matter of common
sense, it would saem obvious that a sale
of twenty- two trees to be taken away im-
naediitely wad n )t a sale of an interest in
land, but merely of so much timber."
Brett J,, said in his judgment *' If tho
thing not being fructuotis industrialis,
is to be delivered immediately, whether
the seller is to deliver it or the buyer is
to enter and take it himself, then the
buyer is to derive no benefit from the
land, and consequently the contract is not
for an interest in 'the land, but relates
solely to the thing sold itself. Here the
trees were timber trees and the purchaser
was to t ike them immediately ; therefore
applying the test last mentioned, the
contract was not within the 4th section/1
Grove J., said " It sterns to me rthat in
determining the question whether there
was a contract for an interest in land, we
must look to what the parties intended
to contract for. In all the o*ses this ' a*
(1) JU K. 1. 0. P. L). 36=45 L. J. 0. P. 158=
83 L. T. 404=*4 W, B. 175.
1926
ASHLOKE V. BODHA GANDER! (Boss, J.)
Pain* 127
beep made the test. In the case of Smith
v. S arm an (2) it was argued by Russell
Serjt., that " a sale of crops, or trees, or
other matters existing in a growing state
in the land may or may not be an interest
in land according to the nature of the
Agreement between the parties and the
rights which such an agreement may give,
and that view was adopted by the Court
in giving judgment
Here the trees were to be cut as soon as
possible : but even assuming that they -were
not to be cut for a month, I think that
the test would be whether the parties
really looked to their deriving benefit from
the land, or merely intended that the
land should he in the nature of a ware"
house for the trees during that period.
Here the parties clearly never contem-
plated that the purchaser should have
anything in the nature of an interest in
the land ; he was only to have so much
timber, which happened to be affixed to
the land at the time, hut was to be re'
moved as soon as possible, and was to
derive no benefit from the soil." The
same view was taken in Seeni < hettiar v.
Santli anathan Chettiar 3) by the Full
Bench,where Collins C.J., *aid "It'has long
been settled that an agreement for the
sale and purchase of growing gra*s, grow-
ing timber or underwood, or growing fruit
not made with a view to their immediate
severance and removal from the soil and
delivery as chattels to the purchaser, is a
contract for the sale of an interest in
land." Subramania Ayyar, J. said " It
is scarcely necessary to observe that
thougn standing timber is, under the Re-
gistration Act III of i877, movable pro-
perty only, still parties entering into a
contract with reference to sucn timber
may expressly or by implication agree
that the transferee of the timber may ex-
pressly or by implication agree that
the transferee of the timber shall en-
joy, for a long or short period, some dis-
tinct benefit to arise out of the land on
which the timber grows. In a case like
that, the contract would undoubtedly be
not one in respect of mere moveables, but
would operate as a transfer of an interest
in immovable property." It is true that
a somewtfat different View was taken in
Krishnarao v, Babaji (4) where in a case
very much like t the present their Lord-
ships observed " No doubt by the term
" timber " is meant properly such trees
only as are fit to be used in building and
repairing houses. A mango tree, which is-
primarily a fruit tree, might not always
come within the term, but in this respect
the custom of a locality has to be consi-
dered;" and it was held with reference to
the local custom that a mango tree was a
timber tree and therefore au unregistered)
deed was admissible to prove its transfer.
The learned advocate for the responr
dent relied on the finding of the Subordi-
nate Judge, that in this part of the
country mango trees are timber, and he
also referred to a decision of this Court in
Second appeal No. 9 )5 of l9 2. where
this was held to be common knowkdge.
That, however, was a case relating to trees
which had been cut as timber. The pre-
sent case is a case of a conveyance of a
growing mango .tree of which, according
to the finding of the Subordinate Judge,
the plaintiff continued to be in possession
and to enjoy the fruits for a period of
eight years In these circumstances, it
seems to me impossible to hold that tho
tree was conveyed as standing timbtr-
The parties intended that the plaintiff
should enjoy the fruits of the tree for an
indefinite period. The immediate, or
approximately immediate sevtrence of
the tree from tho land was not within the
contemplat on of the parties, as the sub-
sequent events proved. Therefore, in my
opinion, this tree was not sold as standing
timber, but the transfer was a transfer of
an interest in tl e lard. The deed of
gift therefore, required to be stamped and
registered and the transfer could not be
effected by an unregistered chithi or by
an oral gift. In my opinion, therefore the
plaintiff had no title to this tree and the
decision of the learned Munsif was right.
I would, therefore, allow this appeal,
set aside the decision of the Subordinate
Judge and dismiss the plaintiff's suit with
costs throughout.
Appeal allowed.
(2) 9 B. and C. 561=4 M. and Ky. 455=7 L. J.
(0.8. K. B.296.
(8) [1897] 20 Mad. 68=6 M. L. J. 281. (P. B.)
(4) Tl900] 24 Bom. 31-1 Bom. I* £. 489 »
1?8 Patna
JAGANNATH v. SHEOQOBIND (Kulwant Sahay, J.)
1926
A I R 1926 Patna 128
KULWANT SAHAY, J.
Jagannatli Sa/iwand another — Defon-
fendants — Petitioners,
v.
SJi eoyobind Prasad— Plain ti if —Oppo-
site Party.
Civil Revision No. 66 of 192r>. Decided
on 5th Mty l(J2r>, from the decision of
the District Munsif, Kanchi D/-3rd
January 1925.
Civil P. C., 0. '28, .7*. l—J'laln'i/f bound to fail
owing fo *ub«fantial defect in plaint—Permission
cannot be granted.
The fact that upon the cast; us mado in the
pluint the plaintiff could not succeed is ri<-> groiv d
for all >win8 tho plaintiff to withdraw from the
suit with liberty to bri tf afresh suit. Such
perrnisnion can be granted only when the suit is
bound to fail by reason of some! formal defect or
on othor suffloi >nt tfroiridH analogous to thcsy
provided for in Sub-01. (a). [P 12* C 2
P. K. Mukcrji — for Petitioners.
Guru 8firan Prasad and Dhyan Chan
a— tor Opposite Party.
Judgment — This is an application in
revision on behalf of the defendants
against the order of tho Munsif of Ranchi
passed under O. 2,'J, R. I, 01 (t>) of tho
Civil P. 0 granting tho plaintiff permis-
sion to withdraw from the suit with
liberty to institute a fresh suit in res-
pect of the subject matter of tho suit.
The learned Mumif has allowed the
withdrawal on the ground that upon tho
case as made by the plaintiff in the
plaint the suit could not succeed. The
cise made by the plaintiff in the plaint
was that the prop rty in dispute was the
property of Mt. Jarnuni, the maternal
grandmother of the plaintiff and the
plaintiff claimed the property as the
assets of Mt. Jamuni claiming to be the
heir of Mt. Jamuni. At tho hearing of
the suit the plaintiff wanted to adduce
evidence to show that the property be-
longed to the husband of Mt. Jamuni and
that the plaintiff inherited the property
aa tbe reversionary heir of the husbar.d
of the lady. The defendant objected to
such evidence going in, on the ground
that in the plaint he did not claim tbe
property as tbe heir of Mt. Jamuni's
hmband. The learned Munsiff says that
unless the plaintiff was tbe heir of Mt.
Jamuni's busband the suit would not be
successful, because the defendants had
produced a Will alleged to have been exe-
cuted by Mt. Jamuni and had applied
for Probate of the Will before the Dis-
trict Judge, and the question WHS pending
before the D strict Judge, He accordingly
give the plaintiff permission to with-
draw the suit. Now, under O. 23, R. 1,
the Court could allow a plaintiff permis-
sion to withdraw the suit with liberty to
institute a fresh suit in respect of the
same subject matter only when the suit is
bound to fail by reason of some formal
defect. Sub-clause (b) of 01. (2) of R. 1,
however, gives the Court power to allow
the withdrawal of a suit on other suffi-
cient grounds. The other sufficient
grounds, however, have been held by this
Court to be grounds analogous1 to those
provided for in sub-Cl (a). In my
opinion, tho Court had no jurisdiction to
grant permission to withdraw the suit,
because upon the case as made in the
plaint the plaintiff was bound to fail.
There is nothing in the plaint or in the
order of tho Munsif from which it could
be held that there was a formal defect or
a defect of such a nature as would pre-
vent the suit being properly tried. The
fact that upon tho case as made in th'e
plaint the plaintiff could not succeed is
no ground for allowing tho plaintiff to
withdraw from the suit with liberty to
bring a fresh suit. The conditions under
which a suit may bo allowed to be with-
drawn with permission to bring a fresh
suit have been discussed by this Court in
tho cise of Male.nflra Ram v. Singi
6i7(i). In niy opinion, the learned
Munsif was wrong in the present case to
allow the suit to be withdrawn with
liberty to bring fresh suit.
The order of the Munsif must be set
aside, and the suit will proceed in the
ordinary course. The petitioners are en-
titled to their coats hearing fee one gold
mohur.
Order set aside.
(1) [1918] 8 P, L. 3. 651.
1926
IBRAHIM V. SSHBOPRATAP {Ktttvnutt'-Satiay, J-)
# A I R 1926 Patna 129
, '' - .'. I « •'
ADASII jtxD JtoLWAXT SAHAY, JJ.
.,
Appellants. '*
' '
Klian, and others —
v.
8heopratap,Narain~- Respondent,
Appeal No. 140 of 1924, Decided on
15th May 1925, from the original
decree of the SuW., Satan, D/~ 29tb
March 1924.
(a) Limitation Act, Art. 18Z— Execution appli-
cation in continuation of previous application —
Scope of both applications mint be the same.
In order to successfully contend that an appli -
cation for execution should bp » con sirred to be
a continuation of the first application, it is neces-
sary for the .decree-holder to show that the saope
of the S2cpnd application i:* the same as that of
the previous application. [P. 130, C. 1]
^C (b), Execution of decree — Limitation—
Objection to execution raised fact dismissed —
Appeal against the order by objector does not
extend Uinltailon.
The filing of t}ie appeal by objector agaija^t the
order dismissing his objection against t)ie execu-
tion of the decree does not operate as a bar to the
dtecree-hplder Baking put fresh execution and,
fchersloje, limitation for freak application begins
from the dlate of dismissal of the objection.
• </''"' [P. 130, C, 1]
Noorul Hussain — for Appellants.
-Tadubans Sdliay — -for Respondent.
Kulwant Sahay, J.— This is an appeal
by the decree-holder against an order of
the Subordinate, Judge .of Saran, dated the
29th March 1924, whereby he allowed
the objection of the judgment-debtor and
dismissed the application for execution,
The decree-leakier obtained a. mortgage-
decree on the Sffih February 1910. • : By
this decree future interest was not
allowed. There was an appeal by the
defendant against the mortgage decree
and a cross-appeal was filed by the plain-
tiffs as rejjpds the future interest. The
appeal - was dismissed -by tUe^ C^lgu^tia
•High 'Court on the 30th July 19J4 wi$i
costs amounting ^to Rs. '.540-8-6. -T$e
cross-appeal of the plaintiff was - dismissed
for default. /An application was made for
restoration of the cross-appeal which was
allowed and ultimately the cross appeal
was decreed on the 16th February 1916,
whereby the future interest was ordered
to be addecf to the* mortage-money. The
dferee was amended accordingly on the
^tb^August 1917. /^^cling ..the^w^
of the appeal in the High Court; the
plaintiff decree- holder assigned -his inter*
<#t in the deoree to one Hai Gulab Chand
1926 P/17 A 18
reserving to himself th^ costs
might be allowed to him in the appeal
to the High Court. The assignee
executed his decree an4 realized the mort-
gage monely. The ori^in^ tfecree-hoW&i:
applted for execution of tt*e decree lor'
costs awarded by the High Court and for
realization of future interest by an appli-
cation filed on the 24th August 1918.
This wa* registered as Execution Case
No. 146 of 1918. Two objections were
filed to this execution : one ;by the judg*
ment*debtor and the other by the assignee
of the decree. The objection of tfafc
assignee was that under the assignment
future interest Jfould not be realized by
the decree-holder, but the assignee was
entitled to the same. The objection of
the judgment-debtor related to certain
other matters. Both objections were
disallowed, the objection of the assignee
by an order of the 10th February 1919
and that of the judgment-debtor by attw
order dated the 12th February 1919. If
appears that in the meantime the assignee
had filed a formal application for execu-
tion for realization of the future interest
and costs. This application wais- ftlfcd on
the 18th January 1919 arid was registered
as Execution Case No. 9 of 1919. -Ail
objection was filed to this execution !lty
the decree-holder and the applicbfcidn
was ultimately dismissed on the ISfelt
February 1919. ' ' •' '
Thrfce appeals were prefer*^ •> to the
High Court against thefce orders. . Appeal
No: 134 of 1919 was by the jtidj^ttefct^
debtor arising out of the Execution
No. 146; Appeal No. 154 of 1919
the assignee and arose out of the
Execution Case No. 146 and
No. 127 of 1919 was also' by the^ i
against fche order passed in his 'own
cutiori Cise No. 9 6t 1919. 'Ail
t^reeappeajw came on for hearing arid
were di^iids^d of together by oriie ;i ju^ig*
ment date<J'the lOth August 1920. !ttie
result wa? that future interests were "de^
clared to be realizable by the assignee and
the costs only by the original decree-
holder. •
Tfbs application for execution out ojl
whichrthe present appeal arises was fited
• on the 16th August 1929 and the prayer
wag for the realisation of the costs by
sal§, of the remaining mortgaged pro*
pertieia. With the application tor Vxeou-
tion, , however, no list was .given of the
mortgaged properties, but subaequetatlV A
130 Patna
MIDN?APUR ZAMINDABY Co. v. EAM KANAC SINGH
1926
list; was filed setting out the properties
which the decree-holder wanted to sell
for realization of the costs.
An objection was filed by the judgment-
debtor who was the Defendant No. 2 in
the case on the ground that the applica-
tion was barred by limitation and that
the decree could not be realized from
properties other than the mortgaged pro-
perties and the properties from which
the decree-holder sought to realize his
decree were not the mortgaged properties,
This objection has been allowed by the
Subordinate Judge and the present appeal
has been preferred by the decree-holder
against the ordor allowing the objection.
As regards the questionCbf limitation,
it is clear that, the present application
was filed, more Uian three yoars from the
date of tho execution which was filed on
the 24th August 1919. It is, however,
contended that on account of the objec-
tions filed by the judgment-debtor and
the assignee of the decree the decree-
holder was prevented from taking out
fresh execution. The obstacle which in
any way lay in the way of the decree-
holder was, however, removed by the dis-
missal of the objections by the order of
the Subordinate Judge passed on the 10th
February 1919. After that there was no
obstacle in the way of the decree-holder
to take out execution of his decree. It
is contended that the appeal to the
High Court prevented him from
taking out execution. The filing of the
appeal against the order of the Subordi-
nate Judge by the assignee of the decree
could not in any way operate as a bar to
the decree-holder taking out fresh
execution.
It is next contended that the present
application may be considered to be a
continuation of the first application.
This, however, cannot be considered to be
a continuation of the first application; it
is necessary for the decree-holder to show
that the scope of the present applicationis
tho same as that of the previous applica-
tion. This was laid down by this Court
in Kesho Prasad Singh v. Harbana Lai
(1). We find, however, that the present
execution is against only one of the judg-
ment-debtors named : Bajrang Bahadur,
The first application for execution was
against two judgment'debtors, namely,
Bajrang Bahadur and S^eopratap Narain,
(1) [1926T2~rr"L7T: 2a==(l920) P,H, O.C.
Moreover the first execution was for the
realization of the costs as well as for
future interest ; the present execution 19
for the realization of the costs only. In
, the first execution the prayer was to pro-
ceed against the mortgaged properties.
In the present case it has been found that
the properties sought to be proceeded
against are not the mortgaged properties
Under the circumstances it is clear that
the present application cannot be conside-
red to be a continuation of the first appli-
cation. The present application is, there"
fore, barred by limitation and cannot pro-
ceed.
As regards the second ground, it is
conceded by the learned vakil for the ap-
pellant that the decree-holder cannot pro-
ceed against the other properties so long
as the mortgaged properties are not
exhausted. There is a finding that the
present properties against which he now
seeks to proceed are not the mortgaged
properties, and it has not been proved that
the mortgaged properties are not available
for sale.
Under the circumstances there are no
merits in this appeal and it must be
dismissed with costs.
Adami, J. — I agree.
Appeal dismissed.
109,
#A I. R. 1926 Patna 130
DAS AKD ADAMI, JJ.
The Midnaprir Zamindary Co. Ltd. —
Plaintiffs— Appellants.
Ram Kanai Singh Deo and others — -
Defendants— Respondents.
Appeal "No. 30 of 1922, Decided' o^
10th June 1925, from the original decree
of the Sub-J. of Manbhum, D/- 17th
December 1921. * ' "
(a) Succession .Act (1805), S,
property of ttie deceased* in S.
property held as trustee'.
The words " all the property of the deceased **
must be construed as meaning the actual property
of the deceased, whether held by him tot his own
benefit or for. the benefit of others : 12 #,£..#.
423, Foil. [P. 134, CU]
includes
1926
MIDNAPUR ZAMINDARI Co* v. RAM KANAI SINGH (Das, J.) Patna 131
(6) P rebate and Admn. Act, \S. 90 — Conveyance
witlwut sawtion of Court it, voidable only by
person Interested in property.
Ordinarily an administrator ought to obtain
the previous permission of the Court before
conveying the property to a third party. But a
disposal of the property by tbe administrator in
contravention of the above rule, is only
voidable at the instance of any other person '
interested in the property. In other words, if any
objection is to be made to the conveyance of
trust property that objection sohuld proceed either
from the heirs of the deceased or the heirs of the
b^neficinrie* recognizad as such in the deed of
declaration of trust. [P 134 C 2]
(c) Lease — Permanent lease — Lessee never baring
fjot 2^sses^ion can yet sue for ejectment or damage*
and Injunction.
Delivery of possession is not necessary ^for the
completion of a permanent lease under the
Transfer of Property Act, and lieu ce a lessee who
never got pssssssion of the land can maintain an
action for trespass or for injunction and damage*.
(English late referred). [P 135 C Ij
(d) Possession — Underground rights — Owner not
working tlie mines may be still in possession.
The mere omission of the mineral owner to do
anything with the subject-matter of his grant
will not be a disseisin or dispossession of him in
favour of the surface owner. [P 135 C 2]
^ (e) Tort — Action in trespass can be based on
constructive possession.
Constructive possession is a sufficient foundation
for an action in trespass. [P 135 C 2 j
(/; Specific Relief Act, 8. 54.— Plaintiff not in
possession can still we for injunction in a proper
case.
A plaintiff though not in possession, is entitled
to sue for - in junction if he- satisfies the Court
that the injury which is apprehended will be
either continuous or frequently repeated or very
serious ; Wall is v. Hands, (1893) 2 C/i. 75,
Expl [P136C Ij
(g) Landlord and Tenant — Abandonment by
tenant — Mineral rights — Mere non-user is not
enough — Landlord treating lease as at an end fs
not enough unless adverse tyassesslon for statutory
period is proved.
Mere nqn-usec does not amount to an abandon-
ment of a tenancy of mineral rights nor does the
fact that the proprietor treated the lease as
having been surrendered o'r^abandoned in itself
prove abandonment by the tenant. What the
proprietor understood is of no consequence unless
he actually took. pg^sftiDn of the demised land
and retained possession for" the statutory
period : Agency Co. v. Short, (1888) 13 A, C.
793, Ref. CP 186 C 1, 2]
(h) Landlord and Tenant — Dispossession - ' of
tenant by landlord — Mere refusal to recognise
leaze is not 'enough.
The refusal by the landlord 'to recognize lease
of minipg rights does not amount to dispossession
of the lessee* What is wanted on the part of
the proprietor is a positive ' act of dispossession so
as to enable him to invoke the doctrine as to lapse'
of time. [P 137 C 1]
(1) Adverse possession — Trespasser abandoning
possession before statutory period Is over— Rightful
oicner's title is not affected.
The rightful owner including a lessee may invoke
the doctrine as to constructive possession. • Ho
may for a time be dispossessed ; but when the
trespasser abandons possession before the
statutory period is over, the rightful owner jis in
the same position in all respects as he was before
the intrusion took place. [P 137 C 1]
P, C. Manul', A. Sen and S. N. Palit —
for Appellants.
Sultan Aimed, C. C. Das, L. N. Singh,
S. 37. MulllcJc and A". A". Sen— tor
Respondents.
Das, J.- I think this appeal must
succeed. The plaintiff Company claims
the mineral rights in Perganna Barabhum
under a permanent mokarrari lease gran-
ted by Raja Braja Kishore Singh Deo, the
then proprietor of the Perganna, to one
Kenny on the 12th November 1881 ; and
che suit out of which this appeal arisea
was for a declaration of its title to those
rights, for damages, and for a permanent
injunction restraining the defendants
from carrying on mining operations in
the perganna.
The present proprietor (whose estate
is under attachment under the provision
of &he Encumbered Estates Act) has been
cited as Defendant t-No. 1 in the action ;
Defendant No. 2 is the manager of the
estate appointed under the Act. On the
5th September 1911 the present
proprietor granted a mining lease of the
perganna for 999 years to Herambo Nath
Banerji, cited as Defendant No. 3 in the
action. Herambo, in bis turn, granted a.
prospecting license to Guzder, tbe 5th
defendant on the llth February 1920.
It is admitted that Guzder is actually
carrying on underground operations
through 'bis agent, Clmndan Singh named
as Defendant No. 4. Tbe suit was
originally instituted against 'Defendants
Nos. 1 to 4, the plaintiff not being aware
that Chabdan Singh was tbe agent of
Guzder. The plaint was subsequently
amended and Guzder was added as a
party to the suit on the 23rd November
1920. < ' "
The defendants contested tbe suit ou
grounds which are common to them. The
Subordinate Judge has given effect to
most of these objections and has dismissed
tbe plaintiff's suit on the following
grounds : first, on the ground that the
13-2 Patna MIDNAPCR ZAMINIUII Go. v.
KVNAI SINGH (Dis, J.)
192S
plaintiff Company has not established its
title to the minerals : secondly, on the
ground that the plaintiff Company, not
being in possession of the thing deniised,
is incompetent to maintain an action for
trespass and therefore for injunction ;
thirdly, on the ground that there was, by
operation of law, an abandoment by
Kenny of his interest under the lease of
1881, entitling the proprietor to enter
into a fresh arrangement with Herambo ;
fourthly, on the groand that the suit is
barred by limitation ; and lastly, on the
ground that the plaintiff Company is
estopped from disputing the title of
Herambo under the lease of the oth Sep-
tember 1911.
I will first consider the question of
title. As I have said, the then proprietor
of Barabhum executed a permanent
mokarrari lease in favour of Kenny on
the 12th November 1881. The validity
of the lease was unsuccessfully challenged
by the defendants in the Court} below,
and it was not in controversy before us.
We start then with this : that Kenny ac-
quired a parnunent, transferable and
heritable interest in the minerals in
Perganna Barabhum under the lease of
the 12th November 1881. Now it
appears that though -the lease was taken
by Kenny in his own name, he was in
fact acting on behalf of himself and 11
other persons, On the i24th February
1882 Kenny executed what is called a
deed of declaration of trust in which he
declared that " he, his heirs, executors,
administrators, representatives shall and
will henceforth stand and he possessed
of the said mines and minerals and all
mining rights granted by the siid
patta .... in trust for the said
several persons whose names are set* forth
in the first column of the second schedule
hereto according to the shares and in-
terests set opposite to their respactive
names in the second column of the second
schedule hereto." It is not necessary to
give the names of the persons interested
in the pitta of the 25th November 1881 ;
it is sufficient to say tint Kenny had-
three shares, out of 32 and that eleven
other persons, whose names appear in the
second schedule, had the remaining
shares.
On the 28th January 1891 a Company
was formed called the Barabhum Co. Ltd.,
with a view " to acquire lands for the
mining purposes and mining rights of
all kinds in Minbhum, Singhbhum and
Chota Nagpur and elsewhere in British
India and in particular the mining rights
in Perginni Barabhum acquired by one
Nathaniel Kenny under a perpetual lease
from Maharaja Braja Kishore Singh, dated
the 12th November J881 and now vested
in the said Nathaniel Kenny as trustee
in terms of an ' indenture dated the 24th
February 1882." On the 5th February
1891, an agreement for sile of the pro-
perty whjch was the subject-nutter of
the mokarrari patta of the 25th Novem-
ber 1881 was entered into between Bara-
bhum CvLtd. and a number of persons
called the vendors including all the per-
sons who, according to the deed of declara-
tion of trust, were interested in the patta
of the 25th November 1881. By this
agreement the vendors agreed to sell to
Barabhum Co. Ltd., the underground
rights of Perganna Birabhum for the sum
of Rs. 32,000 which was agreed to be paid
and satisfied by the allotment to them of
320 shares in th<3 capital of the Company.
It appears that these shares were allotted
to the vendors in the proportion in which
they were interested in the lease of the
25th November 1881. It will be noticed
that various persons are mentioned as
vendors whose names did not appear in
the deed of declaration of trust as being
interested in the demised property ; but
» the explanation is that these persons came
to acquire an interest by subsequent trans-
fers. Meanwhile Kenny died in 'England
before the legal estate C3iild be conveyed.
He left a Will of which probate was taken
in England. Mr. Foley, acting under in-
structions from the English executors, and
as their CDnstituted attorney, obtained
Letters «»f Administration to the estate of
Kenny from the Cilcutta High Court on
the 21st November 1905 "with effect
within the province of Bengal." On the
29th January 1908 Foley, as the Adminis-
trator of the estate and effects .of .Kenny
^conveyed the property to the Company.
9n thfe 14th July 1916, the Campiny
transferred its interest to Billinghurst and
oix. the 14th July 1917, Billinghurst con-
veyed it to the plaintiff Company.
Now there is no dispute as to. the vali*
dity or sufficiency of ''the transactions by
which the Barabhum Co., Ltd., conveyed
the property to BillinghursL and Billing-
hurst conveyed it to the plaintiff Com-
1926 MIDNAPUR ZAMIKDARI Co. v. KAM KANAI SINGH (Das, J.)
Pattta 133
pany. The only question is as to the con-
veyance of the property to Barabhum Co.,
Ltd. Now Kenny's interest in the thing
demised being admitted, what infirmity is
there in the title of the plaintiff Com-
pany ? The learned Subordinate Judge
attacks both the declaration of trust of
the 24th February 1882, and the convey-
ance by Foley to Barabhum Co., Ltd., on
fche 29th January 1908. He attacks the de-
claration of trust on the ground that
Kenny had no authority to declare him-
self a trustee for his co-sharers. The view
of the learned Subordinate Judge on the
point may be stated in his own words :
'Under this deed Mr. Kenny constituted
himself to be the trustee of the 11 other
co-sharers. I do not think that he could
constitute himself to be a trustee on be-
half of the eleven. He could create a trust
and make himself a trustee only in respect
of his own property and not in respect of
the property of others. He was therefore
in my opinion not a trustee, but only a
farzidar of those eleven persons in respect
of the shares in the leasehold property."
It is not necessary for me to say anything
more than this that the view of the lear-
ned Subordinate Judge cannot be suppor-
ted for a single moment. The legal title was
in Kenny ; bufc as between him and his co-
sharers lie was entitled to a small share
in the demised property. The deed itself
states that the 11 persons, who had a be-
neficial interest in the demised proi>erty,
had requested Kenny to execute a decla-
ration of trust in respect of the property.
It was but right and proper that Kenny
should make an open declaration to the
effect that though the legal title was in
him, he was holding the property on be-
half of himself and eleven other persons.
The learned Subordinate Judge has entirely
misunderstood the position. It is not that
Kenny constituted himself a trustee on
behalf of his co- sharers, but that he was,
by construction of law, a trustee bound to
convey the legal title to his co-sharers,
whenever called upon to do so. This is all
that the declaration of Kenny amounts to.
The learned Subordinate Judge next
turned his attention to the agreement of
the 5th ^ebruary 1891 and 'found that it
was not proved *in accordance with law.
The learned Subordinate Judge is entirely
right when he says that it was for the
plaintiff to prove that the twelve persons
who were interested in the demised pro-
perty or their representatives in interest
actually executed this agreement. Now
it appears that eight of these persons, re-
presenting 11 annas share in the subject-
matter of the lease, executed this docu-
ment through their constituted attorneys
and it is quite true that there 'is no evi-
dence in this case that these attorneys had
any authority to execute the agreement
on behalf of the 11 annas share holders.
The objection as to the sufficiency of proof
was taken in the Court below and the
learned Subordinate Judge decided, in my
opinion, rightly, that no presumption
arises under S. 90 of the Evidence Act as
to an agent's Authority which must be
proved in the usual way. I agree that
the plaintiff Company has not established
that this agreement was executed by all
fche persons interested in the subject-
matter of the lease of the 25th November
1881 ; but, in my opinion, the question as
to the proof of this particular document
does not fall to be considered. The learned
Subordinate Judge made unnecessary diffi-
culty for himself, We know that the
legal title in the thing demised was in
Kenny although there were various other
persons benelicially entitled to specific
shares in it. We may put out of our mind
the agreement of the 5th February 1891,
Kenny died ; and on his death probate
was obtained of his Will in England. As
1 have said, Foley obtained Letters of
Administration to the estate of Kenny
"with effect within the province of Bengal'1
Now what is the position? Upon the grant
of Letters of Administration to Foley, the
demised land (which was thep within the
province of Bengal) vested in Foley an
such administrator ; and Foley was com-
petent to deal with the property in due
course of administration. As will be re-
membered, Foley conveyed the demised
property to Barabhum Co., Ltd., on the
29th January 1908. The learned Subordi-
nate Judge objects to this transaction. He
remembered that the declaration of trust
showed that Kenny was a beneficial owner
of only a small share in the property and
that in regard to the remaining shares he
was a trustee of eleven other persons ; arid
he thought that as Kenny's Will did nob
purport to deal with the legal title in the
demised property, that title did not vest
in Foley so as to enable him to convey it
to Barabhum Co., Ltd.
Now it is quite true that KeiAiydid not
deal with the demised property in his
Will and the learned Subordinate Judge
134 Patna MIDNAVUR ZAMIJJDASY Co, v. RAM K VNAI SINOH (Das, J.)
1926
is right in saying that "so far as this
property is concerned, he died intestate. "
But even the estate of an intestate has to
be administered in due course of law, and
S. 179 of the Indian Succession Act says
that the " executor or administrator as
the case may be, of a deceased person is
his legal representative for all purposes,
and all the property of the deceased per-
son vests in him as such." Now what is
the meaning of the words " all the pro-
perty of the deceased ? There is high
authority for the view that the words * all
the property of the deceased " must be
construed as meaning the actual property
of the deceased, whether held by him for
his own benefit or for the benefit of others :
— See De Souza v. Secretary of State (l).
There is no reason to doubb therefore that
the demised property vested in Foley
as such administrator under S. 179
of the Indian Succession Act.
The next question is whether Foley
was entitled to convey the property to
Barabhum Co. LtcJ., Now before dealing
with tliis question lot me examine what
Foley purported to do. The deed of
conveyance of the 29th January 1908
recites the following transactions :-
First, the mokarrari p.ttta of the 12th
November 1881 granted by iiaja Braja
Kishore Singh to Kenny.
Second, the deed of declaration of trust
by Kenny by which lie declared that he,
his heirs, executors and administrators
and representatives should and would
stand and be possessed of the subject-
matter of the lease of 1881 in trust for
the several persons whose names appeared
in the second schedule of the deed.
Third, the agreement of the 5th
February 1891 by which the persons then
entitled to the subject-matter of the lease
of the 25th November 1881 agreed to sell
the mining rights conferred by that lease
to Barabhum Co., Ltd., for Bs. 32,000
which sum should be paid and satisfied
by the allotment to the vendors of 320
shares in the capital of the Company.
It then recites that the said shares
have long. since been allotted to the said
parties and that ever since the completion
of the agreement of the oth February
1891 the Company has been in possession
of the mining rights conferred by t<he said
patta, but that the legal estate was still
outstanding in Kenny. In these circum-
stances Foley, as the administrator ojtlie
(1) [1874J 12 B. L.~R. 4237 ~
estate of Kenny, transferred the minin
rights conferred by the patta of the 25th
November 1881 to Barabhum Co , Ltd.
Now, what is there to object to in the
transaction ? In point of form, the pro-
perty stood in the name of Kenny, and
Foley, as the administrator of the estate
of Kenny, was competent to convey the
property to Barabhum Co., Ltd., in due
course ^f Administration. If substance is
to be regarded, then, there is no doubt
that though the legal title was in Kenny
the persons who were beneficially entitled
to the property had already conveyed
their interests to the Barabhum Co. Ltd.,
for valuable consideration, and were
entitled to call upon Kenny or on the
administrator after his death to convey
the legal estate to Barabhum Co., Ltd.
Now ii miy be said that Foley had no
business to convey the property to
Barabhum Co., Ltd., without the per-
mission of the Court. The general rule
established under S. 90 of the Probate and
Administration Act is that ordinarily an
administrator ought to obtain the pre-
vious permission of the Court before
conveying the property to a third party.
But then that section provides that a dis-
posal of the property by the administrator
in contravention of the rule stated in para.
3 of S. 90 is voidable at the instance of
any other person interested in the pro-
perty. In other words, if any objection
was to be made to the conveyance of the
29th January 1908 that objection could
proceed either from the heirs of Kenny or
the heirs of the beneficiaries recognized as
such in the deed of declaration of trust.
The objection could neither proceed from
the landlord nor from any other party
claiming through the landlord. In my
opinion the conveyance in favour of
Barabhum Co., Ltd., is not open to attack.
That being so, the plaintiff Company has
clearly established its title to the demised
property; for it is not disputed that the
Barabhum Co., Ltd., validly transferred
the property to Billinghurst on the 14th
July 1916 and that Billinghurst; validly
transferred it to the plaintiff Company on
the Hth January 1917.
The next point is whether the present
suit by the plaintiff u Company is main-
tainable. The learned Subordinate Judge
has shown some research into the intrica-
cies of the English common law. He
says that neither the plaintiff Company
nor its predecessors ever got possession of
1926 MIDNAPUR ZAMINDARY Co. v. BAM KANAI SINGH (Das, J,) Patn* 135
the demised property ; and that that being
BO, the demise only gave the lessee a right
of entry in the property or, which is the
same thing, an interessee « termini which
is not sufficient as a foundation for an
action for trespass or a suit for injunc-
tion and damages. Now, so far as I know,
this doctrine has been applied in England
only to leases for years ; it has, for in-
stance, never been applied to what are
known as freehold leases. Now the lease
with which we are concerned is a per'
petual lease, a lease creating a permanent,
transferable and heritable interest in the
thing demised, in which the landlord has
no right of reversion. Sonet Kooer v.
Himmut Bahadoer (2). A lease of this
nature is, so far as I am aware, unknown
to the Buglish common law, and I do not
think that it is quite necessary to apply a
doctrine applicable to English leases
which is unknown to English Law In the
next place it is as well to look to the
definition of a lease in the Transfer of
Property Act, a statute with which we
should be acquainted. At common law,
possession under the instrument is neces-
sary to complete a lease, so that after a
lease has been granted and before actual
entry has been made by the lessee, he is
for many purposes not a tenant. Under
the Transfer of Property Act a lease of
immovable property from year to year or
for any term exceeding one year, or reserv-
ing a yearly rent, can be made only by a
registered instrument. All other leases
of immovable property may be made
either by a registered instrument or by
oral agreement accompanied by delivery of
possession. It will be noticed that deli-
very of possession is essential to the corn-
pletion of a lease under the Transfer of
Property Act only where it has been made
by oral agreement ; and a lease by oral
agreement cannot be made where it is
from year to year or for any term exceed-
ing one year or reserving a yearly rent.
Now if, as I hold, delivery of possession is
not necessary for the completion of a
permanent lease under the Transfer of
Property Act, I do not see why we should
import into our system the complications
•f English Law wheife delivery of posses-
sion is necessary to complete a lease. In
the third place, what foundation is there
for the suggestion that -the plaintiff Com-
pany is not in possession'? By posssesion
^<2) [1876] 1 Oal. 391=8 I. A.T2^25 W. R,
299=r3 Bar, 608 (P. C.}.
is, and must be, meant possession of that
character of which the thing is capable.
We are concerned in this litigation with
underground rights which are not capable
of possession as a house, a watch or a ring
is. For many purposes the law regards
the right to possession as equivalent to
possession, especially when the property
is not in the actual possession of any one*
It is quite true that the plaintiff Company
has not yet worked the mines ; but the
mere omission of the mineral owner to do
anything with the subject-matter of
his grant will not be , a disseisin or
dispossession of him in favour of the
surface owner :" (see Pollock and Wright]
on Possession, p. 87). Now obviously
there is no question of a disseisin
unless, to start with there is a seisin, and,
in my opinion, the question, the omission
of the mineral owner to work the mines does
t not show that he is not in possession
of the mines. I hold that the plaintiff
Company was in constructive possession
of the tiling demised and that construc-
tive possession is a sufficient foundation
for an action in trespass (Clerk' and Lind-
sell on Torts, 6th edition, 380). In the
fourth place, it is not necessary to embar-
rass ourselves with a discussion as to
forms of action known to English common
law. If it were necessary to do so, one
might say that though <* person, not in
possession, is not entitled to maintain
trespass, he is entitled to maintain trover
and to recover the value of personal chat-
tels wrongfully converted by another to
his own use. It is necessary to see what
is the substance of the plaintiff Company's
claim in this case. There is an injury
to the plaintiff Company's right both act-
ual and threatened. It has proved its title.
It shows that the defendants or some
of them have carried away coal which
belong to it, and are threatening to carry
more coal or convert that coal to their
personal use. Is it to be supposed that
the plaintiff Company has no remedy
because it is not in actual possession of
the thing deminfed ? Now, even .at com-
mon law, a tenant having a mere inter*
essee termini could maintain an action
for damages for recovering the value of
coal wrongfully converted by another to
his own use and he could also maintain
an action for injury to his rights : — Gillcucd
.v. Cheshire Lines Committee (3) and these
are remedies which the plaintiff Company
(3) 3? W.R. 943.
136 Patna MIPNAPUR ZAMINDARY Co. v. BAM KAN.AI SINGH (Das, J,) 1926
is seeking *in this case. In regard to
the question of injunction, the case upon
which the learned Subordinate Judge
relies does not in my opinion establish
that a plaintiff, not in possession, is not
entitled under any circumstances, to in-
junction, even if he satisfies the Court
that the injury which is apprehended will
bo either continuous or frequently
repeated or very serious. The case of
WalUs v. Hands (4) was decided on its
own facts and is not an authority for
the proposition that " a man having only
interessee termini cannot bring a case for
injunction." fn my opinion the plaiutiff
Company is entitled to maintain this
action.
The next question is whether there was
by operation of law an abandonment or
surrender of the lease by Kenny. There
is no doubt that the plaintiff Company
lias not worked the mines ; but there is
ample authority for the view that mere
non-user does not amount to an abandon-
ment. The passage which I have already
cited from Pollock and Wright may be
referred to in this connexion. It is not
necessary to cite authorities ; for the
principle is well recognized. The learned
Subordinate Judgo relies 'upon the follow-
ing circumstances in support of his theory
as to abandonment: Ho says that in 1901
tho proprietor treated the lease as having
been surrendered or abandoned. In 1904
tho manager of tho proprietor granted JL
prospecting license to Messrs. Mackinnon
Mackenzie & Co,, whoso agent Eobinson
worked a particular kind of mineral called
galena in one of the mouzas called Beldi;
and the learned Subordinate Judge says
that " tho inference is that when the
zamindar found that for a period of 20
years the leseee had not worked but had
left the country, he inferred that the
lessee had surrendered the lease and
entered upon possession, " and he says
that, since the zamindar entered upon pos-
session, the lease was extinguished.
There is, in my opinion, neither principle
nor authority in favour of the startling
proposition laid down oy the learned
Subordinate Judge, A contention very
much like tho one which found favour
with the learned Subordinate Judge was
advanced before the Privy Council in
Agency Co. v. Short (5), Lord Macnaghten
(4) [1898]" Tch. 75=6HL. J. Ch. 586-3 R,
351 » 68 L.T. 428=41 W.K. 471.
(5) [1888] 13 A. C, 793.
in dealing with the contention said that
in the case of mines the 'doctrine con-
tended for might lead to starting results
and'produce great injustice. It is quite
true that the proprietor treated the lease
as having been surrendered in 1901: but
what he understood is of no consequence
unless he actually took possession of the
demised land and retained possession for
the statutory period. It is quite true
that in 1904 he granted a lease to Messrs.
Mackinnon Mackenzie <fc Co., and that
Mackinnon Mackenzie £ Co. worked the
galena in one of the mouzas comprised
within the perganna. It is not suggested
that any of the subsequent lessees has
been in .possession for the statutory
period. That being so, there was no
abandonment of his interest by Kenny.
I will now deal with the question of
limitation. The defendants rely upon
the following facts as establishing that
the plaintiff's suit is haired by limitation.
On the 9th November 1909 a letter was
written by Mathewson as putnidar of the
perganna contending that the mining
rights in the perganna belonged either to
the Government or to him as represent-
ing the zamindar. This letter throws no
light on the question of possession. On
the 21st October 1905 the proprietor gave
a mining lease to Sullivan. Admittedly
Sullivan has never worked the mines and
lie surrendered the lease by registered
document. No question of dispossession,
therefore, arises. Between August 1904
and September 1905 Messrs. Mackinnon
Mackenzie & Co. worked a particular kind
of mineral called galena in village Beldi
under a license from the Manager of the
Encumbered Estate. The extent of that
working is shown by the local inspection
note of the learned Subordinate Judge and
the amount of the working is to be found
in Ex. R. It appears that they took
Rs. 17,415 worth of gajena and that they
paid the Raja Rs. 162 as balance of the
royalty due. It may be admitted that
there was an ouster of the plaintiff Com-
pany or its predecessors in title by Messrs.
Mackinnon Mackenzie & Co. of village
Beldi comprised within the perganna bet-
ween August 1904 and September 1905;
tut Messrs. Mackinnon Mackenzie & Co.
entered upon possession without title for
the proprietor had no power to grant a
lease to Messrs. Mackinnon Mackenzie £
Co. They ceased to work in September
1905; and the rightful owner, thafc is to
1926
SHDHA KRISHNA v. E. I. By. Co.
Pataa 137
say, the plaintiff Company, or its prede-
cessors-irrtitle, on Messrs. Mackinnon
Mackenzie & Co., abandoning possession
of the mouza was in the same position in
all respects as it vras before the intrusion
took place. As Lord Macnaghten in
Agency Co. v. Shoit (5) says : "There is no
one against whom he can bring an action.
He cannot make an entry upon himself."
Time undoubtedly began to run as against
the plaintiff Company in August 1'904 in
regard to mouza Beldi ; but in my opinion
it ceased to run in September, 1905 when
Messrs. Mackinnon Mackenzie & Co.
abandoned possession of the mouza. On
the 15th Juno 1906 the Manager of the
Encumbered Estate wrote a letter to
Messrs. Hoare Miller & Co., the managing
agents of Barabhum Co. Ltd., informing
them that the Baj ignored Kenny's Jease.
The Manager in his letter said : " The
mining rights have remained latent from
the date and year the lease was granted."
Messrs. Hoare Miller & Co.,' replied to
this letter which has not been put in by
tbe defendants. On the 24th June 1906
there was another letter from the manager
in which he repeated that the proprietor
refused to recognize Kenny's lease. In
my opinion the refusal to recognize
Kenny's lease did not amount to dispos-
session. What was wanted on the part
of the proprietor was a positive act of
dispossession so as fco enable him to in-
voke the doctrine as to lapse of time. As
J have said, the rightful owner may in-
voke the doctrine as ,to constructive pos-
session. He may for a time be disposses"
ped ; but when the trespasser abandons
possession, the rightful owner, to quote the
woi'ds of Lord Macnaghten, " is in the
same position in all respects as he was
before the intrusion took place." The
letters, Exs. G-l and G-2 throw no light
whatever on this point. On the 9th April
1907 the Baj gave a lease to Gobind Bose.
Jfc is not suggested that Gobind Bose took
possession by virtue of this lease or carried
on any underground operations. One may
therefore ignore Gobind Bose's lease. On
tbe 5th September 1911 the Baj gave a
lease to Herambo who in his turn granted
a prospepting license ^o Guzder on the 5th
June. 1919 and again'on the llth February
1920. It is not suggested that Herambo,
Defendant No. 3, took possession by virtue
of his lease or that he carried on any
underground operations. The plaintiff's
cause of action arose for the first time
when Ckizder, through Chaiukn Singh,
began to act under the prospecting lease.
The suit having been instituted on the
14th June 1920 is amply within time.
The last question is as to estoppel. Ifc
is difficult to understand the view of the
learned Subordinate Judge on this point.
Tt is contended that "as the predecessors-
iirinterest of tho plaintiff Company by
not working the minerals in the perganna
made the defendant believe that the
zamindar had the right to settle the
minerals and as in that belief ho paid
Es. 25,000 as salami to him for the lease
of the minerals, the plaintiff Company, is
estopped from claiming a leasehold^ in-
terest in the minerals as against him," In
my opinion it is only necessary to state
the proposition to reject it. I hold that
there is no question of estoppel to be tried.
I would accordingly allow the appeal,
set aside the judgment and the decree
passed by the Court below. The plaintift
Company is entitled to a declaration of
title in its favour and to a permanent in-
junction restraining the defendants and
their agents and servants from working
and appropriating the minerals in^ per-
ganna Barabhum. The plaintiff Company
is also entitled to its costs in this Court
and in the Court below.
Adami, J.— 1 entirely agree.
* A, I. R. 1926 Patna 137
ADAMI AND KULWANT SAHAY, JJ.
Sudha Krishna Mukerji- -Appellants,
v.
East Indian HaiLvay Co. Respondents.
Appeal No. 37 of 1922, Decided on
22nd May 1925, from the appellate de-
cree of the Addl. Sub-J., Hazaribagh,
D/" 27th September 1921.
% Bath-ays Act, S. 72— /tf.'fc Note A— Loss due
to unsound packing is covered by the note— Ad-
mission of loss discharges burden on company s part.
jRisk Noto A would absolve the Company from
any responsibility for loss owing to the bad con-
dition of the bags throughout the period of tran-
sit, and the period of transit would commence
from the time that the brtgs were received and
were carried to the train. The question of onu*
will not be the same in regard to the Risi Note
in Form A as it is in regard to the Bisk Note ;m
From B. The two indemnities are quite differ-
ent. It is not necessary for the defendant Com-
pany to prove that there has been such loss or
damage as U contemplated in the Risk Note,
where it is clear from the admissions that .there
was such loss, and damage. * [P 138 v, 2J
R. C. De-tor Appellant,
S. N. Bose— tor lUspbndents.
138 Patoa
8ui)HA KRISHKA v. E. I. BY. Co. (Adami, J.)
1926
Adami, J,— The plaintiff-appellants
are merchants in Giridih, They ordered
a consignment of rice from Burma and
this consignment duly arrived at the
Kidderpur docks in Calcutta. Their
agent in Calcutta delivered this rice,
which on weigh men t was found to
amount to 2,473 maunds, to the East
Indian Eailway at the Kidderpur Dock.
The Railway Company seeing that the
hags in which the rice was contained
were unsound and had holes in them, and
that the seams were weak, refused to take
the consignment unless the consignor
agreed to sign a Bisk Note in Form A.
The Risk Note was signed by the con-
signor and showed that the weight of the
rice delivered to the Railway Company
was 2,473 maunds. The consignment was
received on the 3rd November and was
delivered at Giridih. On arrival at Giri-
dih and on weighment of the consign-
ment it was found that there were
2,268 maunds in the bags. The plaint-
iffs thereafter instituted the suit
out of which the second appeal arises
claiming damages for the shortage of
the* consignment delivered. The Mun-
sif decreed the plaintiff's suit, but the
Subordinate Judge has reversed the find-
ing on appeal and lias dismissed the suit
except as regards the freight paid by the
plaintiff for 108 maunds of the rice.
The line of argument taken up before
us is that though it has been found that
no loss can have happened during the time
that the vice was actually in the train,
since the seals on the wagon were
found to be intact, the defendant Rtxil-
way Company would have to show that
the loss did not occur after the rice was
received on the 3rd November and before
it was put into the Railway wagon. It
is argued that the Risk Note in Form A
does not cover this period.
Now, in the first place, there is no evi-
dence to show that the Railway Company
stored the rice for any time before putting
it into the train. It appears that it was
taken fro,m the steamer in the dock and
put into the railway wagon as soon as
possible. In the second place, there can
be no doubt from the time when the rice
was delivered to the Railway Company
up to the time it was delivered at Giridih
the consignment was in transit and was
covered by the Risk Note in Form A.
The material portion of the Risk Note
in Form A is as follows : —
Whereas the consignment is in
bad condition and liable to damage, leak-
age or wastage in transit, I the under-
signed do hereby agree and undertake to
hold the said Railway administration
harmless and free from all responsibility
for the condition in which the aforesaid
goods may be delivered to the consignee at
destination and for any loss arising from
the same."
It is clear in my mind that this Risk
Note would absolve the Company from
any responsibility for loss owing to the
bad condition of the bags throughout the
period of transit, and the period of tran-
sit would commence from the time that
the bags were received and were carried
to the train. It may be true that it was
not found that any grain escaped while
the rice was in the wagon, but it is quite
possible that while the bags were being
taken to the train the loss occurred owing
to their bad condition. The Risk Note frees
the Railway Company from responsibility
for any loss arising from the condition
in which the goods packed in these un-
sound bags might be delivered to the
consignee. The learned Subordinate Judge
lias come to a definite finding that the
loss was due to the defective condition of
the packing and I think that that finding
is sufficient to absolve the Company from
responsibility.
It has been argued that the onus would
fall on the defendant Company in the
lirst place to show that the loss was one
such as is contemplated by the Risk Note,
and, I think, that the admission of the
plaintiffs that the bags were in poor
condition was sufficient to save the defend-
ant from discharging such onus if such
discharge was necessary. The question
of onus will not be the same in regard to
the Risk Note in Form A as it is in
regard to the Risk Note in Form B.
The two indemnities are quite different.
It is not necessary for the defendant
Company to prove that there has been
such loss or damage as is contemplated in
the Risk Note because it is clear from the
admissions that there was such loss and
damage.
. There is no reason, I think, to interfere
with the finding of the learned Subordi-
nate Judge and I would, therefore, dis-
miss the appeal with costs.
Kulwant Sabay, J.— I agree.
Appeal dismissed.
1926
BAMSAKAL BAI v. KING-EMPEROR (Bucknill, J.)
Patna 139
A. I R 1926 Patna 139
BUCKNILL, J.
Ramsakal Rai and others —Petitioners.
v.
King-Emperor — Opposite Party.
Criminal Bevision No. 248 of 1925,
Decided on llth June 1925, from an order
of the S. J., Shahabad, D/- 17th March
1925.
Criminal P. C., 5. '251—Maglstrate deciding to
caU a witness should take steps to produce him but
lie can dispense with his presence If lie finds It
unnecessary.
As a general proposition it should be considered
that once a Magistrate has given orders that a
certain witness should be called he should take
such steps as may ba necessary and possible to
enforce his attendance, but it cannot be suggested
that in no case it is possible for the Magistrate, if
he comes to the conclusion that the attendance
of the witness is not really necessary, to dispense
with that person's attendance. [P. 140, 0. 2]
Devaki Prasad Sinha — for Petitioners*
D. L. Nancfkeolyar— for Opposite Party.
Judgment. — This was an application
in criminal revisional jurisdiction made
by some persons who were convicted by
the Deputy Magistrate of Arrah on the
16th of February last of offences punish-
able under the provisions of Ss. 1 43 and
379 coupled with S. 34, Indian Penal
Code. Tbe applicants appear to have
been sentenced each to pay a tine of
Rs. 50 under the provisions of S. 379,
Indian Penal Code, and in default of pay-
ment thereof to undergo rigorous impri-
sonment for two months, no separate
sentence was passed upon them in con-
nexion with the provisions of S. 143,
Indian Penal Code.
The only ground which has been put
forward upon which it is urged that this
Court should interfere, is because it is
-suggested that there has been a wrongful
exercise of jurisdiction by the Deputy
Magistrate in connexion with the pro-
cedure. It is unnecessary to go into the
facts relating to the offences with which
these men were charged further than to
gay that the affair related to blocking up
of, a water-course. In the course of the
trial, which proceeded in the usual
manner, a certain SuVlnspector of Police
was examined as a witness for the prose-
cution, he was cross-examined at consi-
derable length by the defence. Now, it
would seem that the defence wished to
call this Sub-Inspector either as a defence
witness or for the purpose of what was
in effect further cross-examination : and
on the 28th of January last it seems that
the Magistrate at that time was ready
to agree that this should be done. At a
later stage, however, namely, on the 9th
of February he altered his view. The
note in the order sheet of the 28th of
January last, so far as it is here material,
reads : "The defence prays that Sub-In-
spector of Sahar who had been summoned
lias not turned up to-day and his evidence
is necessary. Summon him afresh." The
Magistrate's note on the 9th of February
last reads : " The defence filed a petition
that the Sub-Inspector is not forth-com-
ing to-day and that his examination is
necessary as a defence witness. It ap-
pears that he was examined as a prosecu-
tion witness (No. 5) and he was cross-
examined at length by the defence side.
I have already granted two adjournments
for this, and I cannot wait any longer for
time now.
Now it is suggested that this action
taken by the Deputy Magistrate is illegal.
The Deputy Magistrate, in his explanation
which appears to be dated about the 28th
of ^May last, says :
The Sub-Inspector in question was exa-
mined as a prosecution witness (No. 5)
on 3-1-25.
Charge was framed against the accused
on 14-1-25, and the accused persons h ad
ample opportunity of cross-examining
the Sub- Inspector before charge and
after the charge.
The Sub-Inspector was cross - ex-
amined at great length by the defence
side on 15-1 -25, and then discharged.
Technically speaking, the Sub-Inspector
could not have been summoned as a defence
witness, under such circumstances.
He could have only been summoned
under S. 257, Criminal P. C., for further
cross-examination, on the discretion of
the C<purt, if the Court was satisfied that
it was necessary. But no such necessity
appears to have been mentioned in the
petitions of the accused, dated 28-1-25
(vide flag A) and 9-2-25 (vid'e flag B).
Even then I had granted two adjourn-
ments for this. But the Sub- Inspector
was not available. So I did not think it
proper to drag on the case any more,
thereby causing delay in the administra-
tion of justice,"
Now the defence applied to the Ses-
sions Judge of Shahabad upon this point
140 Patna
BADRI SAHCT v. PANDIT PEARE
1926
nml the learned Sessions Judge dealt with
the matter on the 17th of March last.
It is perhaps useful to refer to what the
learned Sessions Judge has said in his
judgment. It reads : " On hehalf of the
petitioners it has been urged that
once the Magistrate had directed that the
police Sub-Inspector should he re-called
for cro^s-examination after the accused
had entered on their defence, he was
hound to insist, on his appearance. The
proposition so stated is not without
force. But in this case the petitioner had
had an opportunity of cross-examining
the Sub-Inspector before the framing of
the charge and had cross-examined him
at some length after the charge had been
framed. The attendance of the Sub-In-
spector therefore was not to be compelled
unless it was necessary for the purpose
of justice. It appears that his non-at-
tendance on the first date, 28th January
1925, was due to the fact that he never
received the summons till 31-1-25 (the
application for his attendance made by
the accused was filed so late as 23rd Janu-
ary 1925) and that it was due on the
second date, 9th February 1925, to his
inability to attend tho Court owing to
an accident. It is now said that the
petitioners wished to question this
officer for tho purpose of finding out
whether lie had observed any sign of the
placing of the karah in, or of the removal
of the karah from, the pyne, a question
of importance which they had omitted
when the officer was cross-examined. 1
have consulted tho record of the case, and
am doubtful whether the Sub-Inspector
could have afforded useful assistance to
the Court on th/s point. There is no
doubt but that pyne was blocked and
that ol the materials used for this pur-
pose bamboos and paddy bundles formed
a part , there is corroboration here of the
prosecution story. I am not satisfied that
this is a tit case for interference."
I entirely agree with what the learned
Sessions Judge has written. The ques-
tion of the sauce-pan appears to me to
be one oi very slight importance. As the
learned Judge has pointed out, the princi-
pal matter was the blocking up of the
pyne with various materials and what
assistance could seriously have been af-
forded to the defence by the police
officer's remarks upon a sauce-pan it is
difficult to gather. Did I in the least
think that the applicants had been in any
way pr0judieed»by whttt has taken place I
should have no hesitation in interfering,but
as it has in no way been shown or proved
to me that there has been the least pre-
judice against the applicants I do not
think that it is proper that I should in-
terfere. It may be said, as has been
pointed out by the learned Sessions Judge,
that as a general proposition it should be
considered that once a Magistrate has
given orders that a certain witness should
be called he should take such steps as
may be necessary and possible to enforce
his attendance. I, however, am not pre-
pared to assent to the suggestion that in;
no case it is possible for the Magistrate,!
if he comes to the conclusion that thel
attendance of the witness is not really
necessary, to dispense with that person's
attendance. In this case the circum-
stances were such that I think he was
not only competent to dispense with this
Sub-Inspector's further attendance, but
that he was right in so doing.
The application, therefore, will be dis-
missed.
A2)pUcation dismissed.
% A. I. R. 1926 Patna 140
MrLLICK AND KULWAXT SAHAV, JJ.
Badri Sahu and others — Decree- holders
—Appellants.
v.
Pandit Peare Lai Misra and others —
Judgment-debtors — Respondents.
Miscellaneous Appeal No. 58 of 1925,
Decided on 23rd October 1925, against
an order of the Sub-J., Muzafferpur, D /-
22nd December 1924.
^ Civil P. C., O. 21, Rr. G6 and 12— Price in
proclamation 1$ not an exact estimate — Court
cannot compel decree-holder to bid up to or higher
than the proclaimed price.
There is no provision of law compelling the
decree-holder to bid up to any sum that may
be fixed by the Court. The valuation in the
sale proclamation is intended primarily for the
protection of the judgment-debtor and for giving
information to the bidders at the auction sale.
It is in no sense intended to be an exact estimate
of the value of -the property, and if in a win
properly published and conducted, the highest
bid, whether of the derfree-holder or any other
person, is some figure below the figure given in
the sale proclamation, it is not -compete nt to
the Court to compel the decree-holder to bid
higher than that highest bid. [P. 141, C.'l]
LaJcshmi Narayan Singh — for Appel-
lants.
1926
Eiuxu RAM v. FOGAL RAM (DAS, J.)
Palna Hi
Mullick, J. — No one appears to oppose
this appeal. It appears that the decree-
holder valued the property for the pur-
poses of sale proclamation at R 5. 1,600.
At the sale the decree- holder bid up to
Rs. 600, but the Munsif declined to allow
him to purchase the property unless he
bid up to Rs. 1,300. As the decree-holder
was unwilling to do so the sale was
not held and the execution case was
dismissed. The decree-holder then ap-
pealed and the Subordinate Judge who
heard the appeal agreed with the Munsif.
The present second appeal is preferred
by the decree-holder.
There is no provision of law compel-
ling the decree-holder to hid up to any
sum that may be fixted by the Court. The
valuation in the sale proclamation is
intended primarily for the protection of
the judgment-debtor and for giving
information to the bidders at the auction
sale. It is in no sense intended to be
an exact estimate of the value of the
property and if in a sale, properly
published and conducted, the highest bid,
whether of the decree-holder or any other
person, is some figure below the figure
given in the sale proclamation, it is not
competent to the Court to compel the
decree- holder to bid higher than that
highest bid.
The order of the Subordinate .ludge
will be set aside and the appeal will be
decreed and the decree-holder's bid ot
Rs. GOO must be accepted.
Kulwant Sahay, J.— 1 agree.
Appeal aUf itvcd .
A. 1. R 1926 Patna 141
DAS AND ADAMI, JJ.
Iftiatu Earn Modi and another—
Defendants — Appellants.
v.
Fogal Ram — Plaintiff —Respondent.
Appeal No. 98 of 1922 Decided on 3rd
November 1925, from a decision of the
Sub-J., JHazaribagb, D/- 2lst January
1922V ** " '
(a) Civil P. C',, O. flo,./J. l<2— Decree for mesne
profit* passed — Application for ascertainment
cannol be dismissed.
After decree for possession and mesne profits
hag bean passed, the proceedings for the ascertain-
ment of mesne profits cannot be dismissed, for the
dismissal of those proceeding"* would cpeiateasa
dismissal of the suit itself. Dismissal of such
proceedings i< ultra vires ; .4. J. .ft. IS'24 P. C. 19^,
Fo7/. [P. 1V2. C. 2]
(6) Ctrill*. ('., O. 20, J?. 12— Application for
mono pi of Its — Law of limitation does net apply t
An application for masne profits is aa applica-
tion iu the suit itsalf and the law of limitation
has no application to it *o long as the suit is a
ponding suit [P. 142, C. 2, P. HI, C. 1]
SliUan Ahmel ail S. -V. Dutt— for
Appellant?.
S. M. Mullick anl B. C. Z*— for
Respondent, *
Dai, J.— On the 25th August 1915 tho
Ramgarh Raj obtained a decree for i>os-
seasion of certain properties, for mesne
profits up to the date of tho decree " at
the rate of the rent fixed in the lease
with interest thereon rft tho rate speci-
fied in the said lease " and for subsequent
profits " at the full rate recoverable
under the law." The Ramgarh Raj ob-
tained possession of the properties on the
22nd February 191 6 and it therefore be-
came entitled to mesne profits at tho rate
of rent up to the 25th August 1915 and
at the full rate from the' 25th August
1915 to the 22nd February 1916.
On the 23rd December 1915 tho Raj
presented an application for execution
claiming Rs. 2,866-11- as mesne profits
for eleven years up to the date of the
decree and Rs. 3,069-11-9 as mesne profits
from the date of the decree up to the
23rd December 1915'. The application
was presented as a simpld application for
execution of the decree, the Raj audits
legal advisers having overlooked the fact
tbjat under the Code of Civil Proce-
dure of 1908 ascertainment of mfcsne pro-
tits was a proceeding in the suit itself.
Certain proceedings we're taken and cer-
tain properties of the judgment-debtors
were sold in this execution ; but an objec-
tion havingtbeen taken the sale was sefc
aside on the 8th December- 1917 and the
decree-holder was directed to file fresh
execution. On the t 18th August 1919
another execution case was started by the
Raj. On the llth November 1919 this
was rejected as infructuous, because cer-
tain substitutions had not been effected.
On the 7th March 1920 the third execu-
tion" case was started. The judgment-
debtors now for the first time raised the
objection that mesne profits could not be
ascertained in execution and that there
was no application for ascertainment of
rnesne profits and that the application for
142 Patna
BHATU RAM v. FOGAL BAM (DAS, J.)
192*
execution could not be converted into an
application for ascertainment of mesne
profits. On the 17th April 1920 the
Court dismissed this application as barred
by limitation. The Court also held that
the proceedings could not continue,
as mesne profits had not been ascer-
tained which must be ascertained in
a proceeding in the suit itself. The deci-
sion of the Court on the question of limi-
tation was subsequently set aside by that
Court on review and that decision was
upheld by this Court. Having regard to
this decision Fogal Ram, who meanwhile
had purchased the decree from the Raj
instituted the present proceedings on the
29th April 1920 for the ascertainment of
mesne profits. His application has suc-
ceeded and the judgment-debtors appeal
to this Court and they contend that
having regard to the previous orders,
namely, those passed on the 8th December
1917, llth November 1919 and the 17th
April 1920, the present application was
not maintainable. The matter was heard
before my learned brother and myself on
the 5th May 1925 when we delivered
judgment agreeing with the contention of
the appellants. Mr. B. C. De thereafter
appeared before us before we had signed
the judgment and he asked for • permission
to argue the matters again before us.
We acceded to the request and we have
heard the parties fully to-day. In my
opinion, having regard to the argument
which have bean advanced before us to-
day, we must affirm the decision of the
lowetf Court aqcj dismiss this appeal.
The short pojht which falls to be consi-
dered is whether there is any power in a
Court to dismiss an application for ascer-
tainment of mesne profits. It is conten-
ded before us by Mr. Susil Madhab Mullick
that a decree haying been passed for as-
certainment of mesne profits it was not
competent to the Court at any stage to
dismiss those proceedings, it being
beyond the power of a Court to dismiss a
claim which had already been deleted ;
and it was contended that if the previ-
ous applications be regarded as applica-
tions for the ascertainment of mesne pro-
fits, then the dismissal of those applica-
tions were from one point of view illegal
and that in any case they could not pre-
vent the decree-holder from inviting the
Court to carry into effect the decree of
the High Court dated the 25th August
1915. This view is supported by the deci-
sion of the Judicial Committee in
Lachmi Narain 'Marwari v. Balmakund
Marwari (l). That decision was pro-
nounced in a suit for partition. A pre-
liminary decree for partition was made
and all that remained to be done was to
carry the partition into effect. The Sub-
ordinate Judge accordingly fixed a date
for hearing the parties as to how the
partition was to be effected and gave
them notice ; but the plaintiff did not
appear on the date fixed and thereupon
the Subordinate Judge dismissed the suit
for want of further proceedings. With
reference to what was done by the Sub-
ordinate Judge, their Lordships said as
follows . " After a decree has once been
made in a suit, the suit "cannnot be dis-
missed unless the decree is reversed on
appeal. The parties have, on the making
of the decree, acquired rights or incurred
liabilities which are fixed, unless or until
the decree is varied or set aside. After a
decree any party can apply to have ib
enforced ;" and then their Lordships said
this : " If, for instance, the Subordinate
Judge has made an order adjourning the
proceodings sine die, with liberty to the
plaintiff to restore the suit to the list on
payment of all costs and Court-fees
thrown away, it would have been a per-
fectly proper order."
Now it seems to me that this case
decides the present controversy between
the parties. The decree of the 25th
August 1915 in terms gave a decree to the
plaintiff for mesne profits. There was,
therefore, a valid decree which was ope*
rative and which the Court had to carry
into effect* That decree was not set aside
and it seems to me that the proceedings
for the ascertainment of mesne profits
could not be dismissed, for the dismissal
of those proceedings would operate as &
dismissal of the suit which had already
been decreed by the Calcutta High Court.
The question only arises as it is con-
tended before us that although in form
the previous applications may have been
applications for execution -of tfhe%: decree,
in substance they were applications for
ascertainment of mesne profits. I hold
that if they were applications for the as-
certainment of mesne* profits, their dis-
missal was ultra vires and . that it w»a
open to the plaintiff to ask the Court to
ascertain the mesne profits. It; is' well
established that frn applicafaoii fat mesne
(if A. I. R. 1924 P. 0.198.
1926
DEONAillYAN V. BAM PttASAD (Buckniil, J.)
Patna 143
profits is an application in the suit itself
and that the law of limitation has no
application to it so long as the suit is a
pending suit,
Mr. Sultan Ahmed ingeniously argued
before us that a distinction should be
drawn between a suit and a claim which
may be involved in the suit. He admits
that the suit having been decreed it was
not in the power of the learned Subordi-
nate Judge to dismiss the suit ; but he
contended before us that the claim for
mesne profits stood on a different footing.
I am unable to agree with this conten-
tion. The only part of the suit that
remained was that dealing with the ques-
tion of mesne profits payable to the
plaintiff ; and in any view the claim for
mesne profits had in distinct terms been
decreed by the Calcutta High Court, and
that being so, that claim could not be dis*
missed by the learned Subordinate
Judge.
I would accordingly dismiss this ap-
peal. There will be no order as to costs.
It was brought to our notice that the
lease does not provide for the payment of
any interest. That being so, the plain*
tiff will be only entitled to mesne profits
at the rate of rent fixed in the lease up
to the date of the decree.
Adatni, J. — I agree.
Appeal dismissed.
A. I. R.I 926 Patna 143
BUCKNILL AND BOSS, JJ.
Deonarayan Singh- — Judgment -debtor-
• v.
Prasad and another — Decree-hol-
ders— Responden ts.
Appeal No. 52 of 1925, Decided on 19th
June 1925, from the appellate order of
the Dist. J., Gaya, D /- 18th December
1924.
Limitation Act, Art. 182— Setting atlde of sale
under 0. 21? R. 90, Civil P..C.— Second application
for execution after the setting aside of sale Is In'
continuation of the first one In which sale was
held — Decree-holder's right revives on tlie date of
setting aside the sale. • ...
A landlord decree-holder applied for execution* of '
a rent-decree when the Executing Court held that
the execution should proceed as on the basis of »
money-decree and not a* a rent-decree. It pro-
ceeded in that way, and the sale of certain* property
of the judgment-debtor was actually confirmed aud
the case was dismissed on lull satisfaction. On the
same day, the judgment-debtor put in a petition
to set aside the sale under the provisions of 0. 21f
R. 90, and eventually the sale was set aside ; the
decree-holders then applied once more to execute
their decree as a rent -decree,
Held; that the second application should be trea-
ted as a continuation of the preceding application
inasmuch a? the prayers in both were to execute
the decree as rent-decres and further that the-
decree-holder's right to execute the decree revived
on the day the sale was set aside.
[P 142 C 2, P 144 C 1]
S. N. Roy — for Appellant.
Rayho Prasad — for Respondents.
Buckniil, J. — This was a second ap-
peal. The appellant was a judgment-
debtor in a suit brought by the respon-
dents who were decree-holders. The pre-
sent appeal avisos out of certain execution
proceedings. Apparently as long ago as
i^th July 1920 the respondents obtained
a decree against the appellant, On the
21st May 1923 the decree-holders pre-
sented a petition for execution, and on the
19th November 1928 it would appear that
a sale took place of the property. I may
say that it would seem that this decree
was obtained by the respondents as co-
sharer landlords and notice had been
issued by them against other cosharer
landlords under the provisions of the
Bengal Tenancy Act, For some reason
or other this notice was stated not to have1
been properly served and thd Munsif,
before whom the matter in execution ohen
was, insisted that the execution should
proceed as a money-decree and not as a
rent-decree. It appears to have proceeded
in that way. The sale was actually con-
firmed, on the 20th December 1923 and
we are told that the case was dismissed
on full satisfaction. However, according
to the information before us, on the same
day, (that is on the 20th December 1922),
the judgment -debtor put -in a, petition to
set aside the sale under the provisions of
0. 21, R. 90. Now, we are told that the
ground upon which it was a^ked £hat the
sale should be set aside was that the
price in the sale proclamation at whioh
the property was valued was not adequate.
Eventually, on the 8th March 1924, the
sale was set aside, and on the 24th of the
same month the decree-hplders then ap-
plied once more to execute their decree.
1 4 i Patna
DEONArt WAN v. RAM PflASAD (BucknJfl, J.>
1926
They still a,sked to execute the decree in
precisely the same manner as they had
asked to executo it in the first instance,
nuraely, as a rent-decree. Now to this
the judgment-debtor objected on the
principal ground that the application was
more than three years from the date of
the original decree. As I have said, the
original decree was dated the 24th July
1920, the first application for execution
was dated the 21st May 1923 and this
last application for execution was dated
the 34th March of last year. Now, the
decree-holders have maintained that
limitation does not apply. They contend
that the present application should be
treated as essentially a continuation of
the preceding application. The Munsif
of Gaya, after hearing the parties, came
to the conclusion that this present ap-
plication was rightly to ba regarded
as a continuation of the preceding one
and accordingly, by his order dated
the 26th July 1921 disallowed the objec-
tion which had been made to the present
application for execution. The judgment-
debtor appealed from this decision to the
District Judge of Gaya, who on the 18th
December, confirmed the Munsif *s decision.
Now, before the District Judge, it would
neem that not only was this point as to
the present application being not in con-
tinuation of the previous application urged
hut also that the present application was
not of the same character as the first
application, i think it is simplest to deal
with the latter of these two questions
first.
It is quite clear that the lirat appli-
cation for execution was an application to
execute the decree as, a rent-decree. It
weeius true that owing to the decision of
the Munsif at that tims, and owing to the
fact that he found that there had baen
some failure of service on the coaharers,
the actual decree which \yas executed
was a money -decree, but, as has been
pointed out by the learned District; Judge,
the present application for execution is to
renew the application for execution as a
rent-deci'66 and not as a money-decroe,
and 1 presume that the service will ba
properly effected upon this occasion. I
am, therefore, unable to see how it can
he seriously 1 contended that the first and
the second applications are not the same.
With regard to the first point : 1 think
thatib is important to observe that during
all material periods under consideration
the decree- hold era had de facto and de jure
obtained the realization nf their decree.
It was not until the Sfch March 1921 that
it was possible for them to have taken
any further step. According to the posi-
tion as it then stood their claim had been
satisfied by a sale of the property. It was
not until that satisfaction wa.s negatived,
as I have just mentioned, that he was
. in a different position. He could have
taken no step in the interim to apply
for further execution or for a renewal of
execution ; for, had he done so, he would
obviously have been met with the re-
joinder that as matters stood his decree
had already been reilized in full satisfac-
tion ; that he should be prevented when
the sale was set aside from applying to
obtain what was justly due to him by
execution would obviously to my mind be
a gross inequity.
fiowever, the learned advocate, who
lias appeared for the appellant here, has
suggested that the present application is
not in law a continuation of the preced-
ing application. 1 should like, however,
to point to a case which has been decided
in this Court: Kanis Zohra v. Si/am
Risen (l), in which the position which
obtains here, except in one point, to which
1 propose presently to refer, was there
substantially the sime. In that case
decided by the then Chief Justice (Sir
Edward Chamier) and Mr. Justice Jwala
Prasad it would appear that a decree had
been obtained by the .plain tiff in a suit on
the 20th June 1905. In August 1906 the
first application for execution was made.
It would seem that this application for
some reason was dismissed ; probably, (al-
though it is not clear from the report)
because it was not proceeded with. A
second application was made; in July 1909
and the judgment-debtor's immovable
property was sold in satisfaction of the
debt on the Hth December 1909. But
on the 12th February 1910 the sale was
sec aside at the instance of the judgment-
debtor ; on what ground 1 do not find it
stated. On the 10th December 1912 the
decree-holders made their third and last
application asking the Court to sell the
identical property in satisfaction 6f their
decree (which, of course, .still subsisted)
which had been sold on the Hth Decem-
ber 1909. It was contended in that case
11) [1917] 2 Pat. L. J. 115=1 P. L. wT73^
(1917) P. H. 0. C. 133.
1926
DEONABAYAN v. BAM PEASAD (Bucknill, J.)
Palna 145
by the judgment-debtor, who objected to
the proposed third application for execu-
tion, that the application could not bo
regarded as a continuatien of the preced-
ing application and that it was out of
time. The learned Chief Justice, in refer-
ring to this argument has dealt with the
position as it appears to him to exist in
cases- where this same difficulty arises as
it often must. He remarks : —
" It may often happen that proceedings
taken upon an application for execution
remain pending in an original Court
or appeal for several years and may
result in an order setting aside a sale of
immovable property many years after
the application for execution was presen-
ted and many years after any of the dates
indicated in the third column of Art. 182
of the First Schedule of the Limitation
Act. This has often been pointed out by
the Courts, and in order to get over the
•difficulty some Courts have held that a
subsequent application should be treated
as an application made in continuation of
the application made before the sale, and
other Courts have held that such an appli-
cation is governed by Art. 181 of the First
Schedule to the Limitation Act, and that
the decree-holder is entitled to three
years from the date on which the sale is
set aside within which to make a further
application. It seems certain that the
Legislature could not have intended that
further execution of a decree should be
prevented by the fact that execution pro-
ceedings remained pending in the Courts
for many years."
I think (if I may be permitted to say so)
that those words express the equitable
views of the position which should obtain
in a case such as that which is now before
us. The learned advocate for the appel-
lant has suggested that although the re-
marks, to which I have referred, of the
then Chief Justice of this Court may be
applicable to what he calls execution
under the general law, they are not ap-
plicable to cases where the execution re-
lates to suits which fall within the ambit
-of the Bengal Tenancy Act. He points to
S. 29 of the Limitation Act and shows
how it indicates in sntxGL (b) of 01. (l)
that " nothing in the Limitation Act
shall affect or alter any period of limi-
tation specially prescribed for any suit,
appeal or application by any special or
local law now or hereafter in force in
British India/* He points to the Bengal
1926P/19&20
Tenancy Act and in particular to Item
No. 6 of Part III, Sch. III. He observes
that thero is a period of limitation given.
I may point out that clearly the period
which is thero given is one of three years.
This period refers to an application made
under the Act in a suit between landlord
and tenant and not being decreed for a
sum of money exceeding Rs. 500. Now
he points out that in this case the sum
did not exceed Rs. 500. He then refers to
the times from which the period of limi-
tation begins to run. They are (l) : the
date of the decree or order ; or (2), where
there has been an appeal, the date of the
final decree or order of the appellate
Court ; or (3), where there has been a re-
view of judgment, the dato of the decision
passed on the review. Ho suggests that
in the case of setting aside of an execu-
tion proceeding, (that is to say, in this
case the setting aside of the sale which
has taken place in an execution proceed-
ing), none of these throe categories (except
perhaps the first) apply. Whether this is
so or not (that is to say, whether it may
come under sub-S. (3) or not) does not to
my mind matter. If there was no pro~
vision in this Part III, Sch. Ill, for acaso
such as that which is before us, then it
seems clear that S. 29 of the Limitation
Act has no application and the matter
falls within the provisions of the ordinary
law as has been laid down by the late
Chief Justice of this Court in the case to
which I have referred. Obviously it
would be a matter of the greatest hard-
ship if, in circumstances such as thoso
which have been disclosed in the present
case, a decree-holder, not clearly through
his own fault and certainly not by fraud
but for one reason or another, should have
his sale, which has been carried out in
execution of his decree under which he
was entitled to recover from the judgment-
debtor what was due to him, set aside, and
should on that account be prevented from
eventually recovering by further execution
proceedings the sums to which he was
entitled. In my view, therefore, the Dis-
trict Judge and the Munsif were quite
right in the orders which they made.
The appeal must, therefore, ho dismissed
with costs.
Ross, J. — I agree.
Appeal dismissed.
116 Patna
SHEO CHABAN v. KISHNO KUER (Bucknill, J.)
1926
* A. I. R 1926 Patna 146
BUCKNILL, J.
Sheo Charan Singh — Decree-holder—
Petitioner.
v.
Kishno Kuer and another — Judgment-
d ebtors — Opposite Party.
' Civil Revision No. 95 of 1925, Decided
on 4th June 1925, from an order of the
Dist.-J., Gaya, D/- 16th February 1925.
^ Civil P. CM O. 21, Rr. 66 and 12—Auctlon-
purchawri whether decree-holder or not, cannot be
compelled to bid higher than or up to the pro-
claimed pi' Ice.
There is no legal necessity for a bidder at au
auction-sale, whether he be a decree-holder at
whose instance the property is being put up for
sale or whether he be an outside person, to pur-
chase the property at the full price at which it
may have been valued in the sale proclamation.
On the contrary it would seem that after all
the value of the property which is thus put up
to auction is really only that which it will
actually fetch at that auction assuming of course
that there is no fraud or malpractice with regard
to the bidders and that the sale has been reason-
ably and properly made public. IP.14G,C.2.]
Brij Kishore Prasad — for Petitioner.
Siva Nandan Rai—ior Opposite Parly.
Bucknill, J. — This is an application
in Civil Eevisional Jurisdiction made to
this Court under somewhat curious cir-
cumstances.
The applicant obtained a decree for
rent against the opposite party here in the
Court of the Munsif of the 1st Court
of Gaya. Having obtained his decree
he then applied for execution. It would
seem that there were four properties
which were put up for sale and the Court
allowed the decree-holder (that is, the
applicant here) to bid for the properties
at the sale. There seems no doubt that
the valuation which was put on the
properties was, that the first was put at
Es. 46, the second at Rs. 1,470, the third ,
at Bs. 3,075 and the fourth at Rs. 55.
There is nothing on the record or before
me to indicate in any way that the sale
proclamations were not duly published
and in fact on the 21st January last the
sale was proceeded with. It would
appear from tho record that there were
other bidders besides the decree-holder.
Now the Munsif made a curious order on
the 22nd of January, that is to say, the
day after the sale. He placed in his
order-sheet the following words :
"Decree-holder did not bid for the
valuation fixed by the Court. The case
is dismissed, vide order passed on the
sale proclamation."
, When we turned to the sale proclama-
tion we saw that the note or order there
leads :
11 The decree-holder does not wish to
bid up to the value fixed by the Court.
Tho property on sale is 28*45 acres
Nakli, Bhaoli and Belagan lands. The
decree is for Rs. 566-9. He wants* to
purchase the property for a nominal
value. This cannot be allowed, as the
decree-holder did not care to bid for more,
so I dismiss the case."
Now it is very difficult to see how on
the language of these two orders it was
really altogether open to the Munsif to
adopt the course which he did. I do
not know that there is any legal neces-
sity for a bidder at an auction-sale,
whether ho be a decree-holder at whose
instance the property being sold is being
put up for sale or whether he be an
outside person, to purchase the property
at the full price at which it
may have been valued in the sale procla-
mation. On the contrary it would
seem that after all the value of the pro-
perty which is thus put up to auction is
really only that which it will actually
fetch at that auction assuming of course
that there is no fraud or malpractice
with regard to tho bidders and that the
sale has been reasonably and properly
mado public. I have no doubt that there
is a good deal of force in what is urged
by the learned vakil who appeared for
the opposite party, namely that owing to
there being a number of sales conducted
on tho sarno day it was not very feasible
for tho Munsif to have recorded at great
length his reasons for his order in the
order-sheet. There is nothing except the
suggestion contained in the order which
is endorsed on the sale proclamation
where the Munsif says that the decree-
holder wants to purchase the property for
a nominal value which leads one to
suppose that there was anything improper
or wrong in the way in which the sale had
been made public* or in the wtfy in which
the bids took place. On the other hand,,
there is certainly this to be said in favour
of the Munsif 's view, namely, that so far
as the second property was concerned the
amount which was in feet bid was a very
trifling one compared with the value
1926
HITENDBA SINGH v. MAHABAJADHIBAJ, DARBHANGA Patna 147
which was put upon the property in
itself. In that instance it will be
observed that whilst the value was
Rs. 1,470 the price bid was Rs. 232. As
regards the third property put up for sale
the difference was very much worse ; for,
there, whilst the value was Rs. 3,075 the
bid for it was Ks. 231. What I think the
Munsif should have done was to have
expressed his views as to the unsatis-
factory nature of the sale in clearer terms
and to have given his reasons which
ought to be substantial ones for declining
to proceed with the sale. I do not think
that the reasons which he has given are
good reasons for dismissing the execution
case ; for so far as we can see, the decree-
holder had done nothing really wrong in
refusing to bid up to the total value
which had been fixed on the property.
I think the Munsif's order should have
been, after having set out his reasons, to
have ordered that there should be an
issue of a fresh sale proclamation under
circumstances of proper publicity which
would ensure that at the next auction
when the property should be put up for
sale there should be suitable bidders.
Under such conditions no doubt the pro-
perties would fetch whatever they were
really worth and what the public was
ready to pay for them. It may be said witli
regard to the first and fourth properties
that the prices which were offered were
substantially equivalent to the prices at
which the two properties were valued
and that is certainly so. At the same
time these two properties are of very
little account aggregating just Rs. 101
in value. It does not, therefore, seem
desirable to split these two properties
away from the other two or to regard the
two properties entirely separately.
I should mention that after the decision
by the Munsif it would seem that the
decree-holder preferred some sort of
appeal to the District Judge of Gaya.
What exactly happened before the Dist-
rict Judge it is difficult to understand.
From the order-sheet of the 5th February
there seems to be a note by the serish-
tadar say ing t that the order complained
of is not appealable (vide 0. 43, R.I
and S. 104, Civil P. 0. ). On the same day
the District Judge minutes : " Put up in
presence of pleader." No date is men-
tioned as to when it should be put. But
on the 16th February we get an order
of the District Judge : " Pleader absent.
File." Whether this is tantamount to
the dismissal of the appeal or whether
this is tantamount to the adjournment of
it I do not know. However to my mind
the conclusion is after all the same, for
although the matter has come up to this
Court by way of complaint against what
appears to have been the serishtadar's
order of the 5th February, there is also
a complaint quite clearly made that the
order which the Munsif passed on the
22nd January was illegal. I have no
hesitation in coming to the conclusion
that the order which was passed by the
Munsif on the 22nd January is an
unsatisfactory one.
It must be set aside and the Munsif
ordered to re-iristate the execution cases
to direct that a new sale proclamation
shall be issued and that such precautions
should be taken with regard to the
publicity of the conditions under which
the sale will be held so as to ensure thab
a reasonable and proper sale will be held
upon the date fixed. There will be no
order for cosfcs in this application.
Order set aside.
* A. I. R 1926 Patna 147
ADAMI AND SEN, JJ.
Tlitendra Singh and others — Peti-
tioners.
v.
Maharajadhiraj of Darbhanga — Oppo-
site Party.
Application for refund of excess Court -
fees paid on the Memorandum of Appeal
in First Appeal No. 206 of 1920, Decided
on 10th June 1925.
^ Court-Fees Act (1 of 1870), S. 5— Appeal
wrongly assessed by Taxing Officer — Refund of
Court- fees cannot be ordered by the High Court.
The High Court has no power to interfere with
the order passed by the Taxing Officer regarding
the amount of Court fees. Kis order though
wrong, is final and there is no power of appeal,
review or revision against it : [.4. 1. P. 1923«Pa£na
137 and A. L R. 1924 Patna 310, Ref.} The appel-
lants may, however, apply, to the Board of
Revenue to grant a refund or some alleviation
•in the matter. [P.148,C.l}
S. M. Mullick and L. K. Jha—toi Peti-
tioners.
Sultan Ahmad — for the Government.
Judgment. — This is a petition for the
issue of a certificate by this Court for the
148 Patna
G. I. P. $Y. v, DATTI BAM
1926
refund of Bs. 2,427-8, paid as Court-fee
on a Memorandum of Appeal filed before
this Court.
The petitioners filed a suit on the 24th
July 1918, paying a Court-fee of
Bs. 672-8. They lost the case in the trial
Court and appealed to this Court, paying
again the same Court-fee as had been paid
on the plaint. The matter was reported
by the Stamp Reporter to the Taxing
Officer and the Taxing Officer decided
that the Court-feo due on the Memoran-
dum of Appeal was Bs. 3,000, and the
petitioners accordingly paid the deficit.
When tho appeal came before a Bench
of this Court the matter of the Court-fee
payable on the plaint was considered and
it was decided that that Court-fee of
Bs. 572-8 was sufficient.
It is now claimed that by reason of tho
decision of a Bench of this Court the
petitioners are entitled to a refund of
Bs. 2,427-8.
It has been settled by this Court in a
series of decisions, namely, Bam Sekhar
Prasad Singh v. Sheonandan Dubey (1)
and Sheopujan Eai v. Keslio Prasad
Singh (2) ; as well as in the case of Ham
Sumran Prasad v. Gobind Das (in the
matter of an application in First Appeal
No. 189 of 1922); that in a case like
this, this Court has no power or jurisdic-
tion fco interfere with the order passed by
the Taxing Cflicer which is final and
against which there is no f>ower of appeal,
review or revision. These cases conclude
bhe matter and prevent us from interfer-
ing or in any way holding that the
decision of the Taxing Officer was in-
Borrect, and his decision must stand. We
have, therefore, no power to order a refund
of the Bs. 2,427-8.
The petitioners are entitled to some
sympathy owing to the difference in the
ieeision between the two authorities and
bhe best that they can do is to move the
Board of Bevenue to grant a refund or
some alleviation in the matter,
* appl iction is rejected.
Application rejected.
(1) A. I R. 1928 Pate* 187.
(2) A. T. K. 1924 Patna 810.
# A. 1. R. 1926 Patna 148
ADAMI AND BUCKNILL, JJ.
0. I. P. Railway — Defendant — Appel-
lant.
v.
Datti Earn and another — Plaintiffs —
Respondents.
Second Appeal No. 126 of 1923, De-
cided on 10th July 1925, against the
decision of the District Judge, Saran,
D/- iJ4th November 1922.
5JC (a} Hallways Act, S. 72— Risk Note B is a
special contract complete in -Itself — Company ad-
mitting loss need not prove it.
Risk Note B is the ordinary and most usual
contract for tho carriage of goods entered into
between merchants and the Railway Companies
in India. It is very simple in its language; it
forms a complete special written contract bet-
ween the consignor and Railway Company. The
Railway takes the goods at a rate of freight
lower than the ordinary rate ; in consideration
for so doing the consignor undertakes to absolve
the Company from all responsibility for any
loss, destruction, deterioration of or damage to
the goods whilst in transit from any cause what-
ever subject to the following exceptions. These
exceptions provide that if a whole consignment
(of one or more complete packages forming part
of a whole consignment) is lost, then the .Com-
pany will bo responsible if the loss. is due : (a) to the
wilful neglect of the Railway administration ; or
(b) to theft by its servants or agents or (o to
wilful neglect of its servants or agents. Wilful
neglect cannot be held under the contract to
include : (a) fire ; (b) robbery from a running
train ; (c) any other unforeseen event or accident.
Therefore in a suit by consignor the onus of
proving that loss was occasioned under one
of those exceptions contained in the contract
under which aloue the Company could be held
responsible lies upon the plaintiffs. Although it
is very difficult for consignor to prove what
happened to the goods when in the Railway's
custody, the difficulty does not relieve a plaintiff
from proving negligence on the part of the Rail-
way's servants. If the Company admits the
loss, they need not prove it. Though the defen-
dant Company fails to prove theft from the
running train, the onus is still on the plaintiff to
prove neglect or theft by Railway servants.
The failure to prove theft from running train
does not give rise to the inference that theft was
committed by Us servants : Smith Limited v.
Great Western Hallway Company, (1922) 1 A. C.
178, Bel on ; 45 Bom. 1201, Dlst. [P 150, C lj
(b) Hallways Act, S. 72— JRfcfc Note B signed—
Consignor cannot go behind it and sue under
ordinary law.
A plaintiff consignor cannot go behind his
special contract (it-c., Risk Note* B),wi$h the
Company and sue the Company for damages for
non -deli very under normal statutory liabilities
as are imposed upon parties to a contract under
the Contract Act and upon Railways as carriers
under the Railways Act. [P. 150 0 1}
3dd. Hasan Jan — for Appellant.
B. N. Mitter — for Respondents.
1926
G. I, P. BY. v. DATTI BAM (Bucknill, J.)
Patna 149
Bucknill, J.— This was a second ap-
peal from a decision of the District}
Judge of Saran, dated 24th November
1922, by which he modified a decision of
the Munsif of Chapra, dated 16th March
of the same year. The appellant was
the Great Indian Peninsula Railway
through its agent in India ; this Company
was the defendant in a suit brought by
the plaintiffs (the respondents here)
who are merchants of Chapra to#n. The
plaintiffs' suit was of familiar type:
their firm ordered a bale of clofch from
a Bombay merchant ; it is admitted it
was duly sent under Bisk Note B and
was duly placed in the appellant Com-
pany's custody ; it is also common ground
that it was never delivered.
The plaintiffs sued the appellant Com-
pany for the value of the goods lost
(Bs. 869-14-9), the freight (Bs. 5-15). and
loss of profit (Bs. 75) or Bs. 9*8-13-0 in
all. They averred* that they believed
that the bale had been lost through tho
negligence of the appellant Company's
servants.
The appellant Company pleaded vari-
ous defences; they admitted the loss but;
alleged that it was duo to " running train
theft," and that, therefore, they were
absolved by Bisk Note B from liability.
The appellant Company, however, -called
no evidence whatever in support of their
allegation of " running train theft. "
Whether the plaintiffs' evidence proved
any negligence on the part of the appel-
lant Company or not was a matter of
difference of opinion between the Munsif
and the District Judge.
The case, however, proceeded on the
usual lines ; the plaintiffs tried to prove
negligence on the part of the defendant
Company, but all that their sole witness
could aver was that he supposed that
the Company's servants must have been
.negligent Itecause the plaintiffs had never
received their bale of cloth. I need
hardly Hay that such an assertion by itself
is of no value as proof of negligence. The
Munsif, therefore, holding that the plain-
tiffs had failed to prove any negligence,
dismissed their suit with coats.
The District Judge, when the appeal
came before Bim, thoughtthat negligence
should be inferred " from all the circum-
stances. " He, therefore, reversed the
Munsif's decision and gave judgment for
the plaintiffs for the price of the cloth
with costs, but not for the alleged loss of
profit which he did not consider had been
proved.
It is important to ascertain on what
grounds the District Judge arrived at
this conclusion. In the first place he
points out how impossible it was for the
plaintiffs to prove what happened to the
cloth when in the Bailway's custody ;
but this, though I may say at once that
it is a constant difficulty in almost every
case of this type, does not relieve a plain-
tiff from proving negligence on the part
of the Biilway's servants, The District
Judge next remarks that the Company
alone c.in know what happened to the
bale whilst in its custody and that,
therefore, under S. 106 of the Evidence
Act, the onus is on the Company of prov-
ing what happened to the goods ; but
this view is contrary to all the Indian
and English case-law and authority ;
vide, e. g., Smith v. The Great Western
Railway Co. (l) ; the onus of proving
negligence in these cases lies on the
plaintiff ; the Bailway Company is not
bound in law to assist the plaintiff to
fasten liability on itself. The District
Judge further observes that the whole
consignment was lost and that although
the Bailway pleaded theft on a running
train, it had made no attempt to prove
any such theft ; and that therefore the
onus of avoidance of liability lay, by this
plea in defence, upon the Company ; it is
possible that, more closely examined,
there may be some force in this reason-
ing, but I propose to deal with this point
at a later stage.
This District Judge then states that
the plaintiffs could get no information
from the Company as to what had hap-
pened to the cloth ; but this does not,
according to the authorities, relievo the
plaintiffs from proving negligence. The
District Judge next remarks that, from
the plaintiffs' evidence and the admitted
facts in the case, the only reasonable
conclusion was that the loss was due to
the negligence of the Company's servants ;
but I have already pointed out that the
plaintiffs' testimony was of no evidential
value ; whilst the only material admis-
sions in the case were that the bale was
duly given fto the Company's custody
and was lost in a running train theft ;
neither of which circumstances ' threw
any liability on the Company.
AToriSs^SrErj. K. B.
Com. Gas. 247=38 T. L. B. 859.
150 Patna
G. I. P. BY. T. DATTI RAM (Bucknill, J.)
1926
Lastly, the District Judge seems to
think that a plaintiff can in some man-
ner go behind his special contract (i. e.,
Bisk Note B) with the Company and sue
the Company for damages for non-deli-
very under such normal statutory liabil-
ities as are imposed upon parties to a
contract under the Indian Contract Act
and upon Railways as carriers under the
Indian Railways Act ; but this view again
is, I fear, contrary to the best authority.
There have been so many decisions on
cases of this type reported in Indian law
report* that I think it is as well to try
and express 'very simply a few of the
more important features which emerge
from theiti.
What is known as Risk Note B is, we
are informed, the ordinary and most
usual contract for the carriage of goods
entered into between merchants and the
Railway Companies in India. It is very
simple in its language ; it forms a com-
plete special written contract between
the consignor and Railway Company.
The Railway takes the goods at a rate of
freight lower than the ordinary rate ;
in consideration for so doing the con-
signor undertakes to absolve the Company
from all responsibility for any loss, des-
truction, deterioration of or damage to
the goods whilst in transit from $ny
cause whatever subject to the following
exceptions. These exceptions provide
that if a whole consignment (or one or
more complete packages) forming part of
a whole consignment) is lost, then the
Company will bo responsible if the loss
is due : (a) to the wilful neglect of the
Railway administration ; or (b) to theft
by its servants or agents ; or (c) to wilful
neglect of its servants or agents.
Then there is a proviso that wilful neg-
lect cannot be held under the contract
to include (a) lire, (b) robbery from a
running train, (o) any other unforeseen
event or accident.
A, then, a merchant, consigns goods by
B, a Railway Company, to C, another
merchant, under a contract contained in
the Risk Note B : the goods are never
delivered to C. A (or C, acting really on
A's behalf or as A's principal ; for there
is no direct contract between B and C)
sues B for damages for the loss of his (A's)
goods or, if one so likes to phrase it, for
damages for breach of contract in that B
has not delivered the goods to C as B,
undertook so to do. What is A's cause
of action ? It is solely on adcfcunt o! a
breach by B of the contract between
A and B. What is that contract? It is
an agreement between A and B reduced
into writing in the form of Risk Note B.
What contract must A sue on ? Only
on the only contract existing between
A and B, i. e., the Risk Note B. Can A
ignore the Risk Note and sue B for dam-
ages for non-delivery basing his claim on
statutory liabilities imposed generally
upon those who make contracts or
particularly upon a Railway Company
under the provisions of the Indian Con-
tract Act and the Indian Railways Act
respectively ? The answer is in the nega-
tive ; A cannot do so ; he has to base his
claim on his existing and actual contract
with B, i. e., the Risk Note B. A then
sues B upon and for damages for breach
of the contract, i. e., the Risk Note B
made between J;hem. B, to take the
simplest case, "admits the loss in the
Company's statement of defence. By
the express terms of tho contract B
is not liable for loss save under certain
specific circumstances. Who has to prove
those circumstances under which B is
liable ? Clearly not B for it can
hardly be contemplated seriously that B
is bound to assist A in fastening respon-
sibility upon B. So it is A upon whom
the onus falls of showing that B is res-
posible for the loss.
There have, it is true, been cases — even
of quite recent date — in which it has
been held that it is not sufficient for B
to admit the loss in his statement of
defence but that B must adduce evidence
to prove such loss [e. g., Gilabhai Punsi
v. The East Indian Eailway Company
(2) and Jamnadas Baldcvadas v. The
Burma Railieay Company (3): but
these were decisions given prior to the
case of Smith v. The Great Western Rai-
way Company (l) ; and it is difficult to
understand why B should be called upon
to prove what he expressly admits : the
point also has been fully discussed
and dealt with in this Court in the
decisions of Mullick, J., and myself in the
G. I. P. Railway Company v. Jitan Ram
Nirmal Bam (4), in which We held that
the contention 'was incapable of support.
A who may know nothing, and indeed is
not likely in most instances to know any-
(2) [1921] 45 Bom. 1201=23 Bom. L. R. 52sT
(8) [1921] 64 I. C. 295.
(4) .. I. R 19*3Patna 285.
G. I. P. BY r, DATTI BAM (BuoknUl,
1926
thing, as to how or where his goods
vanished, or why they were not delivered,
can aver in his statement of claim what
he pleases ; he can state, if he wishes, that
the loss was due to any or all of the ex-
ceptions under which alone B is liable ;
but, assuming that B admits the loss, A,
if he is to be successful in his claim, must
prove that the loss was in fact due to one
of the exceptions under which B is res-
jxmsible. It is often asked how he can
do so ; it is obviously not an easy task as
it may well frequently be that B, at the
mercy of any unscrupulous member of its
staff or the victim of clandestine theft by
outsiders, knows no more as to the dis-
appearance of the goods than A himself :
A's only chance would appear to lie in
the administration of searching inter-
rogatories and tho calling of servants of B
as his (A's) witnesses. If he proves
nothing his claim must fail : B need not
say or do anything beyond admitting the
loss.
All the above points have been dealt
with at length in the recent decision of
Mullick, J., and myself to which I have
referred above. But it is frequently ob-
served that if the law is as above stated
it seems very hard as the position of A is
almost hopeless. Tho answer to this
comment is very simple ; it is that the
•contract is ibself a hard one, but that A
has a complete remedy in his own hands,
namely, not to seek to have his goods
carried at a reduced rate and under the
terms of such a hard contract as Bisk Note
B, but pay a higher freight and have his
goods carried under another form of con-
tract under the terms of which B has to
assume a far fuller responsibility.
I mentioned at an early stage of rny
judgment that one of the reasons why the
District Judge thought that the appellant
should be held responsible was that the
Bailway Company had pleaded in its de-
fence that, the loss was due to a running
train theft but that it made no attempt
to prove that allegation. There seemed
at one stage to be some force in the argu-
ment which was thus put forward in
support of this part of the District
Judge's decision. It was contended for
the respondent that this admission by
the appellant Company was an admission
that there had been a theft and that as
the Company failed to prove that it was
a theft on a running train (satisfactory
Patn* 151
evidence of which would clearly have
permitted the Company to escape any
liability) it might be inferred that the
theft was committed by the appellant's
agents or servants ; or at any rate, that
as they had admitted a theft it was in-
cumbent upon the appellant Company
to show that it was not theft by their
own agents or servants but theft either
as pleaded on a running train or at any
rate by some outsiders not in their service
or not their agents. It is, however,
impossible upon further consideration to
come to the conclusion that this argu-
ment is a sound one. In the first place
the admission or plea is not of theft at
large but of a specific form of theft, i. e.,
on a running train. In the second place,
even if the defendant Company failed to
prove or to adduce any evidence in sup-
port of such an allegation, it cannot be
held that a necessary inference must be
drawn that the theft was committed by
the Company's servants or agents ; for
although there might have been a theft,
it might have been by persons who were
or were not the servants or agents of the
Company ; whilst, in order to prove that
the Company was liable to the plaintiffs
for the loss, it was primarily necessary
(the onus being upon the plaintiffs) for
the plaintiffs to show that the theft
(whether or not committed on a run-
ning train) was effected by the Company's
servants or agents*; and this of course
the plaintiffs made, and no doubt could
make, no attempt to do. Lastly it was
quite unnecessary, according to the
authorities, for the Eailway Company to
do anything more than to prove or admit
the loss ; and, having done that, the
onus of proving that that loss was occa-
sioned under one of those exceptions
contained in the contract under which
alone the Company could be held res-
ponsible lies upon the plaintiffs. As a
matter of fact this very point appears
to have been "flealt with by Odgfcrs, J., in
the Madras High Court in the case of
The Madras and Southern Mali ratta Rail-
way Co., Ltd. v. B. Krishnaswami Chetty
(5). That case was one in which there ap-
peared, superficially, to exist considerably
greater reasons for drawing an inference
that the theft had been committed by the
Bail way Company's servants than would
be justifiable in the present case now be-
fore this Court. In the case^ decided hv
k~ (5) A. CR,"l945llad. 1387 " ~ ~~
152 Patna
SAHU V. KULDIP &AHAY (R«KS, J.)
1926
Odgers, J., the Railway Company pleaded
in defence robbery from a running train
and actually produced evidence in order
to try and prove that allegation. The
Company, however, failed to prove that
the theft was one committed on a running
train although they did show that when
the train carrying the goods arrived at a
certain station the Guard found the doors
of one of the covered vans open and the
plaintiffs' bale of goods missing from it.
The learned Judge in his decision re-
marks : "One is very much tempted to
think that where the Railway Company
has five or six of its servants travelling in
the train it is not necessary to look to any
outside agency to found a case of theft.
But I cannot say that that has been
established by evidence. In a similar
case in B. B. and C. I. Railway Company
v. Eanchhodlal Chotalal and Co. (6),
which also-arose on this Risk Note B, the
learned Judges point out that though the
defendants have failed to prove theft
from the running train, the onus is, of
course, still on the plaintiff to prove
neglect or theft; by Railway servants.
This, they point out, should have been
done before any question is reached of
robbery from a running train as that,
namely, robbery from a running train is
an exception to wilful neglect. It has
also been established in Narayana Aiyar
v. The South Indian Railway Company ,
Ltd. (7), that the onus is upon tho
plaintiff to establish how tho loss ot- de-
terioration was caused though there the
Risk Note was Fbrm H. The case in The
Madras and Southern Mahratta Railway
Co., Ltd. v. Mattai Subha Rao (8), cited
by tho learned counsel for the defendant
does not seem to me to touch the case. I
am, therefore, with great reluctance, con-
strained to come to the conclusion that
the plaintiff has no remedy on this Risk
Note B on the evidence as it stands. The
suit must, therefore, be dismissed. The
question is whether I should inflict costs
on the plaintiff. The defendant, as
stated, attempted to prove loss by robbery
from a running train and assumed that
onus at the trial and failed. This is, as
I pointed out, wrong. I do not think
that the plaintiff suffered any prejudice
from that procedure, but on the whole, I
(6) [1919] 48 Bom. TeG^aTBmnTL. R, 779.
(7) A, I. R. 1924 Mad. 888.
(8) [1919] 48 Mad. 617=38 M. L. J. 860=(1920)
M. W. N. 198=11 L. W. 358=28 M. L. T. 49.
am inclined to dismiss the suit without
costs."
The first judgment referred to by Mr.
Justice Odgers : B B. and C. I. Railway
Company v. Ranchhodlal Chotalal and
Co. (6), is precisely to the same effect as
that of the learned Judge.
Under these circumstances I fear that
this appeal must be allowed and the de-
cree of the District Judge of Saran set
aside and that of the Munsif of Chapra,
restored.
One can only observe once again that,
although it may seem that the decisions in
these cases bear hardly upon those whose
goods are carried by Railway Companies
in this country under Risk Note B, the
contract is one which involves those who-
thus confide their goods for carnage to a
Railway Company in greatest difficulty in
recovering compensation in the case of
their loss ; the substantial remedy against
such a state of affairs lies, however, in the
hands of the individual who is in no way
bound to enter into a contract of such a.
type which in effect places him at the-
mercy of the Railway Company with
which he enters into such an agreement.
Adami J.— I agree.
Appeal allowed.
A. I. R. 1926 Patna 152
Ross, J.
Itamkh elaivan Sahu and , another — De-
fendants Nos. 1 and 2 -Appellants.'
v.
Kuldip Sahay and others — Plaintiffs- -
Respondents.
Appeal No. 514 of 1922, Decided on
23rd June 1925, from the appellate de-
cree of the SulrJ., Arrah, D/-23rd Fe-
bruary 1922.
Words "khar'tj jama'1 import "Independent pro-
prietor".
Prima facie tho word kharij jama import that
the owner ol tho kharij jama laud is an inde-
pendent proprietor. * [P. 168, C. 2]
S. M. Mullick and N. N. Sinha—lor
Appellants. t «
Akbari Rai,T. N. Sahay and D. N.
Verma — for Respondents*
Judgment — This is an appeal from
a decision of the learned Subordinate
Judge of Arrah affirming a decision of the
1926
KAMKHELAWAN SAHU v. KULDIP SAHAY (Boss, J.)
Patna 153
Munsif granting a decree to the plaintiffs
in a suit (so far as is now material) for a
declaration that they have a right of way
from their garden, Plot No. 254 of Khafca
No. 45 to the Local Board road in village
Kajokher over Plot No 245 belonging to
Defendants Nos. 1 and 2 which inter-
venes between the garden and the road.
Defendant No. 7 is the landlord
he did not contest the suit. Defendants
Nos. 1 and 2 who did contest the suit
had taken settlement of Plot No. 245
from Defendant No. 7 in 1918. The suit
was brought in 1920.
The main contention on behalf of the
Appellants-Defendants Nos. 1 and 2 is
that the Courts below have erred in
holding that tho plaintiffs have acquired
this right of way by prescription, because
they are tenants of Defendant No. 7 and
could neither prescribe against their land-
lord nor against Defendants Nos. 1 and 2
who are tenants under the landlord. It
is contended that for two years befpre
the suit Plot No. 245 was in settlement
from the landlord and before that it was
parti and that consequently the plaintiff
must have prescribed against their land-
lord and his tenants and that this is
impossible in law. This argument rests
on the fact that in tho record of rights
the plaintiffs are recorded in tho khatian,
and ii is argued that, therefore, they
must be tenants of the landlord. The
record of rights shows that the plaintiff's
ancestor purchased tho land ip 1849 and
that the land is kharij jama. The Munsif
took the view that this meant that the
land was excluded and not settled with the
zemindar at the time of Permanent Set-
tlement and that the title of the plain-
tiffs was, therefore, independent of that
of the . zemindar of the village. The
learned advocate for the appellants refer-
red to 8. 3, 01. (3) of the Bengal Tenancy
Act where "tenant" is defined as "a per-
son who holds land under another person,
and is or but for a special contract would
be, liable to pay rent for that land to
that person." Keference was also made
to Qokkul Sahu v. Jodu Nundun Boy (1),
whei^e it was held that a rent free brah-
motar sanad operated as a special con-
tract but for which the brahmotardars
would be liable to pay rent and that the
brahmotardars were tenants within the
meaning of the Act. Now while it is
quite clear that the mere fact that no
ill £1890] 17 Cai. 721.
rent is paid "does not necessarily mean
that the plaintiffs are not tenants of the
landlord and while the fact that they are
entered in the khatian to some extent
supports the argument of tho appellants,
yet the case really turns on the effect of
the entry "kharij jama." In Wilson's
Glossary "kharij jama" is translated as
meaning "separated or detached from the
rental of the state as lands exempt from
rent or of which the revenue has been
assigned to individuals or institutions/'
In N. James1 Settlement Report of Putna
"kharij jama" is defined as ' land allowed
free to zemindars as reward for some
special service, by a Provincial Governor,
and so to be distinguished from altamga
grants." * Prima facie, in my opinion, the
word imports that the* owner of the kharij
jama land is an independent proprietor.!
The land has been included within the'
zemindari of Defendant No. 7, but it has
evidently never been resumed and could
not now be resumed and consequently the
relation of landlord and tenant does not
exist between the parties. In his judg-
ment the learned Subordinate Judge has
merely referred to the finding of the
Munsif on this point and has not discus-
sod the matter further evidently, as ap-
pears from a later passage in the judg-
ment, because it was not argued before
him. I see no convincing ground for
holding that the Munsif was wrong in
deciding that tho plaintiffs had a title in-
dependent of the zemindar with regard
to this land. This view also finds some
support from the consideration that the
landlord did not contest the case.
It was also argued that the plaintiffs
had not proved that they used this path
as of right and that there is no evidence
of this. The learned Munsif went into
this part of the case fully and came to
the conclusion from the nature of the user
that the enjoyment had been as of right.
The learned Subordinate Judge disbe-
lieved the evidence that was given by the
defendants that the user had been with
the permission of the landlord and found
that the evidence of the plaintiffs' wit-
nesses proved that the user of the passage
by the plaintiffs was as of right. This
was an inference which it was open to
the Courts below to draw and I see no
reason to doubt the correctness of their
finding,
The appeal is dismissed with costs.
Appeal dismissed.
154 Patna HEMCHANDKA v. PBEM MAHTO (Kulwant Sahay, J.)
1926
% A. I. R. 1926 Patna 154
MTJLLICK, AG. C. J. AND KULWANT
SAHAY, J.
Hcmcli andra Mahto and otli crs — Plain-
tiffs— Appellants.
v.
Prem Malito— Defendant — Respondent.
Letters Patent Appeals Nos. 4 and 5 of
1924, Decided on 28rd July 1925, against
the judgment of Das, J.
(a) Civil P.;C., 8. 47— Partition stilt— Decree
directing separation of plaintiff a share only but
leaving sharctt of defendants joint — Separate suit
by defendants Inter sc for separate possession of
shares le not barred.
If a decree'is passed in a partition suit, the parties
thereto whether arrayed as defendants or as plain-
tiffs, are in the position of plaintiffs,
and in regard to properties that may be allot-
ted they are exactly in the position of decree-
holders. In such a case the decree can be execut-
ed by any party and a separate suit for possession
is barred by S. 47. But if the partition decree
merely directed the separation of the shares of the
plaintiffs in the partition suit and left the shares
of the defendants joint amongst themselves, the
defendants cannot execute that decree and there is
nothing to prevent defendants from bringing a
fresh suit for partition of the lands jointly allotted
to them. [P. 155,0.2]
% (b) Court- fee* Act, S. 7 (Iv) (6)— Partition suit
— Defendants need net pay Court- fee — Stamp Act,
S. 2 (16).
There is nothing in the law which requires a
defendant in a partition suit to pay Court- fees in
order to have his share separately allotted to him,
he is merely U/ask for it in his written statement,
and it is open to the Court to order Iho shares to
the defendants in a partition suit to be separated
as amongst themselves. The decree that is final 1 r
drawn up in the partition suit has to be stamped
as an instrument of partition under the Stamp Act
and except the stamp duty levied on the decree, no
other duty as Court-fee is payable by the defen-
dants. 29 Bom. 79, lief. 23 Bom. 188 and 28 Bom.
184 fllst. [?. 156, C. I]
Subal Chandra Mazumdai — for Appel-
lants.
A. B. Mukharji — for Respondent.
Kulwant Sahay, J. — Mouza Kaluhar
in Manbhum was owned by a large num-
ber of co-sharers. In 1913 a partition suit
was brought by some of the co-sharers in
the Court of the Subordinate Judge of
Purulia which was registered as Suit No.
219 of 1913. In that suit the present
plaintiffs and defendants were all arrayed
as defendants. A preliminary decree was
passed on compromise on the 12th Sep-
tember 1914, wherein the shares of all
the co-sharers were determined. A Com-
missioner was appointed to effect parti-
tion by metes and bounds. The Commis-
sioner effected the partition and made
allotments to all the co-sharers who were
parties in the suit ; and in accordance
with the report and allotments of the
Commissioner the Court made a final
decree on the 19th June 1916. The case
of the plaintiffs in the two suits giving
rise to the present appeals was that by
the said partition, lands were separately
allotted to them. In Suit No. 1172 the
plaintiffs claimed that 1 bigha, 19 kathas
out of plot No. 83 of the Commr.'s map
was separately allotted to them in Suit
No. 1173, I bigha 2 kathas in plots Nos.
83 and 83-A was also separately allotted
to them. Their case is that when they
wanted to take possession of these lands
they were obstructed by the present
defendants who were also defendants in
the partition suit and hence they brought
the present suits for declaration of title
and recovery of possession. The defen-
dants pleaded that they were not aware
of the partition alleged by the plaintiffs:
that there was no compromise in the said
partition suit that the Commissioner had
no authority to partition the shares of the
other co-sharers except those of the plain-
tiffs in the said partition suit ; and there
was an objection taken to the effect that
the present suits were barred under S. 47
of the Civil P. C.
The learned Munsif overruled the ob-
jections of the defendants and made decrees
in favour of the plaintiffs in the two suits.
On appeal by the defendants- the learned
Subordinate Judge confirmed the decrees
of the Munsif. The Defendant No. 3 there-
upon came up in second appeal to this
Court.
It may be noted that the plaintiffs in
the two suits were different but the de-
fendants were the same in both the suits ;
and the second appeals to this Court were
by the Defendant No. 3 alone.
Two points were raised in the -second
appeal which were heard by Mr. Justice
Das sitting singly. The first point was
that the preliminary decree in the parti-
tion suit, which was a consent decree was
not binding upon the Defendant No. 3 in-
asmuch as he was a minor at the time the
said consent decree was passed but that
the petition of compromise was not signed
by his guardian ad litem, and that, there-
fore, the said decree was wholly void as
against him. The second point taken was
that S. 47 of the Civil P. C. was a bar to
the suit. The learned Judge of this Court
1926
HEMCHANDBA v. PREM MAHTO (Kulwant Sahay, J.) Patna 155
held that the findings of the Subordinate
Judge were not sufficient or satisfactory
and that the points raised by the appellant
could not satisfactorily be determined by
him, and he accordingly set aside the
decrees of the Subordinate Judge and
remanded the case for re-hearing.
Against this decision of Mr. Justice Das
the present appeals have been filed by the
plaintiffs under the Letters Patent.
As regards the first objection, namely
that the Defendant No. 3 being a minor,
and the petition of compromise not being
signed by any one on his behalf and,
therefore, the preliminary decree being
void, it appears that this objection was
not taken in either of the Courts below.
From the judgment of the learned Subor-
dinate Judge it appears that fhe objection
taken before him was that the guardian
of the Defendant No 3. did not obtain the
permission of the Court to enter into the
compromise and that the decree, there-
fore, was ultra vires. The learned Sub-
ordinate Judge disallowed this objection
on the ground that there was nothing
on the record to show that the Court had
not granted permission to the guardian of
the Defendant No. 3 to compromise the
suit. The objection taken in this Court
was different from the objection taken
before the Subordinate Judge, and, in ray
opinion, he ought not to be allowed to
take this objection for the first time in
second appeal. The decision of this
question depends on findings of facts which
the Courts below were not asked to decide.
Moreover, it is admitted that in the
final decree which was passed in the par-
tition suit on the 19th June 1916, there
was no defect whatsoever. The Defendant
No. 3 is evidently bound by this final
decree and, in my opinion, there is no
substance in this objection and there was
no necessity cf a remand to enquire into
this point.
As regards the second objection, namely,
the bar of 8. 47 of the, Civil P. C., I am of
opinion, that the decision of Mr. Justice
Das is correct. The first Court overruled
this objection on the ground that the
plaintiffs in the present suit were defen-
dants in the previous partition suit and
they were not the "decree-holders and so
they could not have got possession in
execution of the decree. The learned
Subordinate Judge on appeal observes that
the effect of the partition decree declar-
ing what specific lands" were allotted to
the plaintiffs in the present suits was to
make that decree a declaratory decree so
far as they were concerned, and as a de-
claratory decree is incapable of execution
the present plaintiffs could not enforce
the same by execution, and that, there-
fore, the present suits were not barred by
the provisions of S. 47 of the Civil P. C.
Mr. Justice Das rightly points out that
the view taken by the Courts below was
incorrect. He observes that if a decree
is passed in a partition suit, the parties
thereto whether arrayed as defendants or
as plaintiffs, are in the position of plain-
tiffs, and in regard to properties that may
bo allotted they are exactly in the
position of decree-holders. No doubt, as
was observed by Mr. Justice Das, if the
partition decree merely directed the
separation of the shares of the plaintiffs
in the partition suit and left the shares
of the defendants joint amongst them-
selves, the defendants could not execute
that decree and there was nothing to
prevent those defendants from bringing a
fresh suit for partition of the lands jointly
allotted to them. The view, therefore
taken by the lower Courts was in-
correct.
Mr. Justice Das, however, remanded the
case for a determination as to what was
the position of the parties in the present
suits under the final partition decree. In
my view the materials on the record are
sufficient to dispose of this question in
this Court, and the remand seems to be
unnecessary. The final partition decree
is on the record, and it directs that a
decree be passed in accordance with the
report, map and allotment papers of Babu
Kadha Ballabh Sarkar, the Commissioner
appointed in the suit, and that the report,
map and allotment papers do form a part
of the decree and it awards costs to the
plaintiffs in the suit. It is admitted by
the present plaintiffs, and it also appears
on reference to the allotments made by
the Commissioner that the lands now
claimed by the plaintiffs in the present
suits were allotted to them in the pre-
vious partition case and the final decree
in the partition suit directs that the
allotments made by the Commissioner be
confirmed. The present plaintiffs were,
therefore, in a position to take delivery of
possession of the lands allotted to them
by executing the final partition decree.
It is argued that there is no direction in
156 Patna
BAMDHAM v. KEWAL MAM (Das, J.)
1926
the final decree for possession being deli-
vered to the present plaintiffs over the
lands allotted to them ; but there is no
such direction even in favour of the plain-
tiffs in the partition suit. It is clear that
the decree intended that each of the par-
ties should take possession in accordance
with the allotments made by the Commis-
sioner. As regards the payment of Court-
fees by the present plaintiffs, who were
defendants in the partition suit, in order
to enable them to obtain possession of
their shares, I see nothing in the law
which requires a defendant in a partition
suit to pay Court- fees in order to have
his share separately allotted to him ; he
was merely to ask for it in his written
statement, and it is open to the Court to
order the shares of the defendants in a
partition suit to be separated as amongst
themselves. The decree that is finally
drawn up in the partition suit has to be
stamped as an instrument of partition
under tho Stamp Act and except the
stamp duty levied on the decree, no other
duty as Court-fee is payable by the de-
fendants ; sec Nawah Mir Sadruddln v.
Nawab Nuruddin (l). A contrary view
appears to have been taken in Abdul
Khadar v. JJapubhai (2) and Murarrao v.
Sitaram (3). But these two cases do not
appear to bo pure suits for partition. At
any rate no provision of the law has been
referred to in theso cases. In the present
case we find that a final partition decree
was prepared by the Court and although
there is nothing on the record to show it,
it must be presumed that the decree was
properly passed after payment of the
stamp (Juty. In my opinion, therefore ,
there is no necessity of a remand in the
present case and it is clear on reference
to the final partition decree that it was
open to the present plaintiffs to obtain
possession of the lands allotted to them,
on taking out execution of the decree.
That being so the present suit for recovery
of possession of the lands which were ad-
mittedly allotted to them in the previous
partition are evidently barred by S. 47 of
the Civil £. C.
I would, therefore, modify tho order
passed by Mr. Justice Das and allow the
second appeals filed in this Court *by the
Pg^^%JPt.No^3_ftnd dismiss the plaintiffs'
(1) [1905] <29 Bom. 79^6 Bom. L. B. 834
(2) 11899] 28 Bom. 188
(3) [1899] 23 Bom. 184*
suits altogether. The respondent will get
his cost? thronghout,
Mullick, Ag. C. J.— I agree.
Order modified.
* A. I. R. 1926 Patna 156
DAS AND ADAMI, JJ.
Bamdhani Sinyh and others — Plain-
tiffs— Appellants.
v.
Kewal Mani Bibi aiid others — Defen-
dants— Respondents.
Appeals Nos. 635 and 66 of 1923, Deci-
ded on 27th July 1925, from a decree
of the Addl. Dist. J., Pafcna, D/- 16bh
April 1923.
^(a) Evidence Act, S 92— Evidence to show non~
existence of an agreement Cs admissible.
Though evidence to vary the terms of an agretT
ment in writing is not admissible under S. 92, yet
evidence to show that there is not an -agreement
at all is admissible. Therefore, it is open to the
Court to examine the surrounding circumstances
with a view to enable it to decide whether the
parties intended to arrive at any agreement in re-
gard to the subject-matter of the suit : A. I. 72.
1925 P. C., 75, Foil . [P. 158, C. 1? 2]
(b) Bengal Tenancy Act, S. 29— Tenant vmst.
prove tJiat he is an occupancy ralyat before Invoic-
ing aid of S. 29.
S. 29 only applies to the case of an occupancy
raiyat, and before invoking the aid of S. 29 the
tenant must prove that he is an occupancy raiyat
in regard to the rent claimed lauds. [P. 159, C. 1]
P. C. Manuk and S. Dayal~~toY Appel-
lants.
Hasan Imam, Brijkishore Prasad and
-S. M. Mullick — for Eespondents.
Das, J. — On the fact^s found by the
learned Additional District Judge he was
right in passing the decrees which he did
pass. Two questions have been argued
before us by Mr. Manuk on behalf of the
defendants-appellants : first* that the in-
clusion of 1 oottah of land in Patna city
was a fraud on the registration law and
that the registration obtained by its
means was invalid ; and, secondly, that
the enhancement of rent in the leases
which were also the basis of the suits
constituted an infringement of 8. 29t of the
Bengal Tenancy Act and cannot be sup-
ported by a Court of law.
I will first consider the point in regard
to the registration. The written state-
ment' raises the following case : " In
order jjtoly to get the registration made at
1926
BAMDHANI v. KBWAL MANX (Das, J.)
Patna 157
Jhauganj, an imaginary plot of land in
Mohalla Diwan in bho cifcy of Patna was
included in the patta and kabuliyat.
These defendants did not take in settle-
ment the land in Mohalla Diwan in the
city of Patna, nor was any contract
made with regard to the settlement there-
of, nor did the defendants ever get pos-
session of the same. Hence the aforesaid
kahuliyat is illegal, void and inoperative,
and • the same cannot he binding on the
-defendants. The plaintiff's suit on the
basis of patta and kabuliyat like this is
not tenable and is fit to be dismissed at
once." The Court of first instance found
that the plot of land in Mohalla Diwan in
tha city of Patna did not exist and in
this view he came to the conclusion that
the inclusion of ttiis property was a fraud
on tho registration law. The lower ap-
pellate Court has reversed the finding of
fact of the Court of first instance 011 this
point. The learned Judge says as fol-
lows : " I have examined tho evidence on
the point and the case-law relating to the
matter and am disposed to differ from the
finding of the learned Munsif and to hold
that the kabuliyats were valid, and were
not fraudulent documents, and had been
entered into with the knowledge and
consent of both the parties and that tho
properties were real existing properties
and not fictitious or non existent. This
appears to be clear from the depositions
of the three consenting defendants them-
selves given before the Court below. Tho
finding that tho plot of land in Mohalla
Diwan is "existing property and not ficti-
tious or non-existent" is a finding of fact
which is binding on us in second appeal.
This is not disputed by Mr. Manuk ;
but he contends that the learned' Judge
should have considered the other point
raised by him, namely, whether there was
any intention on the part of the parties
to deal with the plot of land in Mohalla
Diwan. Now, in my opinion, the ques-
tion was not raised in this form in the
written statement. The whole point made
in the written statement is that "an ima-
ginary plot of land in Mohalla Diwan in
the city of Patna was i icluded in the
patta wid kabuliyat* There is no sugges-
tion that the parties did not intend to
deal with this property on the assump-
tion that it did exist. Mr. Manuk relies-
on the judgment of the Court of first in-
stance and contends that that Court ex-
pressly found that the parties cUd not
intend to deal with this property ; but I
can find no support for this argument in
the judgment of the learned Munsif, He
no doubt refers to the contention on the
part of the defendants that they never got
possession of the Diwan Mohalla proper-
ties and that it was never intended that
they should get possession of them and
that these properties were included only
to facilitate registration at Jhauganj. But
the finding of the learned Munsif is that
"these areas are only fictitious.11 That this
was* the only finding will appear from
the cases to which he refers and discusses.
In dealing with these cases, which were
obviously cited on behalf of the plaintiffs,
he says as follows : — "In the first of these
cases it transpired later that the execu-
tants' interest had become extinguished
in the property mortgaged, and without
knowledge of this the parties entered into
a bona fide mortgage of same. In the
second case the existence of the property
mortgaged was not denied. In the third
it was actually found the mortgagor 'in-
tended this small property should also be
a security for the mortgage debt. Thus
in none the question arose of the non-ex-
istence of the property;" and he concludes
as 'follows : ' In the present case it ig
plainly alleged in the written statement
the property in Diwan Mohalla was a
fictitious one. The kabuliyats in the i'e-
citals in them make no mention of them,
and hence it was incumbent on plaintiff
to adduce some evidence of existence of
those properties. In absence of such evi-
dence the case is covered by the case of
Harendra Lai Roy Choivdhuri v. Hart
Dasi Debi (l) and the registration of Jhau-
ganj is invalid and plaintiff cannot tatce
advantage of these kabuliyats."
It will appear from the judgment of the
learned Munsif that tho only question
which he intended to try and did try, was
whether the properties alleged to be ficti-
tious by the defendants did exist. He
found that they did not exist and he held
that the inclusion of those properties was
a fraud on the registration law^
That being so, how are we entitled npw
in second appeal to go into tho question
of the intention of the parties ? It has
been contended on behalf of the respon-
dents that having regard to S. 92 of the
(1) [1914] 41 Cal. 972=41 L A. 110=27 M.L.J.
80= (1914) M. W. N. 462=16 M. L. T. 6=
18 C. W. N. 817=19 C. L J. 484=16 Bom.
L. B. 400=12 A. L. J. 774=1 L. W. 1050
(P. 0.)
158 Patna
BAMDHANI v. KEWAL MANI (Das, J.)
1926
Evidence Act the Court U not entitled to
go into the question of intention. I am
unahle to agree with this contention.* The
authorities establish that though evidence
to vary the terms of an agreement in
writing is not admissible, yet evidence to
show that there is not an agreement at all
is admissible. In Pym v. Campbell (2;,
Brie, J., said as follows : " The point
made is that this is a written agreement,
absolute on the face of it, and that evi-
dence was admitted to 'show it was con-
ditional, and if that had been so, it would
have been wrong. But I am of opinion
that the evidence showed that in fact
there was never any agreement at all.
The production of a paper purporting to
be an agreement by a party, with his
signature attached, affords a strong pre-
sumption that it is his written agreement,
and, if in fact he did sign the paper animo
contrahendi, the terms contained in it are
conclusive and cannot be varied by parol
evidence ; but in the present case the
defence begins one step earlier: the parties
met and expressly utated to each other
that though for convenience they would
then sign the memorandum of the terms
yet they were not to sign it as an agree-
ment until A was consulted. I grant the
risk that such a defence may bo set up
without ground ; and I agree that a jury
sHould, therefore, always look on such a
defence with suspicion; but, if it be proved
that in fact the paper was signed with
the express intention that it should not be
an agreement the other party cannot fix it
as an agreement upon those so signing. The
distinction in point of law is that evidence
to vary the terms of an agreement in writ-
ing is not admissible, but evidence to
show that there is not an agreement at
all is admissible." And Lord Campbell
said : " 1 agree. No addition to, or
variation from, the terms of a written
contract can be made by parol ; but in
this case the defence was that there never
was any agreement entered into." This
case was followed in Guddalur Buthna v.
Kunnattur Arumuqa (3). The last-mon-
mentioned case was decided without
reference to the Indian Evidence Act and
probably before the Evidence Act came
into operation. But the principle of that
cjiso was affirmed by the Judicial Com-
mittee in a judgment delivered by it on
~~(2U1856] 6 El. audBl. 870=25 L. J., Q. B. 277
=2 Jur. N. S. 611=4 W. R. 528.
(3) 7 M. H. C. 180.
the 5th of December 1924. So far as I
know that case has not been reported ;
but the judgment has been pronounced in
Privy Council Appeals Nos. 21, 31 and 32
of 1923 [Baijnath Singh v. Vally Maho-
med Hajee Abba (4)1 . In delivering the
judgment of the Board Sir Lawrence
Jenkins -said as follows : " It is true, as
was laid down in Balkishen Das v. Legge
(5) that under S. 92 of the Indian Evi-
dence Act, as between the parties to an
instrument, oral evidence of intention is
not admissible for the purpose, either of
construing deeds or of proving the inten-
tion of the parties. But in the view their
Lordships tako of the circumstances of
this case the section and the ruling have
no application to it." The learned Judge
then proceeded to say as follows : " The
preamble to the Evidence Act recites that
it is expedient to consolidate, define and
amend the Law of Evidence ' and S. 92
merely prescribes a rule of evidence ; it
does not fetter the Court's power to
arrive at the true meaning and effect of a.
transaction in the light of all the sur-
rounding circumstances." I am of opinion,;
therefore, that it was open to the Court
to examine the surrounding circumstances
with a view to enable it to decide whe-
ther the parties intended to arrive at any
agreement in regard to the Diwan
Mohalla property ; but in the view which
I take of this case the question is a ques-
tion of fact and should have been raised by
the defendants specifically. It should cer-
tainly have been raised by them in the
Courts below. The judgment of the lear-
ned Munsif is silent on this point and so
is the judgment of the lower appellate
Court. I must, therefore, hold that the
only question which was raised by the
defendants in the Courts below and the
only question discussed by the Courts
below is whether these properties were
fictitious properties or not. That being
so, it is not open to us to enter into the
question whether the parties intended to-
enter into an agreement with regard to
these lands.
The next question relates to the appli-
cablity of S. 29 of the Bengal Tenancy Act.
Now, in order to understand the point, it
ought to be pointed out that the regis-
tered kabuliyats were executed in 1322.
By these kabuliyats the defendants took
4) A. I. B. 1925 P. C. 75.
5) [1900] 22 All. 149=27 I. A. 58=4 C. W. N.
158=2 Bom. L. R 523=7 Sar. 601 (P. 0.).
(4)
(5)
1926
MD. SADIQ v. BASGIT SAH
Patna 159
leases of the lands comprised in the
fcabuliyats from 1323 to 1329 at a rent of
Ks. 5 per bigha. It appears, however,
that the defendants were actually in
possession of the properties comprised in
the leases ever since 1301 and that they
were paying a rent of Rs 3 per bigha.
It is, therefore, contended on behalf of
the defendants that there was an en-
hancement of rent by the fresh arrange-
ment of 1322 and that the rent .was
enhanced so as to exceed by more than
2 annas in the rupee the rent previously
payable by the raiyat.
S. 29, it will be noticed, only applies to
the case of an occupancy raiyat and before
invoking the aid of S. 29, the tenant must
prove that ho is an occupancy raiyat in
regard to the rent-claimed lands. Now
these lands are admittedly diara lands
and S. 180 provides that a raiyat who
holds land of the kind known as char or
diara shall not acquire a right of occu-
pancy until he has held the land in
question for 12 continuous years ; and fche
section further provides that until he
acquires a right of occupancy in the land,
he shall be able to pay such rent for his
holding as may bo agreed on between him
•and his landlord.
On the admitted fact}, therefore, there
is no room for the application of S. 29 of
the Bengal Tenancy Act unless the
defendants establish that they had hold
the lands in question for twelve con-
tinuous years. The learned Judge in the
Court below accepted the contention of
the plaintiffs that the defendants have
not " been successful in proving continu-
ous possession." Mr. Manuk in this
Court 'contends that the learned Judge
should have considered the evidence with
a view to find out whether the defen-
dants have been in continuous pos-
session of any portion of the land
comprised in the lease. Ho says that it
may be that he has not been in continu-
ous possession for 12 years of the entire
block of land comprised in his lease ; but
he contends that it is possible that he
may have been in possession for 12 con-
tinuous years of some portion of the land
and that Inasmuch as the learned Addi-
tional District Judge has not dealt with
this point we should remand the case to
him to enable him to decide the point.
The onus of establishing an exception
under S. 180 of the Bengal Tenancy Act
was upon the defendants, and it was for
them to make a specific point in regard to
the applicability of S. 29 in the written
statement ; but they have not made such
a case in the written statement. No
doubt the Courts examined the conten-
tions in regard to the applicability of
S. 29 but a new point is made before
us, namely, that although the defen-
dants may have failed to prove that
they were in possession for 12 con-
tinuous years of the entire block of laud,
they may succeed in proving that they
were in possession for 12 continuous
years of some portion of the land. I find
that the learned Munsif in the course of
his judgment says : " The defendants
themselves could not give verbally what
area they were in possession of in which
year." It is extremely unlikely that a
remand would be productive of any good ;
for the defendants have no evidence on
the point and the papers of the land-
lords could not possibly identify the lands
which have been in the possession of the
defendants, the lands being subject to
inundation and there being no Record of
Rights in regard to them. Having regard
to all these facts and especially having
regard to the fact that the defendants
have not made out a case nnder S. 29,
I must decline to remand the cases to the
lower Appellate Court to enable it to
decide tho point contended heforo us.
I must dismiss these appeals with
costs.
Adami, J. — I agree.
Appeal*
A. I. R. 1926 Patna 15»
BUCKNILL, J.
Mohammad Sadiq — Appellant.
v.
Dasgit Sah and others — Respondents.
Appeal No. 1321 of 1922, Decided orr
10th June 1925 from the appellate
decree of the Sub-J., Motihari, D/- 19th
September 19:42.
Civil P. C., 0. 26, B. 12—I/ Commissioner's
report fs unsatisfactory anotlier Commissioner
slwuld be appointed. «£
The fact that the Commissioner had made a
muddle of his enquiry should not in any way
prejudice any party. If it is found that the
Commissioner's work is unsatisfactory, the-
proper procedure is to appoint another commis-
sioner who would carry out the work more
160 Patna
JOGENDRA PRASAD v. MANGAL PRASAD
1926
Hatififaatorily and not to give a finding
<:onHidering that report of the Commissioner
only. [P 160, C 1, 2]
Hareswar Prasad — for Appellant.
Judgment. — This is a second appeal.
It is a very simple matter although it
is unfortunate that owing to some
apparent misunderstanding there have
already been no less than three or four
judgments written in connexion with
the matter. The appellant, who was the
plaintiff, brought a suit for a declaration
of his raiyati title to a certain plot of
land and for recovery of possession
thereof, Now, apparently, when the
case came before the Hunsif in the first
instance ho decided in the plaintiff's
favour. But on appeal to the Subor-
dinate Judge, it would seem that, on the
ground that the Commissioner who had
been appointed to ascertain the proper
demarcation and site of the property in
question had not been cross-examined,
the Munsifs' judgment was set aside and
that the matter was remanded to the
Munsif in order that the commissioner
might be cross-examined. The matter
went back to the Munsif and the Munsif
after having had the Commissioner
cross-examined, on this occasion dismis-
sed tho plaintiff's case. The ground
upon which ho dismissed the case
-appears, so far as 1 can see, to have been
that the Commissioner had made some
mistakes in the way in which he had set
about his work, and in consequence, tho
Munsif thought that the plaintiff had
'failed to prove his case, he, apparently,
not relying upon any evidence other
•than that of the Commissioner. The
Munsif then sent the matter back to the
appellate Court with his recommendation
and the Subordinate Judge came
to tho conclusion that the Munsifs
finding was correct. Again, so far as I
• can see, the ground for this decision was
simply that the Commissioner had inado
a bungle of his investigation. Now, this
application came up for admission in
second appeal, and on its admission it
seems to have been pointed out that the
fact that tho Commissioner had made a
muddle of his enquiry should not in
any way have prejudiced the plaintiff's
position in the case. I have no doubt
that what the Munsif should have done,
if he found that tho Commissioner's
work was unsatisfactory, was to have
.appointed another Commissioner who
would carry out the work more satis-
factorily or, at any rate, in a manner
intelligible and suitable to the Munsifs
understanding. In these circumstances,
I think it is clear that this appeal must
be allowed with costs and that the case
must again unfortunately go back to the
Mutrsif to be -re-tried ; and, so far as I
can see, it would be highly desirable that
another Cmmissioner should be
appointed to make such observations and
demarcations as are necessary to show
whether or not the plaintiff's claim is
sustainable. The learned vakil who at
one time appeared for the respondents
to this appeal has appeared in Court this
morning and has informed me that he
has no instructions with regard to this
matter. The respondents, therefore, to
this appeal have not been represented
before me.
Appeal allowed.
* A. I. R. 1926 Patna 160
MULLICK, AC, C. J. AND KULWANT
SAHAY, J.
Jofiendra, Prasad Narayaii Sin7ia— —
Defendant — Appellant,
v.
Manyal Prasad Sahn — Plaintiff — Res-
pondent.
Misc. Appeal No. 188 of 1924, Decided
on 24th July 1925, from an order of the
Sub-J., Muzafferpur, D/- 2nd August 1924.
(a) Limitation Act, Art. 182— Application ttwugh
In accordance with law nay be defective for some
other reason.
An application may be in accordance with law
and yet tho applicant may not be entitled to any
relief on account of circumstances other than there
being any defect in the application itself.
[P 161 C 2]
(6) Limitation Act, Art. IB2— Rules 11-14 of
O. 21 compiled with — Application Is in accordance
with law.
An application is one made in accordance with
law if the particulars required by 0. 21, Rr. 11 to
14 of the Civil P. C. are supplied ; A. I. R. 1924
Patna 23, Poll [P 161 0 2]
%: (c) Limitation Act, Art. 182— Is-sw^ of notice
under 0. 21, R. 22, is stcp-ln-aid though the appli-
cation f <! not in accordance with law.
Even if an application for execution be not one
in accordance with law a notice issued under 0. 21,
R. 22, upon that application would be a step which
would give a fresh start lor limitation : 25 Cat. 594
(F. B.) and 15 All. 84 (F. B.), Pel on. [P 163 C 1]
JanakKisliorc and A. P. Upadhya — fo*
Appellant.
K. P. Jayaswal, C. J. Bannerjit fif. M.
Gupta. S. K. Gupta, S. K. Mitra and
M. C. Dntl—ioT Bespondent.
1928
JOGENDSA v. MANGAL PRASAD (Kulwant Sah*yt J.), Patna 161
Kulwant Sahay, J. — This is an ap-
peal by the judgment-debtors against an
order of the Subordinate Judge of
Muzaffarpur dismissing their objection to
the execution of a desrea on the ground
of limitation.
The decree which wa^ a mortgage-decree
was passed on the 25bh January 1918 in
favour of two brothers Gauri Prasad and
Mangal Prasad and on the 25th January
1921 an application was made for exe-
cution1 of the decree by Mangal Prasad
alone on the allegation that by a parti-
tion between the two brothers Mangal
Prasad was entitled to the entire amount
covered by the decree. Notice of this
application was given to the judgment-
debtors who filed an objection on the
ground that Mangal Prasad alone was not
entitled to execute the whole decree.
The learned Subordinate Judge, it ap-
pears, ultimately allowed the objection.
He held rthat under a private partition
between the parties Mangal Prasad was
entitled to only one-third of the amount
covered by the decree, and that the re-
maining two-thirds had been allotted
. to his minor sons who were living under
the guardianship of their mother.
This objection was allowed by the
Subordinate Judge on the 5th September
1923. On the 10th September 1923
Mangal Prasad applied to the Executing
Court to strike off the execution case
saying that he would file a fresh appli-
cation in continuation of -tho first appli-
cation and the execution case was struck
off on the 20th September 1923.
The present application was then filed
on the 21st September 1923 by Mangal
Prasad and his two minor sons. Objection
has been taken to this application by the
judgment-debtors on the ground that the
present application cannot be treated as
a continuation of the first application and
if it be treated as a fresh application then
it is barred by limitation.
The learned Subordinate Judge has
disallowed this objection holding that the
present application must be treated as
one in continuation of the first applica-
tion. He has also held that the first
aflpfclioation, was an application in accor-
dance with law and that, therefore, the
present application which was filed with-
in three years from the first application
was also within time. He further found
that limitation was saved by reason of
fche explanation to Art. 182 of the Limi-
1926 P/21 & 22
tafcion Aot inasmuch as as an application
by any one of joint decree holders shall
take effect in favour of all of them. He
accordingly disallowed the objection of
the judgment-debtors and they have come
up in appeal to this Court.
In my opinion, the decision of the learn-
ed Subordinate Judge appears to be
correct. The first application which was
filed on the 25th January 19il must be
treated as an application in accordance
with law. It fulfils all the requirements
of 0. 21, Br. 11 to 14 of the Civil P. C.
It has deen contended on behalf of the
judgment-debtors that this application
was dismissed on the ground that it was-
not an application upon which any relief
could be granted to the decree- holders and]
that, therefore, it could not be treated as-
an application in accordance with law,
but an application may bo in accordance
with law and yet the applicant may not
bo entitled to any relief on account of
circumstances other than thore boing any
defect in the application itself. It has
been held in Bhagwat Prashad Singh v.
Dwcirakct Prosad Sinyh (l) that under
Art. 182, 01. (5) of tho Limitation Act, an
application is one made in accordance
with law if the particulars required by
O. 21, Rr. 11 to 14 of the Civil. P. C. are
supplied. In the present case, we find
that all the particulars required to bo
stated in an application for execution
by Rr. 11 to 14 of 0. 21 had been given
in the first application. The 'application
of the 25th January 1921 must, therefore,
be treated as an application made in ac-
cordance with law.
The present application, which was filed
on tho 21st September 1923 was admit-
tedly within three years of tho first appli-
cation and, was, therefore, within time.
Furthermore it appears that on the first
application an order had been made for
issue of ^iotice under 0. 21, R. 22.
Under 01. (6) of Art. 182 a fresh period
of limitation began to run from date of
the issue of that notice. That notice was
issued on 23rd May 1921 and, therefore,
the issue of the notice also saves' the pres-
ent application from limitation.
Even if it be contended that the first
application was not in accordance with
law the issue of the notice would give a
fresh start for limitation. In Gopal
Chunder Manna v. Cfosain Das Kalay (2),
(1) A. I. E. 1924 Patna 23.
(2) [1898] 25 Cal. 594=2 C. W. N. 556 (P. B.).
162 Patna
SUBEDAB v. BAMBILAS (Boss, J.)
1926
a Full Bench of the Calcutta High Court
held that even if the application for exe-
cution he not one in accordance with law
-a notice issued under 0. 21, B. 22 upon
that application would he a step which
would give a fresh start for limitation.
The same view was taken hy a Full
Bench of the Allahabad High Court in
Dhonkal Si/if/h v. PhaJckar Singh (3). In
this view of the case it is not necessary to
consider whether the present application
can be taken to be one in continuation
of the first, application. Mr. Jayaswal,
who appears for the respondent has not
laid any stress upon this point and it is
not necessary to consider it.
In my opinion, there is no substance in
the appeal and it must be dismissed with
•costs.
Mullick, Ag. C. J. — I agree.
Appeal dismissed.
" (3) [1B93J 15 All. 84— 1893 A.' W, NT36\FrB).
A I R 1926 Patna 162
D.VS AND BOSS, JJ.
Subtdar Jlai and another — Defendants
— Appellants.
v.
Rambilas llai and others — Plaintiffs
and Defendants — Respondents.
Appeal No. 1062 of 1922, Decided on
2nd June 1925, from tho appellate decree
of the Dist. J., Hhahabad, D/- 22nd May
1022.
Bengal Estates Partition Act, S. 119 Partition
proceedings are not binding on fininrr-]i»fder even
though hi1 h (me of tlie proprietors.
If, in the course of :t partition proceeding any
quention ariHCH aw to tlio extent or otherwise of tho
tenure, as the tenure-holder is not in general a
party to the proceedings, he IK not affected in any
manner by the decision which may be arrived at
by the revenue authorities for the purposes of par-
tition between the proprietors. Even if therefore
the tenure is set up by a person who is also a pro-
prietor, and i* a party to the proceedings, it would
be unreasonable to hold that a party who has ap-
peared before the revenue authorities in his char-
acter as a proprietor, should bo finally concluded
by a decision upon a question of title, which would
not have been binding upon him if he had been a
stranger to the proceedings. 87 Cal Gf>2 Foil ; and
16 C. W. N. 639, Ref. [P 163, 0 1]
Sultan Ahmed and Manohar Lai — for
Appellants.
S. 3d. Mulliclc and P. K. Mukl\erji—tor
.Bespondents.
Rof«, J.— The plaintiffs brought
suit on the allegation that 25 bigbas of
land was their ancestral guzashta kashfc'
from before the time when in 1909 their
ancestor acquired a half-anna share in the
proprietary interest in the village. In
certain partition proceedings the Deputy
Collector recorded this land as the plain-
tiffs'kasht land ; but on appeal the Col-,
lector ordered that the land should be
recorded in the khasra as zerait and the
partition was made accordingly. The
plaintiffs claimed a declaration that the
land was their kasht land and possession
and mesne profits. The defence was that
the land was zerait and that the suit was
barred by tho provisions of the Estates
Partition Act.
The learned Subordinate Judge held
that the plaintiffs had failed to prove
their title ; and, further, that S. 119 of
tho Estates Partition Act barred the suit.
The learned District Judge reversed both
these findings. Ho held that the plain-
tiffs ha.l proved that they had possessed
this land as raiyats at least since 1899
and that they had acquired tho status of
occupancy raiyats in the land. With
regard to S. 119 he was of opinion that
as the order in the partition case which
was contested in this suit was made under
Chapter VI of the Act, S. 119 had no appli-
cation, and that there was nothing in the
Act that barred the suit which was in-
stituted by the plaintiffs in their capa-
city of raiyats. The defendants have
appealed.
With regard to the first finding it was
contended by tho learned Counsel for the
appellants that inasmuch as the land
was under water up to 1908, it was im-
possible that the plaintiffs could have ac-
quired occupancy rights in the same.
Now there is only one piece of evidence
which refers to the land being under
water, as appears from the judgment of
the Subordinate Judge, viz., Ex. A, a
written statement by the mortgagee in a
suit for redemption. The learned District
Judge has dealt with this evidence and
has held that a recital of this kind is of
no value as evidence of fact. He was en-
titled to hold that opinion and in that
view no objection0 can be talcen to his
finding of fact as to the status of the
plaintiffs.
The substantial question in the appeal
is as to the effect of S. 119 of the Estates
Partition Act. Two cases were referred
1926
SUBEDAR v. BAMBILAS (Boss, J.)
Patna 163
•to by tji$ learned counsel for tho appel-
lants : 'Chaudhary Kesari Sahai Singh v.
Hitnarayan .Singh (l) ; and Anil Kumar
Biswas v. Bash Nolian Salia (2). Neither
•of these cases deals with an order under
Chapter VI. They were both cases bet-
ween proprietors and the substance of
*$he partition was directly in issue in
"both. S. 119 clearly barred the plaintiff's
•suit in both cases and these authorities
'throw no light on the present case where
'the plaintiffs are nob asserting any right
as proprietors but are claiming a raiyati
•right acquired long before they became
^proprietors. On the other hand in Janki
NatK Chowdhry v. AV// Naraiii Boy
<Ghoiodhry (3), the question was as to a
-xniras right held by one who was also a
.proprietor in the village. In that case
also it was argued that there had been a
-decision of the revenue authorities
^against the plaintiff as to the reality and
-extent of his tenure and that it was not
•open to him to have the matter re-agitated
in the civil Court. On this argument
liheir Lordships observed as follows : * No
iuthority has been shown in support of
bhis proposition. On the other hand,
there are obvious and weighty reasons
upon which sucli a contention ought to be
iverruled. It is manifest that if, in the
course of- a partition proceeding, under
Act VIII of 1876, any question arises as
to the extent or otherwise of the tenure,
as the tenure holder is not a party to the
proceedings, he is not affected in any
manner by the decision which miy be
arrived at by the revenue authorities for
the purposes of partition between the
proprietors. It is merely -an accident
that, in the case before us, the tenure is
set up by a person who is also a proprie-
tor and is a party to the proceedings in
bhat character. It would, in our opinion,
be unreasonable to hold that a party who
has appeared before the revenue authori-
ties in his character as a proprietor,
should be finally concluded by a decision
upon a question of title, which would not
have been binding upon him if he hacT
been a stranger to the proceedings."
This language applies precisely to the
present ca^e. Similarly in Lakhi Choum
•dhry v. A kloo Jha (4), the question was
^discussed with regard to an order passed
(1) [1920] 1 P. L. T. 507.
<2) A. I. R. 1924 Oal. 245.
(8) [1910J 37 Oal. 662=15 C. W. N. 46.
.<4) [1912] 16 C. W. N. 689.
under Chapter VI and their Lordships
said : "In thejsecond place »S. 119 of the
Estates Partition Act specifies the orders
of the revenue authorities which cannot
be questioned by a suit in any civil Court.
An order under S. 45 or S. 46 is not ouoof
the orders mentioned in S. 119. The
reason for the exclusion is obvious. The
determination by tho revenue authorities
is of a summary character and it cannot
be taken to conclude finally a question of
title between one of the proprietors and a
stranger to tho proceedings." The same
view has been taken in this Court in
Baldeo Sahi v. Brajiiaudan Sahi (5). A
partition deals with tho rights of proprie-
tors and, so far as raiyati lands are con-
cerned, they are only entitled to a distri-
bution of the rents. It could not have
been the intention of the Act that the
rights of tenant** should be conclusively
determined by the record of rights pro-
pared for the purpose of partition ; and
that this is so is clear from tho fact that
Chapter VI and S. Ill are not covered by
S. 119. There is, in my opinion, nothing
in that section to bar the presen . suit.
The learned Subordinate Judge was of
opinion that S. 119 must bar the suit
because the effect of decreeing the plain-
tiffs' suit would be to upset the whole
partition. In my opinion that is not w>.
8. 89 provides for the case of dispossession
of the proprietor of a separate estate by
a decree of a Court of competent jurisdic-
tion and enacts that in such case tho
partition shall not be disturbed, but such
proprietor shall be entitled to recover
from the proprietors of the other separate
estates formed by the partition such com*
pensation as may be Sair and equitable.
That section does not apply in terms to
the present case ; and there is no reason
why the principle should not be applica-
ble. If the value of the defendants' estate
is reduced by the declaration of tho
plaintiffs' raiyati right in this land, their
remedy, in my opinion, would be to seek
compensation from the other proprietors ;
but there is no ground in justice why the
fact that a partition has Keen made on
the basis that this land is proprietor's
land should debar, the raiyat from assert-
ing his raiyati right.
I would, therefore, dismiss this appeal
'with costs. As it appears that during the
pendency of the suit possession was deli"
(5) [191b] 3 P. L, W, 266= (1918) P. H.
164.
lf>4 Patna
SAGAR MULL v. HIRA MAHARAJ (Ross, J.)
1926
vered and the plaintiffs were dispossessed
the decree will entitle them to recover
possession with mesr.e profits.
Das, J. — I agree.
Appeal dismissed.
A. I. R. 1926 Patna 164
DAS AND Ross, JJ.
Sagar Mull — Defendant— Appellant.
v.
Him Maharaj and others — Plaintiffs
— Respondents,
Appeal No. 44 of 1920 and Civil Revi"
sion No. ^8 of 1925, Decided on 24th
June 1925, from the appellate decree of
the Dist. J., Monghyr, D/- 3rd November
1924.
(a) Civil P. C.t Sell. 12 para. 16— Appeal on
grounds other than thote in para. 16 is Incompe-
tent.
No ,'ippen) lies from an award on grounds other
than thosi' specified in para. 16 (2). [P. 165, C. 1]
(b) Appeal — Eight to second appeal — First ap-
pellate Court hearing appeal, u'tiere no appeal
lay — Second appeal lien.
Where no appeal lav to the lower appellate
Court, but an appeal wiib entertained and decided.
Held ; a second appeal lies to the High Court.
[P. 165, C. 1]
S. M. Mullick and N. N. Sen— tor Ap-
pellant.
Hasan Imam, N. C. Sinha, N. C. Ghosh
and Niamutullah — for Respondents.
Ross, J. — This is an appeal against an
order of the learned District Judge of
Monghyr reversing a decision of the Mun-
sif and remanding the suit for trial on
the merits. The auit was brought by
Plaintiff No, 1, Hira Maharaj, and his
minor son against fche six defendants who
are said to be members of the Committee
of the Lakhisarai Gausala. The suit was
for specific performance of an agreement
for sale of a plot of land entered into by
the defendants with the Plaintiff No. 1
on the 18th erf December 1920. The par-
ties entered uito an agreement to refer
the matter to ' arbitration and a petition
was i presentd^ on behalf of the minor
plaintiff for leave to enter into this
agreement and permission was granted by
the Court. As the award was not sub-
mitted by the time limited by the Court,
after several adjournments had been
given, the arbitration was superseded on
the 27th of March 1921 and the case was
fixed for hearing for the 30th. On that
date another application was made by
Plaintiff No. 1 and the defendants to>
refer the suit again to arbitration. This-
was granted and the same arbitrators
were appointed and they submitted their
award on the following day.
The Munsif passed a decree in accord-
ance with the award and dismissed the-
suit. The learned District Judge held,
that the reference to arbitration was ille-
gal inasmuch as no permission was gran-
ted to the minor plaintiff to enter into-
the agreement by which the case was
submitted to the arbitrators- on the second
occasion. He therefore set aside the decree-
and remanded the suit for trial on the*
merits.
On behalf of the appellant, who is
Defendant No. 6, the contentions are :
first, that no appeal lay to the District
Judge ; secondly, that the question of per"
mission to the minor plaintiff did not
arise inasmuch as it was only Plaintiff
No. 1 who asked for relief ; thirdly, that
no permission was necessary because*
0. 32, B. 7, does not control para. 1 of
Sch. 2 to the Code ; and, lastly, that
even if permission was ordinarily neces-
sary, it was not necessary in this case a,s
Plaintiff No. 2 was joint with his father
the karta of the family, and was there-
fore represented by him.
On behalf of the respondents it is con-
tended in the first place that even if no-
appeal lay to the District Judge he has
passed a proper order such as the Court
would have passed on an application by the
plaintiff under S. 115 and, therefore, this
Court should not interfere ; secondly, that
the supersession of the arbitration on the
27th of March cancelled all the proceed-
ings in arbitration up to that date and it-
was necessary to obtain fresh permission,
for the minor plaintiff to enter into an
agreement to refer the suit to arbitrators;,
and thirdly, that permission was neces-
sary because 0. 32, B. 7, controls para. 1
ftt Sch. 2 ; and, therefore the reference to<
arbitration was without jurisdiction and
the order passed by the District Judge
was right.
. Now para. 15 ef Sch. 2 states the
grounds on which an award can beset
aside. These are for the trial Court to •
consider ; and the ground now taken fell
to be considered and was considered by
that Court and it was decided that the
award was not invalid on that ground..
1926
B. I. BY. CO. V. GOBARDHAN DASS
Patna 165
Under tpara. 16, therefore, the Court had
i,o pronounce judgment according to the
*ward and it did so. 01. (2) of that para-
graph states the grounds on which an
-appeal may be taken against such a decree
viz., that it is in excess of the award and
not in accordance with it. No such
ground was taken before the District
Judge and therefore no appeal lay. This
as plain on the language of the section itself
-•and the authorities are clear : Ghulam
Khan v. Muhammad Hassan (l), Lutawan
v. Lachya (2) and Khudi Ram Mahto v.
Ohandi Charan hahto (3). The case
which the learned District Judge has
relied upon, Denoddal Pakrasi v. Pran
Chandra Pakrasi (4) was decided in 1898
tinder the old Code and before the deci-
sion of the Judicial Committee and is no
longer law. The learned counsel for the
respondents did nofc attempt to support
ihis part of the judgment and conceded
that no appeal lay to the District Judge.
But as the District Judge entertained and
decided the appeal there is a second appeal
to this Court. That second appeal
must be decided according to law and the
judgment of the District Judge must be
set aside.
As to the contention of the respondents
that this Court should nofc interfere when
* proper order has been made, this argu-
ment can be raised only in answer to an
.application for the exercise of the revi-
sional jurisdiction of the Court. This is
not the case here ; nor is there any appli-
cation by the respondents against the
order of the Munsif ; consequently this
point does not arise. Moreover, even if it
<iid arise, this contention could not suc-
ceed because it rests on a pure technica-
lity. 'Ehe defect is formal only, because
on the first reference to arbitration per-
mission was accorded to Plaintiff No. 2 ;
and there is no ground for supposing that
it would have been refused on the second
occasion.
But on the merits it is clear that the
appellant is entitled to succeed. I do not
propose to enter in the question whether
O. 32, R. 7, controls para. 1 of Sch. 2— a
•question on ^rhich there has been niucji
'difference of opinion ; nor need I discus's
jfehe argument that Plaintiff No. 1 repre-
,(1) [190*] 29 Cal, 167=29 I.A. 51^6 C.W.N.
2-26=12 M.LJ. 77=4 Bom. L.R. 161=8
Bar, 164 (P.O.).
«2) [1914] 36 All. 69=12 A.L.J. 57 (P. B.).
<8) [1916] 1 P.L.J. 305=2 P.L.W, 377.
<4) -[1911] 14 C.L.J. 143.
senfced Plaintiff No. 2 *K> as to make it un-
necessary for the Court to grant permis-
sion to Plaintiff No, 2 to agree to arbitra-
tion. But the plaint itself shows — and the
prayer is specific — that only Plaintiff
No. 1 prayed for judgment. No relief waa
sought for Plaintiff No. 2 and he was in
no way interested in the suit. The agree-
ment of which specific performance was
sought was entered into by the defen-
dants with the Plaintiff No. 1 and he
alone was entitled to enforce it.
On every ground I am of opinion that the
decision of the learned District Judge is
wrong and must be set aside. The appeal
is therefore decreed with costs throughout
and the decree of the District Judge is set
aside and that of the Munsif is restored.
The application in revision is dismis-
sed.
Das, J.~- 1 agree.
Appeal allowed.
# A I R 1926 Patna 165
MUXLTCK, AG. C. J., AND KULWANT
SAHAY, J.
East Indian Railwiy Co. — Defendant
— Appellant.
v.
Cfobardhan Das— Plaintiff — Respondent.
Second Appeal No. 393 of 1923, De-
cided on 22nd July 1925, from a decision
of the Bub.-J., Ranchi, D/- 20th January
1923.
>$C (a) Railway? Act, S. 72— flhfc note B—
Consignor pleading fam tn himself — Railway need
not plead loss to them but may simply plead the
risk note.
10 order to make the risk note applicable it is
sufficient that the plaintiff-consignor pleads Ions
to himself. It is not necsnsary for the defendant
Railway to give evidence that the goods have been
lost to him also. Therefore if the plaintiff admitn
the loss then all that the defendant has to do in
the written statement is to plead the contract. Ha
is not required to bring any evidence to support
his plea. If the plaintiff is astute to plead not
loss but only non-delivery, even in that case tho
defendant need only plead the contract and ho
will be relieved from the duty of calling evidence :
A. I. R. 1923 Patna 285, Foil ; 45 Bom. 1201 not
Foil. A. I. R. 1924 Patna 25 and A. L R. 1924
Cal 725, Dlst. [P. 166, C. 1, 2]
ifc (b) Railways Act, S. 72 — Risk note B—
\Vllful neglect means deliberately doing or abstain-
ing from doing an act which the party is bound to
do.
" Neglect " means the omission to perform a
duty and implies that a man does something
which ought either to be done in a different man-
1G6 Patna
B. I. RY. Co. v. GOBARDHAN DAS (Mullick, Ag. C. J.)
ncr or not at all. or tliat he omits to do something
which ought to be done. But wilful neglect gees
Jar beyond this and implies that the party knew
that, he should do a particular act and that he
deliberately abstained frcm doing it. There may
bo r;aseh where neglect may be deliberate and yet
not, wilful an for instance when the act is not that
pt ft free agent. Apart frcm such cases it may be ,
psiid that every omission is wilful because everyone
rmi fit be pro-limed to have intended the ordinary
ooDBequonce nf his act. But the mere presump-
tion of law for the purpcse of fixing responsibility
is riot sufficient. . [P 167 C 1 & 2]
N. C. ftinlia and N. C. Ghosh— for Ap-
pellant.
S. Dayal—tor Kespondent.
Mullick, Ag. C. J.—On the 2*tb Feb-
ruary 1D21, the plaintiff consigned to the
defendant Company 25 bags of coriander
seed at Howrah and on the 20th Sep-
tember 1921, ho consigned 125 bags of
sugar at the Kidderpore Docks for delivery
at Giridili to himself. It is admitted by
the plaintiff that 16 bags of sugar and one
bag of coriander seed were lost and
the present claim is for Rs. 782 as dam-
ages.
The defendant set up a risk note in
form B arid declined to give any account
of what had become of the goods.
The Munsif decreed the suit and on ap-
poiJ the Subordinate Judge affirmed that
decree.
The present second appeal is 'preferred
by the defendant.
The solo question is whether the risk
note absolves the defendant from liability.
The Subordinate Judge thought that the
rink note did not apply because this was
a case not of loss but of non-delivery and
in his opinion a loss to the plaintiff is not
su flic lent and the defendant must give
proof of loss to himself. He relied on the
cane o! Chela Bhai Punsi v. E. I. By. Co.
(I). But it has been held in G. I. P. By.
Jo. v. 'Jitan Bam Nirmal Ham (2) that in
Ktler to make the risk note applicable it
IB sufficient that the plaintiff pleads loss
bo himself and that it is not necessary for
the defendant to give evidence that the
goods have been lost to him also. Refer-
9nc6 was made in that case to the judg-
ment of the House of Lords in Smith Ltd.
v. Great Western Bailway Company (.3)
and Ghela Bhai's case (l) was dissented,
from* The same view has been taken
m other cases in this Court and I think we
must follow the cursus citriae.
Tlf fli)21J 4T
(2) A.l.R. 1923 Patna 285.
(3) [mi] TJR., 2 K.B., 237.
Our attention has been drawn to East
Indian Baihvay Company v. Sukkdeo Das
and Gobardhan Das (4) where a 'learned
Judge of this Court sitting alone held that
the risk note did not apply because the
defendant had not pleaded loss within the
meaning of the special contract. It would-
seem that the decision in that case turned
upon the special language used in the
written statement. But the G. /. P. By.
Co. v. Jitan Bam Nirmal Bam (2) ^ is
quite clear and lays down the following,
rules (l) : where a contract contains an
exception and a proviso the party who
desires to take the benefit of the exception
must (if the contract requires it) not only
plead the exception but , prove it, and
when that has been done the other party
who desires to take the benefit of the pro-
viso, which is in reality -an extrinsic co^
venant by way of defeasance, must prove
that the subject-matter is riot within the
exception ; (2) upon the special contract
.in risk note B the burden of proof lies in
the first instance upon the defendant to-
show that there was such loss as is con-
templated by the risk note and the onus
is then shifted upon the plaintiff to show.
that the loss was due to the wilful neg->
lect of the defendant.
Therefore if the plaintiff admits the
loss, then all that the defendant has to do
in his written statemeiit is to plead the
contract. He is not repuired to bring any
evidence to support his plea. If, as is
frequently the case, the plaintiff is astute
to plead not loss but only non-delivery,
even in that case the defendant need only
plead the contract and he will be relieved
from the duty of calling evidence.
The question really turns upon the con-
struction of the risk-note. Does it intend
that loss to the plahltiff only will be
sufficient to bring it into operation or
does it intend otherwise ? In my opinion
'the answer is that the decision in 6. I. P.
By. Co. v. Jitan 'Bam Nirmal Bam (2)
was correct and the contract requires that
loss to the plaintiff is sufficient to brirfg
it into operation. If the goods are being
wrongfully withheld by the Railway
: Company and have not been lost to them,
I see no hardship, to the plaintiff in oorr
' st ruing the risk note to cover such a cage
The plaintiff would then *be entitled tc
an immediate decree on the gvou»d that
the goods have been lost to him by reasor
of the wilful neglect of the defendant t(
(4) A.I.R. 1024 Pat. 25.
1926
B. I. BY. Co. v! GOBARDHAN DAS (Mullick, Ag. 0, J.) Patafc 167
deliver. tlf the defendant has good grounds
for detailing the goods he must prove
them. Therefore, in my opinion, the
learned Subordinate Judge's finding that
the failure of the defendant to give any
account of the disappearance of the goods
proves that the goods have not been lost
within the meaning of the risk note can-
not be supported, and the risk note also
applies where the plaintiff only pleads
non-delivery. In truth, in most cases the
real object of asking the defendant to call
evidence of loss to himself is not to test
the correctness of the defendant's allega-
tion but to get by cross-examination some
evidence of wilful neglect so as to found a
claim under the proviso.
A contrary tvie\v has recently boon
taken in the Calcutta High Court in the
Eatst Indian Railway Company v. Joy pat
Singh (5). In arriving at the conclusion
that loss to the plaintiff is not sufficient
the learnecl Judges m that case have relied
upon the; language of the English Carriers
Act of 1830 and the decision of Baron
Parke in Hearn v. London and South
Western Railway Company (6). 33ut my
respectful opinion is that the English
Carriers Act is not in pari materia with
the Indian Railways Act ; and having re-
gard to the fact that a carrier under the
English Act is an insurer which a railway
sompany in India is not, I do not think
we are compelled to give the word " loss"
the same meaning here as in the Carriers
Act.
If .then the risk note applies is the
plaintiff t entitled to succeed on the ground
of wilful neglect on the part of the Bail-
way ? The learned Subordinate Judge's
judgment on this point is as follows :
* The position of the plaintiffs was such
that it was not possible for them to make
anything more than a general statement
of the factj of negligence as inferred from
all the circumstanqes. And they are not
to blam$ if they have not been able to
make out by, means of qross;examination
the specific acts of negligence because the
avaiJftWe evidence on the questjipn of loss
has not beep placed before the Court." If
that j& . ,tjhe position, I cannot see upon
\yhat evidence the learned Subordinate
Judge comes, to the finding that tl^ere has
been w^fl], ,peglecfc, ' Neglect" means the
omission,^ perform a <(duty and implies
that a man,. does something which ought
(5) AII.&, m*tQal.. m~~~
(0) [W5«] 10 Ex. 793.
either to be done in a different manner or
not at all, or that he omits to do some-
thing which ought to be done. Here the
defendant's duty was that of a bailee,
namely, to take such care of the goods as
a prudent man would have taken of his
own goods. The degree of care required
depends on the circumstances of each case,
The plaintiff must show that the defen-
dant did something which a prudent man
in his circumstances, and having regard to
the previous course of dealing, would
not have done. There is no such evidence.
The defendant in cross-examining one
of the plaintiff's witnesses suggested that
he thr pin i id iff had, as a matter of fact*
•' v-kod t.ho \\.igons \vith his own locks, but
shit \vu.s denied. The learned Subordi-
nate Judge does not mid that it was the
defendant's duty to bupply locks to the
wagons and there is no evidence that th&
defendant did not take that care which
he would ordinarily take of his own goods.
or of the goods of his other 'consignors in
transit.
Then the learned. Subordinate Judge
says that if the goods were stolen before
they wore loaded there must have been
neglect. That docs not follow. He also
says that if they were delivered to a
wrong party there must have been neglect.
There is no proof that they were delivered
to a wrong party.
There is, therefore, no legal evidence of
neglect at all,
But wilful neglect goes far beyond this
and implies that the defendant knew that
he should do a particular act and that he
deliberately abstained from doing it.
There may be cases where neglect may be
deliberate and yet not wilful, as for in-
stance when the act is not that of a free
agent. Apart from such cases it may be
said that every omission is wilful because
everyone must be presumed to h#ve in-
tended the ordinary consequence «of his
act. But the mere presumption of law
for the purpose of fixing responsibility is
not sufficient The plaintiff must show
that the neglect was not accidental and
that the person knew that mischief would
result from his conduct or that there was
an indifference to his duty to ascertain
whether such conduct was mischievous or
not. Jn Lewis v. Great Western Railway
Company (7) the questic-n was whether
there had been wilful misconduct in
(7) .
T..T 17! 2". \\.C. 250.
1€6 Patna
TUNIA v. EMPEROa (Bucknill, Jj
1926
packing certain cheeses in London and
Lord Justice Bramweli expressed himself
on the subject as follows : '' I cannot,
however, say that there was evidence
here to show that the packers who were
in London, wh^u ' -i great place for
the exporta . . .,*. ^neshire ^cheeses, knew
that they were doing wrong, or at all
•events that they were aware that there
might he mischief resulting from it, and
that they improperly did not inform
themselves as to whether there would be,
or would not be, mischief resulting."
In my opinion there was no legal evi-
dence of wilful neglect here and therefore
the plaintiff is not competent to suc-
ceed.
The result is that the appeal will be
decreed with costs throughout.
Kul want Sahay, J.— I agree.
Appeal allowed.
* A. I. R. 1926 Patna 168
BUCKNILL AND Boss, JJ.
Tunia — Petitioner .
v.
Emperor — Opposite Party.
Criminal Kevision No. 296 of 1925,
Decided on 23rd July 1925, from an order
of the S.-Juclge, Arrah, D/- 1st June
1925.
5{C Penal Code, S. 193—OIr Ing fake answers to
questions which should not have been a«ked but
were a*1wd — Per jury* Is committed but sentence
should be light.
If one answers questions put to one in a judicial
•proceeding when one has pworn to tell the truth
and if one's answers are not true, one commits
perjury, whether those questions which one
answers are not questions which should have
been or could have been properly asked. The
sentence, however, in such cases should not ba
very severe. [P 169 C 1]
P. C. Roy— tor Petitioner.
Niamatulla — for Opposite Party.
Bucknill, J.— -This was an application
made in criminal revisional jurisdiction.
It was made by one Mt. Tunia, a young
woman, who was convicted by a Magis-
trate of the First Class at Arrah of an
offence punishable under the provisions
of 8. 193 of the Indian Penal Code, that
1 is to say, with having committed perjury
in the course of a judicial proceeding.
She was sentenced to undergo rigorous
imprisonment for six months and to pay
a fine of Bs. 200, and in default of pay-
ment thereof, to serve a further term of
two months' rigorous imprisonment,
From her conviction- and sentence the
applicant appealed to the Sessions Judge
of Shahabad ; but on the 1st of June last
the appeal was dismissed summarily.
The circumstances which have tsd up
to the prosecution of this woman and her
conviction are certainly somewhat pecu-
liar. It would seem that at the end of
July last year a burglary took place ni
the house of a lady residing in the tow n
of Arrah. A man named Tara Prasad,
who is in the employment of this lady,
reported the burglary to the Police ; and
upon being asked whether he had any
suspicion as to by whom the offence had
been committed, he is said to have replied
that he thought that it was not impro-
bable that one Ramsakal Singh of Gonouli
might have been concerned in the matter.
£[e added that this Eamsakal Singh lived
in the same mahalla where the burglary
had been perpetrated, that his (Ram-
sakal's) uncle was on bad terms with the
lady whose house had been broken into
and that Ramsakal himself was the asso-
ciate of evil persons.
As a result of what had taken place at
the police station, it would seem that, on
the 27th of August last, this Ramsakal in-
stituted proceedings against Tara Prasad
charging him with having committed an
offence punishable under the provisions
of S. 500 of the Indian Penal Code that
is to say, with having committed defama-
tion. Tara Prasad was put on his trial ;
we are informed at the Bar that he was
eventually acquitted. What defences he
put forward I do not know ; but it would
seem that, amongst them, must have
been one which contemplated some plea
in the nature of justification, for he
called as a witness in the defence the
applicant here. So far as I can gather
his object in calling this woman was to
show that she was a woman of easy
virtue and had been the kept mistress of
the man Ramsakal Singh, and I suppose
that it would have been urged that
if it could have been shown that Bam-
sakal Singh had kept company with a
woman of ill-repute, the suggestion made
by Tara Prasad in the statement which
he made to , the police, when reporting
the burglary, that Ramsakal was the assor
1926
v. EMPEROR (Bucknill, J.)
Patna 169
t e of evil companions might have been
d in some measure to he justifiable.
Now, when the applicant was put into
the witness-box, she does not appear to
have realized that it was in no way in-
cumbent upon her to answer any ques-
tions which might have reflected upon
Tier own probity or virtue and it is some-
what remarkable to notice that no
attempt at protecting her from having to
ireply to questions of that nature appears
i>o have been offered to her by the officer
^who was trying the case. On fche other
Tiand it would seem that she was interro-
gated very fully as to her morality and
^s to her immoral association with Ram-
•sakal Singh ; how such a proceeding could
have been allowed unless she had been
*(which she was obviously not) willing to
assist Tara Prasad by blackening her own
•character, it is difficult to understand.
However, the fact remains that she was
asked a variety of questions of the char-
acter which I have mentioned and that
she answered in a manner protective of
her own character. There is, however,
not the least doubfc that a number of her
answers were not true ; she had been put
upon her oath and it is, of course, need-
less for me to point out that if one
answers questions put to one in a judicial
proceeding when one has sworn to tell
the truth and if one's answers are not
true, one commits perjury, whether those
questions which one answers are^not ques-
tons which should have been or could,
have been properly asked. After the
applicant had given her evidence which I
may point out was, of course, not in
favour of Tara Prasad, she was eventually
charged as I have mentioned above, tried,
convicted and sentenced. I think that it
must be admitted that the circumstances
were extremely difficult and painful for
the applicant, she was placed in an un-
enviable position and, -no •• doubt, was
completely ignorant of her right to refuse
to answer questions which would reflect
upon her ewn character and had the un-
pleasant alternative either of telling the
truth and admitting that she was a loose
woman, or as she did, of telling untruths
and melking herself out better than per-
haps she really was. •
It is,, however, I think, not unimport-
ant to observe the actual averments
-v/bich were made against her which
formed the basis of the charge of perjury
against her* Although it is true
that superficially some of these ^questions
do not appear in themselves to be such as
if answered truthfully would have
thrown any discredit upon the applicant's
character, yet, on further examination,
they will all be found to be connected
more or less closely with the illicit asso-
ciation which it was being attempted to
be proved had existed between the appli-
cant and Ramsakal Singh. The first
untrue statement which she is alleged to
have made is that she did not know this
man at all. There can be no doubt from
the evidence of at least six witnesses and
from documentary evidence as well that
this was not true. The second statement
was that she had never stated that Ram-
sakal Singh, this particular individual,
used to visit her frequently. This again
was, undoubtedly, not a true statement.
The statement in which she is,
alleged to have perjured herself-
was that she denied that the per-
son named Ramsakal against whom
and herself a woman named Dularia in
1923 had brought some criminal proceed-
ing was the same Ramsakal as that con-
cerned in the case which was being,
brought against Tara Prasad. Again
there can be no doubt that this statement
was not true. The fourth question which
she is said to have answered untruthfully
was that she denied that when her house
had been entered for the purpose of exe-
cuting some legal purposes Ramsakal had
been found there in her company. This,
however, again was undoubtedly shown
to be a falsehood. The fifth and the last
answer which she is said to have made
falsely is the point blank avowal that she
was not the mistress of this Ramsakal.
The Magistrate has stated that the evi-
dence of all the witnesses for the defence
and indeed of the main prosecution wit-
nesses shows that this statement was, as
he terms it, " a deliberate* lie." There
can, therefore be no doubt whatever that
this woman in the witness-box made
statements which were untrue, and
which she knew to be untrue. There
are however, obviously reasons for coming
to the conclusion that her position was
allowed to be one which it ought not to
have been allowed to be. I think that
she ought to have been informed that it
was in no way incumbent upon her to
reply to questions her answers to which
might, if true, have reflected upon her
moral character.
170 Patna
THAKUR SAO v. ABDUL Aziz (Mullick, J.)
192S
Under these circumstances, although
there undoubtedly has been a commission
of the offence to which I have referred it
seems to me that the sentence is alto-
gether too severe. We are informed by
the learned advocate who appears for
the applicant that the applicant has
already served 21 days in jail.
I am satisfied, in my own mind,
that this is an ample punishment for the
offence committed under the remarkable
circumstances to which I have drawn
attention. Whilst, therefore, affirming the
conviction, the sentence of imprisonment
which was passed upon the applicant will
be reduced to that period of imprison-
ment which she has already served. The
fine of Bs. 200 will be remitted and if it
has already been paid it must be refunded
Ross, J.— I agree.
Sentence reduced.
* A. I. R. 1926 Patna 170
MULLICK AND, Ross, JJ.
Thakur Sao and others— Petitioners.
v.
Abdul Aziz — Opposite Party.
Criminal Revisions Nos. »">H and 59 of
1925, Decided on 7th May 1925, from an
order of the Dist. Mag., Patna.
^C (a) Criminal P. CM #. rMl—Only irlicn denial
of right ts a pretence Magistrate can indite order
absolute.
The first duty of a Magistrate in a case under
S. 186 is to determine whether any public right
uxista, and if the party against whom proceedings
have been taken denies that there is any public
right, the Magistrate has to determine whether
that denial is bona fide or a mere pretence. Only
when he is satisfied that the denial is a mere
pretence can he proceed to make his prder
absolute. If he finds that the Denial is bona fide,
his jurisdiction is ousted and ho has no authority
to enquire further. The Magistrate is not en-
titled to demand < that the evidence shall be
sufficient to satisfy him that no public right
exists. The only condition is that upon the
materials before him the Magistrate must have
no reason to think the evidence false. The Magis-
trate has* no jurisdiction to weigh the evidence
and to determine, on which side the balance
leans.,, , , [P 171, 0 1]
* ($) Criminal P. C., S. 189-4 CD—Beliable evi-
dence supporting denied of right ousts jurisdic-
tion. ' ''
' The intent of S. 130- A 12) U that ' the Magis-
trate should neither encroach on 'the jurisdiction
of the citil Court 'which alone can determine
the existence of such a public rigfct as i$ *$forr$d
to, nor fail to exercise his own jurisdiction. The
criterion is that he should find evidence to sup-
port the denial which he can pronounce reliable*
That is necessary and it is sufficient to oust his
jurisdiction. [P 171, C a]
K. B. Dutt, S. P. Verma, Manohar Lai
and'/S. N. Sahay — for Petitioners.
Sultan Ahmad, Muhammad Hasan Jan,
Falcr'ud'din nnd Ahmad JRaza — for
Opposite Party.
Mullick, J.- -A dispute having arisen
between the Hindus and Muhammadans
residing within the cantonment of Dina-
pur regarding the use of a ghat on the
riyer Sone, the Sub-Divisional Magistrate
of Dinapore on the 14th January last is-
sued two orders which form the subject
of the present applications before us.
One of these orders declares the "ghat11
to be public and purports to have been
made under S. 139- A, Criminal P. C. The
Magistrate ha.d issued a notice under
S. 135 of the Code calling upon Deonarain
Pande, the priest of the temples, to show
cause why he should not remove certain
enclosures and a signboard indicating
that it was private property. The other
order was made under S. 144 of the Code
and prohibited six of the leading Hindus
from restraining the Muhanmiadans from
using the ghat.
It appears that the bank down fco the-
water of the river is the property of Gov-
ernment and that 40 or £0 years ago a.
Hindu resident of the locality obtained
permission to erect two or three temples
on the bank and to construct a flight of
steps for the use of bathers.
The ease of the Hindu is that they
have acquired an exclusive right to use-
the steps and that the Muhammadans are;
not entitled to use the same as of right.
The learned Magistrate proceeded to
hold an inquiry under S. 139- A of the
Criminal P. C. as to Deonarain's claim,
that the ghat was private property andi
as to his denial that there existed any
public right in respect thereof, he took
the evidence of five Hindus and of a
number of Muhammadans, and the con-
clusion to which he came was that the
Hindu witnesses though reliable were-
mistaken in imagining that there was no
'public right.
Now it is contended that the law does
not give the Magistrate the power to find
whether in fact the denial is true or false
, and as soon as a bona fide dispute has
been made out, the Magistrate must hold
1926
GOSWAMI LALOO v. RADSEY LAL
Fatna 17X
his hand and refer the parties to the
civil1 Court.
The law, previous to the Code of 1923
as expanded in judicial decisions, was
that as soon as the party cited appeared
before him the Magistrate's first duty in
a case under S. 133 of the Code was to
determine whether any public right ex-
isted, if the party denied that there was
any public right, the Magistrate had to
determine whether that denial was bona
fide or mere pretence. Only when he
was satisfied that it was pretence could
he proceed to make the order absolute.
If, thowever, he found that the denial
was1 'bona fide, his jurisdiction was ousted
and he had no authority to enquire
further.
Now S. 139 of the present Code appears
merely to have confirmed this view of
the law and given statutory expression
to it. The section provides that if in
such inquiry the Magistrate finds that
there is any reliable evidence in support
of such denial, he shall stay the pro-
ceedings, until the matter of the existence
of such right has been decided by a com-
petent civil Court ; and if he finds that
there is no such evidence he shall pro-
ceed, as laid down in S. 137 or S. 138 an
'the case may require.
The law, therefore, requires first of 'all
that the party shall, appear before the
Magistrate and deny the existence of the
public right in question. Secondly, that
he shall produce son& reliable evidence,
and, thirdly, that' such evidence shall Be
legal evidence and 'shall support the
denial. If these three conditions are
satisfied, then the Magistrate's jurisdic-
tion ceases to exist.
Now it is contended that the Magistrate
is entitled to demand that the evidence
shall be sufficient to satisfy him that no
public right exists. The section, bow-
ever', requires evidence and rio't proof and
the only condition is tn at upon the mate-
rjals before him the Magistrate has not
reason to think the evidence false. The
Magistrate has , Jib jurisdiction to weigh
fcne evidence anil tp determine on which
side the balance leans. '
Moreover, there wa$ evidence which, if
believed,, s^pporte^ the ^ckim.made by
the petitioners. It is pot, disputed that the
witnesses are thoroughly honest in what
they say ; but the Magistrate says that
they are mistaken in thinking that the
'ghat' is 'hot puhlic. that' is a matter'*'
the civil Court and, in my oj.inion,
Magistrate has no jurisdiction to inquire
any further into the actual existence of
the public right claimed by ti:e Muhanr
madans.
In this view of the .case the order of
the learned Magistrate of the 14th Janu-
ary 1925, will be set aside and he will
be directed to stay all further proceedings
in the case. The order under S. 144, Cri-
minal P. C., has spent its force and no
orders ate required in respect of it.
Ross, J. — I agree. It seems to me
that the intent of S. 139-A (2) is that the
Magistrate should neither encroach on
the jurisdiction of the civil Court which
alone can determine the existence of such
a public right as is referred to, nor fail to
exercise his own jurisdiction. The cri-
terion is that he should find evidence to
support the denial which lie can pro-
nounce reliable. That is necessary and it
is sufficient to oust his jurisdiction.
Order according //.
# A. I. R. 1926Patna 171
JWALA PKASAD AND ADAMI, JJ.
Gosiraiiri Lalor> Lai Sharma — Appel-
lant.
v.
liadhey Lai Gosicami and others —
'Respondents,
Miscellaneous Appeal No. 153 of 1924
Decided on 24th November 1924, for
staying the proceedings of the Court of
the Dist. J., Mathura.
% (a) Civil 1\C., R. 151-Jn./w«c'fcw against
person outside juried iction can be Issued V/ lie
has sulirittcd to jurisdiction — Injunction—Civil
1\ C., Ss. 10, 22 and 0, 39.
Although a Court will not issue any injunction
against a person not within its jurisdiction, yet
when t}wt person has submitted to. itt-
jurisdiction, the Court 'will in the ends of justice
restrain that party from, (Icing anything whiih it
considers is improper and will amount to an
fabu*e of the process of the Court..! £. ,Lf
T: WFoll IP 173, C I]
T. JV. &c(]\ay — for Appellant. ,!;, ,
K. P. ^Jayasival, G. #. MiMi eri
Ali and B. C. Do—for uespocdfcflfcs.
this is an , applibatlon to
172 Patna
GOSWAMI LALOO v. BADHEY LAL
1926
Administration with respect to the estate
of one Mohan Lai. The applicant in that
Court is Manu Lai, son of Kishori Lai,
•brother of Mohan Lai. The opposite
parties in that case are Laloo Lai, son of
Mohan Lai, Bad hey Lai Goswami and
others, sons of the daughter of Mohan
Lai. Previous to the institution of the
proceedings in the Mathura Court, Laloo
Lai had applied to the District Judge of
Patna for the grant of Letters of
Administration to the estate of Ms father
Mohan Lai. The application was^opposed
by the aforesaid Goswamis, the sons of
Mohan Lai's daughter. Manu Lai was
• also made a party and entered ap-
pearance, but afterwards ceased »to take
-any interest in the proceeding. That
application was made on • the 17th
'September 1923 and terminated in the
final order of the District Judge passed
on the 14th June 1924, by which the
application of Mariu Lai was refused.
Against that order Manu Lai has appealed
to this Court, and has now applied for an
ad interim stay of proceedings in the Court
at Mathura in the United Provinces,
pending the disposal of the appeal
here.
On the 7th of August 1924 an order
for ad interim stay of the proceedings
before the District Judge of Mathura was
made by this Court pending the disposal
of the present application. Now the
Applicant has come up before us for de-
termination ,asto whether the ad interim
injunction should continue pending the
disposal of the appeal or it should be
withdrawn.
The Goswamis, that is, the daughter's
-sons of Mohan Lai, have appeared
through Mr. Jayaswal. He supports the
application of Laloo Lai. Manu Lai,
who is the applicant in the Mathura
Oourt for the grant of Letters of Admini-
stration to him, however, opposes this
-application, He contends that the
application should be made in the Court
of the District Judge of Mathura for
«tay of proceedings under S. 10 of the
Civil Procedure Code, and that no
injunction should be issued against him
restraining him from proceeding with
his application in the Mathura Court. It
is admitted on all hands that the point
«,t issue, both in the appeal pending
l>efore us and in the proaeedings in the
Mathura Court, are one and the same.
The proceeding out of whioh the appeal
to this Court has arisen was started long
before the application made by Manu Lai
in the Mathura Court. Upon these
admitted facts the suit at Mathura cannot
proceed and the trial of that suit is
barred by S. 10 of the Code of Civil
Procedure. It is true that an application
for stay of proceedings under S. 10 of the
Code should have been made in the
Mathura Court. Upon the facts stated
by the parties an application for the grant
of Letters of Administration could be
instituted either at Patna or at Mathura
and as a matter of fact the proceedings
have been taken in both the Courts.
This circumstance brings the case within
S. 22 of the Code read with S. 23, and
the Court can determine in which of the
two Courts the proceedings shall proceed.
Manu Lai was made a party in the
proceedings before tho District Judge of
Patna and he entered appearance. No
objection was? however, made by him as
re^aids the proceedings instituted in the
Patna Court or that those proceedings
should have been stayed. He quietly
went to Mathura and instituted a fresh
proceeding and allowed the proceedings
at Patna to continue and to be dealt
with and determined by the District
Judge of Patna. He, therefore, submit:
ted to the jurisdiction of the Patna
Court. Having thus submitted to the
jurisdiction ot the Patna Court he cannot
frustrate the appeal in this Court by
simultaneously going on with his pro-
ceedings in the Mathura Court. It is,
therefore, to my mind, obvious that the
proceedings at Mathura should not go on
until the disposal of the litigation here.
The Code has carefully avoided the
chance of any clash in the decision of
two Courts either in the same High Court
or in different High Courts •with respect
to the same point at issue arisingjbetween
the same parties. When the suits and
proceedings are in the Courts subordinate
to the same High Court the matter does
not present any difficulty and can be
effectively dealt with by that High Court.
Difficulty, however, is felt in dealing with
such matters when they are pending in
Courts subordinate to two High Courts,
-for one High Cou?t has no control over
the Courts subordinate to another High
Court. To meet these difficulties the
Code has made provision in two sections,
viz. Ss. 10 and 22. These express provi-
sions are further fortified by the power
1926
SITARAM v. EMPEROU
Pattm 173
vested in the Court for issuing injunctions
against persons who are either within
the jurisdiction of the Court or have
submitted to its jurisdiction. Therefore
the provisions contained in Ss. 10 and 22
are supplemented by those contained in
0. 39 relating to injunctions and to
those which He in the inherent power of
the Court. It is certain that in the
circpmstances of the case the proceedings
in the Mathura Court should not go on
and be stayed.
The question of procedure then, to my
mind, will not at all stand in dealing
with the matter. Whereas under S. 10
the party should apply to the Court in
which the subsequent suit or proceeding
is instituted under S. 22 this Court has
jurisdiction to make an order that the
appeal in this Court shall proceed. This
order under S. 22 has the effect of stop-
ping the proceedings in the Mathura
Court. This has been the view arrived
at by me in the case of Firm Ram Kumar
Sheochand Bai v. Firm Tula Ram Nathu
Ram (l), and, although this Court will
not issue any injunction to Courts subor-
dinate to another High Court, yet the
order passed by this Court under S. 22 is
final ; and it will not be open to any
other Court in Iiidia to dispute 'it and to
allow suits and proceedings to proceed
in any other Court than that in which this
Court directs. Again, although the Court
will not issue any injunction against a
person not within • its jurisdiction, yet
when that person has submitted to the
jurisdiction, the Court will in the ends
of justice restrain that party from doing
anything which it considers is improper
and will amount to an abuse of the
process of the Court. The reason why
an injunction should not issue against a
person residing outside the jurisdiction of
the Court, is that an injunction on a
person if disobeyed cannot in that
circumstance be enforced, but a party to
a proceeding pending in this Court or
in Courts subordinate to this Court is
amenable to this Court. Manu Lai was
a party in the Court below and entered
appearance and did not object to the
jurisdiction of that Court and therefore;
he made himself liable in personam to
this Court, vide Amar Kumar Mukherjee
v, B. Coventry (2). Again, he is a respon-
(1)[1920]1 P. L. T. 277-U920) P. H. C, C.
sot*.
(2) A. I. K. 1925 Patna 710.
dent in this Court and. has entered
appearance. Therefore an injunction can
issue against him uestraining him from
proceeding .with the suit in the Mathura,
Court,
It has, however, been contended that
aniinjanction against Manu Lai will not at
all interfere with the Mathura Court and
that Court in spite of such an injunction
can continue the proceedings in that
Court. That, contingency may not be
apprehended. So long as Manu Lai is.
personally responsible to this Court an.
injunction against him, restraining him
from doing any act, is a sufficient check,
upon any proceeding being 'adopted by,
him in the Mathura Court.
The case, we are told, is not a compli-
cated one, nor is it a heavy case. Most of.
the papers are in English and will not be
required to be translated. The appellant
is ready to deposit the printing costs,
which has now been estimated by the
office for printing the paper-book.
Therefore the preparation of the paper
book can be expedited and so also the
bearing of the appeal. The ad interim.
order passed by this Court on the 7th
August 1924, should, therefore,
continue until" the disposal of the appeal,
the hearing of which is directed to bo
expedited. On behalf of Manu Lai an
undertaking has been given that he will;
not proceed with the proceedings in the
Mathura Court if the hearing in this
Court is expedited. In the circumstances.
there will be no order as to costs.
* A.I.R. 1926 Patna 173
MULLICK AND ROSS, JJ.
Sitaram Das — Petitioner.
v.
King-Emperor — Opposite Party.
Criminal Revision No. 82 of 1925, De-
cided on 14th May 1925, from a decision
of the S. JM Bhagalpur, D/- 19th Decem-
ber 1924.
# (a) General Police Act (5 of 1861), 6'. 30—
Section gives police power to control procession, but
not to forbid.
Section 30 of the Act gives the police power to
control processions. In order that this power
may be exercised the Act in certain circumstances
authorizes the police to require persons to apply
for licenses. The object of this is that adequate
arrangements for control may be made in time.
But the nolice have no power to forbid the issue
174Patna
SITAHAM v. KINO-EMPEROR (Mulick, J.)
192$
of a procession. Tin power to control does not
include the power to forbid. (P 174, C 2]
(6) General Police Act (5 of 1861) S. 8O—
I&ue of llcentes— Signing and giving for
delivery Is sufficient.
In the Act the word " issue " has not been de-
fined. ; but it signifies that, if the D. S. P. or
Aseistant D. 8. P, signs the licensa and delivers it
to some one with directions that it shall in due
course be delivered to the applicant, the license
has been issued within the moaning of 3. 30.
[P 174, C 2]
^ (c) General Police Act (5 of 1801), S. 30—
Once licence Is applied for, the applicant may
take out his procewlon.
On 03 an application is made in time the ap-
plicant is frea to tak3 out his procession whether
the license had by then bean issued or not. If
the liconHo has boen issued, he is bound to obay
the conditions whether it has beeii delivered or
not : if, on the other hand, it has not been issued
he is bound only to see that the general law
was not broken. [P 1T5, C 1J
S. N. Sdhay — for Petitioner.
'Assistant Uovt. Advocate — for the Op-
posite Party.
Mullick, J. — The petitioner has been
fined a sum of Es. 5 for committing an
offence under 8. 32 of the General police
Act (Act V of 1861).
It appears that in August 1923, the
Superintendent of Police of Bhagalpur,
acting under S. 30 of the General Police act
(Act V of 1861) issued a general notice on
the residents of certain quarters in the
town of Bhagalpur requiring that all
persons directing or promoting processions
should apply to him for a license. On
the "2 1st August 1924 the petitioner
applied for a license to take out a religions
procession. On the same day a license
was prepared and signed by the Deputy
Superintendent of Police, but on the
back of it an endorsement was made by a
police officer named Mr. Hare to the
following effect:
14 The petitioner must certify on the
application that he understands the pro-
visions under which the pass is issued.
This license will not be issued until this
ia done. "
The petitioner never came for his
lioenso nor was it sent to him ; but the
petitioher on the 23rd August took out
his procession. No disturbance took
place and in fact the local Sub-Inspector,
having learnt that the procession would
issue, deputed certain police officers to
accompany it.
The Deputy Magistrate, who tried the
case, sentenced the petitioner to a
fine of Bs. 75 but on appeal the Sessions
Judge reduced it to Bs., 5 holding that
the offence was technical.
In my opinion the petitioner has com-
mitted no offence at all. S. 30 of fche
Police Act gives the police power to con-
trol processions. In order that this
power may be exercised, the Act in
certain circumstances authorizes the
police to require persons to apply for
licenses. The object of this is that ade-
quate arrangements for control may be
made in time. Clause (3) of S. 30 gives
the police power to define the conditions
on which a procession shall be permitted
to take place. If any of these conditions
are broken, the offence is punishable
under S. 32. Similarly if there is a
failure to apply for license, there is a
violation of an order issued under S. 30
and, therefore, an offence punishable
tinder S. 32. But, so far as I can see the
police have no power to forbid the is-ue
of a procession. The power to control
does not include the power to forbid.
Section 30 does not prescribe how the
conditions of a license are to be made
known to the applicant ; but it is
implied, I think, that the application
shall bo made in sufficient time to permit
of the conditions being communicated to
the applicant. Ordinarily a day woulcl
bo fixed by the police for the applicant's
appearance to take the license or ar-
rangements would bo made by him for
its delivery to him or to his agent. If
the applicant chooses to take out his
procession after applying for his license
and without waiting to acquaint himself
with the conditions he does so at his
own risk provided the license has been
issued. In the Act the word " issue "
has not heen defined ; but, I take it that
it signifies that if the District Superin-
tendent or Assistant District Superin-
tendent of Police signs the license and
delivers it to some one with- directions
that it shall in due course be delivered
to the applicant the license has been
issued within the meaning of S. 30. In
the present case if Mr. Hare intended
tLat the issuing should not be complete
till the license was actually delivered to
the applicant in person, then the posi-
tion is that the petitioner applied in
time but did not wait for the issue of the
license. In that case also it cannot be
said that the petitioner has disobeyed
any order passed under S. 30. S. 30
required him to make an application in
KESHO PJJASAD v. EAM SWARUP (Ross, J.)
Patna 175
time and he made it. As I understand
the law ha was free to take out his pro-
cession on the 23rd Augu it whether the
license had by then been issued or not.
If the license had been issued, he was
bound to obey he conditions whether it
had been delivered or not ; if on the
other hand, it had not been issued he was
bound only to see that the general law
was not broken. The power of control
and dispersal given to the Police by the
Act was sufficient to secure the public
safety.
The learned counsel for the petitioner
has also brought to our notice that tho
-general notification in this case was
issued so long ago as August 1 923 and it
is urged that S. 30 of tho Act does not
-contemplate that prohibitory orders of
rfehis nature should remain in forco for
such long periods. There is no restric-
tion in the section itself, but it is obvious
that some revision of the term is from
time to time indicated with reference to
liocal conditions.
The result is that the conviction and
•the sentence are sot aside and it is
-directed that the fine, if paid, bo
/refunded.
Ross, J. — I agree.
Conviction set aside.
A. I. R. 1926 Patna 175
Boss, J.
Keslio Prasad Singh — Plaintiff — Appel-
lant.
v.
Bam Swarup A'liir and others — Defen-
dants— Respondents.
Appeal No. 9 of 1923, D oiflrd on 1st
July 1925, from the appelUuu decree of
the Sub-J., Arrah, D/- 18th September
1922.
Bengal Cess Act (1880), Ss. 41 and l(yi— Valua-
tion statement prepared under Hie Act—Status of
.tenant under Bengal Tenancy Act Is not affected—
Ctvll Courts cannot question the statements.
According to S. 107 what is done under the
Cess Act is done only for the purposes of that Act
and has no other effect on the rights of persons.
It does not in any way modify the conclusive,
effect given by S. 93 to the cess valuation. Iu'
determining the amount of cess payable the fact
that trhe tenants are recorded in the Record of
Eights as tenants at fixed rates is strictly irrele-
vant. The question is not as to the status of the
defendants under the Bengal Tenancy Act, but is
as to their status and liability for the purjfosea
of the Cehs Act \\hich under S. 41 must be deter-
mined according to the entries in the cess valua-
tion statement. The status of the defendants
under the Bengal Tenancy Act is in no way affec-
ted by this valuation which stands by itself and
the civil Courts have no jurisdiction to interfere
with it. [P. 176, 1, 2]
L. N. Singh — for Appellant.
P. Dayal — for Respondents.
Judgment. — This is an appeal from
a decree of the Subordinate Judge of
Arrah, varying a decree passed by the
Munsif of Buxar. The plaintiff is the ap-
pellant. He sued the defendants for rent
and cess for 1325 to 1328 and the only
question is as to the amount of cess legally
payable by the defendants.
The plaintiff's case was that the defen-
dants were tenure-holders within the mean-
ing of the Cess Act, that the annual value
of their holding was Rs. 95-1-0 as entered
in the cess valuation papers ; that the
rent of their holding, as entered in the
Record of Rights, was Rs. 31-0-6, and that
consequently under S. 41. 01. (2) of the
Cess Act the defendants wore liable to pay
cesss at the rate of one anna in the ruj>oe
calculated on the annual value of the
holding, namely, Rs. 954-0, less half an
anna in the rupee on the rent of the hold-
ing : Rs. 3L-0-G. Tho defence was that the
defendants were cultivating raiyats within
the meaning of the Cess Act, and that
they were liable only to pay cess under
S. 41, Cl. (3) at the rate of half an anna
in the rupee upon the rent of their hold*
ing, Rs. 31.0-6.
The Munsif held that the defendants
were liable to pay cess at half an anna in
the rupee on the annual value of their
holding which was Rs. 95-4-0. There was
an appeal by the plaintiff and a cross-
appeal by the defendants. The plaintiff's
appeal was dismissed and the cross-appeal
was allowed and it was held by the Subor-
dinate Judge that the defendants were
liable to pay cess at half an anna in the
rupee on Rs, 31-0-6. The plaintiff has
come up to this Court in second appeal.
The argument on behalf of the appel-
lant is that under S. 93 of the Cei3s Act
the civil Courts have no jurisdiction to
question the cess valuation. Section 93
provides that : "Every valuation under this
part shall be open to revision by the
Commissioner or Board of Revenue, and
not otherwise." Now the coss valuation
statement shows the names of fche defen-
dants in column 1 which is»heac}ed : "Name
of zemindars, tenure-holders and sub-
176 Patna
SIBAN BAI v. BHAGWANT DASS
1926
tenure -hold era/' In column 2 of which
the heading is "Nij-jote and other assessed
areas of landlords" is entered^Bs. 63-3-0.
In column 3 which is headed "Baiyatwari
lands'1 is entered Bs. 32-1-0. The total
valuation is given in column 7 as Bs.
95-4-0 and that is the total of columns
2 and 3. Column 8, which is headed
"Bevenue or rent on which deduction
under S. 41 is allowable," shows an entry
of Rs. 31-0-6. The appellant contends
that, on this document, it must be taken
/or the purposes of the Cess Act that the
defendants are tenure-holders ; that the
annual value of their holding is Rs. 95-4-0
and that deduction is allowable under
S. 41 on the rental of Rs. 31-0-6 ; in other
words, that this document establishes the
plaintiff's claim.
The argument on behalf of the respon-
dents is that the defendants are recorded in
the Record of Rights as tenants at fixed
rates at a rental of Rs. 31-0-6 and that
they must, therefore, be assessed as culti-
vating raiyats, and that their liability is
determined by S. 41, 01. (3). The argu-
ment based on S. 93 is sought to be an-
swered by a reference to & 107 which
says : "Nothing in this part contained,
and nothing done in accordance with this
Act, shall be deemed to affect the rights
of any person in respect of any immov-
able property or of any interest therein
except as otherwise expressly provided in
this Act." Now the meaning of this sec-
tion is clear, namely, that what is done
under the Cess Act is done only for tho
purposes of that Act and has no other
effect on the rights of persons. It does
not in any way modify the conclusive
effect given by S. 93 to the cess valua-
tion. The fact that the defendants are
recorded in the Record of Rights as
tenants at fixed rates is strictly irrelevant
to the present question. The question is
not as to the status of the defendants
under the Bengal Tenancy Act ; the ques-
tion is as to their status and liability for
the purposes of the Cess Act. The .Re-
venue authorities have determined that
the defendants are tenure-holders and
that the annual value of their holding is
Bs. 95-4-0 of which Bs. 63-3-0 is in
respect of lands held by themselves and
Bs. 32-1-0 is in respect of lands let out
to tenants.
It is argued for the respondents that
the question in the suit is as to the
defendants' liability to pay and that this
has to be determined under S. 41 and
involves the question of th y defendants"
status. But it is not their status under
the Bengal Tenancy Act that is in ques-
tion, but their status under the Cess Act
and their liability under S. 41 must be*
determined according to the entries in tha
cess valuation statement. This statement
was compiled in the presence of the*
defendants ; and, if they were aggrieved
at the entry, they ought to have ap-
pealed to the Commissioner or to the
Board of Revenue as provided by S. 93.
Not having done so, they are coucluded.
by the entry in the valuation statement.
It is obvious that a great injustice
would bo done to the plaintiff if the*
defendants' contention were to prevail*
The plaintiff has been made liable for cess-
on a valuation of which one of the item*
is the annual value of the defendants"
tenure. If it were now held that the*
defendants were not tenure-holders, then
the liability for this cess will fall on the
plaintiff alone through no fault of his,,
but because the defendants had failed to
contest the entry. In my opinion it was.
for the Revenue authorities to decide
whether the defendants were tenure-
holders of cultivating raiyats for 'the pur-
poses of the Cess Act and in this matter
the entry in the Record of Rights is
wholly irrelevant. The status of the
defendants under the Bengal Tenancy Act
is in no way affected by this valuation!
which stands by itself and the civil
Courts have no jurisdiction to interfere!
with it.
I would, therefore, allow this appeal
with costs and decree the plaintiff's suit
in full. The plaintiff is entitled to his.
costs in all the Courts.
Appeal allowed-
A. !. R. 1926 Patna 176
MULLIOK AND MACPHERSON, JJ.
Siban Eai — Petitioner.
v.
* Bhagwant Dass &nd another— -Opposite-
Party.
Criminal Bevision No. 104 of 1925,
Decided on 12th June 1925, from an
order of the Dist. Mag., »Darbhanga, D/~
6th January 1925.
1*26
SIBAN BAI v. BHAGWAXT DASS,(Mullick, j.)
Criminal P.C., 8. 439—#«0fc Court will
interfere only In exceptional ewes e.g., wfore tliere
Is denial of fair trial—In cognizable ca*es, private
prosecutor kai no locus standi at all (Mullick, J.
Macpherson, J. Contra).
Per Mulltck, «T. — The power of interference in
revision should be most sparingly exercised and
only in cases where it is urgently demanded in
the interests of public justice, e.g., cases in which
there has been a denial of the right of fair trial
and which attract the op?ration of S. 107 of the
Government of India Act. In cognizable cases
the private prosecutor has no position at all and
that if the Crown decides to let an offender go, no
other aggrieved party can bo heard to object that
he has not taken his full toll of private vengeance.
The Crown and not the complainant is always the
party. [P 177, C 2 ; P 178 C 1
Per Macpnerson, J. — The High Court possesses
the power to set aside an acquittal under S. 489 on
being moved by a private person, and this power in
not restmtad to cases where there has been no
tria'. or \vh?re there has been a denial of the rig lit
of iiki-* trial. It cannot be Laid down that in every
case of a prosecution for a cognizable offence th«
private prosecute r in India has no position at all
in the litigation. Neither principle nor authority
supports the view that an application under S, 439
against an acquittal is not maintainable in a pri-
vate prosecution where the offence charged is
cognizable. ' - [P 178 C 2, P 179 C 2J
Ali Imam and S. A. Sami — for Peti-
tioner.
Earn Prasad — for Opposite Party.
Sultan Ahmad — for the Crown.
Mullick, J. — In this caso the Second
Class Magistrate of Saraastipur found
that Mahanth Ganga Das had title and
possession in an asthal at Waini and that
the accused Bhagwat Das and Narain
Das had forcibly dispossessed him and
committed criminal house trespass in a
building appertaining to the asthal. He
therefore convicted the accused under
S. 448 of the Indian Penal Code and sen-
tenced them to a fine of Ks. 50 each.
In appeal the District Magistrate o^
Darbhanga found that the story of forci-
ble dispossession was false and that Bhag-
wat Das and Narain Das were in posses-
sion and that they had su«cessfully re-
sisted an attempt by Siban Bai, the ser-
vant of Ganga Das, to forcibly evict them
from the asthal. He found that the
accused had no right to stay in the asfchal
against the will of Ganga Das ; but at the .
same time the case of Ganga Das being
false in material particulars, he acquitted
the accused.
An application in revision is now mad*
before us to set aside the , acquittal, and
1926 P/23 & 24
177
whether this Court
the question arises
should interfere.
Ganga Das made an application to the
Local Government requesting it to lodge
an appeal under S. 417 of the Criminal
Procedure Code, but the Local Govern-
ment refused on the ground that the case
was not one of sufficient public impor-
tance.
In now asking us to interfere in revi-
sion the petitioner relies upon the follow-
ing cases of the Calcutta High Court-
Shaikh Bazu v. Railca Singh (l) ; Harai
Chandra Nama v. Osman Ali (2) ; Nabin
Chandra Chakrabarty v. Rajendra Nath
Bauer je& (3). In these cases a re-hearing
was ordered by the High Court on the
ground that there had not been a suffi-
cient trial in the Court below; the decisions
were based on the special facts of each
case, but it was not till Faujdar Thakur
v. Kasi Chaiifdhuri (4) that any attempt
was made to define the principles upon
which the High Court will interfere in
revision. That caso was noticed with
approval by this Court in Gulli Bhagat v.
Narain Singh (5) and by a Pull Bench of
the Madras High Court in A. T. Sankaram
linfja Mudaliar v. Narayana Mudaliar
(6), and I think it is now settled that the
power of interference in revision should
be most sparingly exercised and only in
cases where it is urgently demanded in
the interests of public justice.
The rule of course does not apply to
cases where there lias been no trial. For
instance, in Jitau Dusadh v. Domoo Sahu
(7) this Court set aside an acquittal in
revision because an acquittal had been
entered without trial and under an error
of law. In that case the complainant
having died the Magistrate refused per-
mission to the complainant's son to pro*
ceed with the case and acquitted the
accused, and the District Magistrate
moved the High Court in revision. On
the other hand, in Rajkishore Dubey v.
Ram Pratap (8), a Division Bench (Mul-
lickjand J^cpherson, XT.) of thifl ^ojart
(1) Uoii] 18 C.W.N. 1244^=15 Or. LJ. 722.
(2) (l917] 27 C. L. J. 226-=19 Or. L. J. 321.
(3) [1917] 18 Or. L. J. 519.
(4) [1914] 42 Gal. 612-19 0. W. N, 184=21
C. L. J. 63—16 Or. L. J. 122.
(5) A. I. B. 1924 Patna 288.
(6) A. I. B, 1922 Had. 502.
(7) [1916] 1 P. L. J. 264-^20 C. W. N. 862=13
Cr. L. J. 151=2 P. L. W. 409.
(8) Or, BCT. No, 229 of 1923,
178* Patria
SIBAN SAi v. BHJLQWANT DASS (Macpherson, J.)
1929
declined to interfere even though there
was a clear error in the lower appellate
Court's judgment r We have not been
shown any case in which a High Court
has interfered in revision on the ground
that the inferences drawn from 'evidence
wera erroneous.
In my opinion the Legislature does not
intend that a private party shall secure
fcy an application in revision a right
which is reserved for the Crown only.
The High Court has the right to interfere
but will only do so in very exceptional
cases, which, it may be stated, generally,
are cases in which there lias been a denial
of the right of fair trial and which attract
the operation of S. 107 of the Government
of -India 'Act. Nor does it intend that
the High Court will interfere in revision
to correct an error when another remedy
exists.
In England where any member of the
public may set the criminal law in
motion, there is no procedure at all for
setting aside an acquittal. In France,
where the law jjermits in most criminal
cases a private injured party to intervene
as a partic civile, the right of appeal
against an acquittal is accorded only to
bhe Crown. Neither system permits a
private prosecutor to control the proceed-
ings if the Crown objects.
Nor is the private prosecutor's control
my greater under the Indian law though
be is entitled in certain cases to com*
pound with the offender : see Jamuna
Kanth Jha v. Eudra Kumar Jha (9).
I am still therefore of the opinion
which I expressed in Gulli Bliayat v.
Narain Singh (5) that in cognizable cases
the private prosecutor has no position at
all and that if the Crown, which is tho
custodian of the public peace, decides to
let an offender go, no other aggrieved
party can be heard to object that he has
not taken his full toll of private ven-
geance. These observations were made
with reference to a private party's power
to get an acquittal set aside in a cogni-
zable case which had been conducted by
Public Prosecutor ; but if it were neces-
sary here I would be prepared to hold
that they apply with equal force to
acquittals in all cases. The Crown and
not the complainant is always the party :
see Queen-Empress v. Murarji Gokul
(9) 11919]' 4 R L. J. 656=11920) P. H. 0. C.
42=20 Or. li. J. 848.
Das (10) and Gay a Prasad v. Bhagat
Singh (11).
If that view is correct, then the circum-
stance that in the present case Mahahth
Ganga Das, in spite of delivery, of
possession by the civil Court, is being
deprived by the judgment-debtor of the
enjoyment of his rights, is no ground for
our interference in revision. There has
been no denial of the right of fair trial.
The District Magistrate has considered
the evidence and if he has come to a
wrong conclusion, it certainly cannot be
said that there has been no fair trial. He
has found that the complainant's story
that the accused came with a mob and
drove out Ganga Das's servants was
false and that Bhagwat Das was in posses-
sion and that it was the complainant
who attempted to forcibly eject him. If
the true facts had been put by the com-
plainant before the Court, I ha've no
doubt that he would have succeeded, and
if Bhagwat Das persists in occupying
the land and house which formed the
subject-matter of the civil Court decree
against him, the criminal Courts are still
open to him. The present application is
misconceived and is dismissed.
Macpherson, J. — I agree to the orde**
proposed.
In my opinion the application -must fail
on the simple ground that it is not even
possihlo to nay that the acquittal by the
appellate Court (which rightly found
that the case which petitioner set out to
prove was false) was not in the circum-
stances warranted. If an appeal had been
preferred by the local Government under
S. 417, it would have failed for the
same reason.
The question whether a private person
has any locus standi to move the High
Court against an acquittal, and if so in
what circumstances has, however, been
argued at length and claims an expression
of opinion.
I agree with the Government Advocate
when he concedes that the High Cou*t
possesses the power to set aside *tib
acquittal under S. 439 on being
moved by a private person. But I am
unable to accept his contention th&t
(10) [1888] 13 Bom. 389.
(ID
[1908] 80 All. 525—85 I. A. 189=10 Bom.
L. R. 1080=4 M. L. T. 204x=12 C. W. N.
1017=^8 C. L. J. 887=18 M, L. J. 394=5
A. L. J. 665=14 But. L. B. 818=11 0. C.
871 (P. 0.).
SIBAN RAI V..BHAGWANE PASS (Macpherson, J.)
Pallia 179
thfct'power is either in law or under the
practice of the Courts in India* definitely
restricted to oases where, as in Damoo
Sahu v. Jitan Sahu (7) there has been no
trial, or where there has jDeen a denial of
the right of fair trial. All that can be
said to be established is that in that
class of cases at least the Court will
in a proper case set aside an acquittal at
the instance of a private party. No doubt
the High Court will in exercising its
power of revision under S. 439 observe
the limitations which established practice
has imposed upon appeals under S. 417.
But though in practice the broad rule of
guidance that the Court will only inter-
fere in revision with an acquittal, at least
in a case where there has been a trial,
sparingly and only where interference is
urgently demanded in the interests of
public justice. [Faujdar Thakur v. Kasi
Chaudhuri, (4)] may be accepted, it ap-
pears dangerous to go further. I was a
party to the decisions in Rajkishore
Dubey v. R<im Part:ip («S) and Gidli
Bhayat v. Narain Singh (o) decided on
successive days, but my considered opi-
nion is to be found in the subsequent deci-
sion in Liang a Singh v. Rambhajan Singh
(12) where, after referring to the
cases abovi cited, 1 said ' But
it is not possible nor would it be
expedient to lay down a general principle.
The Court; will interfere where the
circumstances require it."
In particular I am not prepared to sub-
scribe to the view that in every case of
i prosecution for a cognizable oifence the
private prosecutor in India has no
position at all in the litigation. It might
possibly be contended that at least where
the prosecution has in fact been a public
or, as it is designated, a police prosecution
the private prosecutor has no position
at any stage. I doubt whether even such
a contention is tenable, though of course
the Court acting in revision would in
such a case enquire earnestly why the
Grown has not appealed. But in any
4Hren$ the criterion cannot be whether
tb0-r police could under the law arrest
without warrant for the offence under
trial irrespective of whether they did so
and initiated a public prosecution tinder '
the Code of Criminal Procedure ; it is
open to the private prosecutor to initiate
criminal proceedings by complaint wifch-
qut the intervention of tbe police, and
,(13) JL L
where that has been done, and the pro-
secution has not been taken over by the
Crown, a private proecutor cannot in my
judgment be said to be without position
in the litigation even if the offence
is cognizable. The majority of prosecu-
tions for criminal trespass and house
trespass which are conizable offences
are private. I cannot hold that either
principle or authority supports the view
that an application under S. 439 against
an acquittal is not maintainable in a
private prosecution where the offence
charged is cognizable.
Again too much stress may eisily be
laid upon tho remedy available under
, S. 417 oven in police oases. An appeal
against acquittal is a special weapon in
its armoury which a local Government
judiciously reserves for exceptional
occasions, and which is only used after
most anxious consideration and in cases
which aro themselves of groat public
importance or in which a principle is
involved. It canViot bo expected that
Government will dull the edge of that
salutary provision by utilizing it freely
in cases which, though of importance to
individual subjects, are of no, or of little,
general interest. Actually therefore, a
remedy under S. 417 is practically non-
existent in the less heinous cases whether
they aro private or public prosecutions.
Yet where justice fails in this country,
it undeniably does so at least as much
by erroneous acquittal as by erroneous
conviction.
In my judgment it is neither 'necessary
nor expedient to lay down or even
suggest any limitations in this regard
beyond tho practice of the High' Court
in appeals under S. 417 and tho prin-
ciples which guide the Court in re-
ceiving and determining under S. 439
applications for the exercise of their
powers of revision in respect of convic-
tions. I would adhere to the view ex-
pressed by Jenkins, 4C. J., in Foujdar
Thakur v. Kasi Chaudhuri (4) read in
the light of the observations of the. same
Judge in Emperor v. Bankatram Lachi'
ram (13) and Mahomed All v. Em-
peror (14) as to the spirit which should
guide the Courts in the exercise of their
discretionary powers in revision. The
result may in practice not differ greatly
(18) [1904], 28 Bom. 533=6 Bom L. R 379
) [1913] 41 OaL 460=14 Gr. L. J "
C. W. N. 1
180 Patna
TABKESHWAE t. DEVENDBA (Boss, J.)
19BB
from tbat which would he obtained by
laying down and following detailed rules.
Doubtless tfie Court will only interfere
in revision with an acqultal in an excep-
tional case. But the supreme considera-
tion is that the Court should exercise
its discretion untramelled in each case
AS it arises*
Application dismissed.
A. I. R. 1926 Patna 180
DAS AND Boss, JJ.
Tarkeshwar Prasad Teivari — Appellant,
v.
Devendra Prasad Tetcari — Respondent
Appeal No. 265 of 19S1, Decided on
20th June 1924, from the Original decree
of fche Acldl, Sub-J., Patna. D/-14th Sep-
tember 1921.
(a) Evidence Act, S. 7G — Plaint Is not a public
document.
Certified copy of a plaint is not admissible in
proof of age of the Hignntory as plaint is not a
public document. [P 181, C 1]
(6) Patna High Court Rules, St. 39—Construction,
Rule 30 muyt be construed as subject to Rr. 1
nd4. [P18l,C 1]
C. C. Das, S. M. Gupta, Ram Prasad
and Janak Ki shore — for Appellant.
S., P. Sen and A.T. Sen—ior Res-
pondent.
ROM, J. — The question in this appeal
is a pure question of fact and relates to
the origin of Tarkesh\var, Defendant
No. 1.
Sheo Prasad Tiwari had two sons, Ram
Partap alias Halkhori and Maheshwar
Dtitt alias Duttan. Ram Pratap had
two sons, Rarnrup and Ramsuraj, by his
wife Parbati. The plaintiff Debendpa
Prasnd Tiwari is the son of Ramrup and
his wife Hartalika. The question for
decision in the suit is whether Tarkesh-
war if? the posthumous son of Ram Suraj
and his wife Harnandan Kuer. Ram
Pratap died in 1899. The plaintiff al-
leges that both his sons were then minors
and the management of the property was
assumed by Maheshwar Dutt. Even after
he attained majority Ramrup was incap-
able of managing his estate being of weak
inUUect and dissolute habits. His
mother then formed the idea of marrying
one of her sons in the- family of a man
of affairs and accordingly Ram Suraj wask
married to Harnandan Kuer, the grand-
daughter of one 'Nanku Pande, who i&
described in the plaint as "a successful
tout practising in the district of Patna*
possessed of great tact and fully capable
of understanding business and managing
zamindari affairs". Nanku Pande then
took up the management of the estate-
acting in consultation with Maheshwar
Dutt.
The plaintiff alleges that Ramsuraj'
died on the 23rd of Bhado 1313 two years
after his marriage. On the death of Ram*
suraj Nanku Pande took Harnandan Kuer
to his house at Machuatoli in Patna and
set up Tarkoshwar who was the son of
one Banke Singh, a constable, by his mis-
tress as the son of Ramsuraj and Harnan-
dan Kuer. Maheshwar Dutt is also al-
leged to have had illicit connexion with
the mistress of Banke Singh and to have
acted in collusion with Nanku Pande in
this matter. In 1317 Ramrup also died.
The main case is stated in paragraphs 17
and 18 of the plaint in these words : " To»
the best of the plaintiff's knowledge on
enquiry no son or daughter was horn to
Kamsuraj Tiwari of the womb of Mt.
Harnandan Kuer. When Ramsuraj Ti-
wari died he was only 13 years old and
could nob possibly beget a child at that
age, and it was not at all a fact that ML
Harnandan Kuer was pregnant at this
time of I his death. Defendant No, 1 is
not at all the son of Ramsuraj Tiwari
nor did the latter beget him nor was he>
born of the womb of Harnandan Kuer.
On the other hand he was born of the
womb of Banke Singh's mistress and his
father is Banke Singh resident of mouza
Bairia." The plaintiff claims a declara-
tion that the Defendant No. 1 is not the
son of Ramsuraj Tiwari and lias no title to
the property of the family and a decree for
confirmation of his possession or recovery
of possession (His Lordship then discussed
the oral evidence and proceeded).
The documents referred to in this con*
nexion are these ; Ex, R which has been
discussed above : Ex. X 37 this is the cer*
tified copy of a pjaint dated the 10th of
March 1900 which purport* to have been
signed by Ramrup for self and for Ram-
surij Tiwari minor. I doubt whether
this document was admissible in evidence.
The learned Subordinate Judge apparently
followed the ruling, ia Shazada,
TULSHI PR AS AD, V. DdMRAON MUNICIPALITY (Muliick, J.) Pataft 181
f926
Skahzbuddin v. Darnel Wedgeberry (I).
The soundness of this ruling h \s been
questioned by Field (Law of Evidence, 7fch
Edition, p. 236) and Woodroffe (Law of
Evidence, 7th Edition p. 528) in their
commentaries on the Evidence Act. It
has not been followed on the Original
Side of the Calcutta High Court. I can
see no ground for making a distinction
between plaints and written statements
nor is there any reason why the certified
copy of one should ba admissible in evi-
dence while the certified copy of the
other is not. Neither is a public docu-
ment. In my opinion Ex. X-37 should
not have been admitted in evidence.
(The judgment further dealt with the
documentary evidence and continued.)
I find nothing in these papers which
convincingly establishes Tarkeshwar's an-
cestry as alleged by the defence.
The result is that the appeal must be
dismissed with costs.
Permission was given in this case by
the learned Registrar to the appellant to
have type written copies of the papers
prepared instead of the ordinary printed
jpaper-book. The learned Registrar ap-
.jparently relied upon the provisions of
R. 30 in Oh. 9 of the rules of the
High Court which empowers him to ex-
empt any appellant or respondent from
the operation of the whole or any part
of the rule? of the Chapter. Now R. 1
directs that the paper book shall be
printed in accordance with the directions
therein laid down. R. 4 provides that
in every case in which an appeal has been
admitted the Registrar shall cause a
paper-book to be prepared in accordance
with the rules of this Chapter with the
i proviso that in small or urgent cases
where good cause has been shown the
Registrar may allow any party to put in
typed copies. The construction placed
upon R. 30 makes the proviso to R. 4
superflous a«d R. 30 must be construed
as subject to Rr. 1 and 4. In my opU
nion the learned Registrar had not autho-
rity to exempt the appellant from having
a printed paper-book prepared in this
case.
JDat, J.— I agree.
Appeal dismissed.
A I. R 1926 Patna 181
MULLIOK AND ROSS, JJ.
Appellant.
T tilth i Prasad
v.
(1) 10 B. L. a App. 31.
(J". A. W. Wilton) Chairman,
Municipality — Respondent.
Appeal No. 488 of 1922, Decided oa
14th May 1925, from a decision of the
Sub-J., Second Court, Arrah, D/- 13th
February 1922.
Bengal Municipal Act (8 of 1884), Ss. 6 (3j, and
85-. 4 — Adjacent plots held by same, person <is owner,
one by survivorship and the oilier by purclia$e>
constitute one holding— -Separate assessments are
not legal.
Where two adjacent plots of land arc hold by
the same person as owner, they must be deemed to
be held by him under one title and constitute one
holding within the meaning of 8. 6 (3). it makes
no difference that one plot was acquired by tiurvi-
vorship and the other by purchase. In aucb »
oas3 the owner of the plots is liable only to an
assessment in respact of the plots under S. 85- A of
the Act and 15 ot to separate assessments in respect
of each plot. [P. 181, 0. 2, P. 182, 0. 2}
K. P. Jayaawil, S. Af. Gupta mid
Janak Kishorc — for Appellant.
Rai Guru Saran Prasad and Anand
Pras<id—tor Respondent.
Mullick, J.— The appellant hold* four
plots of land in the Dumraon Munici-
pality. Plot No. 7 is his ancestral pro-
perty and Plot No. 8 was purchased in
the name of his son ; again Plot No. 49 is
his ancestral property and Plot No. 50
has .been acquired by purchase. The
Dumraon Municipality have assessed the
appellant with personal tax on the foot-
ing that he is the occupier of four hold-
ings. He contends that Plots Nos. 7 arid
8 form one holding and Plots No. 49 and
50 one holding and that he is liable to
assessment only in respect of two holdings,
He has been assessed Rs. 8i on each of
the Plots Nos. 7 and 8 and Rs. 28 on each
of the Plots Nos. 49 and 50. He claims
that he is liable to pay Rs. 84 on Plots
Nos. 7 and 8 and Rs. 28 on Plots Nos. 49
and 50.
The question is whether Plots Nos. 7
and 8 constitute one holding witHin the
meaning of S. 6 (3) of the Bengal Munici-
pal Act. It is clear that the plots being
adjacent are bounded by one set of boun-
daries. The only question is whether they
are held under one title. The appellant's
interest is ownership. It makes no differ-
ence that he has acquired it in respect of
one plot by survivorship and the other
182 Pfttna HAftiHAR SINGH v. EMBEDS (Kulwant Sahay, J.)
192*
* * i •' *
by purchase. Thfcre Is Ho reason why we
should read the word " title" in S. 6 as
"title-deed." The provision that the
land shall be held under one title or
under one agreement means that where
the assessee has no title, hut holds under
an agreement without any interest in th6
land, then all plots covered within the
same set of boundaries and by the same
agreement will form one holding. The
proviso in the Explanation to S. 6 (3) is
not relevant to the discussion now be-
fore us,
In my opinion Plots Nos. 7 and 8 form
one holding and the appellant is liable
only to one . assessment in respect of it
under S, 85-A of the Act, The same
observation applies to Plots Nos. 49 and
50,
The result is that the appeal succeeds
and is decreed with costs in all Courts in
proportion to a claim of Rs. 122.
Ross, J.— I agree.
Appeal allowed.
A. 1R 1926 Pfttna 182
KULWANT SAIIAY, J.
Harihar Singh and others — Appellants^
v.
Emperot — Opposite Party.
Criminal Appeal No. 116 of 1924, Deci-
ded on flth September 1924, against an
order of the S. J., Shahabad,
Penal Code, S. 84 — All accused abetting of
aiding each other by presence or other acts in the
coMiuitoh'K of the act are equally liable.
The question whether a particular criminal act
xnay bo properly held to have boon " done by
several persons " within the meaning of the
section cannot be answered regardless of the facts
of the caso. In order to convict a person for an
off (3ii ce \vith the aid of the wro\isions of S. 34 it is
not necessary that that person shoiild actually
with hib o\\ 11 hand commit the criminal act. if
several persons have the common intention of
doing a particular criminal act and if in fur-
therance of that common intention all of them
join together and aid or abet each other in the
cornnms.son of the act, then although one of these
persons may not actually with his own hand do
the act, but if he helps by his presence or;jby other
acts in the commission of the apt, he would be
hold to have done that act within the meaning of
8. 34. A. I. R. 1924 Co/. 257, Poll.
[P. 183, 0, 2, P. 184, C. 1]
Hyde? J7?iaMT~for Appellants.
Govt. Pleadci — for Opposite Party.
Judgment. — The appellant Harihar
Singh has been convicted by the Sessions
Judge of Shah abaci under S. 324, Indian
Penal Code, and sentenced to 18 months'
rigorous imprisonment ; and the appellant
Jugal Singh has been convicted under
S. 324/34, Indian Penal Code, and sen"
tenced to 6 months' rigorous imprison*
ment. They have been found guilty of
voluntarily causing hurt to one Braham*
deo Singh who is distantly related to the
appellants. The prosecution story shortly
stated is as follows :—
Harihar Singh is the uncle of Jugal
Singh. One Charittar Singh, who was
also charged along with the appellants for
an offence under S. 324 read with S. 34,
Indian Penal Code but has been acquitted
by the learned Sessions Judge is a cousin,
of Harihar Singh two or three degrees
removed. The complainant Brahamdeo
Singh is also a distant cousin of Harihar
Singh. Harihar Singh had another cousin
Kartik Deo Singh who died about ten
years ago leaving a young widow Mt. Piaro
Kuer. Tliis Kartik Deo Singh was the first
cousin of Harihar Singh. The complainant;
Brahamdeo Singh had some intrigue with,
the widow Mt. Piaro Kuer and about
2 or 2*1/2 years ago he eloped with the
widow and went to Calcutta with her.
The widow, however, left Brahamdeo
Singh at Calcutta and there is no trace of
her. The appellant Harihar Singh and
the members of his family were highly
enraged with Brahamdeo Singh for taking
away the widow and for fear of the appel*
lants and his family, Brahamdeo Singh
stayed at Calcutta for about 2 or 2-1/2
years and accepted service there as th»
gateman in the Howrah Eailway Station.
It is alleged 'that Brahamdeo Singh had
left three nephews at hia house at Brarhi
when he went to Calcutta, and in his-
absence the appellants vexed the nephews
so much that they had to leave the house
and they went to reside with a relative of
theirs in a different village. Brahamdeo
Singh returned to his village about fonp
months before the occurrence. He firsts,
went to the place where his nephews-
were living and then he came to his house*
at Brarhi. He found that the doors and
shutters of his house had been taken out •
and /everything else had been removed
and the two appellants and Charittar,
Singh were sitting in the court-yard of the-
house* He enquired from them as to*
what had become of the doors and shut-
ters upon which ' the appellants andi
Charittar Singh chased him with the*
SIKGH v. EMPEROB (KKlwanfc Sahay, J.)
Patn«r;i8S
object cfc beating him with Mathis.
Braharmdeo Singh tied from the place and
went '.(Jjxect to Buxar where he filed a
complaint before the Sub-Divisional
Magistrate* Upon a report of the Police
the Sub- Divisional Magistrate summoned
the appellants and Charittar Singh and
a case under Ss. 447 and 352, Indian
Penal Code was started against them.
Brahamdeo Singh was living at the place
of his relatives or friends at different
places and on the 10th February 1924, a
Court peon Abdul Mian went to Brarhi
to serve summons upon the witnesses in
the case under S. 447 against the appel-
lants. Braharacleo Singh went to Brarhi
to have the summons served and was
sitting at' the darwaja of Bahadur Singh,
Prosecution -Witness No. 10. The sum-
monses, however, could not be served
upon the witnesses inasmuch as none of
the witnesses was found at his homo
and the Court peon left the place at
about 1 p.m. Thejcomplainant, however,
stayed in the dhaba of Bahadur Singh
and Nirbhai, Bahadur Singh and Ram-
palak Singh and others were also
sitting in the same dhaba. It is al-
leged that while Brahamdeo Singh was
lying down in the dhaba with his head
supported on the pa]m of his hand and
was talking with Rainpalak Singh Witness
No. 5, she appellants and Charittar Singh
came at the dhaba, the appellant Harihar
Singh being armed with a sword and the
appellants Jugal Singh and Charittar
Singh being armed with lathis and while
Charittar Singh and Jugal Singh stood at
the entrance of dhaba Harihar Singh
struck Brahamdeo Singh with a sword
twice. The first blow hit him on the left
kneecap upon which Brahamdeo Singh
stood up, and while he was getting up
Harihar Singh aimed a second blow with
the sword which Brahamdeo Singh warded
off, but in doing so had his two fingers of
the 'left hand injured. The witness
Eampalak Singh attempted to seize the
sword and he was also slightly injured.
The complainant Brahamdeo Singh fled
from the place through one of the doors
of the dhaba and went straight to the
police station where he lodged his first
information at 7 p. m., the occurrence
having taken place in the afternoon of
thet10th February 1924. (His Lordship
after discussing evidence confirmed the
conviction and sentence on Brahamdeo
Singh and proceeded as follows.)
As regards Jugal Singh he has been
convicted under S. 324 read wityj3. 34>
Indian Penal Code. The evidence so far
as he is concerned is clear that he weni
to the place of occurrence with Harihar
Singh and had a lathi in his hand ; that
he stood at the door with the lathi while
Harihar Singh struck Brahamdeo with the
sword. There is evidence"that when Brabr
amdeo Singh wanted to run away Jugal
obstructed his passage and prevented him
from getting out of the dhaba. That he
came with Harihar Singh and was stand-
ing at the entrance of the dhaba with the
lathi in his hand is deposed to by almost all
the prosecution witnesses and thero is no
reason t6 differ from the learned Sessions
Judge about his presence with the lathi
at the place of occurrence. The question
is, whether he can be convicted under
S. 324 read with S. 34, Indian Fenal
Code. In order to make him liable under
S. 324 it is necessary to prove that the
criminal act of assaulting Brahamdeo was
done by Jugal Singh also. It has'been
argued by the learned counsel for the
appellants that upon the evidence it is
clear that Jugal Singh did not take part
in the assault and, therefore, ho is not a
person by whom the criminal act was
done in tho pro^nt case as provided by
S. 34 of tho Indian Penal Code. S. 34
provides that when a criminal act is done
by several persons in furtherance of the
common intention of all each of such
persons is liahle for that act in the same
manner as if it wove done by him alone.
The question is whether in the present
case tho criminal act, ramely, the assault
upon Brahamdeo Singh was done by Jugal
Singh within the meaning of S. 34, Indian
Penal Code. Tho question as regards tho
proper moaning and effect of S. 34 has
been the subject of consideration in a
large number of cases. Tho latest case in
which the question was very exhaustively
considered by a Full Bench of the Cal-
cutta High Court is the case of Emperor
v. Barendra Kumar Ohose (1). In that
case all the previous cases dealing on the
point were very exhaustively considered
and it was held that the question whether
a particular criminal act may be properly
held to have been " done by several
persons " within the meaning of the
section cannot be answered regardless of
the facts of the case. In order to convict
a person for an offence with the aid of the
~~(i7~A~. i. H. m* Ual. *67.lF. B,), «
164 Pfttna
PEARI DAI v. NAIMISH CHANDRA (Bucknill, J.)
1926
[provisions of S. 34 of the Penal Code it is
•not necessary that that person should
actually with his own hand commit the
criminal act. If several persons have the
common intention of doing a particular
criminal act and if in furtherance of that
common intention all of them join to-
gether and aid or abet each other in the
commission of the act then although one
of these persons may not actually with
his own hand do the act, if he helps by
his presence or by other acts in the
commission of the act, he would be held
to have done that act within the moaning
of S. 34.
Reliance has been placed by the learned
counsel for the appellants upon the case
of Struyhan Patar v. Emperor (2). The
facts of that cane, however, have no
application to the present case. It was
distinctly found in that case that tho
appellant Strughan had no intention to
kill Upendra Mahto and that ho did not
assist the actual murderers in any way to
accomplish their object. In the absence
of any evidence of common intention
there could be no conviction under S. 302
of the appellant Strughan for murder
read with S. 84 of the Indian Penal Code.
In the present case upon the evidence
there can be no doubt that both Jugal
and Harihar Singh had the common in-
tention of assaulting Brahamdeo Singh
and that Jugal was actually present and
actively took part in the commission of
bhe act by Harihar Singh. Upon the
evidence in this case tho conviction of
Jugal Singh under S. 324 read with S. 34
is a proper conviction and there is no
ground to interfere with his conviction or
sentence either.
The result is that the conviction and
sentence of both the appellants are con-
firmed and the appeal 13 dismissed.
Appeal dismissed.
A. I. R. 1926 Patna 184
[1919] 20 '£r~; L. J. ,289.
BUCKNILL AND MACPHBRSON, JJ.
Pearl Dai and others — Appellants,
v.
Naimish Chandra Mitra and otTiers —
Respondents.
Appeal Ko. 1372 of 1922, Decided on
16th June 1925, from the appellate
decree of the Sub-J.f Bhagalpur, D/- 15th
July 1922.
Registration Act, S. 49— A plaintiff permitting
his agent to grant a lease and Induct lessee Into
possession cannot Ic allowed to succeed merely on
a pica that tin: document was not registered
— Kq uity— Part performance .
Where the manager of the plaintiffs asked for
their consent to grant a lease for five years and
got the permission in a very definite form from
the plaintiffs by a letter authorizing him to grant
the lease and the lessees were inducted into
actual possession.
Held : that the plaintiffs cannot be allowed to
succeed against their own nominees to avoid the
lease simply because the document which -was
given by their agent to the lessee did not comply
with the provisions of S. 49 of the Act, i.e., not
registered as it would be most inequitable.
[P. 186, C. 2]
S. K. Alittei — for Appellants.
C1. M. Ayarwala and S. N. Sail ay—tor
Bespondents.
Bucknill, J. — This is a second appeal..
The appellants were the plaintiffs in an '
action which they brought against a num-
ber of defendants for a declaration of their
(the plaintiffs') right, title and interest
to the extent of two-thirds share in a
mabal called Aratghat ; they also applied
for recovery of khas possession to the
extent of their share and they asked for
an adjudication that the defendants first
party were trespassers and had acquired
no title as lessees to the ghat by virtue
of any valid settlement made to them on
behalf of the plaintiffs. The facts in the
case are extremely simple and the large
majority of them are not even in issue.
The plaintiffs were the owners of two-
thirds share in tbis mahal ; the principal
value of this mahal appears to have lain
in the fact that there was a ferry and
that tolls were levied and collected at the
ghat. It was the usual practice to let out
the ghat to a lessee but it is said that
sometimes the proprietors kept it in their
own hands. Now, there is no doubt that
the defendant second party 'was until
some time in 1918 the Naib or manager
of this property on behalf of the plaintiffs
or some of them. In 1917 this Naib the
defendant second party whilst in the
1920
PEAIU DAI V.'NAIMISH CHANDRA (Bucknill, J.)
Patnft 185
plaintiff's employment made a proposal
to the plaintiffs with regard to the future
letting out of the ghat ; a written applica-
tion or proposal appears to have been made
"fey the Naib to the proprietors saying that
he had the opportunity of effecting a
lucrative lease with some persons who
he knew were anxious to acquire the
arights in the ghat. The proposal con*
tained the suggestion that these applicants
would give Ks. 200 annually (which was
•considerably more than what up to that
time had been paid) and that the lease
should be for five years. The Naib asked
•for instructions and orders. This seems
to have taken place on the 15th July 1917.
Now, on the 31st July of that year an
order was passed by the proprietors in
•connexion with this application ; it was
simply to the effect "Naib will do the
needful." This was followed later by a
formal letter from the proprietors to the
Naib definitely accepting the offer and
telling him to issue a parwana to the new
lessee. On the 1st October 1917 it seems
that the Naib did give a hukamnama or
parwana to the new lessees.
The Munsif found all these circumstan-
ces as facts. He found definitely that all
these transactions had taken place. He
found that the lessees had actually been
put into possession ; he found that a quar-
rel had arisen l^tween the plaintiffs and
their Naib and that they had alleged
that he had fraudulently granted this
lease with their assent. This, however,
he did not believe and he would undoubt-
edly have given judgment for the defen-
dants had it not been that he was led to
form an opinion upon a point of law
which is the only point which has been
seriously argued before this Court. This
point was that the defendants relied upon
the parwana to which I have already re-
ferred. It was urged before the Munsif
that the lease or parwana must be regis-
tered as it purported to be a lease of im-
<movable property granted for five years
and that, as it was not registered, it was
impossible for it to be referred to or
looked at by the Court and that in con-
sequence the defendants were unable to
prove that they had got any title. The
Munsif, remarking that he could not see
his way to invoke any equity in favour of
^he defendants, held that there could
have been no valid settlement by lease,
^nd in consequence he decided in favour
of the plaintiffs and ordered that their
suit be decreed with costs.
Now, this decision of the Munsif of
Bhagalpur, which was dated the 22nd
April 1921, was the subject of an appeal
to the Subordinate Judge of that place
who by his judgment of the 15th July
1922 affirmed in every respect, save one,
the decision to which the Munsif came.
He, however, was of the opinion that it
was not impossible to invoke equity in
favour of the defendants and he came to
the conclusion that it was necessary and
proper to do so.
In consequence, as a matter of course,
he had to reverse the judgment of the
Munsif ; he allowed the appeal and or-
dered that the plaintiff's suit be dis-
missed.
The point which I have referred is the
only point which is of any importance in
this case. It has been argued very strenu-
ously by the learned counsel who has
appeared for the appellants that it is im-
possible to invoke equity in favour of the
defendant. He bases his argument upon
S. 49 of the Indian Registration Act. This
section reads :
"No document required by S. 17 to be
registered, shall
(a) affect any immovable property
comprised therein or
(c) bo received as evidence of any trans-
action affecting such property or con-
ferring such power, unless it has been
registered."
Now, it is admitted here that this lease
for five years ought to have been regis-
tered. The learned counsel has suggested
that as under the provisions of S. 49,
sub-S. (c) a document required to be re-
gistered shall not, unless registered,
be received as evidence of any
transaction affecting such property or
conferring such power, this hukuinnama
could not be looked at all by the Court
nor could any equity be utilized as arising
from it in favour of the defendant. He
refers in this connexion to an instructive
case Saiijib Chandra Sanyal v. Santosh
Kumar Lahiri (l). The learned Judge
(Mr. Justice Eankin) who decided that
case held that he could not permit a docu-
ment which was not registered but which
ougbt to have been registered to be re-
ceived in evidence as evidential of the
title of a plaintiff who was seeking to
Enforce his right under that unregistered
(1) A J.
186 Patatf
PEARI DAI v. NAIMJSH CHANDRA (Bucknill, J.)
1928
document. On the other hand, however,
a case of equal importance : Makomed
Musa v. Aghvre .Kumar Ganguli (2), has
been brought to our notice. That was a
decision of their Lordships of the Privy
Oouncil and there it was laid down very
specifically, that "when the actings and
conduct of the parties are founded upon,
as in tho performance or part-perform-
ance of an agreement, the locus peni-
ientiae which exists in a situation where
the parties stand upon nothing but an en-
gagement which is not final or complete
is excluded. For equity will support a
transaction clothed imperfectly in those
legal forms to which finality attaches after
the bargain has been acted upon." Now,
it is, of course, difficult to say definitely
that equity will override completely the
specific provisions of Ss. 17 and 49 of tne
Indian Registration Act and in the case
of Nilkanth Bhimaji v. Ilanmant
Eknath (3), Mr. Justice Heaton in refer-
ring to tho Privy Council case which I
have just mentioned draws attention to
the necessity of guarding oneself in stat-
ing definitely that the decision of their
Lordships was intended to affect adversely
the proper construction or maintenance
of those sections of the Registration Act
to which reference has been made, His
Lordship says :
"I feel quite certain that their Lordships
of the Privy Council in giving judgment
in Mahomed Musa v. Ayliore Kumar Gan-
guli (2) did not intend either to modify
or to limit that part of tho enactment of
the Indian Legislature, which appears as
Ss. 17 and 49 of the Indian Registration
Act, nor do I believe that the Privy Coun-
cil ever have intended by their judgments
to modify or limit that which has been
enacted by the Legislature in India. So
the effect of Ss. 17 and 49 of the Indian
Registration Act remains as totally un-
affected as before by anything that is
said in the case of Mohamad Mii$a v.
Aghore Kumar Ganguli (2)."
Now in this case before us it seems to
me tbftt it can be dealt with quite un*
hampered by any question of admissibility
|of this document. Personally I think
that it is admissible and that equity can
be^ Invoked from it although it should
(Si) [1915] 4? Oal. 801^42 ~Ll.~1=f7~BOT.
L.B. 420~<ft C,LJ. 231=28 M.L.J. 548=
19 C.W.N. .250=13 A.L.J. 229=17 M.L.T.
148=2 L.W. 258=r(1915) M.W.N. 621 (P.O.),
(3) [1920] Ai Bom. 881,=:22 Bom, 992,
have been registered and that we could
draw an equity in favour of ,jbhe defen-
dant* But even if it was not admissible
there was ample material upon which a
Court may come to the same conclusion to*
which the Subordinate Judge has come,,
namely, that the equity here is clearly in;
favour of the defendant and must be given.-
to him in relief. What have we here ia
coming to the same conclusion from
another point of view ? We have find-
ings of fact which, show clearly that the
Naib, that is to say, the manager of i<he
plaintiffs asked for their consent to grant
a lease for five years at Rs. 200 per
annum to the lessees. Ho got t.his per-
mission in a very definite form from the
proprietors and he actually put the les~
sees into possession, The terms upon
which tho lease was to be granted appear
clearly not only in what ho offered in the/
application for instructions which the-
Kaib made to the proprietors bufr
in the proprietors' letter authorizing,
him to grant the lease. .How it-
can be seriously suggested after that*'
that there was not a completed transac-
tion not only on the iaco of the papers
themselves but by a part performance,
namely, the induction of the lessees into
actual possession, I cannot understand,
To allow the plaintiffs to succeed against
their own nominees simnly because the
document which was given by the plain-
tiffs' agent to the new lessee did not
comply with the provisions of S. 49 of the
Registration Act would appear to me
most inequitable. In these circumstances
I think that in this case the Subordinate
Judge has taken the proper course. He
has come to the conclusion that there was-
no ground for allowing the plaintiff to
eject the defendants who were their own
lessees. They could not take advantage
of some flaw in a document which has
been produced by the defendants in order
to show that their lease did not comply
with the terms of the Registration Act
nor could it be allowed that the lease
which the defendants possessed against
their own landlord should be defeated at
his application,
I think, therefore, that this . • appeal
should be dismissed with costs,
Macpherson, J,— I agree to the order
proposed : this appeal should be. dismissed
with costs*
Appeal dismissed.
ISK SRI JUGAL SARKAR v. RAJ
* A. I. R. 1926 Patna 187
MULLICK AND KUIAVAKT SAHAY, JJ,
Thakttrji Sri Jugal Sarlcar and others
— Plaintiffs — Appellants,
v.
Raj Mangal Prasad and oth en —Defen-
dants— Bespondents.
Appeals Nos. 1314 and 1315 of 1922,
Decided on llth November 1925, from
the appellate decrees of the Sub'J.,
Muzaffarpur, D/- 22nd June 1922.
^ (a) Riparian rights — tpper owne* cannot
Appropriate wlwle water of natural stream for
Irrigation — Such right can be acquired by pres*
cription.
For ordinary purposes such as drinking and
watering cattle the upper proprietors are entitled
to appropriate if necessary the whole of the water
of a natural stream; but for extraordinary purposes
such as the irrigation of their fields, they are enti-
tled only to take so much as will not reasonably
diminish the volume of water in the river [White
v. White, (190G) A. C. 72.] But if a higher pro-
prietor establishes that he has been in possession
from time immemorial of the right to appropriate
the whole of the water the law will not prevent
him from acquiring the right. [P. 188, C. 1]
(b) Easements Act, S. 17 — Profits a prendre
do not Include right to water.
8. 17 is in tended to apply not not to rights of
rrrigation in natural streams but to rights in the
nature of profits a prendre which do not include
a right to water. ^ [P. 188, C. ll]
^ (c) CivllP.C., S. 100— Question of fact
based on no evidence icill be Interfered icith.
The High Court ought not to interfere in
second appeal with a finding of fact so long as
there is some evidence to support it, but wherf the
1 ower Court has arrived at his findings without
evidence and the trial is bad the High Court will
interfere, [P. 188, C. 2]
P. C. Manuk, /. P. Singh and Bhay
wan Prasad — for Appellants.
S. M. MullicJc, L. K. Jha and S. Saran
— for Bespondents.
Mullick, J. — The plaintiffs in this
litigation allege that a watercourse
called the Mangrooha river, which flows
past the villages of Madanpur, Azamgarh,
Bacharpur and Manik Chauk from north
to south is a natural stream and that the
plaintiffs who are the residents of
Bachapur have from time immemorial
obstructed it by a bundh or dam*
measuring 107 feet in length, 31 feet in
breadth and 11 feet in height and that
the defendants who are residents of
Manik Qbauk and, Azamgarh have caused
injury to them by cutting it. The plain-
PRASAD (Mullick, J,) Patoa WT
tiffs accordingly ask : (l) for a declaration
that the defendants are cot entitled to
out the dam ; (2) for a declaration that
the plaintiffs are entitled to main*
tain and repair the dam ; and (3) that the*
defendants should be restrained by in*
junction from interfering with the right
of the plaintiffs to maintain and repair
and from doing any acts harmful to them.
The Munsil found that the water-
course in question was not a natural
stream. He also found that the
plaintiffs had established that from time
immemorial the dam in dispute of the
dimensions claimed had been maintained
by them for the irrigation of their fields.
He accordingly decreed the suit.
In appeal the Subordinate Judge dif-
fered on all points. He held that the
water-coarse was a flowing river and -that
the defendants, the residents of Manik
Chauk, had a right to use the water t6
the same extent as the plaintiffs and that
the plaintiffs had no right to maintain a
dam of the dimensions claimed for the-
purposes of irrigation so as to diminish
the supply to which the defendants are
entitled. He found that in fact the dam
in question completely deprived the*
defendants from any water at all.
Against this judgment the plaintiffs
prefer the present second appeals.
Now the first question for decision i$
whether the water-course is or is not a-
natural stream. The Munsif lias found*
that the bed of the water-course has boons-
ploughed up and cultivated in several
places and that there are already two-
dams existing to the north, one at Madan-
pur and the other at Majhaulia. Evi»
dence was given by the plaintiffs to show
that the water-course was fed by rain*
water and apparently the view taken by
the Munsif was that whatever may have
been the original condition of the water1'
course the channel at present consists ol
a series of pools which are filled with
water only during the rains and to which*
the law of natural streams does not
apply.
Now the Subordinate Judge has made.-
a very inadequate examination of the evi-
dence upon this point. He does not con-
eider the grounds given by the Munsif for
holding that no connected channel exists.
Apparently the learned Subordinate Judge
thinks that as the water -course ia called
a nadi it must be a natural stream. In
my opinion there has been an 4fttoi: of
IS8 Patna SRI JUGAL SAKKAK T. BAJ* MANGAL PBASAD (Mullick, J.)
procedure in the trial of this issue and
the plaintiffs are entitled to a fuller
•examination of the evidence before the
finding of the Munsif can be set
aside.
The next point is whether assuming
that this is a natural stream the plain-
tiffs have established a right to obstruct
it to the injury of the defendants. Now
the law on the subject in this province
is well settled. For ordinary purposes
such as drinking and watering cattle the
plaintiffs are entitled to appropriate if
nedessary the whole of the water ; but for
extraordinary purposes such as the irri-
gation of their fields they are entitled
only to take so much as will not reason-
ably diminish the volume of water in the
river. The plaintiffs, however, contend
that they are entitled either by twenty
years' user as of right or by prescription
to appropriate the whole of the water for
irrigation purposes. The defendants
contend that such an absolute right can-
not be acquired either as an easement or
an any other way, The learned Subordi-
nate Judge accepts this view and relies on
White v. \Vl\itv (l) In my opinion the
.learned Subordinate Judge has taken an
•erroneous view of the decision in this case.
There the higher proprietor claimed the
right to appropriate as much water as he
required for his mill on the ground that
the Crown had given him a grant of tho
whole water in the river, and the learned
•Judge held that suoh a grant was repug-
nant to the ordinary law of riveis and
could not 1)0 conceived and that the pro-
prietor had established the user of only
1,200 cubic foet of water per minute and
that his claim to a prescriptive right to
more than 6,000 cubic feet per minute or
to as much water as he liked had failed.
I^ord Eobertson in his judgment expressly
points out that the rule of prescription is
tantiini prescription quantum 2^os^essurn.
It was nowhere held in that case that if a
higher proprietor establishes that he has
been in possession from time immemorial
of the right to appropriate the whole of
the water the law will not sanction his
title to do so, So it has been held in
W tight v. Howard (2) ; Mason v. Hill (3)
(1) [1906] A. C. 72-75 L, J. P. C. 14=94 L.
T. 65.
<2) [1828] 57 E. R. 76=(1828) 1 Sim. and S.
T. 190=rl L. J, 0. S. Oh. 34=24 R. R. 1G9.
<3) 11832] 1UO E. R. 114,
Debi Pratad v. Jaynath (4); and Salbhadra
Prasad v. Sfceifcfc £<zrA;a* -IZi (5). On the
other hand it is contended on behalf of
the defendants that the Indian Easements
Act, though not applicable in this pro-
vince, may be regarded for the purpose of
ascertaining the general or common law
principle applicable. S. 17 of the Indian
Easements Act declares that a right
which would tend to a total destruction
of the subject of the right, or of the
property on which, if the acquisition were
made, liability would be imposed, can-
not be acquired by prescription, and it is
argued that the upper proprietor cannot
be allowed to convert the river into a
pond and thereby destroy the flowing
stream. Here the right to appropriate
the water is a negative easement appurten-
ant to the land of the upper proprietor
and the water, though diverted, is not
destroyed. S. 17 of the Basements Act
is intended to apply not to such rights
but to rights in the nature of profits a
prendre which do not include a right to
w<iter. 1 do not think, therefore, that the
principle of that section is applicable to
this case.
The law applicable here is either S. 26
of the Indian Limitation Act of 1908 or
the general law of prescription. Under
that law every right peaceably enjoyed
as an easement, and as of right without
interruption for the prescriptive period,
becomes absolute and indefeasible after
the expiry of such period. The plaintiffs
are, therefore, entitled to succeed if they
can prove enjoyment as alleged for the
necessary period.
Apart from this question of law which,
in rny opinion, has been wrongly decided
by the learned Subordinate Judge there
is a farther difficulty in the way of the
respondents. Before the Munsif the
parties went to trial on the issue whether
the plaintiffs were entitled to maintain
ft dam of the dimensions described in
the plaint. The defendants made a
categorical denial to the effect that no
dam of any kind had ever existed at
this place. The Munsif disbelieved the
evidence that no bundli had existed
and he found that the evidence as to
dimensions was un rebut ted. On appeal
the respondents shifted their ground and
induced the learned Subordinate Judge
(4) [1897J 24 Oal. 865^4 L 1760=37 M. L. jf
120=1 0. W. N. 401=7 Bar, 909 (P. 0.).
(5) [1906] 11 C. W. N. 85^4 0. L. J. 870,
1826 SIR JUGAL SARKAK v, BAJ MANGAL PJ^ASAD (Mullick, J.) Patna
to adopt a middle course, namely, that
the plaintiffs bad proved a right to main-
tain a " bundh," but that they had not
proved that the bundh should be 107 feet
long, 31 feet wide and 11 feet high. The
learned Subordinate Judge states that
the defendants allege that in 1321 the
length as well as the height was altered
by the plaintiffs so as to completely
obstruct the water flowing down to their
.village. We have been unable to find
any authority for this statement. There
is nothing in the written statement or
the depositions to support this finding.
Apart from the objection that a party
cannot be allowed to plead inconsistent
facts, or to give proof at variance with
his pleading, it is clear that there is
nothing in the evidence produced by the
defendants upon which this inconsistent
finding can be based. The learned Sub-
ordidate Judge was no doubt competent
to come to such a finding from the
plaintiffs' own evidence, but on this point
the evidence is one-sided and unrebutted
as the Munsif puts it. Again the learned
Subordinate Judge's statement that there
is no evidence on behalf of the plaintiffs
to prove that the bundh, as it exists at
present, existed from before 1326, is quite
contrary to the^ evidence recorded. It
is 'true that one'witness, P. W. 2, states
that the bundh was 160 feefe long, 31 feet
wide and 11 feet high. It^is explained
by the appellants here that " 160 " was a
mistake for " 107 " the two words in Hindi
bo express these lengths being very
jimilar. Be that as it may, there was
plenty of other evidence to the effect
ihat the disputed bundh is the one which
_ias existed from time immemorial. The
learned Subordinate Judge has committed
a mistake of record in saying that no
such evidence existed.
The other evidence upon which the
Subordinate Judge has relied consists of
certain documents filed by the defendants
to show that in a dispute J between the
villagers of Mad an pur and Manik Ghauk
before -an Assistant Settlement Officer
it was agreed that a diversion made /by
the Madanpur villagers from a point
north of the Madanpur bundh should
not be kept completely elosed by means
of a dam erected by the Madanpur vil-
lagers, and that for a certain number of
days the water in this diversion should
be/ allowed to flow so as to go down south
< to Manik Chauk. The learned Subordi-
nate Judge infers from this that the
bundh at Bacharpur could not hav»
been 160 feet long, 31 feet wide and
. 11 feet high. It was found in that cast)
that there was a " bundh " of some kind
at Bacharpur and the learned Judge-
infers from the conduct of the Manilc
Chauk villagers that the bundh could;
not have been high or long enough to>
obstruct the whole of the water. Before
coming to this finding we had to find
that the diversion brought the water back
into the channel above the Bacharpur
bundh and that at the time of the Magis-
trate's order the Manik Chauk people •
got * their water over or through this
bundh. There is no such finding by tho-
learned Subordinate Judge and the
inference does not follow that because-
the diversion through Madanpur was>
allowed to be kept open for a certain
number of days for the benefit of Manikc
Chauk, therefore, the bundh at Baohharpur
could not have been of the dimensions
alleged in the plaint. The plaintiff R, on
the other hand, assert that the water
did not come back to the river but found )
its way to Manik Chauk if at all over the
fields of Madanpur. The learned Subor-
dinate Judge has, therefore, committed
an error af law in drawing the inference.
Further the plaintiffs are entitled'
again to object that the defendants ought
not to be allowed to give proof inconsis-
tent with their pleading.
It is no doubt; true that this Court
ought not to interfere in second appeal
with a finding of fact so long a« there
is some evidence to support it, but here
it would seem that the learned Subor
dinate Judge has arrived at his findings
without evidence and t/hat the trial
is bad. It is also not clear to what
extent he has been affected by his errone-
ous view as to the rights of a lower
proprietor against a higher proprietor.
The result is that in our opinion the
appeals must succeed and the decree of
the learned Subordinate Judge must be
set aside. He will re-hear the appeals
according to law, but the parties will not
be entitled to adduce any further
evidence. As no objection was taken to
the competency of the defendants to
adduce evidence to show that a dam of
differ ant dimensions has been maintained
by the plaintiffs the Subordinate Judgo
.will be entitled to consider all the
evidence adduced ,but he will of course
190 Pitta*
G. L P, BY« Co. v. BAMESH^AR (Bucknill, J.,
1S26
also take into consideration the inconsis-
tency bdtween pleading And riroof as a
factor in determining the weight to be
attached to such evidence. There being
no materials for giving the plaintiffs
relief in re-jpect of any hundh of smaller
•dimensions their suit must either be
decreed in full or dismissed.
Costs will abide the result.
Kulwant Sahay, J.— I agree.
Case remanded.
A. 1. R. 1926 Patna 190
ADAMI A^D But KNILL, JJ.
G. I. P. By. C'o.— Defendants-— Appel-
lants.
v.
1 Ramwhivar Prasad and another — Plain-
tiffs— Respondents.
Appeal No. 140 of, 1923, Decided on 1st
July 1925, from the appellate decree of
the Distiict Judge, Saran, D/- 27th
November 1922.
HallH'ay* fr', .V. 72— 72 We Note R—Arfmlislnn
of lots by Railway — Jtallway Company need not
prove the fact of loss— Consignor must still prove
low by neyligpiHe.
In a nut bj cosigner where goods are sent
under Riak Note B admission of -loss bv Rail-
way di«pt»n<k»« with proof of fact of loss but does
not ichove th<» plaintiff of his burden of proving
loft* duo to neglect of Railway Companv. Smith
Ltd. v. (! teat Wettenilly. Co., (1922) 1 1 C. 178,
Ref. ami 45 Jlnni. 1'201, DW. [P 191 C 1]
Mohammad Hasan Jan— to? Appel-
lants.
Sarnhhu Saran. —for Respondents.
Bucknill, J. —This U a second appeal.
The appeal is from a decision of the
District Judge of Saran, dated the 27th
November 1922, by which he reversed a
decision of the Munsif of Chapra, dated
the 20th January of the same year.
The appellants are the Great Indian
Peninsula Railway Company through their
Agent at Bombay ; the respondents are
Bameshwar Prasad and another. The
suit was one of the type with which all
the Courts in India are sufficiently
familiar ; it was for recovery of a sum of
money from the Great Indian Peninsula
Railway for the price of a bale of cotton
goods which should have been delivered
to the plaintiffs but which was never
•delivered to them.
The plaintiffs, in their plaint, after
setting out the facts, alleged that they
believed that the bale (which was a por-
tion of a consignment of bales) had been
lost in transit on account of the gross
negligence of the defendants and they
claimed that the defendants were bound
to indemnify them for the loss. There
was no doubt that the consignment of
bales of goods was sent from some mer-
chants in Bombay to the plaintiffs who
were cloth dealers in Chapra ; there is
equally no doubt that the goods were
delivered to the appellants at Victoria
Terminus, Bombay, for carriage under
the well-known Risk Note B. It w
also a fact which is common ground that
when the goods arrived at Chapra, one
whole bale was found missing. Now in
answer to the plaintiff's claim the appel-
lants pleaded firstly that they admitted
the loss but that the loss did not occur
on their lino of Railway ; they alleged
that they had handed over the goods
intact to the East Indian Railway Com-
pany which had not been made a party
to the suit ; in any case they stated fur-
ther that the loss was not due to the
negligence of Railway servants.
Now, when the case came before the
Munsif, he came to the conclusion that
the plaintiffs had entirely failed to prove
negligence on tho part of the Railway
Administration , and he, therefore, held
that, on that view of the case, the suit
must he dismissed. In this 'decision,
he was, of course, following the
numerous cases which have been de-
cided in tho Courts in India and which
are substantially all of one tenor,
namely, that in a suit brought under such
circumstances as this suit was brought, it
is necessary that the plaintiff should
show that the Railway Company is res-
ponsible for the loss of goods. The Mun-
sif, however, considered a somewhat
curious question which does net seem to
have been raised in tho 'pleadings but
which appears to have been put forward
in the course of the trial before him. It
was suggested by the plaintiffs fchafc tho
Risk Note was not binding on the parties
because'it had been in fact signed by
some person who had no authority so to
do from the consignors in Bombay. Tho
Munsif was of the opinion that the indi-
vidual who in fact signed the Risk Note
had no authority so to do given to him by.
the consignors He, therefore, came lio
G. L P. BY.?Ca V.BAMESHWAR (Bteknill, J.)
191
the conclusion that, as the Risk Note had
not been signed by afty person who had
authority to do so on behalf of the con-
signors, it did not bind the parties and
that, therefore, presumably the appellant
Company was not able to avail itself of
any of the exemptions in the Risk Note
which purport <to exempt the appellant
Company f rom iKalbility tinder the condi-
tions therein specified.
Now when ihe case went on appeal to
the District Judge, the District Judge
came to the conclusions precisely oppo-
site on both these points to those at
which the Munsif : had arrived. He was
satisfied in the first place that the person
who did sign the Risk Note clearly had
authority 4rom the consignors so to do ;
although that authority was not an ex-
press but an implied one. He, therefore,
held that the plaintiffs were bound 'by it.
I might, however, point out that there
would still be another objection to the en"
'deavourof the plaintiffs successfully to
raise this' question. It is quite clear that
with regard to the consignment as whole,
the plaintiffs, by accept ing a large portion
of the consignment, adopted the contract
which is contained in the Risk Note "B";
they are, therefore, bound by that con-
iract ; and whether, or not the person
who signed it had the consignors'
authority, the plaintiffs would not bo
able now to contend that they were, or
are, not bound by the terms of the special
Contract embodied in that Risk Note~.
Apart from that however, there is here
also the finding of fact by the District
JivJgo that the individual who signed the
Risk Note did havo authority from the
•consignors. This finding is based upon the
evidence which was given in the case on
behalf of the plaintiffs themselves.
With regard to the other question,
that is to say, whether the plaintiffs had
proved (what thoy were bound to proVe if
they were to bo successful) negligence on
the part of the appellants, the District
Judge again differed from the Munsif.
He came fio the conclusion, for certain
reasons to which I will refer seriatim, that
the plaintiffs bad patisfiei him that the
loss was really due to the negligence of
*the appellants. These reasons are three
in number ono I* that the Company : pro-
•duced no evidence of any kind. I needl
hardly point out that, according to the
authorities both in India and in England
arad notably in the case decided by the
H6use of Lords in Smtfc Limited v.
Great Western Railway Company (l), ifc
is hot necessary- for the defendant Rail"
way < Company in a case such as* this t')
produce any evidence at all. Where a
special contract is sued upon by a plain-1
tiff (such as in this suit wag sued upon)
it is for the plaintiff to show that the
Railway Company is liable to him for loss
occasioned to the goods which had been
carried by the Railway Company on his
behalf. This reason, therefore, given by
the learned District Judge is not a reason
which could be properly held by him as
being in any way evidential of negligence
on the part of the appellant here. The
second reason which ho gives is what he
refers to as " the admitted facts " in the
case. The only admitted facts in the
case which are really material were
the facts that the consignment wa3
actually made, that the goods were en-
trusted into the care of tho appellants,
and that they were lost ; there were no
other material facts admitted in the case
and, from these facts alono, again thfc
law is clear as laid down in this country
and in England that no inference eviden-
tial of negligence on the part of the
appellant here could possibly bo drawn.
The third, and undoubtedly the most
important, reason which ho gives is whafe
ho refers to as the " plaintiffs own evi-
dence." Now if tho plaintiffs had pro-
duced any witness who had been able to
prove in any way that there had been
any negligence of any kind on tho part of
the appellant or by their Agents or ser-
vants, (for a corporate body can only
after all act through its Agents or ser-
vants) there is little doubt but that the
plaintiffs might havo succeeded. It is
sufficient, however, I think for this Court
to hold thafc, merely because the District
Judge states that having regard to th«
t3laintiffs' own evidence no other reason*
able conclusion can ba come to other than
that the loss was due to the negligence of
the Company's servants, the matter is by
Such a statement precluded froip being
considered in second appeal. In a case
such as this it is important to see what
in fact was said in evidence by any wit*
ness who appeared for the plaintiffs In
this case I fear that what wa* said by the
only witness who appeared for the plain-
tiffs wad in no sense any proof of negli*
B, 4M&&
A- 0. 178==91 L. J.,
Conk. Caa. 347=»88 T.
192 Patatft
BAT is A KUAB v. BAJA EAM
1926
gence but only an assertion thereof. The
only witness who was called by the plain-
tiffs merely stated as follows. — " Because
the bale has not been delivered to me so
I say that it has been lost on account of
the negligence of the Railway Companies.
(I may say that in the suit as originally
brought the Bengal and North Western
Railway Company through its Agent at
Gorakhpur was a second defendant.) I
need hardly, I think, point out that a
more assertion of this kind is of no evi-
dential value whatever as proof of negli-
gence on the part of the appellant. If
one was to hold that it was, all the diffi-
culties which surround plaintiffs in
bringing a suit of this kind, would at once
disappear, for all that would be necessary
for them to do, in order to throw the
whole of the onus upon the defendant
Company of bringing itself within the ex-
ceptions in the Risk Note " B " which
purport to exempt him from liability,
would be to make a mere assertion by a
witness on behalf of the plaintiffs that he
believed that the loss which was admit-
ted was due to the negligence of the
Railway Company's servants. I think
that it is obvious that such a statement
as this is as of little evidential value in
this case as are the other two reasons
which have been given in the decision of
the District Judge. The judicial com-
ments which have been passed not only
in this country but also in England upon
the difficulties which a plaintiff, who has
entered into a contract of the nature of
Risk Note '* B " encounters, have been
severe, and, if T may say so well founded
But such strictures on a * Rail way Com*
pany hardly properly lie within the
domain of the Courts , for it is, I take it,
always open to a person, who wishes to
consign his goods for carriage by a Rail-
way, not to enter into a contract such as
is set out in the Risk Note " B >f which
entails upon him such immense difficulties
in the event of his wishing to recover
from the Railway Company for loss or
damage, of the goods which he has con-
signed to it to take to their destination.
By this time I think it ought to be
publicly known that it would appear
that the onus of proving wilful negligence
lies upon the plaintiff who brings the suit
for recovery of what has been losfc on &
Railway Company's lines if he sues upon
the special contract which is embodied in
the Bisk Note " B. " It has been sugges-
ted that in this particular case the mere
admission by the Railway Company 06
the loss is not sufficient to prove that loss
and reference was made to a case decided
by a Bench of the Bombay High Court
[Ghelabha^ Punsi v. East Indian Rail-
way Company (2)] in which their Lord-
ships thought that a mere admission by *
Railway Company in their favour that;
the goods were lost was not sufficient to>
prove that the goods had been in fact lost.
I need only point out that this case wa*
decided before the case in the House o£
Lords to which I have already referred.
There the matter is fully dealt with and
think that an admission of loss must be
regarded as a position which it is open to'
the defendant Railway Company to take,
up. After all it does not appear to me
that it is necessary for a person to give
strict proof of what he himself admits.
All the points in the present appeal have
been recently dealt with by Mullick, J.»
and myself in the case of G. I. P. Rail-
way Co. v. Jitan Earn Nirmal Earn (3).
Under these circumstances, and I must
confess with some sympathy for the res-
pondents, I feel that the only possible
course in this case is that the appeal must
be allowed and the suit dismissed.
There will be no order as to costs.
Adami, J. — I agree.
Appeal allowed.
(2) [1921] 45 Bom. 1261=23 Bom. L. R. 525.
(8);A.U. R.1923 Patua 825.
# A, I. R. 1926 Patna 192
ADAMI AND SEN, JJ.
ML Eatisa Kuei — Plaintiff — Appel-
lant.
v.
Raja Ram Pandey and others — Defeiv
dants — Respondents.
Appeal No, 1231 of 1922, Decided on
24th Juna 1925, from the appellate de-
cree of the Addl. Sub.-J., Saran, D/- 18th
August 1922.
j[C (a) Adverse possession — Pica of, may fy
raised In appeal for t)ie first time \ If based on ori-
ginal pleadings.
Ordinarily the principle holds good that adversb
possession should be distinctly raised in the plead*
ings and should also form the subject-matter of an
isau*, but a potty may be allowed to succeed on a
1926
BATISA
v. RAJA KAM (Sen, J.)
Patna 193
title by adversa pos^ssion pleaded for tin first
time in, ths C^urt of appeal if snch a CAS 3 arisas ou
Jasts statad io the pleading* and tha party is not
taken by surprise [P 193 C 2 ; P 194 C 1]
(b) Limitation Act, S. 9— Limitation, begun in
lifetime of full owner is not suspended on hi 3
death.
Limitation having once cominanead to ru.i in
the lifetime of a full owner cannot ba taksn to b3
suspanded if he dies and is isuc^saded by -a limited
owner. (P 191 C 1]
N. N. Sinha — for Appellant;.
H. N. Prastd — for Respondents.
Sen, J. — This . appeal arises out of a
suit by the plaintiff-appellant for a de-
claration that a deed of zerpeshgi, dated
the 20th December 1907, executed by Mt.
Inderbiso in favour of the Defendant No.
1, was fraudulent and collusive and with-
out legal necessity ; that the said mort-
gagor had no right or title to execute the
zerpeshgi deed and that, therefore, it was
not operative on plaintiff who had inher-
ited the land in dispute from her father
Sadhu Dubey.
The case of the plaintiff was that one
Sheo Dubey had two sons, Nakched and
Ohulhai ; that Nakched "had a son Dukhi
Dubey and Chulhai had a son Sadhu
Dubey ; that Dukhi and Sadhu were joint;
that Dukhi died and Sadhu came into the
family property by survivorship ; that
after Sadhu's death his widow Mt. Jharo
succeeded her, and that after Mt. Jharo
the plaintiff inherited the property in suit
from her father. The plaintiff alleged
that Inderbaso Kuor, the widow of Dukhi,
illegally and fraudulently executed a deed
of zerpeshgi, dated the 20Lh December
1907, In favour of her brother, the Defen-
dant No. 1, who in turn assigned the
mortgage in favour of Defendant No. 2.
The case for the defence was that the
plaintiff was not the daughter of Sadhu
and Jharo ; that Dukhi and Sadhu were
not joint when Dukhi died ; that upon
Dukhi's death Inderbaso Kuer succeeded
to his property and upon her death her
daughter Sona Kuer succeeded. The De-
fendant No. 1 alleged that he was the
daughter's son of Inderbaso, that is, the
son of Sona Kuer and not the brother
of Inderbaso Kuer, as alleged by the plain-
tiff.
The learned Munsif held that the
plaintiff was the daughter of Sadhu
Dubey ; that the zerpeshgi deed was frau-
dulent and collusive ; that Dukhi died
whilst living joint with Sadhu and that
Defendant No. 1 is the brother of Inder-
1926 P/25 & 26
biso ; and he decreed the suit. On ap-
peal, the leirned 'Subordinate Judge
affirmed the finding that the plaintiff- was
the daughter of Sadhu ; but he held that,
even assuming that Inderbaso, the mort-
gagor of Defendant No. 1, had no title to
the land in suit, the Defendant No. 1,
having got possession of the land in 1907
on the basis of his zerpeshgi, and having
continued in possession for 'over 12 years
his title was perfected by adverse posses-
sion. He, therefore, allowed the appeal
and dismissed the suit.
It is contended before us : first, that the
question of adverse possession was not in
issue and that the Court of appeal was not
competent to raise it or pass his decision
on it ; secondly, that the question whe-
ther Dukhi or Sadhu were joint or sepa-
rate was not gone into by the Court of ap-
peal ; that he should have gone into the
question fully.
There is no doubt that title -by adverse
possession does not appear to rhave been
raised in the pleadings, but the principle
has often been laid down that a party may
be allowed to succeed on a title by adverse
possession pleaded for the first time in the
Court of appeal if such a case arises on
facts stated in the pleadings and the party
is not taken by surprise. The learned
Subordinate Judge bases his decision on
the following facts. Ho finds that as early
as 18f)8 in the cadastral survey Inderbiso
Kuer's name is recorded in the survey
khatian, and ho observes that this entry
must bo regarded as a presumptive piece
of evidence of possession of Mt. Inderbaso.
Ho finds that in 1901 there was a zerpe-
shgi in favour of Defendant No. 1 granted
by Inderbaso Kuer ; he finds that in 1907
the zerpeshgi in $uit was executed ; that
the dues of the previous bond were satis-
fied out of the consideration of the dis-
puted zerpeshgi in favour of Defendant
No. 1 . These two old registered bonds, he
observes, executed so long ago as 1901 and
1907, show that Mt. Inderbaso exercised
acts of possession over the disputed land.
He also records it as an admitted fact
th&fr Sadhuj the father of the plaintiff-
appellant, ' died 7 or 8 years ago," and
that the defendant's possession over the
land in suit commenced during Sadhu's
lifetime, and further that admittedly he
is still in possession. He also states that
the witnesses of the plaintiff had to admit
that plaintiff never got possession of tho
land in suit ; that in fact not a single
194 Patna
RAMJEE v. BAI BISHUNDUTT (Adami, J.)
1926
witness examined by the plaintiff spoke a
word about the possession of the plaintiff
or her predecessor Sadhu over the land in
suit, It is also found that at the revi-
sional survey of 1919, the name of Defen-
dant No. 1 was entered as being in posses-
sion as zerpeshgidar of Inderbaso. Now
most of the material facts above mentioned
were stated in the pleadings and evidence
was gone into in detail on all the points.
On the principle laid down in the case of
Lilalatt Misrain v. Bishun Choubey (l)
the learned Subordinate Judge rightly
somes to the 'conclusion that limitation,
having once commenced to run in the life-
time of a full owner cannot be taken to be
suspended if he dies and is succeded by a
limited owner. Upon the facts found and
upon the facts appearing in the pleadings,
I am inclined to think that the finding as
to adverse possession is well sustainable.
Ordinarily the principle no doubt holds
good that adverse possession • should be
distinctly raised in the pleadings and
ahould also form the subject-matter of an
issue ; but where the fact is so clear and
unmistakable that the plaintiff has never
been in possession of the land claimed for
nearly 22 years, and where, on the other
hand, possession is exercised adversely to
him as found in the present case, I see no
reason for interference.
The appeal is dismissed with costs.
Adami, J. — I. agree.
Appeal dismissed.
(I) Tl9OT]~GC.L.J"62L
A. I. R. 1926 Patna 194
ADAMI AND SEN, JJ.
Bamjec Prasad
lant.
Defendant — Appeh
v.
Bai Btshundutt and others-
deuts.
Bespon*
Appeal No. 54 of 1923, Decided on 27bh
July 1926, from the appellate decree of
the Dist* J.i Muzafferpur, Dh 23rd June
1923.
LIm,4c/,S.U— "CtvIZ Proceeding" does not
include application under Land Registration Act,
S. 28 S. 29 and S. 42— Land Registration Deputy
Collector is not " Court.''
The term " civil proceeding " used hi 3. 14 is
xiQt meant to cover an application made under
8s. 28 and 20 or S. 42 of the Land Registration
Act and the Land Registration Deputy Collector
cannot be called " a Court '' for the purpose of
deciding cases under those sections.
[P. 195, C. 2; P. 196, C.I}
Sivanandan Bay and Satyadeo Sakatf
— for Appellant.
T. N. Sahai—iGr Respondents.
Adami, J.— The plaintiff in this suit
sought for a declaration of his title, to
and confirmation of, his possession in
certain shares in the estate of Bishunpur
Sad. Previous to 1896, the plaintiff's
share was shown in the Register D of the
Land Registration Department to be 2
annas 16 gundas 1 kowri 1 krant 1 dant.
In 1896 the estate was partitioned and
divided into eight puttis , one of these was
the residuary putti which is the subject of
the suit.
Shortly stated, the plaintiff's case is
that after the partition the shares of the
various cosharers in the residuary putti
were entered in the name of one of the
sharers only, and the separate shares of
the different cosharers were not shown.
Rai Brahma Dutfc, who alone was shown
in Register D, seems to be the brother of
the plaintiff.
The plaintiff, in February 1902, pur-
chased an eight annas share in the putti
at an auction sale held in execution of a
mortgage decree , and in June 1902, he
applied for the registration of his name in
respect of the purchased share. He was
registered for 7 annas 14 gundas share
and was left jointly recorded with the
other cosharers for the rest of the share
The plaintiff afterwards, in 1912, applied
to the Land Registration Department
under S. 42 of the Land Registration Act,
pointing out that the Register D did not
show his shares separately as had been
shown in the register previous to the
partition. The Deputy Collector held
that S. 42 did not apply and rejected his
application. The plaintiff then made
another application under Ss. 28 and 29
of the Act, making the same request as he
had before, namely, that his shares should
be separately recorded. The defendants,
1st and 2nd parties to this suit, both
objected before the Deputy Collector, and
on the 7feh of May 1914 the Deputy Col-
lector found that a question of title was
involved and that he could not decide the,
case ; he rejected the application telling
the petitioner that he might go to the
civil Court, if so advised, for a declaration
1926
BA.MJEE v. BA.I BISHCJNDUTT (Adatni, J.)
Pallia 195
of his specific interest in each of the three
villages which formed the putti.
The plaintiff then instituted the pre-
sent suit on the 30th July 1914. Accord-
ing to his plaint, the Defendant No. 1,
Bamjee, had been recorded in the register
for a larger share than he was entitled to,
and the plaintiff sought to have some part
of this share taken from Bamjee, and also
a portion of a share taken from another
defendant and added to his own share.
It is unnecessary in this second appeal
to mention the share? claimed ; it is suffi-
cient to say that both the Courts below
have found that the plaintiff is entitled
to the share he claims. The Subordinate
Judge, however, dismissed the suit of the
plaintiff finding that the Defendant No. 1
or his vendors had been in possession of
the shares claimed by the plaintiff since
1902 afe least, and that the plaintiff had
never been in possession of those shares.
On appeal the learned District Judge,
agreeing with the Subordinate Judge as to
the title of the plaintiff, found with
regard to the present appellant, Defend-
ant No. 1, that he was recorded in Begis-
ter D for a considerably larger share than
he was entitled to, and, after considering
the question of limitation, and finding that
the time taken in prosecuting his case
before the Land Begistration Department
would be excluded, he decreed the plain-
tiff's suit as against Defendant No. 1 and
directed that 18 gundas out of the Defen-
dant No. 1's share in village Bakarpur
should be transferred to the plaintiff and
3 gundas of Defendant No. 1's share in
Mirpur should be similarly transferred,
while 11 gundas out of the share recorded
in the name of the defendant's grandfather
should be recorded in the plaintiff's name.
The plaintiff was also declared to be
entitled to be recorded for eight annas 12
gundas out of the group entry relating to
village Doberkothi.
The main question which arises in this
second appeal is whether the decision of
the learned District Judge regarding limi-
tation was correct. The learned advocate
for the appellant does not attack the find-
ings corne to as to the amount of shares of
the parties and in fact he could not, as
these are findings of fact.
Mr. Sivanandan Bay points out that,'
according to the findings, the plaintiff has
never been in possession since February
1902 at least, when the entry of the
defendant's shares was made in the Land
Begistration Department Begister D, that
the shares are held by the cosharera ex-
clusively, and since the suit was not
instituted till the 30th July 1914 and the
entry of the Defendant No. 1's shares was
made in the Land Begistration Depart*
ment Begister D in February 1902, more
than 12 ye.vrs have elapsed and the suit
must be birred.
The Defendant No. 1 has been recorded
separately for his share in the Land Begis-
tration Department, and, as shown by the
learned District Judge, where the co-
sharers are found to have exclusive posses-
sion of a specific and stated share, limita-
tion may run against the other cosharers
claiming that share in a suit.
The learned District Judge has found
that the time taken in prosecuting his
case before the Land Begistration Deputy
Collector, and before the Commissioner
and the Board of Bevenue in appeal, that
is to say, from the 23rd of November 1912
to the 7th of May 1914, should be exclud-
ed under the provisions of S. 14 of the
Indian Limitation Act, 1908. That sec-
tion runs as follows : " In computing the
period of limitation prescribed for any
suit, the time during which the plaintiff
has been prosecuting with due diligence
another civil proceeding, whether in a
Court of first instance or in a Court of
appeal, against the defendant, shall be
excluded, where the proceeding is founded
upon the same cause of action and is pro-
secuted in good faith in a Court which,
from defect of jurisdiction, or other cause
of a like nature, is unable to entertain it."
The question is whether the proceeding
in the Land Begistration Department can
be called a civil proceeding and whether
the Land Begistration Deputy Collector
can be held to be a Court for the purposes
of the section ; thirdly, whether the cause
of action is the same in this suit as it was
in the Land Begistration Department, and
whether it can be said that the cause is
one which, from defect of jurisdiction or
cause of a like nature, the Land Begistra-
tion Deputy Collector was unable to enter-
tain.
I have myself grave doubts on each of
these points. I do not think that the
term " civil proceeding " used in the sec-
tion is meant to cover an application
made under 8s. 28 and 29 or S. 42 of the
Land Begistration Act, nor do I think that
the Land Begistration Deputy Collector
could be called a "Court" for the purpose
Patna
CHHAKAUKI v. ISHER (Kulwant Sahay, J.)
1926
uf deciding cases under those sections.
"Then again, though the ciuse of action
is in both cases the record made in the
Land Registration Register D, after the
partition, the relief sought hefore the
Deputy Collector was different from the
relief sought here. Before the Deputy
Collector the plaintiff merely asked that
his share should be separately shown and
he stated what he alleged that share was.
Before this Court the plaintiff seeks to
hfve his title declared and to be contirmd
IK possession, or, in the alternative, to
recover possession. It is difficult to say
that the Land Registration Deputy Collec-
tor had no jurisdiction to order that the
register should show the shares separately ;
but; it was found that really the question
was one of title and, therefore, the Deputy
Collector refused to deal with it. 1 do not
think that it can be said that the Deputy
Collector was unable to entertain the
application before him from defect of
jurisdiction or other cause of a like nature.
The plaintiff really sought to have his
title declared by the separate record of
his shares in the Register D and the
proper venue for obtaining the relief he
really wanted was the civil Court.
Instead of going to the civil Court lie
went to the Land Registration Depart-
ment, and when the Deputy Collector had
decided that the case was one in which
title had to be decided instead of at once
coming to the civil Court, the plaintiff
prosecuted his case in appeal before the
revenue authorities. In my opinion S. 11
of the Limitation Act will not sive the
suit from limitation.
The learned District Judge has relied
on the case of Girjanath Roy Choivdhory
v. Ram N'irain Das (l), whore the plain-
tiff was allowed under S. li to deduct the
period during which he was bona tide
seeking redress from the revenue autho-
rities who had no jurisdiction to deal
with the question raised by him, and the
suit was held to be not barred by lapse of
time. In that suit the question was very
shortly dealt with, and I think is distin-
guishable from the present case.
The Defendant No. 1 had bought shares
in three villages from admitted cosharers
in 1886, 1902 and 1905 ; he was recorded
in Register D in 1902 with regard to the
lands purchased in 1886 and 1902, and
his vendor was recorded in 1902 in respect
of the lands bought bv the defendant in
' (D [1893] 20 Gal. 264.
1905, and the trial Court found that the
defendant and his vendors had been in
possession ever since and the plaintiff had
never been in my possession. The suit
was instituted more than 12 years after
February 1902, and in opinion the
learned Subordinate Judge was correct in
finding that the suit was barred by limi-
tation as against Defendant No. 1.
The learned advocate for the respon-
dent raised an objection to the appeal on
the ground that Defendant No. 1 had sold
his interest in the patti in 1919 and,
therefore, he had no right to appeal. I
do not think that this contention can be
upheld ; for it is quite clear that it is due
to the defendant's vendees that his titlq
to the shares should be supported and up-
held. It seems that an application was
made for substitution, but it was rejected
by the Court.
I would, therefore, allow the appeal,
set aside the decree of the learned District
Judge, so far as it affects the shares which
are the subjecfc-matter of this appeal, and
dismiss the suit as against the Defendant
No. 1. Each party will pay his own costs
throughout.
Sen, J. — I agree.
A p peal allow e<l.
A. I. R 1926 Patna 196
KULWANT SAHAY, J.
Glihakanri LM — 1st Party.
v.
I slier Singh — 2nd Party.
Criminal Reference No. 70 of 1924, Deci-
ded on 6th November 19J4, made by the
Dist. Mag,. Gaya.
Criminal P. C., S, 111— Proceedings aga'.nst
gumasta alone are nob illegal.
Order under S. 147 against the gomashta of a
proprietor is not illegal, and the omission to add
the proprietor as a party to the proceeding is a
mere irregularity, or at the most an error of law
aud does not render the proceedings illegal,
especially when the gomasht i files written state-
ment on behalf of the propriator and contests on
his bahalf. [P. 197, C. 1 and 2]
Nawal Kishore Praszd II — for 1st
Party,
Shiveshwar Dayal— for 2nd Party.
Kulwant Sahay, J.— This is a refer-
ence made by the District Magistrate of
Gaya, recommending that the order passed
under S. U7 of the Code of Criminal
1926
SIB SAHAI v. BUM OHAKD
Patnn 191
Procedure by the Deputy Magistrate,
directing the second party to desist from
putting in earth on a weir, should be set
aside. The reason upon which the learned
District Magistrate recommends that the
order should be set aside is that in the
proceeding under S. 147 the second party
was one Isher Singh who was the
gomashta for the 9 annas Tikari Raj and
the proprietor was not made a party. It
appears that the first party, who is a pro-
prietor of village Khaira, objected to the
second party, the Gomashta of the Tikari
Raj, putting earthwork on a certain weir
which had the effect of diverting water
into his own village Khaira with the
apprehension of submerging the whole
village. The learned District Magistrate
is of opinion 'that the real party interested
in the dispute is the proprietor, namely,
the Maharaja of the 9 annas Tikari Raj,
and that the Maharaja himself or his duly
appointed mukhtcarmam should have been
made a party and not the gomashta, as it
is possible that the gomastha might be
dismissed or transferred to another place
and the order would not bo binding upon
the Tikari Raj or any other gomashta
when he comes in place of Isher Singh.
He has referred to certain cases where it
is held that the person really interested
should be made a party in the dispute.
There can be no doubt that it was desira-
ble that the person really interested ought
to have been made a party, but I am not
satisfied that the proceeding will bo
illegal or without jurisdiction because the
gomashta, and not the proprietor, was
made a party to the proceeding. The
oases referred to by the District Magis-
trate have almost all been referred to in
the Full Bench case of the Calcutta High
Court in Dhondhai Singh v. Follet (1)
where it was held by the Full Bench that
there is jurisdiction under S. 145 of the
Code of Criminal Procedure to make an
order in favour of a person who claims to
be in possession of the disputed land as
agent to, or the manager for, the proprie-
tors when the actual proprietors are not
residents within the appellate jurisdiction
of the High Court. In Bhola Nath Singh
v. Wood (2) a Division Bench of the*
Calcutta High Court distinctly held that
the fact that the manager, 'and not his
employer, the Zamindar, has been made a
party to a proceeding under S. 145 of the
" 11) ujuaj »1 CM. 4*=7 0. W. N. 8*5 (F; B.).
(2) [1004] 82 Oil. 287.
.Code of Criminal Procedure, is a mere
irregularity, or at most an error of law
which does not affect the Magistrate's
jurisdiction.
No doubt, under the amended provisions
of the Code of Criminal Procedure, orders
under Ss. 145 and 147 can be revised by
the High Court not only on the question
of jurisdiction, but also on the question of
illegality, but I do not find any illegality
in the Magistrate's making .tho order
under S. 147 against Isher Singh, who as
gomashta, filed tho written statement on
behalf of Tikari Raj and set up the claim
of tho Tikari Raj to put up earthwork on
weir. The learned vakil appearing for
the petitioner is unable to cite any
authority which would go against the
decision in the cases reported in (1) and
(2) referred to above.
I am unable to accept the recommenda-
tion of the learned District Magistrate.
The order under S. 147 will, therefore,
stand.
Reference refused.
A. I. R. 1926 Patna 197
MULLICK, AO. C. J., AND KULWANT
SAHAY, J.
Sib Sahai Lai and others — Appellants,
v.
Bijai Chand Mahtab — Respondent.
Appeal No. 915 of 1921, Decided on
22nd July 1925, from the appellate
decree of 'the Addl. Sub-J., Bhagalpur,
D/- 26th April 1924.
(a) Bengal Tenancy Act, S. 53—Contract not
made with reference to boundaries but a specific
block not specifiable except by area — Area is
the essence — Additional area found with tenant —
Tenant Is liable to pay enhanced rent.
When the contract of tenancy is made not with
reference to any boundaries or a specific block
otherwise identifiable but for a certain area at a
certain rental, tho area is of tho essence of the
contract arid by subsequent excess found upon
measurement renders the raiyat liable to
pay additional rent. [P 200, 0 1]
(6) Bengal Tenancy Act'S. 52 — Landlord should
show additional area In tenants' possession to
claim additional rent— Onus tlien is on tenant
to prove that the additional area belonged to
him previously.
For the purposes of S. 52 it is not always
necessary to ascertain the area of the original
grant and the rent thereby reserved. All that
the landlord has to show is 'that the present area
is greater Jthan the area for which rent was lasfc
198 Patna
SIB SAHAI v. BIJAI CHAND (Mullick, Ag. C. J.)
1926
paid. The onus is then shifted on the tenant to
«how that the excess land used previously to
belong to the holding and was lost by alluvion or
otherwise. [P 200 01]
(c) Evidence Act, S. 352—Jamabandl prepared
by landlord Is admissible to show basis of
assessment.
A jamabandi prepared by the landlord, though
not binding upon the tenant is admissible as
evidence that since the creation of the tenancy
rent has- been assessed and that such assessment
was on the basis of a certain area : 25 C. W. N.
204, Foil. [P 201 C 2]
S. M. Mullick and S. N. Palit—fov
Appellants.
Sultan Ahmad and S. C. Mazumdar —
for Respondent.
Mullick, Ag. C. J.— The plaintiff
brought ,47 suits against different tenants
for arrears of rent for the years 1327,
1328 and 1329 F. S. He also at the
same time claimed additional rent for
excess area under S. 52 of the Bengal
Tenancy Act alleging that by a
measurement made in the course of
partition proceedings in 1910 and 1911
it was found that the area in the
possession of the tenants was in excess
of the area for which rent had been
previously paid. He also claimed an
enhancement under S. 30 (b) on the
ground that there had been a rise in the
average local prices of staple food crops.
He also claimed enhancement under
'S. 30 (d) on the ground that the lands
had been improved by the fluvial action
of the river Kosi.
Three suits were ^compromised and one
was decreed ex parte. In the remaining
43 cases the Munsif disallowed the
prayer for enchancement under S. 30 (d),
but he allowed, in a modified' form, the
prayer *J or enhancement under S. 30 (b).
He also allowed the claim under 8. 52.
He made decrees against the 'tenants in
accordance with these findings.
Thereupon the tenants in 35 cases
appealed to the District Judge. The
appeals were heard by the k Subordinate
Judge whose decision was as follows : —
(a) The learned Subordinate Judge
affirmed the Munsif s decree for enhance*
ment on the ground of . a rise in the
price of food-grains,
(b) He affirmed »the Munsif 's finding
that the quality of the land had not been
shown to have improved and his decree,
dismissing the claim under S. 80 (d),
Bengal Tenancy Act.
(c) He affirmed the Munsifs finding
that the standard of measurement was a
lugga of 6 & 1/2 cubits.
(d) Disagreeing with the Munsif he
found that the tenancies which, accor-
ding to the evidence, have existed for a
period of 700 years were not created after
measurement, and he modified the
Munsifs decree and allowed an enhance-
ment under S. 52 only in some of the
cases.
As „ the learned Subordinate Judge's
judgment seems somewhat obscure at
first sight, it is necessary to examine it
with reference to the pleadings and the
judgment of the trial Court. Now in
the plaint the plaintiff distinctly makes
the case that the mauzas • from time im-
memorial have been settled with tenants
after proper measurement with a lugga
of 6 & 1/2 cubits and that the measure-
ments 'were entered in the rent roll
kept by the zamindar and 'in the receipts
granted to the raiyats, and ,that in
accordance with the said practice the
defendants used to take 'settlement for
specified v areas at specified rates per
bigha, The plaintiff then alleges that
from about 1305 to 1313 F. S. ;the lands
were inundated by the river Kosi, and"
that in 1814 the defendants encroached
upon the khas lands of the plaintiff, and
that in 1316 a cadastral survey was
made, and it was found that the defen-
dants were holding lands in excess of the
area originally settled with them. At
the trial the plaintiff produced the
jamabandis for the years 1314, 1315 and
1316, also some karchas and counterfoil
rent receipts. From the Munsifs judg-
ment it would appear that the jamaban-
dis show the area, the rate per bigha
and the total rental. The karchas show
the area and the rental. The counter-
foil rent receipts contain the same
particulars, and on the back of them ap-
pear' the thumb-impressions of the
raiyats.
At the trial one of the issues (No. 14)
was : "Is there any system of measure-
ment prevalent in the village where tbe
plaint lands are situate ?" This was
answered by the Munsif in the- affirma-
tive. The Munsif appears to have held
not only that tbe standard of measure-
ment was 6 & 1/2 cubits, but also that
there was a practice of measurement in
the naauza such as is referred to in Ci.^6)*
of S. -52 of the Bengal Tenancy Act.
1926
SIB SAHAI v. BIJAI CHAND (Mullick, Ag. C. J.)
Pain* 199
That clause provides that if such a
practice is established then the Court may
presume that the area specified in a
patta, kabuliyat or rent roll has been
entered in such patta, kabuliyat or rent
roll after measurement and the Munsif
gave effect to this presumption and found
that the areas shown in the jamabandis
and the other papers were entered after
measurement.
The Subordinate Judge accepts the
Munsif's finding as to the length of the
standard of measurement, but does not
find that there was any measurement
before entering the areas in the papers.
But in the course of the trial the
plaintiff appears to have made an alter-
native case. He contended that even if
his allegation of measurement was not
accepted, and it was held that the jama-
bandi and other papers referred to an
assumed area, still he was entitled to
additional rent upon the difference bet-
ween the present area and such assumed
area.
The learned Munsif accepted this al-
ternative contention although it did not
arise upon his findings.
• The Subordinate Judge took a middle
course and he held that the areas entered
in the papers were in fact assumed areas,
and where the difference between the
present area and the assumed area was
small he declined to decree enhance*
ment. He thought that it was quite
possible that in these cases the area was
under-estimated and^that the area of the
holding, at the time of its origin, was the
same as that fixed by the 'partition pro-
ceedings. He appears to have founded
his decision upon the principle of mutual
mistake.
But where the difference was large the
Subordinate Judge held that the raiyat
must have encroached upon the .zamin-
^ar's land. The learned Judge found that
the encroachment took place not upon
the zamindar's khas lands, of which he
had none in the neighbourhood, but upon
the lands of other raiyats paying rent to
him. But as the law is that encroach-
ments, whether upon the landlord's khas •
lands or upon those of third. parties, must
always enure to the benefit of the land-
lord, the learned Subordinate Judge held
that in these cases the difference bet-
ween the present area and that shown in
the landlord's papers constituted a*a
excess upon which the raiyat was liable
to pay additional rent.
The Subordinate Judge accordingly
dismissed 17 of the appeals.
In the remaining 18 appeals he dis-
allowed the prayer for enhancement under
S. 52 while maintaining the enhancement
under S. 80 (b).
We have now before us 33 second
appeals.
In 18 the landlord appeals against the
Subordinate Judge's decree disallowing
enhancement under S. 52.
In 15 appeals the tenants appeal
against the Subordinate Judge's decrees
allowing enhancement under S. 52.
It*is urged that the Subordinate
Judge's finding is that as the plaintiff
has failed to show what was the area of
the holdings at the time of their origin
he is not entitled now to claim rent on
any excess area, and 'that the 'operative
part of the judgment is /inconsistent
with the findings.
In my opinion the findings, when pro-
perly understood, justify the decree ; and
it is desirable first to consider the scope
of S. 52. Now excess area may be ac-
quired by a tenant : (a) by encroachment
on waste or unoccupied land of the same
estate belonging to his landlord ; (b) by
alluvion ; or (c) by encroachment on the
lands of a third person, The tenancy
may be created by 'reference to boun-
daries. In such a case the operative parfs
of the contract lies in the enumeration
of the boundaries and any preference to
area is merely descriptive and does -not
affect the identity of the subject-matter
of the grant.
Next, a tenancy may be created by the
grant of a block of land described other-
wise than by reference to boundaries.
Here again any incorrect assertion as
to the area will be merely false des-
cription and will not affect the liability
for the rent reserved. In either of these
two cases the rental may be either a
lump sum without reference to rates or
a lump sum based upon a rate or
rates per unit of measurement
The third case arises when a tenant
Squats upon the land of the'zamindar and
there is an implied contract of tenancy
to pay fair and equitable rent upon all
the land in his possession at any time.
Strictly speaking 8. 52 is not neces-
sary to fif liability for excess area under
200 Patna
SIB SAHAI v. BIJAI CHAND (Mullick, Ag. C. J.)
1926
such a contract. The liability for excess
area arises upon the contract itself.
The fourth case arises when the con-
tract is made not with reference to any
boundaries or a specific block otherwise
identifiable, but for a certain area at a
certain rental. In such a case the area
is of the essence of the contract and by
subsequent excess found upon measure-
ment renders the raiyat liable to pay
additional rent. In determining the area
demised the parties may cither resort to
measurement or they may agree to accept
an assumed figure. In either case
S. 53 operates. In the cases before us
there is no iiriding that the original grant
was for land within any specified bounda-
ries or comprised in a specified block.
The Subordinate Judge finds that there
was no measurement before the grant and
I think he intends to find that the'settle-
mont was for an assumed area. He does
find that there was no rate per bigha ;
but that question is not material. The
sole question is whether the rent reserved
in 1314 was for an area less than the
present area.
For the purposes of 8. 52 it is not
always necessary to ascertain the area of
the original grant and the rent thereby
reserved. All that the landlord has to
show is that the present area is greater
than the area for which rent was last
paid. The onus is then shifted on the
tenant to show that the excess land
used previously to belong to the holding
and was lost by diluvion or otherwise.
As I read the learned Subordinate Judge's
findings I think he holds that the land-
lord's papers show that in 1314 and subse-
quent years tho tenants were paying the
rents noted against their names for areas
assumed by both parties to be correct and
that they would be liable to pay addi-
tional rent : (l) if'the jambandis of 1314
recorded a new contract ; or (2) if the
assumed areas were in accdrd with the
tffcate of affairs at the origin of the
tenancies.
As 'the case of neither party was that
there was a new contract of tenancy the
only question for decision that remained
was : What was the area at the origin ?
IPor this purpose the learned Judge accep-^
ted the jamabandi papers as 'evidence but
he declined to give that weight to them
that the Munsif gave, and he held that
in some of the cases they were inaccurate.
The Munsif held that as theye was a
practice of measurement in the mauza
the jamabandis must be taken to be accu-
rate and conclusive as to the area of the
holdings at their origin. The Subordinate
Judge declined to accept the oral evidence
upon this point and he drew attention to
the fact that the papers previous to 1314
had not been produced and he thought
that the areas shown in the jamabandi of
1314 might well be the area of the hold-
ings at tho time of their origin in those
cases where the excess discovered in 1316
was only slight. On this point the learned
Government Advocate, on behalf of the
landlord, attacks the learned Judge's find-
ing on the ground that he did not consi-
der the whole evidence in the case. It is
pointed out that no reference is made to
the fact that the tenants placed thumb-
impressions upon the counterfoil rent
receipts and that there is no discussion of
the evidence of some of the witneses who
prove the measurements. As the Subordi-
nate Judge had the whole evidence before
him his finding in favour of the tenants
with reference to these cases is, I think,
conclusive.
Therefore the Second Appeals Nos. 1454
to 1471 of 1924 preferred by the landlord
must be dismissed with costs. I do not
think there is any ground for the sugges-
tion that the learned Judge was labour-
ing under the impression that the landlord
must prove measurement in 1314. It is
clear that he did not consider that neces-
sary. And as to the onus which rested
upon the tenants to show that the present
area is not in excess of the original area,
though it is not quite clear whether the
Subordinate Judge has correctly placed
the burden, the learned Judge has coma
to a finding on the evidence on both sides
and the question of the burden of proof
becomes academical.
In regard to the cases in which the
difference 'is large, the learned Subordi-
nate Judge takes the view that the
jamabandi of 1914 is approximately
correct and the large difference shows
that the excess is real. The position
taken by the learned Subordinate Judge
is perhaps not very logical, but he was
entitled to find in which cases the jama-
bandi area was not the original area and
his -finding is conclusive.
Therefore- Second Appeals No. 915
and 963 to 976, which have been preferred
by : the tenants; are dismissed., with costs.
1926
SIB SAHAI v. BIJAI CHAXD (Mullick, Ag. C, J.)
Patna 201
.Before concluding ifc is necessary to
refer to Manindra Chandra Nandi v.
Kaulat Sheikh (l). In this case the land-
lord produced jamabandis and rent receipts
showing the area in certain years and ho
claimed additional rent on excess area
found in the possession of the raiyafc in
a subsequent year. Their Lordships of
tho Calcutta High Court held that the
claim could not be allowed, but in affirm-
ing the decision of the lower appellate
Court, which was conclusive as a finding
of fact, their Lordships reviewed the
previous law on the subject in Bengal and
made certain observations' upon which,
though obiter, considerable stress has
been laid by the learned vakil for tho
tenant appellants before us. The material
passage of the leading judgment runs as
follows :
"I take it to be the settled rule of this
Court that when a letting upon the basis
of a measurement is proved the tenant
has prima facie to show that the rent
was a consolidated rent for all the land
within specific boundaries, but that in the
absence of such proof the mere produc-
tion of such dakhilas as those now in
evidence does not suffice to throw any
onus on the tenant. The position then
is simply that the landlord has failed to
establish the fact of excess area because
he has failed to show with sufficient cer-
tainty what the area in fact was for
which the rent was originally reserved.
There is no reason whatever forbidding
a landlord from proving, if he can, a con-
tract of the nature indicated in Dhrupad
Chandra Koley v. Huri Nath (2), but
entries of area and rate in dakhilas or
jamabandis do not suffice to prove this by
themselves in the absence of further
material throwing light upon the original
conditions of a holding whose origin is
boyond the reach of direct evidence."
^ The learned Judges appear to have 'been
disinclined to accept the view taken in
this Court in Maharaja Keshav Prasad
Singh v. Tribhuan (3), where it was held
that statements of area in the landlord's
papers whether after measurement or not
were evidence for the purpose 'of ascer-
taining what the area was for which th*o
rent shown in jamabandi was being paid.
It would seem that the 'learned Judges
were of the opinion that " unless the
U) A. I.E. 1924CaiT87£ ~~~~
(2) [1918] 22 C. W. N. 826=27 C. L. J. 563.
(3) [1917] 2 Pat L. J. 276^=1 P. L. W. 400.
jamabandis were prepared after measure-
ment no claim for enhancement could be
founded upon them. In their view the
settled rule of the Calcutta High Court
was that an assumed area could never be
a foundation for such a claim. It does not
appear, however, that the case of Durga
Priya Choudhuri v. Nazra Gain (4), was
considered by the learned Judges. There
Mookerjee, C. J., observed that a jamabandi
prepared by the landlord, though not
binding upon the tenant was- admissible
as evidence that since the creation of the
tenancy, rent has been assessed and that
such assessment was on the basis of a
certain area ; and in remanding the case
the learned Chief Justice gave the follow-
ing directions : "The District Judge will
first consider whether since the date of
the last assessment of rent, land has been
added to the holding by encroachment,
accretion or in like manner. If this is
answered in the negative, he will consider
whether the rent was assessed at a con-
solidated sum for the entire tract in the
possession of the tenant, whatever its area
might turn out to be, or whether the
rent was assessed on an area fixed by
estimate or determined by measurement.
If the rent was not fixed as a consoli-
dated sum the plaintiff is entitled to
additional rent," This view of the law
is in accord with that which had been
taken in this Court in 1917 in Maharaja
Keshav Pd. Singh's ca^e (3). It was subse-
quently affirmed in Lalla Sheo Kumar
Lai v. Eamphal Das (5), and in our opi-
nion the learned Subordinate Judge was
right in taking the landlord's papers into
consideration in ascertaining whether the
excess in the cases before him was real or
fictitious.
The result is that all the appeals before
us are dismissed with costs.
Kulwant Sahay, J.— I agree.
Appeals dismissed
(4) [1921] 25 C. W. N. 204,
(5) [1920] 58 I. C. 959. '
202 Patna
AMBIT LAL v. JAGAT CHANDRA (Mullick, J.)
1926
A. I. R. 1926 Patna 202
MULLICK AND Boss, JJ.
Amrit Lai Seal — Decree-holder —
Appellant.
v.
Jayat Chandra Thakur and others —
Judgment-debtors — Eespondents.
Appeal No. 182 of 1924 and Civil Be-
vision No, 393 of 1924, Decided on 19th
March 1925, from the appellate order of
the Dist. J., Santhal Parganas, D/- 19th
May 1924.
(a) Santhal Parganas Settlement Regulation
(3 of 1872), S. 27 (1) and (2)— " Any Court " In
sub-S. (2) does not Include a Court executing decree
under Civil P. C.
"Any Court " in sub-S. (2) of S, 27 means a
Court vested with jurisdiction to question the
correctness of the decree. Powers of a Court
executing a decree are derived from S. 47 of the
Civil P. C., and that Court cannot refuse to
attach and sell property as directed by the decree
under execution although the decree is in con-
travention of sub-S. (1) of S, 27 o Regulation 3
of 1872. Regulation 3 of 1872 certainly pro-
hibits any Court from recognizing a transfer as
valid if made in contravention of sub-S. (l). but
the Court must be engaged in a proceeding in
which it has jurisdiction to investigate the
legality of the transfer. In other words, the
proceeding must be properly constituted and the
investigation necessary. [P. 204, C. 1 ; P. 205, C. 1]
(6) Execution of decree — Mortgage decree —
Executing Court cannot entertain objection that
property ordered to be sold In decree Is not sale-
able— Such objection may be entertained In the
case of money decree.
Where the jurisdiction of the executing Court
is based on a decree for sale it is not open to
the executing Court to refuse to carry out the
sale so long as the decree exists in full force
and effect. An objection that the property is not
saleable can be made by the judgment-debtor in
the case of a money decree either before, and
under certain circumstances even after, confirm-
ation, but in the case of a mortgage decree the
objection cannot be taken in an execution pro-
ceedings because it is an attack upon the validity
of the decree : 28 Mad. 84, Dlss. [P. 204, C. 1]
(c) Civil P. C., S. 47— First appellate Court
deciding that property comprised In the decree Is
not saleable— Second appeal lies.
"Where the first appellate Court, disagreeing
with the executing Court decided that a part of
the property ordered to be sold in the decree
not being saleable, the whole sale must be set
aside.
Held ; that this decision under S. 47, Civil
P. C., has the force of a decree as it finally
decides a question of right between the parties
to the suit and a second appeal lies. [P. 203, C. 1]
N. C. Sinha and S. S. Bose— for
Appellant.
Jagannath Prasad and Bindheswari
Prasad — for Respondents.
Mullick, J. — Jagat Chandra Thakur
is a mulraiyat to the extent of 8 annas
5 and 1/3 pies share in mauza Matiara.
Jamabandi No. 46 in the Survey and Set-
tlement record is his official mulraiyati
jote, and Jamabandi No. 43 is his ances-
tral holding and is called the mulraiyater
jote, and he has a joint undivided share
in it with others. It appears that both
jotes are security for the rent which he
has to collect and pay to the proprietor
of the village and are saleable in execu-
tion of a rent decree.
Jagat Chandra mortgaged his mulrai-
yati interest in mauza Matiara together
with his entire nij-jote jamabandis 43
and 46 to the appellant Amrit Lai Seal,
who brought the properties to sale on
the 29th June 1923 in execution of his
mortgage decree. The judgment-debtor
thereupon filed an application to set aside
the sale on the grounds referred to in
0. 21, B. 90, Civil P. C., and also on
the ground that the interest of his co-
sharers in Jamabandi No. 43 not being
saleable only his interest in the jama-
bandi could pass by the sale.
The Subordinate Judge found that all
the recorded tenants were parties to the
mortgage decree and that the entire
jote was saleable.
He also found that it was not open to
the mulraiyat to raise this objection in
execution as he had not appealed against
either the preliminary or the final decree
in the mortgage suit.
With regard to the allegation that
there had been irregularities in the con-
duct of the sale, he found that the area
notified for sale was 124 bighas 1 katha
2 dhurs, while the correct area was 161
bighas, 19 kathas, the former figure com-
prising only the paddy and the bari
lands and the latter including the unpro-
ductive jungle lands also. The property
was valued at Rs. 4,000 in the sale pro-
clamation and was purchased by one
Chatradhari Singh for Bs. 7,100, and the
learned Judge found that there was a
misstatement as to the exact sum due
upon the decree but that the correct
calculation was made subsequently and
the amount notified at the time of the
proclamation. The learned Judge further
found that the* above irregularities did
not cause the property to be sold for an
inadequate price, The judgment-debtor's
assertion that the value of the lands was
Bs. 20,000 was not accepted, and the
1926
AMBIT LAL v. JAGAT GHANDKA (Mullick, J.) Patna 203
iecree-holder's estimate of Rs. 7,000 was
considered reasonable.
In appeal the District Judge found that
the bidders were not misled either by
the valuation put in the sale proclama-
tion or by the statement as to the
amount of the decretal debt. With re-
gard to the understatement of the area,
the learned Judge found that though the
judgment-debtor had failed to prove
what was the value of the property the
irregularity was sufficient to invalidate
bhe sale.
He accordingly set the sale aside.
It is quite clear that the learned Judge
had no jurisdiction to set aside the sale
for an irregularity which did not cause
any substantial loss ; and the decree-
holder's application in revision must
succeed.
Civil Eevision No. 393 of 192i, there-
fore, is allowed with costs.
The learned Judge, however, has de-
cided in the judgment-debtor's favour
on a more serious point which is the
subject of Second Appeal No. 181 of 1924.
Disagreeing with the Subordinate Judge
he holds that Jote No. 43, not being sale-
able, the whole sale must be set aside,
This decision under S. 47, Civil P.O.,
has the force of a decree as it finally de-
cides a question of right between the
parties to the suit and a second appeal
lies.
Now it is to be observed that in the
mortgage suit at no stage did the mul-
raiyat or any of his cosharer defendants
take the plea of non-saleability, and in
the circumstances I do not see how in
.the execution stage the mulraiyat can
object to the sale of the property. The
Court cannot refuse to execute the mort-
gage decree unless there is a clear statu-
tory injunction in that behalf. It is
true there can be no estoppel in the
presence of an illegality, and the learned
Judge points to S. 27 of Regulation III of
1872 (the Sonthal Parganas Settlement
Regulation) which runs as follows :
" 01. (1) : " No transfer by a raiyat of his
right in his holding or any portion
thereof, by sale, gift, mortgage, lease or
any other contract or agreement, .shall
be valid unless the right to transfer has
been recorded in the record of rights,
and then only to the extent to which
such right is so recorded."
" Clause (2) : No transfer in contraven-
tion of sub-S. (l) shall be registered, or
shall be in any way recognized as valid
by any Court, whether in the exercise
of civil, criminal or revenue jurisdic-
tion/' *
" Clause (3) : If at any time it comes to
the notice of the Deputy Commissioner
that a transfer in contravention of sub-
S. (1) has taken place, he may in his
discretion, evict the transferee and either
restore the transferred land to the raiyat
or any heirs of the raiyat who has trans-
ferred it or re-settle the land with
another raiyat according to the village
custom for the disposal of an abandoned
holding."
The record of rights states that the
mulraiyati is entitled to transfer by a
single transaction his entire mulraiyati
right in the village including his private
holding, but that the successor to a mul-
raiyat, whether acquiring by inheritance or
transfer, is not entitled to enjoy his rights
or to perform his duties until he has been
recognized by the Sub-divisional Officer.
It also states that it is a raiyat's duty to
observe whatever orders Government may
pass forbidding the transfer, sub-division
or sub-letting of holdings.
What the Government orders are with
regard to transfer does not appear in the
record of rights published in the Sonthal
Parganas Manual of 1912 which is the
only material publication produced before
us, and it has not been shown on what
authority the learned Judge finds that;
the mulraiyat in this case has trans-
gressed thalaw.
The record of rights does state that the
rights of a recorded mulraiyat are nofc
subject to partition by gift, transfer, in-
heritance or otherwise ; from this it only
follows that a mulraiyat cannot sell or
mortgage less than his interest in a mul-
raiyater jote. In the present case there
is nothing to show that he has con-
travened the law' in this respect. Again,
without the mortgage deed, it is impos-
sible to say whether he has mortgaged
only an undivided fractional interest or
the whole jote as his own, but In either
case there would be no evasion of the law.
If it is a fact that the whole jote is nob
his and that some of the other judgment-
debtors have an interest therein, then, if
there is any prohibition by Government
against the sale of their shares, the mort-
gage decree was wrong in directing the
sale of the entire undivided holding. The
error, ^however, is not apparent on the
£04 Patna
AMIRT LAL v. JAGAT CHANDRA (Mullick, J.)
1926
f ice of the record and without; further
evidence ifc is impossible to say that the
decree was either illegal or without juris-
diction.
But apart from this there is a defect
in the learned Judge's proceedings which
goes to the root of jurisdiction, for it is
clear that it was not open to the learned
Judge afc all to question the correctness
of the mortgage decree.
Assuming that the trial Court has
wrongly ordered the sale of the interest
of the cosharers, does S. 27 of the
Sonthal Parganas Settlement Eegulation
authorize any Court that may choose to
do SQ to set aside the decree. I think not.
"Any Court" in sub-S. te) of S. '11
means a Court vested with jurisdiction
to question the correctness of the decree.
The execution Court's powers are derived
from S. 47 of the Civil Procedure Code,
and, in my opinion, that Court cannot
refuse to attach and sell Jote No. 43 even
if satisfied that the decree was wrong.
He was not entitled to enter into any
inquiry as to the correctness of the decree
or the jurisdiction of the Court which
passed it. Here it did not even appear
on the face of the decree that it was with-
out jurisdiction. The Court was bound
to assume that the decree had been made
with jurisdiction and that there were no
Government orders prohibiting the sale
of the jote. Certainly the trial Court in
the mortgage suit would have been justi-
fied in declining to sell the property if the
prohibition exists; so again would the
execution Court if there had been only a
simple decree for money, but where the
jurisdiction is based on a decree for sale
it is not open fco the execution Court to
refuse to carry out the sale so long as
the decree exists in full force and effect.
An objection that the property was not
saleable could have been made by the
judgment-debtor in the case of a money
decree either before, and in Durga Char an
mandal v. Kali Prasanna Sarkar (l) It was
held that the objection could under certain
circumstknc.es be made even after con-
firmation. But in the case of a mortgage
decree the objection cannot be taken in
an execution proceeding because it is an
attack upon the validity of the decree.
S. GO of the Civil Procedure Code pro:
vides that the house of an agriculturist
is exempted from attachment and sale in
execution _pf_ a decree, but it wa^
' (1) "[1890] 26 Cal. 727=3 C. W. N. 5S6.
Ehagwan Das v. Hathi Bhai (2) that
where a mortgage decree has been passed
for the sale of an agriculturist's house,
the execution Court could not refuse to
execute the decree notwithstanding the
provisions of S. 266 of Act 10 of 1877
which corresponds to S. GO of the present
Civil Procedure Code. In Ramdayal v.
Narpat Sinyh (3) in a second appeal
against the mortgage decree itself the
Court gave effect to the exemption
and dismissed the claim for the
sale of the hypothecated property. In
Bholanath v. Mt, Ki sh ori (4) two of the
learned Judges, disagreeing with the third
Judge held that S. 60 was only a bar in- a
proceeding for the execution of a money
decree and that a mortgagee who has ob-
tained a decree for the sale of an agri-
culturist's house is entitled to have ifc
sold in execution. The Court accordingly
gave a decree for the sale of the house in
second appeal.
These cases illustrate the principle that
an execution Court cannot go behind the
decree.
On the other hand in the Raja of
Vizianagram v. Dantivada Chellayya (5)
it was held that S. 5 of the Hereditary Vil-
lage Officers Act (Madras Act III of 1895)
made it obligatory upon a Court executing
a mortgage decree to go behind the decree
and to refuse to sell village inam lands
though their sale was ordered by the de-
cree. The decision was based upon the
rule that prohibitions having some object
of public policy in view must be literally
and strictly enforced and that the prin-
ciple of personal estoppel does not apply
The rule may be admitted, but the ques-
tion is whether any Court can interfere
to put the statute in force except ' in the
course of a properly constituted proceed-
ing over which he has jurisdiction. In
this last- mentioned case their Lordships
of the Madras High Court held that the
execution Court was competent to refuse
to sell the inam lands ; but, with great
respect, it seems to me that this was
giving a right to the 'execution Court to
review the judgment Of : the trial 'Court on
a question of fact. It follows that if such
a right is recognised there is nothing to
prevent a conflicting decision in the exe-
cution Court both as to the facts and the
(2pC1879]
(3) [1911] 33 All. 136=8 "A, L. J. 190.
(4) [1912] 34 All. 25=8 A. L. J. 1045.
(5) 11905] 28 Mad. 84=14 M.L.J. 468.
13A1DYA3ATU <
V. I1AK
law on fche issue of saleability. Such a
result could nob possibly have been con-
templated.
The language of S. 27, 01. (2) of the
Sonthal Parganas Settlement Regulation
is perhaps more express and peremptory
than that of S. 60 of the Civil Procedure
Code, but the same restriction applies.
The enactment certainly prohibits any
Court from recognizing a transfer as valid
if made in contravention of sub-S. (1) ;
but the Court must be engaged in a pro-
ceeding in which it has jurisdiction to in-
vestigate the legality of the transfer.
In other words the proceeding must be
properly constituted and the investigation
necessary. In my opinion the Court hear-
ing the appeal from the original decree
could have investigated its correctness,
but not the execution Court. Therefore,
so long as that decree stood, neither the
Subordinate Judge sitting as a Court of
execution under S. 47, Civil P. C. nor the
District Judge in appeal from him, was
competent to question it. The learned
District Judge's order, therefore, being
without jurisdiction, must be set aside.
The appeal is decreed with costs which
will be paid by the judgnient-debtor-
respondents only.
The sale will be confirmed.
Ross, J. — I agree.
Appeal allowed.
$< A I. R. 1926 Patna 205
DAWSOK-MILLER, C. J., AND POSTER, J.
Sri Sri Baidyanatli Jin— Defendant —
Appellant.
v.
liar Dutt Dwari and others — Pliin-
tiffs — Eespondents.
Second Appeal No. 625 of 1923, Decided
on 6th November 1925, against a decision
of the Dist. J., Santal Parganas, D/- 7th
May 1923.
%Z Limitation Act, S. W—Suit to recover remu-
neration a? dwaris of temp'e is not covered by
S. 10— Art. 100 ' applies,' but not Art. 131 nor
Art. 102.
A suit by the dwaris of a tempi 3 for recovery
of certain dues claimed by them as1 payable as
remuneration in respect of their servicas in con-
nexion with the temple is not a suit covered by
S. 10. Such a suit is governed by Art. 120 and
neither by Art. 102 nor by Art. 181.
[P. 205,0. 2, P. 206, C. 1]
There is a vast distinction between a suit
brought to establish a periodically recurring right
and a suit brought to enforce pa\ nients due as
remuneration for the performance ol sefyiccs
arising out of that right. Art. 131, wa* inten-
tionally drafted so as to include merely a *\m TO
establish a right : 88 Mad. 916, (F. R). 3i frm.
349 and 3* All :>46, Discussed. [P. 207 , C. 1J
N. C. Sinha and B. B. Gliose — for Ap-
pellant.
A. B. Mukherjee and B, B. Mukherjee —
for Respondents.
Daw son Miller, C. J.— The plain titfs
who are respondents in this case are
three dwaris of the celebrated temple of
Baidyanath at Deoghar. They have in-
stituted this suit to recover certain dues
which they claim to be payable to them
as remuneration in respect of their ser-
vices in connexion with the temple. The
remuneration consists of pr^ments, for
the greater part in kind which are said
to be due for special services in connexion
with the performance of the home
puja and to a small extent in casli in
respect of other services. The suit was
instituted originally against Sadhupadhya
Umesha Nand Jha who was the high
priest in charge of the temple of Sri Sri
Baidyanath, but pending the suit,, some-
time in 1920, the high priest died and as
there was a dispute about the succession
a Receiver was appointed to take charge of
the properties of the temple and he (the
Receiver, Babu Suresh Chandra Chau-
dhury) has been substituted in place of the
original defendant.
Amongst other defences to the suit it'
was contended on behalf of the defendant
that the claim which covers a period of
13 years before the institution of the
suit was barred or partly barred by limi-
tation. On the other hand, the plaintiffs
contended that S. 10 of the Limitation
Act applied to a suit of this nature and
consequently that no period of limitation
applied in the case. This view was ac-
cepted by the learned District Judge
whose judgment is the subject of this
appeal. The contention apparently is
that the suit is one for the purpose of
recovering'part of the trust property or
the proceeds thereof from the hands of
those who are responsible for its distribu-
tion. It seems to me that it is impos-
sible to regard a suit of this nature as
coming within the purview of S« 10* The
plaintiffs, although no fdoubt they are en-
titled out of the proceeds of the property
belonging to the temple to certain pay-
BAIDYANATH Jiu v. HAR DUTT (Dawson-Miller, C. J.) 1926-
ment of the right. There have been con-
flicting decisions in the High Courts in
India as to the applicability of that arti-
cle in cases where the claim is not for
the establishment of a periodically recur-
ring right, but for the remuneration arising
by reason of the right itself. The High
Court at Madras has taken the view that
Art. 131 of the schedule applies to a suit
to recover sums due under such a right
whether there is a prayer for declaration of
the plaintiff's right or not and in the case
of Manavikrama Zamorin Raja Avergal
of Calicut v. Achutha Menon (l) a
Full Bench of the Madras High Court
after expressing some doubt as to the pro-
priety of earlier decisions of the same
Court eventually arrived at the conchi-
sion that those decisions should not be
interfered with. In fact the Chief Justice
states his opinion thus : " If this matter
had been res Integra I should have been
disposed to hold that Art. 131 should be
construed as applying to a suit brought
for the purpose of obtaining an adjudica-
tion as to the existence of an alleged
periodically recurring right, and not to a
suit in which it was sought to recover
moneys alleged to bo due by reason of the
alleged right." He felt, however, that the
earlier decisions of the same Court
ought not to be overruled and Mr. Justice
Sankaran Nair who agreed with him ad-
mitted that the question was not free
from doubt. Mr. Justice Oldfield also
agreed with the learned Chief Justice for
the reasons stated by him. That decision
undoubtedly finds some support also from
a decision of the Bombay High Court,
Sakharam Hari v. Laxmipriya Tirtlia
Swami (2). After expreseing the opinion
that a cash allowance due from one
temple to another was -'in the nature of
nibandha or immovable property, the
Court there held that where it was
annually payable the right to payment
gave to the person entitled a periodically
recurring right as against the person liable
to pay, and the right to any amount
which has become payable stands as to
such person on the same footing as the.
aggregate of rights to amounts which are
to become payable and also those which
have become actually due. As against
these decisions we have a different view
taken by the High Court at Allahabad.
(1) [1915] 88 Mad. 916=26 M. L. J. 377=15. M.
L. T. 22G=(19U) M. W. N. 228 (F. B.).
(2) [1910] 84 Boin. 349=»12 Bom. L. B 157.
206 Pallia
ment in the nature of wages and to cer-
tain remuneration, cannot, in my opinion,
be said to be bringing this suit for the
purpose of following the trust property in
the hands of the trustee. Their claim
is not one which has been shown to be in
any way charged upon the trust property
although no doubt the payments made to
them must come out of the proceeds of
the endowment, but if one were to hold
that this is a suit coming within S. 10
then it seems to me that it would equally
follow that any claim by a servant or
other person who had a right to be paid
remuneration even for wages would equal-
ly be bringing a suit within the meaning
of S. 10. It is sufficient to say that, in
my opinion, S. 10 has no application to
the present suit.
It was contended by the appellant, in
the first place, that the claim was one for
wages and Was covered by Art. 102 of the
Limitation Act, which provides for a suit
for wages not otherwise expressly pro-
vided for by the schedule, the period
being three years from the date when the
wa<jos accrued due. Alternatively he
relied on Art. 120 which provides a
6 years period of limitation. The respon-
dents who sue on behalf of themselves
and the other dwaris attached to the
temple although they are in a sense ser-
vants of that institution hold in fact an
hereditary office. They are bound to
perform certain services and by way of
emolument they are entitled to certain
specific payments. Although the services,
on the occasions when they officiate, are
performed only by a few of them the fees-
• to which they are entitled are distributed
amongst the whole body of the dwaris.
They are not paid a regular recurring
wage, but certain fees as emoluments
attaching to the hereditary office. It
does not appear to me that a case like
this is one which is governed by Art. 102
of the Limitation Act. I do not consider
that the payments made in this case
which were almost entirely payments
made in kind, so much ghee per year, can
come under the head of wages.
It was contended by the respondents
that if S. 10 had no application then
Art. 131 applied to the case. That article
provides for a suit to establish a periodi-
cally recurring right and the period of
limitation is 12 years from the time
the plaintiff is first refused the enjoy-
1926
KALI EAI v. TULSI BAI (Mullick, J.)
Patna 207
In the case of Lachmi Narayan v. Tura-
bunnissa (3), it was held that the words
of Art. 131 are altogether inapplicable to
a suit to recover arrears of payments due
under a registered cpntract and an earlier
case of the Chief Court of the Punjab
was followed in preference to the view
held by the Madras High Court.
It seems to me that there is a vast
distinction between a suit brought to
establish a periodically recurring right
and a suit brought to enforce payments
jdue as remuneration for the performance
iof services arising out of that right. In
the present instance a suit has been
brought, and went on appeal to the High
Court and was finally decided in July
1920 in which the present plaintiffs sued
the present defendant for a declaration
of the very right in respect of which the
remuneration is now claimed. Having
had their right declared in that suit they
then brought the present suit claiming
not to establish their right, which is al-
ready established by the decree of the
High Court, but to recover the remunera-
tion due to them for the hereditary ser-
vices which they had not been paid,
and which in fact they had not been
allowed to perform, pending the dispute
.between the parties. I think that some
light can be thrown upon this matter by
reference to Arts. 128 and 129, which
almost immediately precede the article in
question. It is quite clear from a peru-
sal of those articles, one of which, ap-
plies to a suit by a Hindu for arrears of
maintenance and the other by a Hindu
for a declaration of his right to mainten-
ance, that the framers of this Act, had
clearly in mind the distinction between
a suit for a declaration of a right
and a cuit claiming arrears of remunera-
tion arising out of the exercise of that
right, and had it been the intention to
include both classes of suit under Art.131,
I think that we should have found words
appropriate to that effect. It seems to
me that Art. 131 was intentionally
drafted so as to include merely a suit to
establish a right.
In these circumstances as none of these
articles appear to be applicable to the
facts of the present case one must loojs
to the general Art. 120 which the appel-
lant reived on, if Art. 102 should not
apply s-a»d this appears to me to be the
article applicable to the present case. It
(3) (1911) 84 All. 246-9 A. L, J. 297.
provides for a suit for which no period of
limitation is provided elsewhere in the
schedule and the period of limitation is
6 years from the date when the right to
sue arises. If that article is applicable,
as I think it is, it follows that the claim
of the plaintiffs in -this case is barred
beyond six years back from the period
when the suit was brought.
The result is that the decree of the
learned Distrist Judge will be varied by
limiting the amount recoverable to the
dues falling within 6 years from the date
when the suit was instituted. I think
that the appellant is entitled to his pro-
portionate costs of this appeal.
Foster, J.—I agree.
Decree varied.
* A. I. R. 1926 P atna 207
MULLICK AND Ross, JJ.
Kali Eai — Petitioner,
v.
Tulsi Rai and otli firs—Opposite Party
Civil Revision No. 463 of 1924, Decided
on 8th April 1925, from an order of the
Sub.-J., Godda, D/- 8th July 1924.
(a) Civil P. C., 0. 34, fl. I— Mortgage suit by
Hindu joint family— Won- joinder of members is
fatal only where strong reasons exist,
Unless there are very strong reasora for doing so
a mortgage suit will not be dismissed on the ground
that the other members of the joint family have
not been joined as plaintiffs. [P. 208, C. 1]
* (b) Civil P. C.,0. 1, 0. 34, R. landS. 115
—Refusal to add a party as plaintiff— S. 115 does
not apply— If fair trial would be denied, Govern-
ment of India Act, S. 107, will apply— Government
of India Act, S. 107.
8. 115 is clearly not applicable where the lower
Court has refused in the exercise of its jurisdiction
to add a party as plaintiff. Possibly S. 107 of
the Government of India Act might apply to casen
where the result is a denial of the right of fan-
trial. , [P, 208, 0. 2],
S. S. Bose — for Petitioner.
L. K. Jha — for Opposite Party.
Mullick, J.— This application must be
rejected.
In a mortgage suit brought by the peti-
tioner's uncle, Tulsi Rai against certain
persons styled the Ojhas, upon a bond exe-
cuted in 1916 and standing in the name
of the petitioner's uncb Tulsi Rai, the
Ojhas objected that the petitioner Kali
Rai was a necessary party inasmuch an
his father Raghurxath had had a share in
203 Patna
KALI BAI v. TULSI RAI (Mulliek, J.)
1926
the raoney which was originally lent to
the defendants. It was also alleged by
the defendants that the hond of 1916 was
merely a renewal of an old bond of 1904.
After the defendants took this objecticn
as to non- joinder the petitioner came for-
ward with a petition praying to be joined
as plaintiff in the suit. That petition has
been disallowed by the Subordinate Judge
and hence this application in revision to
us.
It is quite clear that the addition of
the petitioner as a plaintiff will cause
great inconvenience in the trial of the
mortgage suit. It would be altogether
out of the scope of that suit to introduce
into it a conflict between the plaintiffs
and a person who claims adversely to
them. The question whether there had
been in fact a partition in 1904 between
Tulsi Rai and Raghunath is one which
will require much evidence unnecessary
for the mortgage suit, and I agree with
the learned Subordinate Judge that to
join the petitioner as a plaintiff would be
improper and inconvenient.
The petitioner, however, now says that
lie is quite willing to be joined as a de-
fendant. That again is a position which
he cannot bo allowed to take up. It is
quite conceivable that the petitioner's
appearing in the role of a defendant will
raise obstacles in the way of the plaintiffs
which were altogether unforeseen and the
balance of convenience decidedly requires
that the petitioner should be left to bring
a separate suit against the plaintiffs if he
has any share in the bond upon which the
suit has been brought.
It is contended that the non-joinder of
the petitioner may possibly entail the
dismissal of the suit. It has, however,
been held in this Court that, unless there
ire very strong reasons for doing so, a
mortgage suit will not be dismissed on the
ground that the other members of the
joint family have not been joined as plain-
tiffs. In any event if the suit is dis-
missed the petitioner will not be affected
and the only objection the petitioner can
raise is that there may possibly be a
multiplicity of suits. In the circum-
stances of this case such a result cannot
be avoided, if the plaintiff denies to assert
his claim to the mortgage money.
\Vith regard to a question whether S,
115 of the Civil Procedure Code applies,
and whether we have jurisdiction to inter-
fere, it seems that there has in this case
been no refusal on the part of the Sub-
ordinate Judge to exercise jurisdiction.
He may have exercised it wrongly, but it
cannot be said that there has been any
failure on his part to exercise jurisdiction.
In Babbaba Khanum v. Noorjehan Be<jum
(l) the same point came up before the
Calcutta High Court and it was held that
a refusal to add a party as a defendant
could not be revised under S. 622 of the
Civil Procedure Code which corresponds
to the present S. 115. On the other hand,
there are other cases of the Calcutta High
Court where the Court has revised the
decision of a lower Court in the matter
of joinder of parties : see for instance,
Jugal Krishna Mullick v. Phul Kumari
Dassi (2) and Dwarlca Nath Sen v. Kishori
Lai Gosain (3). These cases, however,
were decided on their own facts, and it is
not clear whether the Court was acting
under S. 115 or its general powers of
superintendence. In my opinion S. 11£
is clearly not applicable. Possibly S. 107
of the Government of India Act might
apply to cases where the result is a denial
ot the right of fair trial. In the present
case there has been no such denial and
therefore we cannot interfere in exercise
of. our powers of superintendence.
, In my opinion the merits are altogether
against the petitioner and, therefore, the
application must be dismissed with costs.
Hearing fee : one gold mohur.
Ross, J. — I agree.
A ppUcation dismissed.
(1) [188GJ 13 Gal. 90.
(2> [1918] 44 I.C. 564.
(3) . [1910] 14O.W.N. 708=ll'C.LJ. 426;
1926
KHODAIJATUL v. HARIHAB (Mullick, J j
Pata* 209
A. I. R. 1926 Patna 209
MULLICK ASD Boss,' JJ.
(Bibi) Khodaijatul Kobra and others—
Decree-holders— Appellants,
v.
Harihar Hissar and others — Judg-
ment-debtors— Respondents.
Appeals Nos. 171 and 172 of 192±, De-
cided on 18th March 1925, from the
appellate Orders of the Dist.J., Gaya,
D/- 23rd April 1924.
(a) Civil P. C., Ss. 37 and &S— Court passing
decree abolished and re-established — It can execute
decree If It could try the suit to which decree
relates.
Where the Court which passes % decree is
abolished but is subsequently re-established, it
can execute the decree provided it would have
jurisdiction to try the suit to which the decree
relates if it were instituted at the time of the
application for execution. [P 209 C 2]
(6) Civil P. C., S. 37 (6)— A Court tliat Is
abolished can be revived.
TCven if a Court ceases to exist it can again be
revived and if another Court of. the same desig-
nation is established within the district
•with the same jurisdiction it can be said that
it is the same Court. 4 C. L. J. 473,
Dlst. [P210C 1]
Nurul Hasan — for Appellants.
S. N. Boy — for Respondents.
Mullick, J. — These two appeals arise
out of two orders made by the District
judge of Gaya on the 23rd April 1924
setting aside two orders made on the 15th
December 1923 by the Additional Subor-
dinate Judge of that district.
The events .leading up to the last men-
tioned orders were as follows : Two
decrees were made on the 21st August
1920 by the Additional Subordinate
Judge of Gaya. Some time afterwards,
it is not known on what precise date,
the Court of the Additional Subordinate
Judge was abolished and the business of
that Court was transferred to the 3rd
Subordinate Judge's Court. Subsequently
the Additional Court was re-established,
and on the 27th August 1928 two
applications were made to it for the
execution of those decrees, and on the
15th December 1923 the Court held that
it had jurisdiction to entertain the
applications.
Against this decision two 'appeals were
preferred before the District Judge who
disagreed with the Additional Subordi-
nate Judge and held that the Additional
.Subordinate Judge had no jurisdiction
1926 P/27 & 28
and that the execution applications must;
be dismissed.
Now the matter turns upon Ss. 37 and
38 of the Civil Procedure Code of 1908.
The learned District Judge is of opinion
that the Additional Subordinate Judge's
Court having ceased to exist, the present
additional Subordinate Judge's Court
cannot be the Court which passed the
decree, and, therefore, is not competent to
entertain the execution application.
The learned Judge does not address him-
self to the latter part of sub-Gl. (b) of
8. 37 which provides that if the Court
of first instance has ceased to exist or
to have jurisdiction to execute the
decree, the Court . which, if the suit
wherein the decree was passed was in-
stituted at the time of making the
application for the execution of the
decree, would have jurisdiction to try
such a suit, shall be included within the
expression " the Court which passed the
decree." Therefore, even if it be held
in this case that the Court of first
instance has ceased to exist, the present
Additional Subordinate Judge would
have jurisdiction to execute the decreo
if he has jurisdiction to try the suit to
which the decree relabes. Now there is
nothing on the record to show ?that the
present Additional Subordinate Judge
has not got jurisdiction to try the suit.
Ordinarily Additional Subordinate
Judges have jurisdiction over the whole
district, and unless that jurisdiction has
been curtailed by an express order made
by the Local Government under S. 13
of the Civil Courts Act or in consequence
of re-arrangement of business made by
the District Judge under sub-Cl. (2)
of that section it must be assumed that
the Additional Subordinate Judge has
jurisdiction to try the suit and therefore
also to execute the decree.
In point of fact I doubt if it can be
said that the Court of the Additional!
Subordinate Judge has ceased to exist.
What has happened is that the Court
was temporarily abolished and wus re-
established and that at the time1 when the
application for execution was made it
was in fact in existence. It is contended
that the expression " ceased to exist"
means " is not in existence at the time
when the application for execution is
made." If that view is accepted, then
the Court of the present Additional
Subordinate Judge, being the Court which
210 Patna EAMESHWAE SINGH v. KAJO (Jwala Prasad, Ag. 0. J.)
1926
passed the decree, has jurisdiction to
execute. The argument of the respon-
dents is that if a Court once ceases to
exist that Court cannot again be revived,
and that although another Court of the
same designation is established within
the district with the same jurisdiction,
it cannot he said that it is the same
Courts. Now " Courts " in the Civil
Courts Act are designated by their
titles, and if there are more Courts than
one of the same design at ion, then they are
further distinguished by numerals. If
the officer presiding over the Court of
the 1st Subordinate Judge is temjjorarily
transferred and after an interval another
officer is appointed to preside over that
Court it would not be a straining of
ordinary language to hold that the 1st
Court ceased to exist but has been re-
established. I am of opinion that in
this case the Court of the present
Additional Subordinate Judge, being a
Court of the same designation, bears the
impress of the identity of the Court
, which was abolished.
In this view the latter part of 8. 37,
01. (b) is not required for the purpose
of this case ; nor has tho third sub-clause
of S. 13 of the Civil Courts Act any
application.
Keference has been made to S. 17 of
the Civil Courts Act ; that also has no
application to this case, because it does
not relate to execution proceedings.
The decision in Tara Chand Marwari v.
Bam Nath Singh (1) appears at first
sight to l)e against the view which we
have just taken ; but on an examination
of the facts of the case it would seem
that the decision there turned upon the
question whether there was at the time
when the application for execution was
made any additional Subordinate Judge
in the district. Apparently there was
not and therefore the permanent
Subordinate Judge of the district
assumed jurisdiction over the case. But
while the execution case was proceeding,
another officer was posted to the district
as Additional Subordinate Judge and tho
question arose whether the permanent
Judge ceased to have jurisdiction to
continue the execution proceedings
which were pending before him. It was
held that he had jurisdiction to continue
the proceedings. Reference was incr
dentally 'made in that decision to S. 17
(1) [1906J * C. L. J. 4f8.
of the Civil Courts Act, but it is nofc
clear how that section applied.
The result is that upon the provisions
of the Civil Procedure Code it seems
quite clear that the learned District
Judge's order cannot be supported and
that the Additional Subordinate Judge's
order was correct.
The appeals, therefore, will be decreed
with costs. There will be separate costs
in each case.
RO88, J. — I agree.
Appeals decreed.
* A I R. 1926 Patna 210
JWALA PRASAD, AG. C. J. AND
MACPHERSON, J.
ftamwliwar Singh Bahadur — Appel-
lant.
v.
Mt. Eajo Choivdhrain — Eespondent.
Civil Revision No. 185 of 19^4, Decided
on 7th July 1924, against the order of the
Munsif, Madhubani, D/- 9th February
1924.
^ Civil P. C., 0. 21, II. tyS—Bule does not apply
to rent decrees by virtue of Bengal Tenancy Act,
S. 170.
By virtue of S. 170, O. 21, R. 58 does not apply
to an execution of a rent decree.
A landlord is not bound to go beyond his own
record to enforce his claim for arrears of rent and
any person not recorded as a tenant must seek his
remedy elsewhere and cannot be permitted to
stand in the way of the landlord selling the hold-
ing for the realisation of the decree obtained
against his recorded tenant. [P 211 C 1]
Sambhit Saran — for Appellant.
B. C. De — for Eespondent.
Jawala Prasad, Ag. C. J.— This appli-
tion is directed against the order of the
Munsif of Madhubani, dated 9th February
1924 allowing a claim of the opposite
party preferred. under 0. 21, R. 58 of the
Code of Civil Procedure. The facts are
that the holding in question was recorded
in the name of Janakman Thakurain and
Keshwar Thakur. Keshwar Thakur i&
dead and the name of Janakman Thakurain
according to the evidence notably of the
witnesses on behalf of the opposite party
alone stands recorded in the landlord's
sherista. The opposite party elaims about
1 bigba 18 Cotthas 11 & 1/2 dhurs out of
the entire holding of 5 bighas odd under
a gift made to her by her father Keshwar
1926
BAMYAD v, KIKG-EMPKROH (Macpherson, J.)
Patna
Thakur. Her name had not been recorded in
place of Keshwar Thakur in the landlord's
sherista. The landlord therefore obtained
a rent decree with respect to arrears of
rent due from the holding against Janak-
man Thakurain. In execution of that rent
decree he has proclaimed the holding for
sale. The attachment and sale proclama-
tion were issued simultaneously inasmuch
as the decree to be executed was a rent
decree. The decree is on the record and
it clearly shows that it is a rent decree.
The learned Court below has allowed the
claim of the opposite party principally
upon the ground that her possession as a
daughter of Keshwar Thakur is not
disputed.
The learned Munsif has not come tea de-
finite finding as to whether the gift upon
the basis of which the opposite party clai-
med a portion of the holding in dispute has
been established or nob. No deed of gift
has been filed and it is admitted in evi-
dence that no deed of gift was registered.
One of the witnesses simply says that a
deed of gift was executed but was not
regiotered. The claim of the opposite
party was not based upon inheritance
but upon the aforesaid gift made by
Keshwar Thakur. The Court below has,
therefore, misapplied its mind to the consi-
deration of the case. It has not also
taken into consideration the provisions
of S. 170 of the Bengal Tenancy Act by
virtue of which 0. 21, R. 58 does not apply
to an execution of a rent decree and that
is upon the principle that a landlord is
not bound to go beyond his own record
to enforce his claim for arrears of rent
and any person not recorded as a tenant
must seek his remedy elsewhere and can-
not be permitted to stand in the way of the
landlo d selling the holding for the reali-
zation of the decree obtained against his
recorded tenant. The order of the Court
below is therefore set aside and the claim
of the opposite party, Bajo Ohowdhrain is
disallowed with costs. The application
is allowed with costs.
Macpherspn, J.— I agree
Application allowed
A.I.R. 1926 Patna 211
MACPHERSON AND SEN, JJ.
Ramyad Ditsadh and otters*-- Peti-
tioners.
v.
King' Emperor — Opposite Party.
Criminal Revision No. 231 of 1925
Decided on 27th July 1925, against the
decision of the S. J.f Patna.
Criminal P. C., (Amended 1923), S. 162— -State-
ment before police cannot be used to meet a surges'
tton of defence nor to support testimony of the
deponent — Infringement of S. 162 Is not neces-
sarily fatal to conviction If decision is bated on
other admissible evidence.
A statement by a person to the police in thfr
course of the investigation of an offence cannot be
used for any purpose at the trial of that offence
except to contradict the evidence given at the
trial by that person. In particular it cannot,
even if admitted to contradict, be used to corifobo^
rate the evidence of that person or to meet a
suggestion of the defence. Where, however, the
judgment of the lower appellate Court deals at
length with the case of each of the petitioners
independently of the inadmissible evidence and
there is overwhelming direct and positive evi-
dence against each accused and tho accused have
also not been prejudiced in any way, the infringe-
ment of the provisions of S. 162, Criminal P. U.,
is under S. 167 of the Evidence Act, not a
ground for a new trial or for the reversal of the
decision of the lower Court.
[P. 212, C. 2; P. 213, C 1, 2]
Ali Imam and Pande Narsingh Sahi —
for Petitioners.
H. L. Nandkeolye) — for the Crown.
Macpherson, J.— This application in
revision is made by six petitioners against
their conviction under 8. 147 of the
Indian Penal Code by the Deputy Magis-
trate of Patna and their sentence of eight
months' rigorous imprisonment, with an
order under S. 106 of the Code of Cri-
minal Procedure, which have been affirm-
ed on appeal by the Sessions Judge.
The prosecution case was briefly as fol-
lows : Jaglal Mahto of Niamatpur, whose
barahil is Kamyad Dusadh, the first peti-
tioner, has had civil and criminal litiga-
tion with Bislal Mahto, , son of Bamesh-
war Mahto of Dhanauti. On the 31st
May 1924, about 12*30 a.m., while neigh-
bours and relatives of Bameshwar were
sleeping in the open space outside his-
bouse and Bislal on the osara, a mob of
30 or 40 men including petitioners, who,
except Komal are related, came armed
with lathis (Nabba .with a garasa) in
search of Bislal and his father. Before
the invaders were driven off by the
212 Patna
RAMYAU v. KIXG-EMPKBOR (Macpherson, J.)
1926
villagers of Dhanauti they inflicted serious,
and in some cases dangerous, injuries pn
six of the Mahtos of Dhanauti, most of
which were due to lathi blows, but some
of which were probably caused by a
garasa, as in the case of Pati, Bala and
perhaps I.ochan, from all three of whom
a "dying declaration" was recorded, as
they appeared to be in a critical state.
A charge under S. 147 with common
object to cause hurt to the men injured
and also a charge under S. 3^6 read with
S. 149, were framed against all the ac-
cused except Nabha who was separately
charged under S. 148 and 326.
Various defences were raised, such as,
that the case was falsely brought from
ill-feeling, that the injuries were really
caused by Mahadeo, Chedi and others in
the daytime at some other place and
tfcat Komal was ill at Koilwar. The
Magistrate negatived these defences, and
as stated, convicted the petitioners of
rioting, giving Nabha the benefit of the
<loubt as to whether he carried and
wielded a garasa.
Before us Sir Ali Imam claims : (l) an
acquittal because so much of the evidence
has been disbelieved that it is unsafe to
convict at all and, failing an acquittal,
(2) a remand for the re-hoaring of the ap-
peal on the ground that evidence has been
used against, the petitioners which the
law enjoins shall not be used.
As regards the first of these pleas a
perusal of the judgments forthwith places
its invalidity beyond all doubt, The
Magistrate merely found the evidence
inconclusive as to whether Nabha had a
garasa and injured Pati and Bala with
that weapon and gave him the benefit of
the doubt, while he refrained from con-
victing the other accused under S. 326
read with S. 149 for the reason, an un-
qpund one, that the actual person "who
had committed the offence under S. 326
had not been traced/' These conclusions
are not at all fundamental to the whole
prosecution case, and they do not vitiate
or indeed affect the findings of the trial
Court in respect of the charge of rioting,
which has been sustained on appeal.
The basis of the second plea is the fol-
lowing paragraph in the judgment of the
appellate Court :
" Next, as to the suggestion that the
prosecution witnesses were really beaten
only by Mahadeo, Chedi and others, who
are mentioned by a few ot the witnesses
along with the accused persons in the
statements made before the police, it
rests on no evidence whatsoever* It
would be quite different if the accused
had not been mentioned at all before the
police, but the cross-examination by the
defence has made it clear that they were
so mentioned. The question whether
Mahadeo and others should have been
sent for trial along with the accused is
one with which it is not necessary to deal.
Two defence witnesses D. Ws. Nos. 2
and 3, say that Kalicharan and Ramesh-
war, accused, cultivate land of Husaini,
but mention no quarrel in this con-
nexion.
It is urged that the provisions of S. 162
of the Code of Criminal Procedure have
here been ignored by the appellate Court
and that the folly of the counsel appear-
ing on behalf of the defence in bringing
out in cross-examination that the accused
has in fact been mentioned by the prose-
cution witnesses before the police, would
make no difference to its inadmissibility
in evidence under that provision.
Now, as has been indicated in the deci-
sion in Badri Chaudhri v. King~Em~
psror (l), the provisions of the new S. 162
(1) of the Code of Criminal Procedure
stringently exclude from use for any pur"
pose in a criminal trial any statement to
the police whether recorded or not recor-
ded except to contradict within very strict
limitations a statement made at the trial
by a prosecution witness. It must be
considered first whether this provision
has been infringed, and if it has, it must
further bo considered what the effect of
the infringement is.
As regards the first point, it is conten-
ded that the statement of the witnesses
that the petitioners were mentioned by
the prosecution witnesses to the police is
entirely inadmissible in evidence but
nevertheless has been used by the Sessions
Judge as an answer to the defence case
that persons not, sent up by the police
alone beat the prosecution witnesses. The
contention cannot be gainsaid. A state-
ment by a person to the ' police in the
course of the investigation of an offence
cannot be used for any purpose at the
' trial of that offence except to contradict
the evidence given at the trial by that
person. In particular it cannot, even if
admitted to contradict, be used to corro-
borate the evidence of that person or for
(1) A.I.B. 1926 PAtn» 90.
1926
EAMESHWAR v, PDTRAX CHANDERA (Sen, J.)
Patna 213
bhe purpose to which it has been put in
the present instance, namely, to meet a
suggestion of the defence. Prima facie
therefore it would seem that the provi-
sions of S. 162 (l) of the Code of Criminal
Procedure have been infringed.
In the present case, however, the in-
fringement appears to have had no effect.
The sentence in the judgment of the ap*
pellate Court in which it occurs is un-
necessary for the argument. It has justly
been pointed out by the learned Sessions
Judge that the suggestion that only per-
sons not on trial who had been mentioned
during the investigation in addition to
the petitioners were the assailants, had
no evidence in support of it, and imme-
diately after it is pointed out that it is
necessary to consider whether the said
persons should have also been placed on
trial. The passage objected to simply sets
out the truism that if petitioners had
not been mentioned before the police the
suggestion which has already been found
to be based on no evidence, would have
been weighty. Now if the Petitioners
desired to rely upon the fact that a pro-
secution witness had not mentioned the
names of petitioners to the police as
showing that his testimony in Court was
unworthy of credit, it was upon them to
prove that he had in fact not done so.
The record shows that they failed to
adduce such proof, There is thus no
basis for the suggestion in the appellate
Court that the appellants were not among
the assailants and it was superfluous for
the Sessions Judge to refer in that con-
nexion to the inadmissible item of evi-
dence which went much further than was
necessary for the rejection of the sugges-
tion. The suggestion moreover had been
dealt with by the trial Court and nega-
tived on grounds which cannot be ques-
tioned in point of law or of fact. In my
judgment the infringement had no effect
on the decision.
The matter has, however, practically
no significance in the present case. The
judgment of the appellate Court deals at
length with the case of each of the peti-
tioners; and independently of the evidence
objected to and admitted, there is over-
whelming direct and positive evidence
against each which is admissible, has not
been in the slightest measure rebutted
and is entirely reliable. The petitioners
have also not been prejudiced in any way.
Under the circumstances the improper
admission of the evidence objected to is,-
under S. 167 of the Indian Evidence Acfc,
1872, not a ground for a new trial or for
the reversal of the decision of the ap-
pellate Court and there is no grouud for
interference in revision.
I would, therefore, discharge the rule
and dismiss this application,
Sen, J. — I agree.
A pplication dismissed.
A. I. R. 1926 Patna 213
SEN, J.
Ramesliwar Singh fathadiir— Peti-
tioner.
v. ( -
Puran Chandcru Mansili -Opposite
Party.
Civil Revision, Decided on 13th July
1925.
(a) Bengal Tenancy Ad, S. 158-B — Tenure
paw* to purcliaver only after actual sale under
decree.
Under S. 158-B the tenure passes to the
purchaser when it is sold in execution of rent
decree. Until the sale takes place the tenant
recorded in the landlord's serishta must be deemed
to have been the person in whom the tenure was
vested. [P. 214, 0. 1]
(b) Civil P. C., O. 21, R. SB—Rule does not
apply to rent decrees by virtue of Bengal Tenancy
Act, S. 170.
The provisions of S. 170 are clearly imperative
and they lay down that the provisions of the
Civil P. C., as to claim cases 'viz., 0. 21 ,B. 68,
shall not apply to a tenure or holding attached
in execution of a decree for arrears of rent
thereof. A.l.B. 1926 Patna 210 Eel. on.
[P, 214, C, 1]
Murari Pvasad and tiambhu Saran — for
Petitioner.
Judgment. — The petitioner instituted
a rent suit under. S. 148 (a) of the Bengal
Tenancy Act against Mewa Lai Kamath
who was recorded in the petitioner's
serishta for arrears of rent for the
years 1326 to 1329 making the .Babus
of Madhubani the cosharer landlords
parties to the suit. On the 22nd
February 1923 he obtained a decree. He
thereafter took out execution complying
with the provisions of S. 15<>B of
the Bengal Tenancy Act and serving
notices on the cosharer landlords. The
sale proclamation and notices were issued
simultaneously. On the ISfcli January
1925 the opposite party preferred a claim
214 Pallia
RAMCHANDRA v. KING-EMPEROR
1926
under O. 21, B. 58 of the Code of
Civil Procedure ; they alleged that they
had purchased the holding at an auction
sale in execution of a rent decree for the
years 1324 to 1327 obtained by the
Madhubani Babus against the same tenant
and obtained possession thereof by virtue
of the dakhaldohani given to them on the
24th December 1924. It appears, how-
ever, that when the decree was obtained
by the petitioner, the sale to the claim-
ants had not taken place. The decree
in favour of the Madhubani Babus was
executed on the 15th February 1923 and
the sale in favour of the claimants took
place on the 18th July 1923 ; that is, about
five months after the decree in favour of
the petitioner. The learned Munsif held
that at the date when the i)etitioner
obtained his rent decree, fchcro was no
tenure of Mewa Lai in existence, it having
already passed to the claimants. This
view appears to be wrong ; for. under the
provisions of B. 158'B of the Bengal
Tenancy Act the tenure passes to the
purchaser when it is sold in execution of
rent decree. Until the sale took place
the tenant, who was recorded in his
serishta must be deemed to have been the
person in whom the tenure was vested.
The petitioner, therefore, was quite com-
petent to bring a suit, as he did under
the provisions of S. 148-A of the Bengal
Tenancy Act and to execute his decree
under the provisions of S 1/38- B of the
Bengal Tenancy Act.
The point that arises whether in the
events that happened and in view of
the provisions of S. 170 of the Bengal
Tenancy Act the opposite party are
entitled to put in any claim -under
O. 21, E. 58 of the Code of Civil Proce-
dure. The learned Munsif entertained
and allowed the claim holding that inas-
much as ther,e was no tenure in existence
at the date of the petitioner's decree,
the provisions of S. 170 would consti-
tute no bar to a claim being put forward.
This ^ view appears to be unsound. The
provisions of S. 170 are clearly im-
perative and they lay down that the
provisions of the Civil Procedure Code as
to olaim cases shall not apply te atenure
or holding attached in execution of a
decree for arrears of rent thereof. This
view is supported by many rulings
amongst others by ^unreported ruling :
vide judgment of Jwftla Prasad, Ag. C. J.,
in Civil %vision No, 185 of 1924,
Rameshwar Singh v. Bajo Chaudhrain
(I) which likewise lays down the principle
that a landlord is not bound to go beyond
his own record in order in enforce hie
claim for arrears of rent and any person
not record as a tenant must seek his
remedy elsewhere and cannot be permit-
ted ^ to stand in the way of the landlord
selling the holding for the realization of
the decree obtained against his recorded
tenant."
I, therefore, think that the Court below
was not competent, in view of the provi-
sions of S. 170 of the Bengal Ten-
ancy Act, to entertain the claim in
regard to the subject-matter of execu-
tion.
The application is allowed; the order of
the Munsif is set aside. The execution
may now proceed.
Application allowed.
(1) A.~J. K. fyJS
A. I. R. 1926 Patna 214
A PRASAD AND MACPHERSON, JJ.
Ratnch andra Modak — Accused — Appli-
cant.
v.
King-Emperor- Opposite Party.
Criminal Revision No. 255 of 1925,
Decided on 8th July 1925, from an order
of the J. C., Ranchi, D/- Uth April 1925.
(a) Criminal 1\ C'., (amended by Act 18 of
1923), S. 256— Sufficient time must be given to
the accused to consider for furtlier cross-exami-
nation of prorecntlon witnesses after charge Is
framed.
The words inserted by the amendments indi-
cate the intention of the Legislature that suffi-
cient time should be given to an accused to
consider whether he wishes to cross-examine any
of the prosecution witnesses after the framitg of
the charge, and it is only in ppecial cases that
the Magistrate can require him to state forthwith
if he so wishes. [p 315, 0 2]
(b) Criminal P. C., S. 256—5. 256 dees not
apply before charge is framed.
Section 256 does not apply before a charge is
framed. Therefore, the statement of the pleader
of the defence made before framing of the charge
to the effect that he no longer required the at-
tendance of the prosecution witnesses does not de-
prive the accused of his right to tether ercss-
cxainine the prosecution witnesses after the fram-
ing of the charge under the section. [P 215, C 2]
(c) Criminal P. C., S. 256— Magistrate cannot
insist on the accused to deposit cosh of witnesses
before recoiling for -ross-examinatton,
A Magistrate has no power while passing an
order on an application under S. 256. to impose
1*2*
BAMCHANDBA v. KING-EMPEROR (Jwala Prasad, J.)
Patua 215
ft condition upon the accused to deposit costs for
the purpose of recalling the prosecution witnesses
for cross-examination. [P. 216, C. 1]
(d) Penal Code, 5,19—4 person, not deslg-
Mted as a Judge, is a Judge only wlien exercls'
Ing jurisdiction In a case.
' A parson other than one who is officially desig"
nftted as a Judge and who is empowered to give
a definitive judgment, is a Judge only when he
is exercising jurisdiction in a suit or in a
proceeding. [P. 217, C. 1]
(e) Criminal P. CM S. 539— Affidavit before
Magistrate having no seisin over tlie case is not
valid.
An affidavit made before a Magistrate in a
case over which he has no seisin is not valid and
6annot be used in High Court : 14 Cal. 653 and
B 6. W. N. 40, Dlst. [P. 217, C. 2]
S. N. Basu for A. K. Gupta — for Peti-
tioner.
H. L. Nandkeolyar — for the Crown.
Jwala Prasad, J.— The trial in this
case seems to have been vitiated by the
omission on the part of the Magistrate
to comply with the provisions of S. 256
of the Code of Criminal Procedure.
The witnesses for the prosecution were
examined on the 23rd of February 1925,
and were cross-examined and then dis-
charged as the pleader for the defence
no longer required their attendance. The
charge was framed the following day,
namely, on the 24th February. The ac-
cused pleaded not guilty and cited defence
witnesses. Later on Mr: Gbatak, pleader
from Ranchi, appeared on behalf of the ac-
cused for the first time and stated that he
wished to cross-examine the presecution
witnesses after the charge was framed.
This request was evidently made under
S. 256 of the Code of Criminal Procedure.
As a matter of fact, the section requires
that after the charge is framed and the
accused pleads not guilty or claims to be
triect : " he shall be required to state, at
the commencement of the next hearing of
the case, or if the Magistrate for reasons
to be recorded in writing so thinks fit
forthioith, whether he wishes to cross-
examine any, and, if so, which, of the
witnesses for the prosecution whose evi-
dence has been taken. If he says he Joes
so wish, the witnesses named by him
shall be recalled and, alter csoss-exami-
tafttion and re-examination (if any), they
shall be discharged/'
rf T<he procedure indicated 'herein wafc
tot observed, and the accused * was not
required -to state whether he 'Wished k>
cross-examine- any of -the prosecution
witnesses. The words italicized have
now been inserted in the section by the
amending Act XVIII of 1923 and indicate
the intention of the Legislature that
sufficient time should be given to an
accused to consider whether be wishes
to cross-examine any of the prosecution
witnesses after the framing of the charge,
and it is only in special oases that the
Magistrate can require him to state forth-
with if he so wishes. The pleader for
the petitioner, however, expressed a
desire that the witnesses should be re-
called for the purpose of cross-examina-
tion.
Therefore, the irregularity committed
by >the Magistrate in not asking the
accused to state if he wished to cross-
examine seems to have been practically
condoned, and the accused expressly
stated that he wanted to avail himsell
of the provisions of S. 256 and to exer-
cise his right to cross-examine the prose-
cution witnesses after the charge.
The Magistrate as well as the learned
Sessions Judge refers to the statement
of the pleader for the defence made on
the a8rd of February, before the charge
was framed, stating that he did not any
longer require the attendance of the pro-
secution witnesses, as showing that op-
portunity was given to the accused to
cross^examine the witnesses under S. 256.
This apparently is a misconception, for
on the 23rd of February the stage for
applying S. 256 had not been reached.
No charge was framed, and the cross-
examination of the prosecution witnesses
before the charge was under the previous
SB. 252 and 253. Therefore, the state-
ment of the pleader of the defence made
on tho 23rd of February would not de-
prive the accused of his right to further
cross-examine the prosecution witnesses
after the framing of the charge under1
S. 256 of the Code.
The Magistrate did, as a matter of
fact, direct the prosecution witnesses to
be present on the 25th of February at
Bundu for the purpose of being 'further
cross-examined. This, no doubt, was an
order passed under S. 256 of the Code
of Criminal Procedure, but the accused
could not avail himself of it inasmuch
as his "pleader did not go to Bundu and
*n application was then made to the
Magistrate stating vth*t the accused could
un»t' bring his pleader to an oufe-of-way
place such as Buudu.
216 Patna
BAMCHANDRA v. KING-EMPEKOR (Jwala Prasad, J.)
1926
The Magistrate then passed an order
directing the witnesses to be produced
upon the accused depositing the cost of
their attendance, and fixed the 7th ot
March for this purpose. This order the
Magistrate states to be under S. 257,
01. (2), of the Code ; but that stage had
not yet arrived inasmuch as the further
cross-examination of the witnesses after
the charge was to be under S. 256 of the
Code and full and proper opportunity
was not given to the accused for that
purpose. There was no application on
behalf of the accused under 01. (l) of
S. 257 applying to the Magistrate to issue
any process for compelling the attendance
of the prosecution witness for the purpose
of cross-examination, and consequently
01. (2) of that section did not apply.
The application of the accused made on
the 24th of February and renewed on the
25th was an application under S. 256
of the Code, and the Magistrate so treated
it. Therefore the Magistrate's order under
01. (2) of S. 257 of the Code imposing a
oondition 'upon the accused to deposit
posts for the purpose of summoning, that
is, for the purpose of reoallin&the prosecu-
tion witnesses, is wrong and without juris-
diction. If the order be taken to come under
S. 256, as is contended for by the learned
Assistant Government Advocate, then the
condition imposed by the Magistrate of
depositing the expenses for recalling the
prosecution witnesses is ultra vires. That
section does not lay down any condition,
nor does it vest the Magistrate with any
such jpower.
It is then urged that such a power
must be deemed to exist in the Magistrate
as being inherent in him, There is no
room for such a suggestion. The Code
has expressly laid down the procedure
for trial under Chapter itt, and S. 257
expressly vests the Magistrate with dis-
cretion to require expenses to be paid by
an accused. There being no such discre-
tion vested under S. 256, the power can-
not be invoked upon the ground of its
being inherent in the , Court. The Magis-
trate had no 'power to alter in any way
the procedure laid down in those sections
for the conduct of the case.
The result is 'that the conviction of
the accused ie set aside and the oase is
sent back to the Magistrate to try it from
the stage it had reached on the 24th of
February after the framing of the charge
and to dispose of it after compliance with
the provisions of S. 256 of the Code of
Criminal Procedure.
The learned counsel on behalf of the
petitioner urged that the case should be
tarnsferred to the file of Rome other
Magistrate. We do not see any reason to
accede to this request, for we find nothing
on the record to indicate that the Sub-
divisional Officer, who tried the case, has
any bias against the accused.
Another question has arisen in this case
which has nothing to do with the present
case. The application in revison filed in
this Court by the accused was not sworn
to before the Commissioner appointed by
this Court ; in lieu thereof an affidavit
sworn to before the Subdivisional Magis-
trate of Ranchi was filed in this case.
The question is whether this affidavit can
be legally used in this Court.
Section 539 of the Code of Criminal
Procedure deals with affidavits and affir-
mations to be used before any High Court
or any officer of such Court. It requires
that such affidavits and affirmations
should be sworn and affirmed before such
Court or the Clerk of the Crown, or any
commissioner or other person appointed
by such Court for that purpose, or any
Judge, or any commissioner for taking
affidavits in any Court of Record in
British India, etc. It is said that the
Sub-divisional Magistrate of Ranchi is a
Judge within the meaning of S. 539 and
consequently the affidavit in question
could be sworn before him. Reliance is
placed upon S. 19 of the Indian Penal
Code which defines the word "Judge" as
denoting :
"Every person who is empowered by
law to give in any legal proceeding, civil
or criminal, a definitive judgment, or a
judgment which, if not appealed against,
would be definitive, or a judgment which*
if confirmed by some other authority,
would be definitive, or who is one of a
body of persons, which body of persons
is empowered by law to give such a judg"
ment."
The Code of Criminal Procedure does
not define the word "Judge/1 but S. 4
01. (2), adopts the definition of words given
in the Indian Penal Code which are not
expressly defined in the Code. Therefore,
the definition of the word "Judge", given
in S. 19, Indian Penal Code, would apply
to the word "Judge" used in S. 539 of the
Code of Criminal Procedure.
1926
BAMCHANDRA v. KING-EMPEROR (Maopherson, J.)
Patna 317
It is, therefore* said that the learned
Sub-divisional Magistrate of Ranchi is
empowered to give a definite judgment
and so he must be deemed to be a " Judge'1
within the meaning of the word in
S. 539.
The illustrations to S. 19 of the Indian
Penal Code would, however, show that a
person other than one who is officially
designated as a Judge and who is em-
powered to give a definitive judgment, is
a Judge only when he is exercising juris-
idiction in a suit or in a proceeding. So
far as that suit or proceeding — revenue,
civil or criminal — is concerned he is a
Judge, but he is not a Judge when he
has not the seisin of the case in which he
can give a definitive judgment. This is
obvious from the last words of the section
under which a body of persons may come
under the definition of "Judge" when it
is empowered by law to give a judgment,
such as- arbitrators, but arbitrators can
come within the term "Judge" only when
dealing with a case on reference to their
arbitration. I need not quote the illu-
strations which seem to support the
aforesaid view. It would be sufficient
tojefer specifically to 01. (d) which says :
"A Magistrate exercising jurisdiction in
respect of a charge on which he has
power only to commit for trial to another
Court, is not a judge."
No doubt, such a Magistrate is em-
powered to give a definitive judgment in
other cases which he is trying ; still as
he is not empowered to give a definitive
judgment in the case in which he is only
empowered to commit he is not a judge
for the purpose of that case.
The Sub-divisional Magistrate of Banchi
had not the seisin of the criminal case
before us and he could not pronounce any
judgment in respect of that case. There-
fore, he is not a judge within the mean-
ing of the term in S. 539 of the Code.
A reference to S. 539-A, 01. (2), will
show that a Magistrate would not come
within the meaning of the word "Judge"
in S. 539. That clause says :
" An affidavit to be used before any
other than a High Court under this section
may be sworn or affirmed in the manner
prescribed in S. 539, or before any Magis-
trate.'^
The "Magistrate" here is differentiated
from the officers mentioned in S. 539 and,
therefore, he cannot come under S* 539
and is not empowered to have an affidavit
sworn before him.
No doubt under S. 139 of the Code of
Civil Procedure a Magistrate is expressly
empowered to receive an affidavit. That
has no application to the present case,
inasmuch as we are dealing with a crimi-
nal case tried by the Magistrate.
There is no authority on all fours with
the present case and there seems to be a
dearth of cases upon the point. There are
only two cases Iswarchunder Guho, in
the matter of the Petition of (I) and
Dinobundhu Nundy v. Sm. Hurrymutty
Dasee (sp. The latter case related to
an affidavit in connexion with a civil case
and it was held that the affidavit was
valid as coming under S. 139 which em-
powered a Magistrate to receive an affi-
davit and to administer an oath. Th^
has no application to the present easel
The other case did not relate to an affi«
davit to be used in the High Court and
even then it was held that a Deputy
Magistrate had no power to administer an
oath to a person making an affidavit.
Therefore, the affidavit in this case is
not a valid one and cannot be used in.
this Court.
The rule of the Court is as laid down
in Chapter 3 of the Patna High Court
Bules, viz.:
" The facts stated in every petition
shall be verified either by the solemn
affirmation of the petitioner or by an
affidavit to be annexed to the petition."
The application in the present case has
not been properly sworn or affirmed, and
the facts stated, therein cannot, therefore,
be used by the petitioner. Therefore, we
cannot act upon the application in the
present case as regards the facts stated
therein.
We have, however, dealt with the ca3Q
upon the order sheet and fche law on the
subject, and consequently the irregularity
in the affidavit does not affect the deci-
sion given by us.
Macpherson, J.— I agree. The order
proposed is a necessity in the circum"
stances. The mistaken application of
S. 257 (2) by the Sub-divisional Magis*
trate of Khunti practically amounted to
non-compliance with the provisions of
S. 256 which is of fundamental importance
in the trial of an accused person.
(1) [1887] 14 Gal. 668.
(2) [1904] 8 C. W. N. 40 (Notes.).
218 Patita
EAM GOLAM v. CHINTAMAN
1926
The Crown has, however, suggested that
we should not interfere with the convic-
tion because the affidavit by which the
application in revision is supported is not
one contemplated by S. 539 of the Code
of Criminal Procedure which sets out the
Courts and persons before whom affidavits
to be used before a High Court may be
sworn. The Sub-divisional Magistrate of
Ranchi before whom the affidavit sup-
porting the petitioner's application was
sworn is not one of the Courts or persons
named in S. 539. He has not been ap-
pointed by the High Courb either per-
sonally or ex officio for the purpose of
the section. Obviously, therefore, an
affidavit to be used in the High Court can
only be sworn before him if he is a
Judge within the contemplation of the
section. But it is manifest from S. 19 of
the Penal Code read with the illustra-
tions thereto and S. 4 (2), of the Code of
Criminal Procedure that a Magistrate is
not a Judge within the meaning of these
Codes except in relation to ta case on his
own file and there also only in certain
circumstances. The new S. 539- A of the
Code of Criminal Procedure also gives
countenance to this view. The affidavit
filed on behalf of petitioner is accordingly
not one which can be used in the High
Court and also is not one such as is
required under E. 3, Ch. Ill of the Rules of
the Patna High Court. But though the
objection is made out it is technical only
and should not prevail at this stage even
though it might have constituted good
ground for refusal to issue a rule when
the defective application was lodged. The
rule has been heard out on the merits,
also in the course of the hearing it has
appeared that the facts stated in the
petition, which is faultily verified, are
matters of record and indeed they are
not disputed on behalf of the Crown.
Moreover, regard being had to the nature
of the illegality in the trial and to the
fact that the Magistrate had some ground
for believing the petitioner to be eccen-
tric, I should, if necessary, be disposed to
treat the case as one which has come to
the knowledge of the High Court other-
wise than on application wherein the
Court should of its own motion exercise
its powers under S. 439, of the Code of
Criminal Procedure,
# $ A. I. R. 1926 Patna 218
Full Bench
DAWSON MILLER, C. J., MULLICK,
JWALA PRASAD, DAS AND FOSTER, JJ.
Ram Gotam Saliu and oth e ?•$—• Defen-
dants— Petitioners.
v.
Chintaman Singh — Plaintiff — Opposite
Party.
Civil Revision No. 183 of 1925, Decided
on 22nd December 1925, on reference by
Das and Ross, JJ., against an order
of the Sub-J., Bhagalpur, D/- 9th
September 1924.
^ (a) Civil P. (7., S. lid— Power should not
be exercised where technicalities are served at
expense of justice.
The powers of revision should not be exercised
in cases where by so doing the Court would be
giving effect to mere technicalities of
procedure at the expanse of manifest justice.
[P 22'2 C 1]
# * (6) Court-fees Act, S. II— Court-fee is
payable on future mesne profits from date of suit
but cannot be ordered to be paid on pain of
dismissal of suit even on ascertaining the profits :
Per Full Bench.— Court-fee is payable, in
respect of a claim for future mesne profits :
that is to say, mesne profits from the date of the
institution of the suit up to the date of
realization. The Court has no jurisdiction to
require the plaintiff to pay additional Court-fee
upon his claim for future mespe profits as a
condition for proceeding with the '.investigation
of the claim, and has no jurisdiction to dismiss
the proceedings if the additional Court-fee is not
paid. 3 P. L. J. 67 ; 1 P. L. T. 235, Cows. 15
Bom. 416, not Foil. ; 33 Cal 1232 Poll
[P 224 C 2 ]
(c) Civil P. C., O. 7, II Z—Valuatlon will refer
to profits before and after suit loUere both are
claimed. Per Mullick, J.
Order 7, R. 2 requires that some estimate
should be made in the plaint in respect of mesne
profits. If plaintiff claims mesne profits both
in respect of the period antecedent to the suit
and also the period subsequent thereto, the
valuation will be held to refer to both periods.
If he sues for mesne profits in respect of only
one of these two periods, the valuation will he held
to refer to that period only.
Per Jioala Prasad, J".— -Neither 0. 7, B. 2
of the Code of Civil Procedure nor S. 7, 01. (iv) (f)
of the Court-Fees Act would apply to
unascertained future mesne profits.
[P 225C2P22801]
*SC (d) Civil P. C., O. 47, R. I— Wrong, dismissal
of application for aseerlainig mesne profit? for
non-payment of Court fees cannot be reviewed,
but It can 6e restored under Civil P, C., 8. 151.
Per JWala Prasad, J.
Application of the decree-holder for ascertain-
ment of mesne profits was dismissed on
account of non-payment of Court-fee .can be
restored under S. 151, Civil P. 0. but not by *ay
ol review : 86 4H.<831 (P. C.Vffoll. TP 226 0 21
RAM GCLAM v. CHINTAMAN
Pataa219
' (e) Civil P. CM 0. 20, R. 12— Application is no
jplaint ', It can be oral — Per Jwala Prasad, J.
Application for ascertainment of mesne profits
cannot bo said to b3 a plaint, [29 C. W. N. 959,
3Po&] No written application is necessary for
asking for an investigation into it and a verbal
application is sufficient for the plaintiff to demand
an enquiry into the matter. t[P 227 C 1]
, (/) Court- fees Act, S. 11 — First part applies
'to final decree Including future profits — Per
Prasad, J.
Under thepresanfc Code, the Court can deter-
mine past and future mesne profits in „ the suit
Itself and make a decree called a final decree
ior the mesne profits capable of execution. The
.first paragraph would applv to such a decree
also. [P 229 C 1]
N. C. Sinha, S. M. Mullick and S. N.
JZose — for Petitioners.
N. N. Sinha and B. P. Siuha — for
Opposite party.
Order of Reference to a Full
Bench by Das and Ross, JJ.
(4-1 1-1925).-— This application is directed
against the order of the learned
Subordinate Judge of Bhagalpur, dated
the 9th September 192-1, restoring
certain proceeding, for the ascertainment
of mesne profits under the provision
of O. 9, R. 4 of the Code. The material
.facts are these : On the loth September
1914 the opposite party instituted
a suit against the petitioner for declara-
tion of title to, , and for recovery
of, certain properties fully described
in the plaint. He claimed mesne
profits up to the date of the suit
/and "from the date of the suit to the
date of direct possession." He assessed
the mesne profits payable to him up to
.the date of the institution of the suit
.at Bs. 10,000 and paid Rs. 505 as
Court- fee payable on that amount. In
regard to the future mesne profits, he
flaid as follows : " The amount of mesne
profits from the, date of the suit to the
data of recovery of possession may be
determined during the pendency of the
suit or in the execution stage, and the
.plaintiff may be directed to furnish
Oourfc-fee on the amount of mesne profits
that may be determined." The plain-
tiff failed in the Court of first instance,
but succeeded in obtaining a decree in
,fchis Court which directed that "the
jnesne profits shall be ascertained in
exertion;"' The decree of the High
•Court ^as affirmed by the: Judicial
Committee of the Privy Council on 'the
9th June, 1931,
On the 7th June 1921 the opposite
party applied for the ascertainment of
mesne profits and claimed that a very
large sura of money would be found due
to him on such ascertainment. It ap-
peared that on the . claim now put
forward on behalf of the plaintiff,
Rs. 2,421-12-0 was payable by him as
Court-fee, and on the rdst July 1924 the
Court directed him to pay that amount
as a condition for the ascertainment of
mesne profits and fixed a definite time
within which it was to be paid. The
Court subsequently extended the time
for payment of the money from time to
to time and ultimately dismissed the
application for the ascertainment of
mesne profits on the 30th August 1924
on account of failure on the part of the
opposite party to pay the Court-fee, '
the 9th September 1924 the opposi
party applied for restoration of the
proceedings and the learned Subordinate
Judge restored the ' proceedings under
O. 9, R. 4 of the Code. It is this order
which is the subject-matter of the
application before us.
It may be conceded that O. 9, R. 4
of the Code has no application to this
case and that the learned Subordinate
Judge was not justified in restoring the
proceedings under that particular provi-
sion of the Code. But the petitioners
are invoking the revisional jurisdiction
of this Court ; and it is well settled
that the Court should not exercise its
.revisional jurisdiction except in aid of
justice. Whether we should interefere
in this case depends on whether the
Court had any jurisdiction to dismiss the
proceedings ^for the ascertainment of
mesne profits on the ground that the
opposite party failed to pay the Court-fee
within the time fixed for such payment.
If we are satisfied that that order was
without jurisdiction, we should not be
justified in setting aside the order which
is the subject-matter of the present
application, although we are satisfied
that 0. 9, R, 4 of the Code under which
the Court acted has no application to
thia case.
Order 7, R. 2 of the Code provides that
" where the plaintiff sues for mesne
profits or for an amount which will be
found due to him on taking unsettled
accounts between him and the de-
fendant, the plaint, shall state ap-
proximately the amount sued for." S. 7
220 Patna
RAM GOLAM v CHINTAMAN
1926
I-aragraph 1 of the Court-fees Act pro-
vides that Court-fee is to be paid "accor-
ding to the amount claimed," "in suits
for money (including suits for damages
or compensation, or arrears of main-
tenance, of annuities, 'or of other sums
payable periodically)/1 Section 11 of the
Court-fees Act provides thai "where the
amount of rnesne profits is left to be
ascertained in the course of the execution
of the decree, if the profits so ascertained
exceed the profits claimed, the further
execution of the decree shall be stayed
until the difference between the fee
actually paid and the fee which would
have been payable had the suit com-
prised the whole of the profits so ascer-
tained is paid. If the additional fee is
paid within such time as the Court shall
fix, the suit shall be dismissed." It has
Been held that Court-fees are payable
under S. 7, paragraph 1, only upon the
mesne profits claimed antecedent to the
suit and that a plaint is not liable to
stamp duty in respect of mesne profits
subsequent to the suit. Whether this be
the right view or not may be open to
some doubt ; but there is no room for
controversy that in regard to future
mesne profits, 8. 11 is at least applicable
and that there is no jurisdiction in the
Court to insist upon the payment of
additional Court-fee as a condition for
proceeding with the enquiry that may
be claimed by the plaintiff and to dismiss
the proceedings for ascertainment of
mesne profits if the Court-fee be not paid.
The following oases may be referred
to in this connexion : — Bamkrishna Bhi"
kaji v. Bhima Bai (l), Saminatha Vellala
Thevan v. Muthusawmi Vellala Thevam
(2), Maiden v. Janakiramayya (3), Bun-
wan Lai v. Daya Bunker Misser (4),
Divarka Nath Biswas v. Devendra Nath
Taqore (5), Bhupendra Kumar Chakra-
varty v. Purna Chandra Bose (6), Bhu-
pendra Kumar Chakravarty v. Purna
Chandra Bose (7) and Chedl Lai v. Kirath
Chand (8).
It will be noticed that although there
is a divergence of judicial opinion , on the
(1) CliSijlsBOTaTiiG.
(2) [1910] 90 M. L. J. 98.
(3) [1898] 21 Mad. 871.
U) [1909J 13 0. W. N. 815.
(5) [1906] 33 Oal. 1232.
(6) [1917] 43 Oal. 660=15 C. W. N. 506-18
C. L. J. 132.
(7) [1914] 24 I. 0. 232.
(8) [1878-80] 2 All. 682 (F. B.),
question whether Court -fee is at all
payable in respect of a claim for mesne
profits subsequent to the suit, there is no
decision which supports the view that a
Court is entitled to call upon the plaintiff
to pay additional Court-fee on a claim
for future mesne profits as a condition for
making the inquiry relative thereto.
Section 11 of the Court-Fees Act seems
to me to be perfectly clear, and in my
opinion there is no doubt whatever that
the Court acted without jurisdiction in
dismissing the proceedings for the failure
on the part of the opposite party to pay
the additional Court fee demanded. There
are, however, two cases -of this Court
which support the view of the petitioners.
In Nand Kumar Singh v. Bilas Ram
Marwari (9) the plaintiffs sued for set*
ting aside a revenue sale, for possession
of the disputed property, and for recovery
of mesne profits to be ascertained iii
execution proceedings. The plaint did
not disclose the amount claimed as mesne
profits and no Court-fee was paid on the
plaint. The Court gave the plaintiffs a
decree for possession and awarded them
mesne profits from the date of the decree
and directed that the same were to be
ascertained in the execution proceedings.
Subsequently a question arose as to
whether the mesne profits were payable
from the date of the decree of the Court
of first instance or from the date of the
Privy Council decree, The executing
Court decided that mesne profits were
payable from the date of the Privy Council
decree and the plaintiffs appealed to this
Court paying a Court-fee of Bs. 2 on the
memorandum of appeal. It was objected
that the Court-fee paid was insufficient.
It will be noticed that the mesne profits
awarded to the plaintiffs were in respect
of the period subsequent to the suit, and
the decisions both of the Bombay 'High
Court and of the Culcutta High Court
establish that on such a claim no Courfc*
fee is payable. In deciding the point
contended before the High Court, Mr,
Justice Chapman said as follows : "In
regard to the amount of the Court-fee
payable it cannot be said to be a case in
which the value of the appeal cannot
be ascertained. The appellant hopes,
if he succeeds in this appeal, to obtain *
large sum which he has stated in his
plaint. The Court-fee payable is, there**
fore, in my opinion an ad valorem fea
(9) [1917] 3 P; L. J. 67=1 P. I* W. 781. "*
1926
RAM GOLAM v. CHINTAMAN (Dawson-Miller, C. J.)
Patna 2:21
In expressing this view we are conscious
that we are departing from what was
^nsidered to be the practice, and it
would, in our opinion, be fair to allow
the appellant time until Monday, the
26th February 1917, to amend11 the valua-
tion in his plaint. Now that he is aware
that he will have to pay an advalorem
Court-fee he may, if he thinks it desirable,
amend the valuation in his plaint. If he
does so he will be limited to the amount
stated in his plaint and will not be
permitted to recover b,ny amount in ex-
cess of that. On that date an order will
be given giving the appellant time to pay
the Court-fee." Mr. Justice Roe, concur-
ring with M. Justice Chapman expressed
himself in these words : "A suit for
mesne profits is a suit for money deman-
ded as damages or compensation, and in
that sense it is to be assessed with an
advalorem fee even if it be regarded as
a suit for an account. The Court-fees
Act, S. 7 (iv), in its last clause is peremp-
tory that any such suit shall be approxi-
mately valued. The same provision has
now been introduced into the Civil Pro-
cedure Code. The old practice of allow-
ing plaintiffs to include in a suit for land
a suit for money as mesne profits with-
out paying any Court-fee upon the mesne
profits was undoubtedly wrong, and in
my view a circular should be issued to
the lower Courts drawing attention to
this error of practice ." This view was
accepted without any discussion in Ram
Bilas Singh v. Amir Sinyh (10).
' It will be noticed that there is no
•discussion in either of these cases as to
the principle governing a question of this
nature. No cases were cited before their
Lordships and it does not appear that their
IJordships were aware of the decisions of
:the Calcutta High Court, of the Bombay
Sigh Court, of the Madras High Court
.and of the Allahabad High Court on this
rpbint. I am myself unable to agree with
•these decisions and I am clearly of opinion
that those cases were wrongly decided.
This being the position, what order
should be passed in this case ? I am
'dearly of opinion that we should not
interfere with the order passed by the
teamed Subordinate Judge in this case if '
we are satisfied that the order dismissing
the proceedings for the ascertainment of
.mesne profits was without jurisdiction.
In triy opinion the order dismissing those
(10)~[1920]1 P. L. T. 235,
proceedings was without jurisdiction : but
as there are two decisions of this Court
in which a different view was taken, and
with which I do not agree, we refer the
following questions for decision by a Full
Bench.
(1) Is any Court-fee payable in respect
of a claim for future mesne profits, that is
to say, mesne profits from the date of the
institution of the suit up to the date of
the realization ?
(2) Has the Court any jurisdiction to
require the plaintiff to pay additional
Court-fee upon his claim for future mesne
profits as a condition for proceeding with
the investigation of the claim, and has it
any jurisdiction to dismiss the proceedings
if the additional Court-fee is not paid ?
Under the Rules of this Court, we refer
the case for the final decision of the Full
Bench,
Opinion of the Full Bench.
Dawaon Miller, C. J.— This is an
application in revision asking us to set
aside an order of the Subordinate Judge
of the Bhagalpur, dated the 9th Septem-
ber 1924, restoring to his file a petition
for ascertainment of mesne profits which
had previously been dismissed for non-
payment of the Court-fee.
The plaintiff, who is the opposite
party in the present application, sued
the defendants, who are the present
petitioners, for possession of certain lands
together with mesne profits up to the
institution of the suit. The mesne profits
were valued in the plaint at Bs. 10,000
and covered the period of three years
before the institution of the suit. The
Court-fee, amounting to Bs. 505, was paid
in respect thereof when the plaint was
filed. The plaintiff also claimed an
enquiry as to future mesne profits for the
period between the institution of the suit
and delivery of possesssion. In 1919,
after failing in the trial Court, he ob-
tained a decree in the High Court for
possession, together with mesne profits,
and by the decree it was ordered that
mesne profits should be ascerfainerl in
execution. That decree was subsequently
affirmed by an order of the Privy Council
on the 9th June 1921. The plaintiff
subsequently applied for possession of the
property and finally obtained it on the
23rd June 1922 ; and under his decree he
would be entitled to mesne profits up to
that date. On. the 7th June 1924 he
presented an application to the Sub-
22- Patna
RAM GOLAM r. CHINTAMAN (Dawson-Miller, C. J.)
1926
ordinate Judge for ascertainment of the
amount of mesae profits up to the date
of delivery of possession in June 1922.
The amount estimated in his application
included the sum of Ks. 10,000 as the
mesne profits for the three years preceding
the institution of the suit upon which
sum, as stated, the Court-fee had already
been paid. The value of the subsequent
mesne profits payable up to the date of
delivery of possession was estimated in
tho application at Rs. 1,36,000. The
Subordinate Judge ordered that the Court-
fee payable upon tjiis amount should be
deposited before proceeding with the
enquiry . A date was fixed for payment
which was subsequently extended up to
the 29th August 1024. The Court-fee was
not pai4 by that date, and on the 30th
August the. Subordinate Judge ordered
$bat tho application should bo dismissed
for default. On £he 9th September the
plaintiff applied, for restoration of the
application for ascertainment of mesne
profits and offered to pay tho Court-fee.
The application was heard on the 13th
September, when the Subordinate Judge
granted the application, restored the case
to his file and directed the Court -fee to
be deposited which was done the same
day
The Subordinate Judge purported to
act under O, 9, R. 4 of the Code of Civil
Procedure. The judgment-debtors then
applied to this Court in its revisional
jurisdiction to set aside the order of the
13th September. The application was
heard by a Division Bench consisting of
Mr. Justice Das and Mr. Justice Ross.
The learned Judges were of opinion that
the case could not be restored under 0. 9,
R. 4 which provides for restoration only
under certain conditions which did not
exist in the present case. They refused,
however,, to interfere under the Revi-
sional jurisdiction of the Court on the
ground that the previous order of the
30th August, dismissing the application
for ascertainment of mesne profits for
default, in payment of the Court-fee, was
itself without jurisdiction. If they were
right on that point, then I agree with the
view expressed by the learned Judges that
the powers of revision should not be
exercised- in such a case ; for by so doing
the Court. would be giving effect to mere
technicalities of procedure at the expense
of manifest justice. There are, however,
two decisions of this Court which the
learned Judges considered were in conflict
with their opinion as to the liability to
pay Court-fees for future mesne profits as
a condition precedent to their ascertain-
ment. The case was accordingly referred
to a Pull Bench for determination.
The plaintiff has contended, first, that
no Court-fee is leviable at all in respect of
future mesne profits,' '-that is, for '-the
period between the institution of the suit
and the date of possession ; and secondly,
that, even if leviable, the fee cannot be
exacted before the amount of such profits-
has been ascertained as directed by the,
decree, and that the Court has no juris-
diction to exact payment as a condition
precedent to the ascertainment of the
profits or to' dismiss an application on the
ground of non-payment of such fee at that
stage.
The determination of these questions
depends upon the interpretation of certain
sections in the Court Fees Act and in the
Civil Procedure Code. Sec. 7 (l) of the
Court Fees Act provides that the amount
of fee payable in suits for money (which
would include the present claim) shall be
computed according to the amount claimed
and by 0. 7, R. 2 of the Civil Procedure
Code, where the plaintiff seeks the re-
covery of money, the plaint shall state
the precise amount claimed : but where
the plaintiff sues for mesne profits the
plaint shall state approximately the
amount sued for. When the suit was
instituted in 1914 the only mesne profits
that could be estimated were those which
had already accrued due and these were
estimated, as already stated, and the
proper Court-fee was paid thereon with,
the plaint. No cause of action had arisen,
at that time with regard to future-
mesne profits, for no amount was due and
no estimate could be made with respeck
to a future claim which might, or might
not arise. The Civil Procedure Code,,
however, provides by 0. 20, R, 12 that
where a suit is for the recovery of posr
session of immovable property and ,, for
rent or mesne profits the Court, in
addition to granting a decree for possession
and mesne profits up to the institution of
the suit, may also direct an enquiry as to
the mesne profits from, the institution of
the suit until either delivery of possession
to the decree-holder, or relinquish men t pf
possession by the judgment-debtors or tb&
expiration of three years from the date of
the decree, whichever event first occurs.
1926
RAM GOLAM v. CHINTAMAN (Dawson -Miller, C. J.)
Palna 223
This provision was no doubt inserted in
the Code in order to prevent multiplicity
of suits, as without it a further suit would
be necessary in order to recover the rents
and profits for the period during which
the decree-holder was kept out of pos-
session after the suit. The relief provided
by this enactment is not an immediate
right to any ascertained amount, or to
any amount which is capable of being
estimated, but a right to an enquiry only,
in case the plaintiff should be kept out of
possession after the institution of the suit
and no special Court- fee appears to be
provided for such relief. Where such an
enquiry is directed by the Court then
0. 20, R. 12 (2) provides that a final
decree in respect of the rent or mesne
profits shall be passed in accordance with »
the result of such enquiry.
Under the Code of 1882, as under the
present Code of 1908, the Court could
either determine afc the trial the amount
of mesne profits due before institution
and pass a decree for such amount or it
could order an enquiry, whilsb with
regard to future mesne profits it could
only order an enquiry. In this respect
there is no difference between the two
Codes, but by S. 244 of the old Code
questions regarding the amount of any
mesne profits as to which the decree had
directed an enquiry were to be determined
by the execution Court, whilst under the
present Code of 1908 there is no such
provision and the enquiry may take place
either before the trial Court itself, or in
such manner as it may direct, and a final
decree must then be passed in accordance
with the result of the enquiry. Under
the old law when the executing Court
held the enquiry no Court-fee was ever
paid or exacted, so far as I am aware, as a
condition precedent to the holding of an
enquiry as to future mesne profits, but
S. 11 of the Court Fees Act provides as
follows : —
11. In suits for mesne profits or for
immovable property and mesne profits, or
for an account, if the profits or amount
decreed are or is in excess of the profits
claimed or the amount at which the
plaintiff valued the relief sought, the-
decree shall not be executed until the
difference between the fee actually paid
and the fee which would have been
payable bad the suit comprised the
whole of the profits or amount so decreed
shall have been paid to the proper
officer.
Where the amount of mesne profits is
left to be ascertained in the course of the
execution of the decree if the profits so
ascertained exceed the profits claimed, the
further execution of the decree shall be
stayed until the difference between the
fee actually paid and the fee which would
have been payable had the suit comprised
the whole of the profits so ascertained is
paid. If the additional fee is not paid
within such time as the Court shall fix,
the suit shall be dismissed/'
The section contemplates two cases in
which provision is made for exacting an
additional Court-fee after the profits have
been ascertained. The first paragraph
would appear to relate to a case where
the profits claimed before institution of
the suit had been ascertained in the trials*
Court and provides for payment of a fee
upon the excess amount found due, under
penalty of having the execution stayed if
the fee is not paid. The second paragraph
appears to apply to all cases of past or
future mesne profits which have been
ascertained in execution and provides for
payment of a Court-fee upon the excess of
the profits so ascertained over and above
the amount claimed and paid for in the
plaint and the fee payable is the difference
between the fee actually paid and the fee
which would have been payable had the
suit comprised the whole of the profits
eventually ascertained. In such case the
Court may fix a time within which the
additional fee should be paid and may
dismiss the suit for default of payment.
As in the present case the mesne profits,
past and future, were directed to be
ascertained in execution, it would appear
that the second paragraph of 8. 11 applies
It is clear, to my mind, from this section,
that the fee payable is not the fee upon
an estimated amount stated in the peti-
tion, but upon excess of the amount
actually found due by the enquiry over
and above the amount upon which the
fee has already been paid. From, this it
would follow, and indeed the language of
the section seems clear enough, that no
excess fee can be claimed until the actual
amount due has been ascertained. In
other words, the fee payable is not cal-
culated by reference to the amount
estimated in the petition but by reference
to the amount actually ascertained qn
enquiry.
224 Patna
BAM GOLAM v. CHINTAMAN (Dawson-Miller, 0. J.)
1926
It was contended, however, that the
application for ascertaining future mesne
profits should be treated as either a
supplementary or amended plaint, and
viewed from this aspect the Court-fee on
the amount estimated in the application
should be paid on the presentation of the
application as if it were a plaint. This
argument would no doubt be entitled to
consideration if it were put forward in
support of what the law ought to be, but
I can find nothing either in the Civil
Procedure Code, or in the Court-fees Act,
which e.nacts that an application to hold
an enquiry directed by the decree and to
which the decree-holder is already en-
titled under his decree, should be treated
,as a plaint, and I agree with the view
expressed by the learned Judges of the
Division Bench in the order of ref< rence
that the Subordinate Judge in dismissing
the application for ascertainment of mesne
profits on the 30th August was exceeding
his jurisdiction.
I wish to add a word about the case of
Nand Kumar Singh v. Bilas Ram Mar-
wari (9) which was relied on as expressing
a contrary view. The question in that
case was whether the fee payable was an
ad valorem fee or a fee calculated on
some other basis, and the question arose
in respect of the fee payable, not on a
plaint, but on a memorandum of appeal.
The appeal was by the plaintiff as decree-
holder against an order of the executing
Court deciding that mesne profits were
payable from the date of the decree of the
Privy Council and not from the date of
the original decree of the trial Court
which had decreed possession and directed
that mesne profits should be ascertained
in execution, and which had been affirmed
by the Privy Council. The judgment-
debtors raised, amongst other points, a
preliminary objection that the fee paid on
the memorandum of appeal was insuffi-
cient and that it ought to have been an
ad valorem fee on the value of the appeal
calculated on the difference between the
total estimated profits claimed and the
estimated profits for the period allowed^
The Court decided that the fee payable
on the memorandum of appeal was an ad-
valorem fee and should be calculated on
the value of the appeal estimated at the
amount of the profits claimed for the
period disallowed under the order ap-
ppaled from. That question does not
arise in the present case and it is not
necessary now to express an opinion on
the correctness of the decision. The
ground upon which it is based may pos-
sibly be in conflict with the view I have
already expressed upon the present case,
but I prefer to reserve my judgment upon
the correctness of the decision itself until
the matter directly arises for considera-
tion.
The subsequent case of Earn Bilas
Singh v. Amir Singh (10), decided iii 1918
by a Division Bench of which I was a
member, followed the decision in Nand
Kumar Singh's case (9) to the extent
that the fee payable on the memorandum
of appeal was an ad valorem fee, but in
neither of those cases does it appear to
have been argued that the excess fee
could only be exacted after ascertain-
ment of mesne profits and when the
excess amount had been definitely
determined.
There is some authority for the pro-
position that no Court- fee can be exacted
at any time in respect of future mesne
profits even after ascertainment: see
Bam Krishna Bhikaji v. Bhima Bai (l).
This view, however, has not found favour
in the Calcutta High Court. In Dwarka
Nath Bistvas v. Devendra Nath Tagore (5)
it was held by Rampini and Harington,
JJ., that where past and future mesne
profits had been claimed and a Court-fee
had been paid with a plaint on the esti-
mated mesne profits up to the date of
suit and both classes had been subse-
quently ascertained in execution, S. 11
of the Court-fees Aot applied and the
Court-fee on the future mesne profits so
ascertained could be demanded on pain of
having the suit dismissed if not paid
within the time fixed. In my opinion
the Calcutta view is right and under
S. 11 of the Court Fees Act a fee is
claimable upon future mesne profits after
ascertainment.
If I am right in the view already ex-
pressed, it follows that a Court-fee is
payable on future mesne profits but it
can only be exacted after the amount has
been ascertained by enquiry, and the
Court has no jurisdiction to dismiss an
application for enquiry for non-payment
of Court-fee in advance,
I consider that we should in the par-
ticular circumstances of this case and in
the 6nda of justice refuse to exercise our
powers of revision even though tech-
nically ,the order complained of, dated the
BAM GOLAM v» CHINTAMAN (Mulliok, J.)
225
13th September may have been wrong.
By setting aside the order complained
of we should be depriving the plaintiff
of the right which was improperly
withheld from him by the previous order
and be perpetrating an injustice for the
sake of a technicality of procedure which
has nothing to commend it. The ap-
plication is dismissed but in the circum-
stances we think that each party should
bear his own costs.
Mullick, J. — I agree with the learned
Chief Justice. By reason of the special
provisions of O. 7, B. 2 and O. 20, B. 12
of the Code of Civil Procedure a plaintiff
may in a suit for recovery of possession
of immovable property also claim : (a)
mesne profits which have accrued on the
property prior to the institution of the
suit ; or (b) an inquiry as to such mesne
profits or (c) an inquiry as to mesne
profits from the institution of the suit
until delivery of possession to the decree-
holder or relinquishment of possession
by the judgment-debtor with notice . to
the decree-holder or the expiration of
three years from the date of the decree
whichever event first occurs. The Code
of 1882 required that an inquiry into
mesne profits should be made in execu-
tion ; but the Code of 1908 1ms effected a
change and now all such inquiries must
be made in the suit itself and there must
be a final decree setting the amount due.
The decree directing that the plaintiff
be put in possession is final. So also is a
decree for a specific sum on account of
mesne profits which have accrued due
prior to the institution of the suit. If,
however, the Court considers it necessary
to direct an inquiry then the order for
such inquiry js always a preliminary
decree. With regard to the mesne profits
which have accrued due subsequent to
the institution of the suit, the Court
cannot make any order except an order
for enquiry and that must always be a
preliminary decree. The Code does
not prescribe any special form in which
the application is to be made for holding
the enquiry ; nor is it necessary to con-
'sider here what is the period of limita-
tion for making such an application.
One view is that there ean be no period
of limitation as it i? the duty of the
Court to carry out that which is ordered
by its preliminary decree : see Pwran
Chand v. Sadha Kishun (11). That
(11) Utt*H90aLl3i<F.BJ ~~
1926 P/29 & 90
question, however, does not arise in the
present case ; the only question we have
to consider here is whether the applicant,
when he applies for the inquiry which
the Court has ordered, should put anyj
and if so, what valuation upon his ap-
plication. Now O. 7, B. 2 requires that
some estimate should be made in the
plaint in respect of mesne profits. -It
may be contended that this refers only to
mesne profits which have accrued before
the institution of the suit and that it
cannot refer to mesne profits whioh have
accrued since the institution of the suit
for which the cause of action has not yefc
arisen. In my opinion the answer is that
for the protection of the revenue the
law compels the plaintiff to make a
valuation of some kind. If he claims
mesne profits both in respect of the
period antecedent to the suit and also
the period subsequent thereto, the
valuation will be held to refer to both
periods. If he sues for mesne profits in
respect of only one of these two periods,
the valuation will be held to refer to that
period only. The provision is not based
on any logic ; . it is purely fiscal and
arbitrary and compels the plaintiff to
make an estimate even though he may
have no materials for doing so. When
the Court by its final decree has deter-
mined the total amount of mesne profits
due in respect of both or either of the
periods, as the case may be an applica-
tion must be made in the form prescribed
for the execution of decrees in the execu-
tion department ; and S. 11 of the Court-
fees Act then comes into play and em-
powers the execution Court to stay the
execution of the decree till the Court -fee
on the difference, if any, between the
valuation contained in the plaint and the
amount ascertained in the final decree
has been paid.
But there may be cases where a decree
has been passed under the old Code
directing that the inquiry into mesne
profits be made in the execution depart-
ment. Such is the decree in the oase
now before us and it becomes the duty
of the execution Court to make the
inquiry. In such a case the latter part
of S. 11 of the Court-fees Act operates
to protect the revenue. This part of
S. 11 of the Court-fees Act requires that
the execution of the decree shall be
stayed until the additional fee, if any, be
pa-id wifchin the< time fixed by the Court,
BAM GQLAM v. OHINTAMAN (Jwala Prasad, J.)
and that in default; the suit shall be dis-
missed. But the Court cannot demand
that the Court-fee or any portion of it
shall be paid before it has completed its
enquiry.
Nor does the argument, which I think
must be accepted, that since the present
Civil P. C. came into force there can be
BO application in execution for holding
an enquiry to ascertain the amount of
mesne profits and that all such applica-
tions must be regarded as applications in
the suit, affect the matter. The decree-
holder is not liable to make with his
application any deposit of Court-fee as
a condition precedent to the inquiry.
The deficit Court-fee, if any, can only be
demanded from him under S. 11 of the
Court-fees Act after the decree has been
put in execution.
The fact is that the application to the
Court to ascertain the mesne profits after
a preliminary decree has been made is
not in any sense a plaint and there is no
statute for the levy of ad valorem fee on
it. The object of levying ad valorem
Oourt-fees on claims for money is to se-
cure revenue ; it has no reference to the
labour expended by the Court upon the
adjudication of the claim and the decree-
holder is entitled to demand that the
taxing statute must be strictly construed.
Therefore, there being no provision for
taxing an application for -enquiry whe-
ther in the suit or in execution the
Subordinate Judge was wrong in dismiss-
ing the application.
Finally there was nothing in Nand
Kumar Singh v. Bilas Bam Marwari (9)
to justify his order. I have examined
the record of that case and find that the
suit was for recovery of possession of
l^nd and for mesne profits from the date
of dispossession to that of recovery of
possession ; but the decree awarded mesne
profits only from the date of the decree
to that of recovery of possession. In the
course of execution a dispute arose as to
whether the date of the decree was the
date of the trial Court's decree or the
date of the decree subsequently made by
the Privy Council, and an appeal was pre<-
ferred to the High Court on this point.
The High Court held that before the
memorandum of appeal could be enter-
tained the appellant must first pay ad
valorem Court'fee on the value of the
appeal which was the .amount of mesne
which he hoped to recover if th$
appeal was decreed in hit favour. The
Court also held that as in the trial Court
the plaintiff had omitted to estimate the
value of the mesne profits claimed he
must amend -the plaint and pay deficit
Court-fees thereon. There was nothing
in the order of the High Court to suggest
that the Court required the decree- holder
to pay in the execution Court any ad
valorem Court -fee as a condition prece-
dent to the holding of the inquiry.
I agree, therefore, that neither Nand
Kumar Singh's case (9), nor Bam Bilas
Singh v. Amir Singh (10), which follows
it, affects the decision of the case now
before us.
Jwala Prasad, J.— The questions re-
ferred to by the Division Bench of this
Court for decision to the Full Bench are :
(1) Is any Court-fee payable in res-
pect of a claim for future mesne profits ;
that is to say, mesne profits from the
date of the institution of the suit up to
the date of the realization ?
(2) Has the Court any jurisdiction to
require the ' plaintiff to pay additional
Court-fee upon his claim for future mesne
profits as a condition for proceeding with
the investigation of the claim, and has
it any jurisdiction to dismiss the pro-
ceedings if the additional Court- fee is not
paid?
The circumstances under which the
reference .has been made are as follows :
(After stating facts his Lordship
proceded.)
The judgment-debtor has come to this
Court in revision and contends that the
order of the Subordinate Judge, dated the
•9th September 1924, restoring the appli-
cation of the plaintiff decree-holder (or
•ascertainment of mesne profits, which
'was already dismissed on account' of non-
payment of Court-fee, is bad inasmuch as
O. 9, B. 4 has absolutely no application.
He further contends that the order of the
Subordinate Judge dismissing the appli-
cation could not be set aside except upon
a review to that Court or in an appeal to
this Court, This contention assumes
that the plaintiff had a right of a review
•of or an appeal from the order of the 30th
August 1924 dismissing his application for
ascertainment of .mesne profits. It is
obvious that the order of the 30th August
was not capable of review. The right of
review Us given by 0. 47 of thes Code of
Civil Procedure and can;only be exercised
'BAM GOLAM v. GHINTAMAN (Jwala Prasad, J.)
Patna 227
within the limitation prescribed by B, 1
•^E that Order and is dependent upon a
•discovery of a new matter or evidence
which, after the exercise of due diligence,
•was not within the knowledge of or could
not be produced by the plaintiff at the
time when the decree or order was made,
or on account of some mistake or error
apparent on the face of the record, or for
any other sufficient cause. The grounds
enumerated in that rule, upon which the
review is permissible, do not exist in this
case and the words "any other sufficient
•cause" have been held to refer to causes
which are ejusdem generis with those
specifically mentioned in the rule.
Therefore the order of the Subordinate
Judge of the 30fch August was not capable
of review.
There cannot be any appeal from that
order inasmuch as it was not a decree
within the meaning of the word as defined
in S. 2, 01. (2). The learned advocate
on behalf of the applicant relies upon the
last part of Cl. (2) which says that "the
decree shall be deemed to include the
rejection of plaint/' This assumes that
the application of the plaintiff for the as-
certainment of mesne profits was a
plaint. This is wholly an untenable
position. The plaintiff's application can
in no sense be said to be a plaint. The
plaintiff had already filed his plaint when
he instituted the suit which ultimately
resulted in a decree in his favour for
possession and mesne profits. That plaint
was presented under O. 4, read with 0.
6 and 0. 7, and 8. 26 of the Code. The
application for ascertainment of mesne
profits was filed either by way of an exe-
cution of the decree based upon the
plaint already fileij. by him, or for an en-
quiry under 0. 20, B. 12 of the Code in
pursuance of the preliminary decree
which was pafgpcl on the foot of his plaint.
Such an application cannot be said to
be a plaint. The learned advocate
has invented a felioitious expression
and calls the application a supple-
mentary plaint. But there is no pro-
vision in the Code for presenting a
supplementary plaint. Even applica-
tions for amendment of plaints or
addition of parties or reliefs do not count
as plaints. It is not necessary to pursue
the point further inasmuch as the learned
advocate, towards the close of his argu-
ment,, admitted that it was not a supple-
mentary plaint and pointed out to us the
latest decision of the Calcutta High Courfc
in the case of Bidhyadhar Bachar v.
Manindra Nath Das (12), wherein it has
been clearly held that such an application
is not a plaint. Therefore the rejection
of the plaintiff's application cannot stand
on the same footing as the rejection of a
plaint under O. 7, E. 11 (c) on account of
the failure of the plaintiff to supply the
requisite stamp paper within the time
fixed by the Oourt; and the order rejecting
the application is not a decree within the
meaning of S. 2 (2) of the Code of Civil
Procedure and hence there is no appeal
from this order. In refusing the appli-
cation the Court refused to exercise juris-
diction, and this Court can, in revision,
direct the lower Court to entertain tho
application and proceed according to law.
The lower Court also can suo motu .dis-
regard its order refusing the application
as ultra vires.
The next question is : Could the Court
dismiss the application on the ground
that it was not properly stamped ? S. 6
of the Court-fees Act prohibits accept-
ance of a document chargeable in the
first or second schedule of the Act, unless
in respect of such a document there be
paid a fee of an amount not less than
that indicated by either of the said sche-
dule as the proper fee for such document.
The schedules do not require a petition
for the ascertainment of mesne profits to
bear an ad valorem Court-fee and the
application was properly stamped with a
Court-fee of 12 annas prescribed in Sch. II
of the Court-fees Act for all applica-
tions to the subordinate Courts. There-
fore the application could not be dis-
missed upon the ground that it did nofc
bear proper Court- fee. The learned
Subordinate Judge had no jurisdiction to
reject the plaint originally filed upon the
ground that it did nob bear proper
Court-fee. The plaintiff claimed past
mesne profits, which, according to him,
approximately amounted to Es. IfyOOO as
required 8. 7, E. 2 of the Code of 'Civil
Procedure and paid a Court -fee thereon
under S. 7,.CL(iv)(f) oi the CoorMees
Act. He also prayed for determination
of his right to future mesne profits. Ther
amount of future mesne profits was not
ascertainable at that time on acopunt of
the uncertainty of time during whicji the
plaintiff would be ' out of powROh as
well as the uncertainty .of ttte
' (12) A. I. 'B. 1986 Cftl
ny .o t
. 10W (P. B# • *"
228 Patna
GOLAM V.^CHINTAMAN (Jwala Prasad, J.)
which the defendant would be expected
to reasonably earn from the land approxi-
mately. To take the extreme case, the
land might be submerged by water and
remain so* after the institution of the
suit till the plaintiff recovered possession
of the pro]>erty and 'in that case there
would be no profit earned by the defen*
dant which could be claimed as mesne.
profits by the plaintiff. Therefore to
ask the plaintiff to state in his plaint the
"approximate amount of mesne profits"
would be to ask him to value his relief
upon an imaginary figure. This position
is BO absurd that the Legislature has not
thought it lit to compel the plaintiff to
value the future inesne profits or to pay
any Court "foe thereon at the time of
filing the. plaint. Neither 0. 7, K. 2 of
the Code of Civil Procedure nor S. 7, 01.
(iv) (f) of tho Court-fees Act would apply
to unascertained future mesne profits.
|No Court-fee is payable upon future
mesne profits until after the amount is
already ascertained.
It is only to avoid multiplicity of suits
that the plaintiff, in a suit for possession,
is entitled to ask in his plaint, not only
for the past profits which had accrued at
tho date of tho institution of the suit, but
also future mesne profits from the date
of the suit up to the date of delivery of
possession to1 him; and when the plaintiff
claims ruosno profits, past and future,
tho Court may in the same suit, while
decreeing tho suit for possession, deter-
mine the amount of inesne profits. The
present Code of Civil Procedure, 1908,
lays down tho procedure for determining
the mesne profits in O. 20, B. 12. Under
S. 196 of the Procedure Code (Act VIII
of 1859), the Court could provide in the
decree Cor the payment of rnesne profits
from the 'date of the suit until the date
o£ delivery of possession to the decree-
holder. S. 197 provides that the Court
could determine the amount prior to the
passing of a decree for land or pass a
decree for the land, reserving an enquiry
into the amount of mesne profits in the
execution of the decree according as it
appeared most convenient. Similar were
the provisions made in the later Code
(Act XIV of 1882) in Ss. 211 and 212
with this difference that under the latter
section the enquiry into and determina-
tion of the mesne profits to be incorpora-
ted and named in the decree for posses-
sion was limited to the period prior to
"institution of the suit;" whereas in
Act VIII of 1859 it was up to the "passing
of the decree for the land." But in these
Acts there was no specific provision for
the determination by the trial Court and
incorporation in the decree the amount
of mesne profits from the date of the in-
stitution of the suit or decree up to the
date of the delivery of possession. This*
therefore, used to be done under the old;
Acts in execution proceedings and, a^
l>ointed out by this Court in Harakhpan
Misser v. Jagdeo Missir (13), much diver-
gence of opinion prevailed as to whether
an application for ascertainment of future
mesne profits in the execution proceed-
ings was governed by the three years
rule of limitation ; vide Gangadhar
Manika v. Balkriskna Soiroba Kasbekar
(14) ; Ramana Reddi v. B. Babu Eeddi (15>
and Puran Chand v. Roy Radha Kishun
(ll). The present Code has made it clear
that the Court which passes a decree for
possession of land may direct an enquiry
as to the rnesne profits both prior to the*
institution of the suit and subsequent
thereto up to the delivery of possession,
or up to three years whichever date is
earlier. No Court*fee used to be paid
when the old Codes of Civil Procedure
were in force before the future mesne
profits were determined, whether they
were determined in the execution pro-
ceedings or in proceedings in continuation
of the suit. The present Code, in provid-
ing for the enquiry as to mesne profits
by the Court passing a decree for-posses-
sion of land, does not purport in any way
to affect the law as to the time when the
Court-fee is payable with -respect to
future mesne profits* It has simply
amalgamated the provisions of the old
Codes spread in several sections and has
clearly defined the power of the Court
passing a decree with respect to the hold-
ing of an enquiry and ascertaining the
mesne profits which was somewhat vague
and doubtful in the old Acts. The Court-
fees Act (VII of 1870) remains unaltered
and the change in the Procedure Code
as to the mode of or the forum in which
the enquiry is to take place does not
alter the time when the Court-fee upon
future mesne profits is payable. It must
be presumed that the Legislature did
(18} A, I. R. 1924 Patna 781/ ~
(U) [1921] 46 Bom. 819=38 Bom. L. K. 263.
(15) [1914] 97 Mad. 186=24 M. L. J. 96=13
M. I* T« 79=(m3) M, W. N. 11*.
BAM GoiiAM v. OfiiNTAMAN (Jwala Prasad, J.)
intend to effect any change in this
respect and that the law as to the Court-
fee governing the matter which existed
prior to the present Code was considered
by the Legislature to be sufficient to meet
the present situation created by the. Code
3f 1908, whereby the Court . passing a
3ecree for possession can declare the
plaintiff's rights to recover mesne profits
uid then hold an enquiry to ascertain
khe amount of mesne profits and embody
bhe same in a final decree capable of
sxecution.
Both under the new and the old Codes
the plaintiff need only state "approxi*
mtely the amount of mesne profits sued
:or" and upon the amount so stated he is
required to pay ad valorem Court-fee
under S. 7 (iv) (f) of 'the Court-fees Act
at the time of filing the plaint. But the
amount actually found due to him may
exceed the rough valuation stated by him
in the plaint. For this contingency the
Court-fees Act makes provision in S. 11.
This section is split up in two parts
or paragraphs. The first relates to the
-excess amount found upon an enquiry in
the suit itself and incorporated in the
decree of the Court. Under the old Code
'the Court could determine the amount of
mesne profits pendente lite up to the in-
stitution of the suit and pass a decree for
it along with a decree for possession.
The Court could not, under the old Act,
determine the future mesne profits in the
suit and pass a decree therefor. Under
the present Code, . the Court can deter-
mine past and future mesne profits in the
suit itself and make a decree called a
final decree for the mesne profits capable
of execution. The first paragraph ap-
plied in practice formerly to a decree for
mesne profits which accrued up to the in-
stitution of the suit. Inasmuch as under
the present Code, a decree may be passed
in the suit itself, called the final decree,
-for future mesne profits as well, hence
the first paragraph would apply to such a
decree also. The change in the Proce-
dure Code did not necessitate any change
in the first part of S. 11, as the words
employed therein are sufficient to cover
guch a decree. Where the plaintiff in
his plaint for recovery of possession of
immovable property claims a determina-
tion of his right to jiast and future mesne
profits, his suit is a 'suit for immovable
property and mesne profits" in terms pf
S.'ll. Mesne profits, past and future,
are to be regarded in such a plaint as one
entire claim for mesne profits, to uset the
language of Chief Justice Sargent in the
case of Bam Krishna Bhikaji v. Bhiina
Bai (l). In such a case the plaintiff
"approximately states the amount of
past mesne proSts which had already ac-
crued to him at the time the suit is in-
stituted" and accordingly values the
amount of mesne profits, which,* at that
time, was not capable of ascertainment*
becomes so and is actually ascertained by
the Court and a decree is passed thereon
under 0. 20, r. 12. If the amount of
mesne profits thus found and decreed
exceeds the amount of past mosne pro-
fits approximately stated by the plain-
tiff, S. 11, pa.ra. 1 says that "the decrea
shall not be executed until the difference
between the fee actually paid and the fee
which would have been payable had the
suit comprised the whole of the amount
of profits or the amount BO decreed would
have been paid to the proper officer/*
Under this clause the Court-fee upon the
future mesne profits is not to be paid
until the same has been actually deter-
mined and no time is to be fixed for the
payment of such a Court- Ceo, nor the
claim for mesne profits is to ho dismissed
on failure to ])ay the Court-fee. The
penalty in this clause is that the decree for
mesne profits whether past or future, 'shall
not be executed ' until the excess Court-
fee is paid. Jn the Full Bench case of
the Calcutta High Court referred to above
Bidhyadhar Bachar v. Manmdra NatK
Das (12), where after the plaintiff had
obtained possession of the property and
applied under 0. 20, B. 12, for the ascer-
tainment of future or pondente lite
mesne profits and valued his claim at
Bs. 3,000, and the question was whether
this valuation affected the jurisdiction
of the Munsif who had decreed the suit,
it was held that the plaintiff's valuation
in the application did nob sffect the
jurisdiction of the Munsif which he
originally had, at the time the suit for
possession was brought, to enquire inta
the mesne profits. The decision was.
based upon the view that the plaintiff in
such a case is not required, nor is it pos-
sible for him, to value even approximately
the amount of mesne profits pendente lite,
which must vary according to the period
the defendant retains possession of the
property. It was further observed that
the plaintiff is not required to value the*
286 Pftftta
BAM GOLAM v. CHINTAMAH (Jwala Frasad, J.)
subsequent mesne profits in advance or
at a higher value than is leviable by law,
i . e.t the value of mesne profits claimed
up to the date of the institution of the
suit ; he cannot value subsequent mesne
profits in advance. It follows from the
above observations in that case that the
plaintiff in the present case could not
be asked to pay any Court-fee upon the
amount of mesne profits stated by him in
his application for ascertaining the
actual amount of mesne profits due to
him. This view is supported by the case
of Sellanuthy v. Bamaswami (16).
In the present case the High Court
which passed the decree for possession
directed that the mesne profits " shall be
ascertained in the execution." If the
application of the judgment-debtor was
an application to ascertain the mesne
profits in execution proceedings, the
second clause of S. 11 would apply to it.
The second clause says that where the
amount of mesne profits is left to be
ascertained in the course of the execution
of the decree and if the profits so ascer-
tained exceed the profits claimed, then
the further execution of the decree shall
be stayed until the difference between
the fee actually paid and the fee which
would have been payable had the suit
comprised the whole of the profits so
ascertained is paid. Thus if this clause
applied the Court could not ask the plain-
tiff to pay any Court-fee until the amount
was ascertained, much less could it make
the payment of Court-fee a condition
precedent for the enquiry as to the amount
payable as mesne profits. Section 11 of
the Court-fees Act is the only provision
under which additional Court-fee could
be demanded upon mesne profits and
under that clause no fee is demandable
until the actual amount is ascertained
and found in excess of the amount for
which Court-fee has already been paid
whether the enquiry for ascertainment
of mesne profits is made in the course of
the suit or in execution proceedings. If
the decision of this Court in the case of
Nanct Kumar Singh v. Bilas Bam Mar-
wari (9), and the circular issued on the
strength of it lay down a different rule,
I would respectfully differ from it. The
decision does- not quote any authority in
support of it nor does it take into con-
sideration the true meaning and import
(16) [1908] 12 M. L. J. 66.
of the provisions in the Court-fees Act*
In the case of Maiden v. Janaki~
ramayya (3), where in a suit for land
with mesne profits a decree was passed ~
for the plaintiff in which the amount of
mesne profits was left to be determined
in execution, the date from which they
should be computed being the date of"
the suit, the defendant appealed against*
the decree on the ground that he should
not have been decreed to pay either
mesne profits or cost. He did not pay.
any Court-fee and it was held that no
Court-fee was payable in respect of the
mesne profits subsequent to the institu-
tion of the suit. This case supports the
view, that no Court-fee is payable for
future mesne profits unless it is ascer-
tained. Therefore the order of the Court
refusing to ascertain the mesne profits
before the Court-fee was paid upon the
amount mentioned in the plaintiff's
application seems to me to be illegal and
without jurisdiction. In reason also ifc
would appear to be so, for the plaintiff
might be found entitled to much more
or much less than the amount of mesne
profits named by him in the application.
My answer, therefore, to the second ques-
tion is in the negative, viz., that the
learned Subordinate Judge had no juris-
diction to require the plaintiff to pay
additional Court-fee as a condition for
proceeding with the investigation of the
claim, nor had he any jurisdiction to dis-
miss the proceedings if the additional
Court-fee was not paid.
I have already held that there is na
provision in the Court-fees Act for pay
ment of the Court-fee demanded by the
Court and the application for ascertaining
the mesne profits, therefore, could not be
rejected. Supposing for argument's sake
that no enquiry into the amount of
mesne profits could be made unless Court*
fee upon the mesne profits claimed by the
plaintiff in his application was paid be-
forehand, no written application was
necessary for asking for an investigation
into it and a verbal application was suffi-
cient for the plaintiff to demand an
enquiry into the matter. The Court- fee
was actually paid on the 13th September,
and it appears from the order- sheet that
the Court was asked to hold an enquiry.
Therefore there was before the Court on
the 13th September a proper Court-fee
paid with a prayer for holdfotftan enquiry
into the amount of mesna jnofrts* The
1926
BAM GOLAM v. CHINTAMAN
Prffik 231
Oonrt had no right to refuse to enter into
an enquiry for ascertaining mesne profits,
and as a matter of fact, it proceeded to
enquire into the matter. If the order of
the 30th August 1924 was without juris-
diction, the order of the 13th September
1924, though wrongly stated to have been
passed under 0. 9, E. 4, should be deemed
to have been really passed by virtue of
the inherent jurisdiction of the Court
vested by S. 151 for the ends of justice.
The operative part of the order of the 9th
September is contained in the concluding
sentence of the order. It restores the
application which was dismissed implying
thereby that the order passed without
jurisdiction on the 30th August was set
aside. In the case of DeU Buksh Singh
v. Habib Shah (17), the plaintiff's suit
was dismissed for default. It appears
that the plaintiff had died before
the dismissal and that subsequently upon
an application of his son, the order was
set aside under 0. 9, B. 9, Code of Civil
Procedure. But on appeal by the defen-
dant, the Judicial Commissioner set aside
the order as the application was not made
within the 30th day under 0. 9, K..9 of
the Civil P. C. Lord Shaw sot aside the
order of the Judicial Commissioner of
Oudh and observed as follows : " By
the Code of Civil Procedure, 1908,
it is provided that ' nothing in this Rule
shall be deemed or otherwise affecting the
inherent powers as may be necessary for
the ends of justice or to prevent abuse of
the process of the Court.'' In their Lord-
ships' opinion such abuse has occurred by
the course adopted in the Court of the
Judicial Commissioner. Quite apart from
S. 151, any Court might have rightly con-
sidered itself to possess an inherent power
to rectify the mistake which had been
inadvertently made. But S. 151 could
never be invoked in a case clearer than
the present, and their Lordships are at a
loss to understand why, apart from points
of procedure and otherwise, it was not
taken advantage of."
The Subordinate Judge, in the present
case, had, therefore, inherent power to set
aside his order dismissing the application
and to treat it as null and void and this
should be the view taken of his subse-
(17) [1913] 85 All. 831=40 I. A. 160=16; 0. 0.
194=170. W.N. 829=11 A. L. J. 625=
18 C. L. J. 9=15 B. L. R. 640=14 M. L.
T. 83=(1918) M. W. N. 566=25 M. L. J.
148. (P. 0.).
qaent order restoring the application
though it purports to have been passed
under a wrong section of the Code of
Civil Procedure.
As to the first question, it seems to me
that in spite of some divergent views
taken in some cases, the Court-fee is
leviable upon the amount of mesne profits
for a period subsequent to the date of the
institution of the suit when that sum is
actually ascertained. There is no provi-
sion in the Court-fees Act exempting
such a claim from the payment of duty.
On the other hand, S. 11 clearly indicates
that fee is leviable upon future mesne
profits. The plaintiff could restrict his
claim to the mesne profits which accrued
up to the date the suit for possession was
instituted and reserve his claim with res-
pect to future mesne profits for a subse-
quent suit, for the cause of action ^ for
future mesne profits had not then arisen.
The future mesne profits which were
incapable of being estimated at the time
when the suit for possession was insti-
tuted can become ascertainable and capa-
ble of valuation at a future date, and
there is no reason why the plaintiff would
not have to pay Court-fee when the
amount is actually ascertained.
His liability to pay Court-fee, therefore,
does not cease, because in the suit for
possession he was permitted for the sake
of convenience and to avoid multiplicity
of suits, to include in one suit a claim for
past and future mesne profits. The real
distinction seems to be that .no Court-fee
is payable upon future mesne profits
until they are ascertained, but when as-
certained they are chargeable with duty
under S. 11, the failure to pay which
causes the penalty imposed by that
section. This view is supported by the
case of Dwarka Nath Bisivas v. Devendra
Nath Tagore (4).
The answers which I have given above
to the questions referred to this Bench
for decision lead to the conclusion that
the defendant's application should be
dismissed and the Bule discharged.
As regards costs, I agree to the order
proposed "by Hon'ble the Chief Justice.
Das, J.— -I agree with my Lord the
Chief Justice.
Foster, J.— I agree generally ; but in
particular I wish to express my agreement
with the view propounded in the judg-
ment of my learned brother Jwala Pra-
sad,J., as to the applicability of the
283 Pfttnft JAGWA DHANUK v. KING-EMPEBOR (Muilick, Ag. C. JJ
second clause of S. 11 of the Court fees
Act to the provisions of the present Civil
Procedure Code in respect of suits for
recovery of land and for ascertainment
of mesne profits.
A. I. R. 1926 Patna232
K, Ao. C. J. AND JWALA
PRASAD, J.
Jaywa Dhanuk — Appellant,
v.
King-Emperor — Opposite party.
Death Reference No. 7 of 1925 with
Criminal Appeal No. 101 of 1925, Decided
on 26th June 1925, from a decision of the
S.-J,, Monghyr, D/- 4th June 1925,
%: (a) Evidence Act, S. '&i~Evldence oj bad
character to prove motive for the crime or other-
wise relevant Is not excluded.
Evidence of bad character cannot be giveu fo*
the purpose of showing that the accused were of
such a disposition that they were likely to commit
the crime charged. But that prohibition does
not in any way affect evidence which is required
to prove a motive -for the crime or which is. other-
wise relevant. 47 Cal. 671, and A. I. Jl. 1923
Bom. 71, Dlst. [P 234 0 1]
(b) Evidence Act, S. 133— Approver should be
corroborated also In material points as to the part
played by his 'accomplices.
It is not sufficient that the approver should be
corroborated with regard to the actual commission
of the crime itself ; for such corroboration merely
wbowa that he himself took part in the offence.
Experience requires that the approver should also
be corroborated in material points as to the part
played by his accomplices. The amount of corro-
boration in this respect as indeed in respect of
all corroboration of an approver's evidence, must
depend upon the view which the Court takes of
the approver's character and of his general
demeanour in the witness box. [P 235 0 1; 2]
(c) Inter pr elation of Statutes — General and
special enactments— Extent to which special en-
actment overrides general enactments depends on
language of special Act.
To what extent the provisions of a special en-
actment override the provisions of a general en-
actment must depend upon the language of the
special Act. [P 286 0 2]
(d) Criminal P. C., (Amended 1923), S. 62—
Section excludes completely statements made
during Investigation except for limited purposes —
Statements of accused, not amounting to con-
fession are still admissible—Evidence Act, S. 27.
No doubt S. 162 of the Criminal P. C. of 1923
has altered the previous law so as to completely
exclude statements made by witnesses during the
course of an investigation, except for certain
limited purposes, yet the statements of accused
persons, provided they do not amount to a con-
fession, are still admissible in law. The main
object of the legislature in effecting the amend-
ment was to prohibit the use of the. statements of
prosecution witnesses as corroboration under
S. 157 of the Evidence Act. The general provi-
sions of the law with regard to the admissibility
of statements made by accused parsons like other
admissions do not seem to be affected. [P 236 C 2]
5JC (e) Criminal P. C.,. S. 360— Deposition not
read over to witness but read by witness himself —
Deposition Is legal evidence.
Although the deposition of a witness is not
read over to him, but the witness reads it himself
still the deposition is legal evidence. [P 237 C ll
Mullick, Ag. C. J.— The appellant
Bhagharabar Eout alias Bhagwa is the
father of tho appellant Jagwa Dhanuk.
It is alleged that these two appellants,
with tho third appellant Rama Rout,
murdered a shop-keeper and money-lender
named Ramdhani on the night of Thurs-
day, the 12th February 1925. Ramdhani's
home was in mauza Dariapur but he had
a shop at Gangto, which is about three
miles off by road. About 3 a. in. on the
morning of Friday, the 13th February,
Ramdhani left his shop telling his brother
Gobind aged 16 that he would be back
about 10 a. m. He was not seen again
but his body was* found in course of the
day afc a cremation ground at which there
is a temple of Mahadeo and which lies
in a jungle on a hill about 4 miles from
Gangfco. It was obvious that he had been
murdered and information was given
about 6 p. m. by Nasir Khan, chowkidar,
to the Sub-Inspector of the Kharagpur
police station. The Sub-Inspector arrived
at the place of occurrence on the morn-
ing of the 14th. In consequence of
certain information obtained from a
zamindar named Babu Sailendra Nath
Kar, who was spoken of in the trial as
Sailu Babu, suspicion fell upon one Dallo
Kumar.
On the 16th February, Dallo was
placed before the Superintendent of Police
who had come to direct the investigation.
It is said that he then made a statement
the contents of which are not in evidence.
On the 18th Dallo made a full statement
in the nature of a confession to the in-
vestigating Sub-Inspector Satya Kinkar
Mukherji. He took the Sub-Inspector
immediately afterwards to the cremation
ground and showed him the way by which
the deceased went with the three appel-
lants and himself from the house of
Bamu at Lauriya to the cremation
ground. Dallo pointed out the marks
made by the iron-shod heels of the de-
ceased's shoes in a wet barley field
JA<JWA DftANtrk v. KING-EMPEIIOB (Mtillick, Ag. G. J.) P*tif* 238f
belonging to one Bansi Bout. According
to Dallo, the appellants were habitual
thieves who disposed of tfeeir stolen pro-
perty through the deceased and on the
night in question Ramdhani had
"been decoyed hy the appellants from
his shop on a promise by the appellants
that they would give him a considerable
quantity of gold and silver. Dallo poin-
ted out to the Sub- Inspector two hollows
;in the ground where tho stolen property
was said to have been concealed. He
states that at the first place which is
near a place marked on the Sub-Ins-
pector's map as the Surdun Bandh, no
property was found and that therefore,
one of the appellants said that it had
probably been removed by the other
members of the gang and that it would be
necessary to go to the Mahadeo temple
and to search the tank on the hill. The
deceased was then taken to the tank and
there he was attacked by Jagwa with a
Sindh katti (a piece of iron used by
Indian burglars), by Bhagwa with a knife
and by Ramu with a Santoli pharsa.
Ramdhani vwas killed instantly and a sum
•of Rs. 84, which was found on his person
was taken by Bhagwa. Thereafter Ramu
took the handle off the head of the
pharsa by knocking it against a stone and
threw it away. Dallo pointed out tho
jungle into which the handle had been
thrown and the evidence is that there the
bandle was found. Dallo also pointed
•out the place on the hill where Bhagwa
gave Rs. 25 out of the Rs. 84 to Ramu.
He himself was offered Rs. 5 which he
refused on the ground that it was in-
sufficient. Then a quarrel arose and the
appellants prepared to assault him. He
then ran away and he pointed out to the
Sub-Inspector the route along which he
returned.
After the discovery of the above facts
from the confession of Dallo, the Sub-
Inspector arrested Dallo and the appel-
lants. On the same day he searched the
houses of the appellants and found hidden
away in an earthen pitcher in the house
occupied by Bhagwa and Jagwa and by
Naku, the brother of Bhagwa, a knife
which was identified by Dallo as the
weapon with which Bhagwa had inflicted
the wound on the left side of Ramdhani's
head. In the committing Magistrate's
Court Bhagwa admitted the ownership of
this knife, but in 'the Sessions Court he
Denied it, I dot nbt think there can be
any doubt that the knife was found in his
house and that it belongs to him, A
short iron weapon which might be ordi-
narily used for making holes in mud
walls was also found in the same house ;
but Dallo says that this was not the
sindh katti with which Bhagwan was
armed. The pharsa, which Ramu is
alleged to have used, has nob been found
nor has the Sindh katti alleged to have
been used by Jagwa.
The post-mortem examination on the
body of Ramdhani was made on 15th
February and it was then discovered thad
there were two wounds on the head
which had been caused by a shari] instru-
ment : (l) an incised wound 2-1/2* inches
long by 1/3 inch down to the bone behind
the right ear and (2) a punctured wound
3/4 inch by 1/2 inch by 1 inch deep in
the left temporal region above the left
ear. The police had apparently assumed
that the wound on the right side of the
head had gone right through to the other
side, but the post-mortem report shows
that there were two separate wounds and
that they were probably made by differ-
ent kinds of weapons, the first a sharp
cutting weapon and the second by a
sharp pointed weapon. The skull at the
back of the head was extensively fractur-
ed and it was obvious that the head had
been severely battered with a heavy blunt
weapon.
The post-mortem is sought by the prose-
cution to be used as corroboration of
Dallo's statement. It is urged that after
his arrest on the 18th February Dallo
was taken to Monghyr whore he was kept
in prison and that on 'the 26th he re-
peated his confession before Rai Krishna
Bahadur. Deputy Magistrate, which was
recorded under the provisions of S. 161
of the Criminal Procedure Code.
It is suggested that Dallo had no
knowledge of the post-mortem report and
that the striking agreement between his
account and the post-mortem report in
contrast with the original police view is
strong corroboration of the truth of his
statement.
When placed upon their trial the ap-
pellants pleaded not guilty and alleged
that a false case had been instituted
against them by Sailu Babu who was the
master of Dallo and had enmity with tha
zamindar of the appellants.
The four assessors at the trial were un-
animously of opinion that the appellants
2S4 Patna JAGWA DHANUK V/KJNQ-EMPEBOR (Mullicki Ag. C. J.)
1926
were guilty and the Sessions Judge of
Monghyr agreeing with them has found
the appellants guilty of an offence under
8. 302 of the Indian Penal Code and
sentenced them to death.
The case turns upon the evidence of
the approver Dallo. He wa^ offered a
pardon on the 19th March and he was
examined as a witness for the prosecution
in the Court of the committing Magistrate.
There is no inconsistency between his
confession of the 26th February, his deposi-
tion before the committing Magistrate,
on the 19th March and his deposi-
tion in the Sessions Court. (The judg-
ment then stated facts as disclosed by
Dallo and continued.)
The learned Judge was very favourably
impressed with Dallo's behaviour in the
witness-box and he was satisfied that he
was a witness of truth. He appears,
however, to have admitted the evidence
relating to Dallo's association with the
appellants for the purpose of committing
thefts and burglaries and of Bamdhani's
association with the appellants as a
receiver of stolen property with consi-
derable reluctance on the ground that it
was evidence of bad character which was
not admissible under any circumstances.
The position appears to have been mis-
conceieved. Evidence of bad character
cannot be given for the purpose of show-
ing that the accused were of such a dis-
position that they were likely to commit
the crime charged. But that prohibition
does not in any way affect evidence which
is required to prove a motive for the
crime or which is otherwise relevant.
Learned counsel for the appellants has
taken the same objection before us and
has relied upon Emperor v. Pancliu Das
(l) and King-Emperor v. Haji Sher
Mahomed (2). But these oases are not
relevant to the point before us which is
whether it was open to the prosecution
to prove that Dallo and the appellants
and Eamdhani had been engaged in
offences against property and that the
quarrel which arose out of their associa-
tion was a motive for the murder of
Bamdhani.
It may be asked why should the appel-
lants have taken Dallo with them on the
night of the murder. It is in evidence
that the appellants knew that Dallo had
(1) [iy*0] 47 Cal. 671=840. L. J. 402=24 C.
W. N. 501 (F. B,
(2) A. I. R. 1923 Bom. 71.
played them false with regard to the»
projected burglary in Basdeo's house and
Dallo himself admits that ' he had been
beaten several times by the appellants on
this account and that when the dispute
took place about the division of the
money found upon Eamdhani immediately
after the murder his previous treachery
was brought up against him. In these
circumstances, argues the learned counsel,
it is impossible that Dallo should have
been taken. The reply, however, is that
either Dallo knew too much of the ap-
pellants to be left out or it was considered
necessary to involve him still further in
order that his mouth might be shut for
good. We can only speculate but it is
possible that the appellants thought that
if Dallo joined in the murder ;it would
not be possible for him to make any dis-
closure without endangering his own life.
However that may be the fact remains
that the assessors were satisfied that
Dallo's story upon this point was correct.
Then it may be asked why should Dallo
confess at all. Unfortunately we have
no information as to what steps were
taken on the 14th and 15th to induce him
to appear before the Superintendent of
Police, nor do we know what statement*
he made to him, nor do we know what
happened on the 17th. But there is ev^
dence that Sailu Babu was taking a very
active part in assisting the police and it
is possible that it was on information sup-
plied by him that the suspicions of the
police were attracted towards Dallo and
the appellants. Dallo is evidently a per-
son of weak character and upon his own
admission he was treated by his accom-
plices with contempt. It sometimes hap-
pens that a criminal's courage fails him
in the end and that he without any
pressure or inducement gives out the
whole truth.
There is also corroborative evidence
given by Aklu that Dallo was seen coming
along the Dariapur road about sunrise on
the morning of the 13th from the east and
that he carried Akul's bundle for him as
far as his house. This is also corrobo-
rated by a party of musicians, namely*
Digo, Boh an and Balo who were going
along the road from west to east.
Finally there is corroborative evidence
that Bamdhani was in need of money and
that on the 13th he borrowed Bs. 19 from
witness Muralidhar. He also borrowed
Bs. 50 from one Saggam Singh, but there
1*26
JAGWA DHANTTK v, KING-EMPEROR (Mulliofc, Ag. C, J.) Patatt 285
is some doubt as to whether this loan
was made on the 12th or a day or two
Jbefore. In the committing Magistrate's
Court Saggam Singh said that he had
made the payment on the 12th but in
the Sessions Court he said that it was one
or two days earlier. These payments cor-
roborate Dallo's statement tha't the ap-
pellants were pressing Ramdhani for
money and also his allegation that a sum
of Bs. 84 was fotind in Bamdhani's purse
immediately after the murder.
Finally there is one other item of cor-
roboration to which reference should be
made. Pour small note-books and 12
sheets of loose accounts were found in
Bamdhani's pocket. There are numerous
entries, says the Sessions Judge, in these
account books and papers showing petty
transactions between the appellants and
Bamdhani and in the note-book, Ex. IV,
there is an entry showing against the
name of Bamu R^. 95-13-9 as "chupka"
and Bs. 32-11-8 as "sagri." Now sagri
means open account and chupka means
secret account. It is suggested that this
latter entry relates to money paid to
Bamu for stolen property. With regard
to Dallo there are no entries but Sheo-
harain states that Bamdhani told him
.that Dallo owed 21 maunds of paddy.
Against Naku, brother of Bhagwa, the
entries amount to a total of Rs. 48.
I am satisfied that the entry against
Bamu showing Rs. 95 odd due on account
of "chupka" corroborates Dallo's story
that Ramdhani was the receiver of stolen
property from the hands of Ramu.
Having therefore given the evidence
my most careful consideration, I agree
with the learned Sessions Judge and the
assessors that Dallo was a witness to the
murder. He himself does not admit that
he struck any blow but simply states that
he kept watch. Now self -exculpation is
always a reason for suspecting an ap-
prover's evidence but here the corrobora-
tion in other respects was such and the
general demeanour of the witness was so
satisfactory that the assessors and the
learned Judge had no difficulty in accept-
ing Dallo's testimony and I agree with
bhem.
But the authorities show that it is not
sufficient that the approver should be cor-
roborated with regard to the actual com-
mission of the crime itself for such cor-
roboration merely shows that he himself
took part in the offence. Experience
requires that the approver should also be
corroborated in material points as to the
part played by his accomplices. There-
fore it is neoessary to see what oorrobora-
tion there is to show that the appellants
before us took part in the offence in the
manner alleged by the approver.
The amount of corroboration under this
head as indeed in respect of all corrobo-
ration of an approver's evidence must
depend upon the view which the Court
takes of the approver's character and of
his general demeanour in the witness-'
box. Here the Court and the assessors
have found that in regard to the time,
place and manner in which the crime was
committed the approver has told the
truth. That finding must naturally affect?
the quantum of corroboration required as
to the remainder of his story. One must?
also enquire what motive the approver
had for concocting a false story. On be*
half of the appellants it is urged that
Dallo was the creature of Sailu Babu. Of
this there is no evidence. Then it ifr
urged that Sailu Babu is at enmity with
the zamindar of the appellants. Of this-
also there is no evidence, and the defence
that Dallo was a ready tool in the hand*
of Sailu Babu has, in my opinion, been
rightly rejected by the lower Court.
Coming next to the actual items of cor-
roboration upon which the prosecution
rely we have first of all the evidence a*
to the movements of Ramdhani on tha
Wednesday and Thursday preceding the
murder. The evidence is that about sun-
set on the Wednesday Gobind was coming
back from the family house at Dariapur
to the shop at Ganta and met Ramdhani
at Lauriya. Ramdhani was then on his
way home. About 9 p. m. Gobind set out;
on the return journey to his house and
met Ramdhani near Ramu's house and1
saw him talking to Bamu. Ramdhani:
told him to go on and that he would be-
coming later. The night Ramdhani never
came home at all, and Gobind on going to-
the shop in the early morning of the 12th
(Thursday) found Ramdhani there. At
midday the appellant Bhagwa came ta
the shop and had some conversation with
Bamdhani. Gobind was not permitted to
hear the conversation because Bamdhani
told him not to listen and sent him off
to Dariapur to purchase some articles for
the shop. Abfeut half a pahar before-
evening (which would be about 4 P. M.)»
Gobind returned to the shop and he and
•286 Pfttna
JAGWA DHANUK v. KIKG-EMPEBOR (Mulliok, Ag. 0. J.)
"his brother took their evening meal to-
gether. At 5 A. M. on the morning of the
13th Eamdhani got up and said he was
going out. Gobind asked him where he
was going and Eamdhani merely s^id he
would be back at 10 A. M. Neither Ramu
nor Bhagwa gives any explanation of the
conversation with Ramdhani. Of course
having regard to the fact that both
Bhagwa and Ramu were old customers
this evidence is not conclusive of guilt,
but so far as it goes, it is corroboration of
the approver's story that the intention of
the appellants was to decoy Ramdhani
somehow or other to the house of Ramu
on the night of Thursday.
Next there is the finding of the knife.
There is, however, this to be said that
knives of this description are common.
Dallo, however, does swear that this was
the knife with which Bhagwa was armed
and there is the fact that BhagWei, at-
tempted to deny his ownership of the
knife in the Sessions Court. Then counsel
has argued that it is strange that when
the sindh katti which was used by Jagwa
seems to have been thrown away or con-
.coaled, Jagwa's father should have been
so careless as to keep the knife. That of
course is an argument which has weight,
but I think that upon tho evidence, the
identification is sufficient. The knife is
one which could be used for domestic
2>urposes and possibly Bhagwa either did
not wish to part with it or thought that
even if found it would not raise any in-
ference of 'guilt/ ^ gainst him.
The third item of corroboration against
the appellants is the finding of the note-
books and the account papers in Ram-
dhani's pocket. This indicates that Ram-
dhani set out that night in order to settle
accounts with Ramu, Bhagwa and Jagwa.
On the other hand it is argued that there
are other entries in the account books and
it is quite possible that Hamdhani may
have gone out to visit some of his other
-debtors. The cumulative effect of the
whole of the evidence is such that the
"hypothesis must be rejected. Taken by
itself no item may be conclusive, but
when the whole evidence in the case is
considered I think the corroboration is
'Sufficient.
Having regard to the time when the
journey was made and the precautions
which, according to the evidence of Dallo,
vrere observed by the appellamts much
direct evidence of the association of Ram-
dhani with the appellants on that night
could not be expected. The question ier
whether the above evidence connecting
the appellants with him is sufficient to
satisfy us that it would be safe to act
upon Dallo's account. I think after con-
sideration of all the circumstances that
the answer is in the affirmative.
It may be said that Ramdhani was
killed by footpads but that would not
account for the finding of his body at the
Mahacleo temple unless it was carried to
that place from some other place where
the murder was committed. The finding
of the earring and the armlet are also in-
consistent with such a theory. It was
suggested in the lower Court that Ram-
dhani was killed in the course of an in-
trigue. The answer is that there is noth-
ing to suggest that he was a man of loose
character. Further the simple answer to
all these theories is, if Dallo is believed
there is no place for any of them.
Finally the learned counsel for the ap-
pellants who has evidently devoted much
care to the preparation of the case and
has 'argued it with fairness and ability has
raised two points of law which require
some discussion.
The first was as to the admission of
Dallo's statement to the police on the
18th February.
Now only such portions of that state-
ment have been admitted as led to the
discovery of any fact. S. 27 of the Indian
Evidence Act permits confessions to be
admitted for this limited purpose. I think
it must be admitted that S. 162 of the
Criminal Procedure Code of 1923 has
altered the previous law so as to com-
pletely exclude statements made by wit-
nesses during the course of an investiga-
tion, except for certain limited purposes
not here material. The learned counsel,
however, argues that the prohibition also
extends to the statements of accused per-
sons. Now comparing the corresponding
provisions of the Code of 1882 and the
relevant amendment made therein by the
Codes of 1898 and 1923, 1 think it is
clear that the statements of accused per-
sons provided they do not amount to a
confession are still admissible in law. To
what extent the provisions of a special
enactment such as the Criminal Procedure
Code override the provisions of a general
enactment such as the Indian Evidence
Act must depend upon the language of the
special Act, but reading the present
BADRI GOPE v. KING»S^PEROR (Adami, J.)
Patna 287
Sg. 161 and 162 of the Code, I think it is
clear that the mam object of the Legifila*
fcure was to prohibit the use of the state-
ments of prosecution witnesses as oorro-
ration under S. 157 of the Indian Evi-
dence Act. The general provisions of the
law with regard to the admissibility of
statements made by accused persons like
other admissions do not seem, in my opi-
nion, to be affected. If it were' otherwise,
Ss. 27 and 28 of the Evidence Act must be
considered repealed. It surely cannot
have been the intention of the Legislature
to effecb such a repeal by implication. It
is important for the Court to know what
was the defence made by the accused at
tjie earliest moment. If S, 162 is given
the meaning which the learned counsel
now seeks to give to it, accused persons
would be most seriously prejudiced and
the only object of S. 163 of the Criminal
Procedure Code would be to enable police
officers to get clues for the purpose of in-
vestigating the charge. If that were the
case the Court would be deprived of much
valuable material for testing the truth of
the case for the defence. To shut out
corroborative evidence comprising state-
ments made by defence witnesses during
'the investigation is prejudicial enough,
but unless compelled to do so I do not
think we ought to add to the prejudice
by shutting out exculpatory statements
by the accused ; and if the amendment of
1923 does not operate to exclude such
statements then S. 27 of the Indian Evi-
dence Act remains unrepealed.
The other point of law is that the con-
fession recorded by the Deputy Magistrate
on the 26th February is not legal evi-
dence because the Deputy Magistrate who
proved it read over his deposition himself
and did not have it read over to him in
the hearing of the accused. It is urged
that the provisions of S. 360 of the Cri-
minal Procedure Code have been violated
and that as the accused could not hear
what the witness was reading there was
no compliance with the law. Although
it has been held elsewhere that S. 360
requires that the deposition of a witness
shall be read over in the presence of the
accused and that it is not sufficient to
allow the witness to read it himself I do
not think there is any authority in this
Court tp that effect. In the absence of any
such authority I think that the deposition
was legal evidence.
The result, therefore, is that upon a con-
sideration of the whole of the evidence in*
the case we are not satisfied that there
is any ground for interfering with the
finding of the learned Sessions Judge. The«
case was tried with great cave by tho
learned Judge and the assessors who are
all residents of the locality and well
acquainted with the conditions of life
amongst the class to which the approver
and tha accused ^belong have come to the
unanimous . conclusion that the approver
should be believed. In these circum-
stances, the convictions must be upheld
and the 'sentence of death which has t eeu
passed upon the appellants is affirmed*
JwaU Prasad, J. — I agree.
Sentence affirmed..
#A. I. R. 1926 Patna 237'
ADAMI AND BITCKNILL, JJ,
Badri Gope and others— Petitioners.,
v.*
King-Emperor — Opposite Party.
Criminal Bevision No.. 341 of 1925;
Decided on 27th October 1925, from an
order of the S. J., Monghyr,. D/- 26th
June 1925.
^ Penal Code, S. 186— Attachment undtr in-
valid writ — Attached property claimed by owner
judgment-debtor from attaching peon'd possession
— Peon delivering possession of property— No
hurt caused to peon — Judgment-debtor ts not
guilty under 'S. 186.
A decree having been passed against B a writ
of attachment was drawn up and made over to
the civil Court peon. The peon went to B'£
house together with the identifier. B was away
but his mother was there. The peon attached
a bullock and a calf and proceeded to take them
away in company with the identifier and a
servant of the decree-holder. When the party had
proceeded Borne distance the judgment-debtor with
two other men came running up and obstructed
the party. He claimed back the cattle. The writ
was shown to them, but in spite of this, they
assaulted the identifier, There was no assault
on the peon who gave up the cattle when he
saw the identifier being assaulted. The writ was
afterwards found to be without seal of? the Court
and thus invalid.
Held : that though -judgment -debtor and his
associates had no knowledge of this defect, in their
defence they were entitled to rely on its invalidity
and that no offence was committed 'by them under
S. 186 of the Panal Code. [P 238, C 1, P 289, C 1]
Mihir K. Muhhcrji—tor Petitioners.
Autt. Govt. Advocate — for the Grown.
Adami, J— The facts of this <%case aro
very » simple. A decree having been;
238 Pataai
BADBI GOPE v. KING-EMPEROR (Adami, J.)
passed against Badri Gope a' writ of
attachment was drawn up and made over
to the .civil Court peon, Lalji Misser/
who, on December 3rd, 1924, went to
•Gobindpur where Badri lives, together
with the identifier, Kamcharan Tanti.
Badri Gope was away from home when
they arrived at his house, but his mother
was there. The peon attached a bullock
>and a calf and proceeded to take them
to Monghyr in company with the identi-
iier and a servant of the decree- holder.
When the party had proceeded and
reached a well, situated three miles along
the road from Jamalpur to Monghyr,
the petitioner, Badri, with the two other
petitioners came running up and ob-
structed the party. The writ was shown
to them, but in spite of this, they as-
saulted the identifier and rescued the
•cattle. They were prosecuted under
S. 186, 1. P. 0., found guilty under that
•section and sentenced to rigorous impri-
sonment for one month each. Their
defence was a total denial of the attach-
ment and of the occurrence.
When the case came up for trial it was
found that not only had a careless mis-
take been made in dating the writ but
.also that the writ did not bear the seal
of the Court, as required by the provi-
sions of u. 21, B. 24 (2).
On appeal the learned Sessions Judge
upheld the conviction and sentence, dis-
tinguishing the present case 'from the
cases relied on by the appellants, Khidir
Bux v. Emperor (l) and Sheik Nasur
v. Emperor (2), on the ground that here
there was no resistance to attachment,
•but a rescue, a considerable time after
the attachment, so that no right of
private defence arose. He held that a
technical defect in the warrant could not
.give the appellants the right forcibly to
rescue property of which thay had lost
possession.
Now the provisions of 0. 21, E. 24
(2) are mandatory and an attach-
menc made under a wril which does not
bear the seal of the Court, as required
by that rule, is an invalid and illegal
attachment, as has been held by Mul-
lick and Thornhill, JJ. in the case of
Khidir Bux v. Emperor (l). The defect
is not a mere technical one : the pres-
ence of the seal of the Court to give
~Ti) 11919J 8 P. L. J. 636<=20 Or. L. J. 189.
(2) (1910) 37 Cal. 122=14 0. W. N. «82=
11 Or. L. J. 128.
authority to the writ is an obviously im-
perative safeguard.
• The writ being cthus invalid and the
attachment illegal, if resistance had been
made to its execution at the time the
cattle were being attached, there can, I
think, be no question that the petitioner
Badri, would be held to be free from
liability for his action as long as no
excessive force was used : Khidir Bux
v. Emperor (l) ; Sheik Nasur v. Em-
peror (2) ; Arjun Suri v. Emperor (3), ;
Mohini^Mohan Banerji v. Emperor (4);
Debt Singh v. Queen-Empress (5) ; Tanm
nakilal Mandar v. King-Emperor (6).
The question to be decided here is
whether when an illegal attachment has
been made in the absence of the judg-
ment debtor and the property has been
taken into possession by the civil Court
peon and has been in his possession for
some time, the judgment-debtor commits
an offence when he obstructs the peon
and takes back his property. The learned
Sessions Judge has held that in such
circumstances no right of private defence
of property still exists.
The learned Assistant Government Ad-
vocate follows this same line of argu-
ment. He contends that, in attaching
the cattle under a writ which he be-
lieved to be valid, the civil Court peon
was not committing an offence falling
under the definition of theft, robbery,
mischief or criminal trespass, or which
was an attempt to commit any of those
offences, and therefore the right of private
defence of property, as described and
defined in S. 97 of the Indian Penal
Code, did not subsist, and he further
.contends that, even if ordinarily there
would be such right of private defence,
the provisions of S. 99 of the same Code
would prevent the petitioners pleading
that right because the peon was acting
in good faith under colour of his office,
though owing to the defect in the writ
his action may not have been strictly
justifiable by law. He explains that the
effect of S. 99 was not taken into* consi-
deration in the oases on which the peti-
tioners rely.
Jin the case of Bisu Hal tar v. -Emperor (7)
~~(8) [1918] 8 P. L. J. 106=19~0r. L. J. 886.
(4) [1916] 1 P. L. J. 550-3 P. L. W. 64=18
Cr. L. J. 39.
(5> [1901] 28 Cal. 399=5 0. W. N. 413.
(6) Or. Rev. No. 156 of 1920.
(7) U907] 11 C. W. N. 836=6 0. L, J. 127=6
Cr. L. J. 38.
BADRI NAUAYAN v. KAIIIASH (Kulwanfc Sahay, J.)
Pftfa* 29S
Stephen and Cox JJ., and in that of
Shaikh 'Moinuddin v. Emperor (8), Jwala
Prasad, J., did consider'.the'effect of the
words " not strictly justifiable by law "
and held that, where the warrant is
altogether invalid and illegal, the words
will not take away the right of private
defence.
In the present case the question of
private defence of property hardly arises.
The petitioner came upon the peon tak-
ing his cattle along the road and claimed
them. The peon showed him a writ
which was of no force because it bore no
seal of the Court (though probably Badri
cjid not notice this). The peon not being
able to justify his possession of the cattle,
the petitioner committed no offence in
taking them. There was no assault on
the peon, who gave up the cattle when
he saw the identifier being assaulted. It
was fortunate for the petitioners that the
writ proved to be an invalid one ; they
can have had no knowledge of this but
in their defence they were entitled to
rely on its invalidity.
The cases of Beg. v. Boyle (9), Beg. v.
Williams (10), Refj. v. Knight (ll), show
that under the law of England the peti-
tioners would not, in the circumstances
of this case, be held liable to punishment.
As to the effect of S. 99 of the Indian
Penal Code a clear explanation has been
given by Sir John Edge, C. J. and Bur-
kitt, J. in the case of Queen- Empress v.
Dalip (12). If in the present case the
petitioners had assaulted or caused griev
bus hurt to the peon, under S. 99 they
would not have been able to plead the
right of private defence of property as a
justification, because the peon was acting
in good faith under colour of his office,
though his attachment of the cattle may
not have been justifiable by law.
After careful consideration, I am of
opinion that in the circumstances of this
case, the conviction of the petitioners
tinder S. 186 should nob 'be upheld, and
I would set aside the conviction and
sentences ^and acquit them.
Bucknill, J.— I agree.
Conviction set aside.
(8)
(9)
ID
(12)
Or .Rav. No. 36 of 1921.
7 Cox 0. C. 428.
[18001 2 Car. and Ker. 1001—4 New Saps.'
Cas. 137=:! Den. C. C. 529=T. and'M 235
s=19 L. J. M. 0. 126=14 Ju'r. 115,
[1908] 73 J. P. 15. , * •»
[1896] 18 All. 246=±(1S96) A.* W. N. 48.
# A. I. R. 1926 Patna 239
MULLIOK AND KULWANT SAHAY, JJ.
Badri Narayan Singh — Defendant —
Appellant.
v.
Kailash Gir — Plaintiff — Respondent.
Appeal No. 85 of 1923, Decided on
llth December 1925 against the appel-
late decree of the Addl. Sub<J., Shahabad
D/- 21st November 1922.
^C (a) Hindu Law— Religious office— Mahanth*
are only managers of the Institution and no
property Is vested In them.
The Mahanths of maths, called by whatever
names, are only the managers or custodians of
the institution and in no case is any property
conveyed to or vested in them ; nor are they
" trustees " in the English sense of the word,
although they are answerable as trustees in the
general sense for mat-administration : A. I. jR.
1922 P. C. 123, Foil. ; 27 Mad. 435, not foil.
[P. 240, 0. 2]
tfc (b) Hindu Law — Alienation by Mahant —
Limitation for setting ailde such alienation by
succeeding Mahanth does not begin afresh* from
the date of his succession, but dates back to the
death of the vendor Mahanth.
In a suit to set aside an alienation made by a
predecessor Mahanth the successor Mahanth can-
not get a fresh start for the purpose of limita-
tion from the date of his succession as Mahanth.
The possession of the transferee becomes adverse
from the date of the transfer if the transfer is
without any legal and justifying necessity and
even though his possession is permissive during
the lifetime of his vendor Mahanth, the cause
of action in any event accrues on the death of
his vendor and not on the date of the succession
of the successor Mahanth ; 23 Cal 536 ; 37 Cal.
885 (P. C.) and 17 C. W. N. 873, Appr.
[P. 241, 0. 1 ; 2]
tf. N. Sinha and B. P. Sink a— -for
Appellant.
P. Dayal and Raghunandan Prasad —
for Kespondent.
Kulwant Sahay, J. — This is an ap-
peal on behalf of the defendant in an
action in ejectment. The only important
question for decision in the appeal is the
question of limitation.
The 'Plaintiff-Respondent is the Ma-
hanth of Noornagar, otherwise called
Jalpura, and he brought a suit ,for a
declaration that a deed of sale executed
by Bam Kishun Gir, a former Mahanth
of the math, to Tilak Singh, -an ancestor
of the defendant, in the year 1894, was
not binding upon him ; and that it did
not convey any title inasmuch as the
vendor Mahanth had no right to sell the
property which was a property endowed
to the. math, without any justifying
nece3sity»of the math. the present suit
2*0 P*ta« £ADRI NARAYAN v; KAJLASB (Kulwanfr Sahay, J.)
was tartitiiked CD the 29th of July 1921.
The defendant in his written statement
alleged inter alia that he and his ances-
tors had been in adverse possession for
more than twelve years and that the
suit was accordingly barred by limitation.
Tbe learned Munsif held that the de-
fendant had been in possession of the
land at least from the year 1895 and that
the plaintiff' and the math represented
by him had been out of possession for
about 27 years before the suit. He held
tha^the article applicable was Art. 144
of Sch. 1 of the Indian Limitation Act
and that the defendant was in adverse
possession since after the death of Bam
Kishun Gir, he being of opinion that
during the lifetime of Ram Kishun Gir
the possession of the defendant was per-
missive possession. He accordingly dis-
missed the suit.
On appeal the learned Subordinate
Judge held that time began to run as
against the plaintiff when he became the
Mahanth of the math. It appears that
since Ram Kishun Gir, there have been
three Mahanths of the math, namely,
Sheodhyan Gir, Ganesh Gir and the
plaintiff Kailash Gir. The learned
Subordinate Judge was of opinion that
the Mahanth for the time being was a
tenant for life and any alienation of the
math property made by him which was
not for the benefit of the math was
valid during his lifetime and that if
the successor of the vendor did not sue
the purchaser for more than 12 years he
would be barred only for the period that
he remained the Mahanth of the math,
and that after him his successor would
have a fresh start of limitation from the
time of the death of his predecessor.
He accordingly held that as the suit was
brought within 12 years of the death of
the plaintiff's immediate predecessor,
Mahanth Ganesh Gir, the suit was not
barred by limitation. He aocprdingly
decreed the suit with costs.
The defendant has now come up in
second appeal against this decision, and
as I have said above the only question
is as to whether the suit is barred by
limitation.
The determination of this question
depends on the determination of the
status of the Mahanth of a math. The
property admittedly was endowed pro*
perty and belonged to the math. The
question as regards the true position of
a Mahanth of a math in relation to cne-
properties belonging to the math or to>.
any idol in the math has been considered
in a number of cases. His position has
been expressed variously in various de-
cisions. Sometimes his position is de-
scribed as that of a life-tenant, sometimes
as that of a trustee, in some cases he is
described to hold the position of a
guardian of a minor, and in some cases
he is described as corporation sole. Th#
question, however, was considered byf
the Privy Council in a very recent case •
in Sri Vidya Varuthi Thirtha Swamigal v.«
Balusami Ayyar(l), and it was held'that
the Mahanths of maths, called by whatever
names, are only the managers or custo-
dians of the institution and that in no
case is any. property conveyed to or
vested in them ; nor are they * trustees "I
in the English sense of the word, although
they are answerable as trustees in the
general sense for mal- administration.
The learned Subordinate Judge was of
opinion that the position of a Mahanth
of a math was that of a life-tenant.
This view was taken by the Madras
High Court in Vidyapurna Tirtha Swami
v. Vidyanidhi Tirtha, Swami (2) where
the learned Judges observed that the
Mahanth is, as he would be described in
England, a " corporation sole " having
an estate for life in the permanent en-
dowment of the math and an absolute
property in the income derived from
offerings, subject only to the burden of
maintaining the institution ; but in a
later Full Bench decision of the same
Court in Kailasam Pillai v. Nataraja-
Thamliran (3) it was held that it could
not be predicated of the head of a math
that as such he holds the math properties
as a life-tenant or trustee. The view
taken in Vidyapuma Tirtha Sivami v*
Vidyanidhi Tirtha Swami (2) was dis-
approved by the Privy Council in the
oase of Sri Vidya Varuti Tirth a Swami'
gal v. Balusami Ayyar (1) referred to
above. The learned Subordinate Judge
was wrong in his view that the position of
each succeeding Mahant was that of a
life-tenant.
The question as to whether each suc_
ceeding Mahant gets a fresh start o"
limitation from the date of his suoces~
, (l) A. I. R. 1933 P.O. 123.
(3) [1904] 37 Mad. 435=14 M. L. J. 105.
(3) [1910] 3^ Mad. 265=7 M. L. T. 1=19 tf.
1926
KCJLDIP SINGH v. KAMAKHYA NAUAIN
Patna 241
sion as inahanth was directly raised and
considered fn several cases. In Nilmony
Sinnh v. Jagabandhu Boy (4), Banerji, J.,
after considering the position of a
Mahant of a math, held that although
it is true that an idol holds a property
in an ideal sense, and its acts relating
to any property must be done by or
through its manager or shebait, yet that
does not show that each succeeding
manager gets a fresh start as far as the
question of limitation is concerned on
the ground of his not deriving title from
any previous manager. The succeeding
shebaifcs were considered as forming a
continuing representation of the idol's
property. In Damodar Das v. Liklian
Das (5) it was held by the Privy Council
atVirming tho decision of the) High Court
nfc Calcutta, that the property vested
not in the Mahant but in tho legal
entity, the idol, the Mahant being only
its representative and manager and that
the title of transferee from the Mihanth
became adverse to tho right of the idol
and of the senior chela as representing
that idol and that tho suit brought by
the successor of that chela wis barred
by limitation. In Madh iisudan Md tidal
v. Radhikft Prasfinnri Dan (6), it was held
by Mookerjee and Boachcroft, JJ., that
the effect of a lease granted by a shebait
in excess of his authority is not to give
each succeeding shobiit a now cause of
action for setting asido the alienation, and
adverse possession commences from the
date of tho original disposition of
the property and is not interrupted by
the death of tho original shobait and the
succession of tho new shebiit, and that
each succeeding shebait does not get a
new start for the purpose of limitation,
; It is clear from these authorities that
ithe plaintiff in the present caso could
not get a fresh start for the purpose of
limitation from the date of his succes-
sion as Mahant. The possession of the
'transferee became adverse to the insti-
jfcutkm from the date of the transfer upon
the finding that the transfer was with-
out any legil and justifying necessity ;
but even assuming that his possession
was permissive during the lifetime of
the vendor Rim Kishun Gir, the cause
of action in any event accrued on the
death of Kara Kishun Gir, and it is
admitted that Ram Kishun Gir died
more than 12 years before tho suit. The
succeeding Mahanth represented the
institution completely and the defendant
did acquire a title by adverse possession
for more than 12 years, not only from
the date of his purchase, but also from
tho death of tho vendor.
I am, therefore, of opinion that the
decision of the learned Subordinate Judge
cannot stand. The result is that the
appeal is decreed. The decree of the
Subordinate Judge is set asido and that
of tho Munsif restored. Tho appellant is
enf.iMcd to his costs in all Courts.
Mullick, J. — I agree.
Appeal decreed.
(5) [1910] 37 Cat. 885=371. A. 147 .-12 Bora,
1 1. R. 632-20 M. L. J. 624^8 \T. L, T. 145
—1 A. L. J. 791~(1910) M. W. N. 808--12
C. L. J. 110 = 14 C. W. N. 889 (P C.).
(6) [1912] 17 C. W. N. 873- -= 16 C. I,. J. 349.
1926 P/31 & 32
A. I. R. 1926 Patna 241
ADAMI AND KCTIYWANT SATIA.Y, JJ.
Kill dip Singh and others — Defendants--
Appellants.
v.
Kumar Kamakliya Narain Singh —
Plain tirt' — Respondent.
Appeal No. l")l of 192^, Deci lod on
16th December 11)21, from tho Original
Decree of the Addl. Stib.-J., Hazaribagh
D/- 17th Kobruary 1922.
Landlord and Tenant— Mokarrari grants are
lifeyianf'i -(iranlee'** heir* continuing hi pos.s'<?s'-
sion d.'ircr^cly In landlord after grantee's dcafh —
LandloHl9* wit for actual po^easion i* not main-
tainable.
^Tokarrari gnmts convey only a life-interest to
the, grantees and not a heritable interest. Such
interest comes to an end on tho death of the
grantee. :ind if the grantee's heirs continue in
possession thorefter, claiming adversely as perma-
nent mokarraridars to the landlord, the landlord's
suit f^r actual possession is not maintainable
after the statutory period. A tenancy can only
be created when both the contracting partiew
agree to the terms thereof. *
Where the landlord was claiming a right to
re sum -3 tho village on the death cf tho original
grantees, while the heirs were claiming a per-
manent and heritable interest and wore willing to
pay n nt as istamrari mokarraidars but the land-
lord was i,ct willing to accept rent from them in
that c ira^ity.
Held : that the parties were not ad idem and
no tenancy from vear to year can be held to have
been created under circumstances : A.IM. 1924
Pat. 572 ; A.I.H. 1925 Pat. 216 ; A.IM. 1925 Pat.
857 and A.I.H. 1C 25 Pat. 499, Ref.
[P. 242, C. 'J, P. 243, C. 1 j
Bankim Chandra /) > — for Appellants.
Sultan Ahmed, L. N. Sin oh and R. M.
Mullick— tor Kespondent.
Patna KULDIP SINGH v. KAMAKHYA NAKAIN (Kulwanfc Sabay, J.)
1926
Kulwant Sabay , J.— This is an
appeal by tbe defendants against a
decree made by tbe Additional Subordi-
nate Judge of Hazaribagh in a suit for
resumption of a village named Kbarika
which was granted in istamrari mokar-
rari by an ancestor of the plaintiff who
is the present proprietor of the Kamgarh
Estate under a deed dated the 21st April
1865. The raokarrari grant was to two
brothers Ramcharan Singh and Tndranath
Singh, Indranath Singh died in 1867 and
Bamcharan Singh in 1897. The present
defendants are the heirs or the assigns of
the original grantees.
The plaintiff's case is that his right to
re-enter accrued on the death of Ram-
charan Singh, but that the defendants
continued in possession as tenants from
year to year notwithstanding the deter-
mination of the original tenancy on the
death of the last surviving grantee ; and
that this continuance of possession was
with the assent of the landlord. He as-
serts tli at at the time of the preparation
of the record-of-rights the defendants for
the first time asserted that thoy had the
status of permanent and heritable tenure-
holders as istamrari mokarraridars.
Thereupon notices to quit were issued on
behalf of the landlord in the year 1915
and again in 1917. As doubts were en-
tertained as regards the duo service of
these notices, another sot of notices wore
issued in August 1919, but in spite of due
service of the said notices the defendants
refused to give up possession. The suit
was accordingly instituted on the 1st of
April 1920 for ejectment of the defen-
dants.
The principal defence was that the
original grant was a permanent and
heritable grant and not a mere life-grant
to the original grantees ; and, secondly,
that .the suit was barred by limitation.
The learned Subordinate Judge has
held thafc the mokarrari grant conveyed
only a life-interest to the grantees and
that it was not a permanent and heritable
grant. 'On tbe question of limitation the
learned Subordinate Judge held that the
suit was not barred by limitation. He ac-
cordingly decreed the suit and directed
khas possession of the village to be awar-
ded to the plaintiff by evicting the
defendants therefrom, and be also awar-
ded mesne profits to the plaintiff,
The defendants have come up in appeal
this Court.
The nature of a mokarrari grant made
by the Kamgarh Estate has been consi-
dered in a number of cases brought by
the Ramgarh Estate against 'the heirs or
assigns of various mokarraridars under
similar istamrari mokarrari grants, and
it is now authoritatively settled that
mokarrari grants similar to the one in
dispute in the present case conveyed only
a life-interest to the grantees and not a
heritable interest. The finding of the
learned Subordinate Judge on this point
has not been challenged in appeal before
us.
The only substantial question for deter-
mination in the case is the question of
limitation. The case made by the plain-
tiff in the Court below was, that although
his right of re-entry accrued on the death
of the last surviving grantee, yet the heirs
of the original grantees were allowed to
continue in possession as tenants from
year to year and that the tenancy from
year to year was determined by the no-
tices to quit served in 1915 and again in
1917 and in 1919. On behalf of the
defendants it was contended that no
tenancy from year to year was created
and that ever since the death of the last
surviving grantee they have been in ad-
verse possession, and that the right of thd
plaintiff to re-enter had been extingur
shed by lapse of time. The learned Sub-
ordinate Judge has found ife as a fact that
the defendants never paid rent for the
disputed village since the death of the
last surving mokarraridar Ramcharan
Singh This finding is based upon a
consideration of the evidence in the case
and has not been challenged on behalf of
the respondent. The learned Subordi-
nate Judge, however, was of opinion that
the defendants never asserted an adverse
interest. He referred to the evidence of
the plaintiff's record-keeper, Sheosahai
Lalx and held that this evidence shows
thats the defendants were permitted by
Raja Ram Narain Singh to remain in
possession of the disputed village as
yearly tenants and that such orders were
passed by the Raja in the Sambat year
19P>2 or 1963 ; and that this was sufficient
indication of an assent on the part of the
landlord to the continuance of the tenancy
and that such assent created a yearly
tenancy and that the pjssession of the
tenants which was that of tenants by
sufferance was converted into that of
tenants from year to year. I am of
1020
KULDIP SINGH v. KAMAKHYA NABAIN (Kulwanfc Sahay, J.) Patna 248
opinion that; the learned Subordinate
Judge was wrong in this conclusion. The
>5nly evidence on the point is the evi-
dence of the plaintiff's record-keeper,
Sheosahai Lai. His evidence is in general
terms. There is nothing in his evidence
to show that so far as the present defen-
dants were concerned there was any
assent on the part of the landlord to treat
them as tenants from year to year. The
record-keeper speaks of the grant of
raarfatdari rent- receipts to the heirs or
assigns of the deceased mokarraridars,
and in the present case it is clear that no
rent was ever paid by the defendants.
The deposition of the record-keeper, there-
fore, in my opinion, cannot be accepted so
iar as the present defendants are concer-
ned. The order of the Kaja was, accord-
ing to this witness, a verl}al order, and
there is nothing in writing to show that
such an order was passed. The witness
oomes to speak after the lapse of a num-
ber of years, and even, assuming that
such a general order was passed, there is
nothing fco show that the defendants were
aware of it. Moreover, a tenancy can
only be created when both the contract-
ing parties agree to the terms thereof. In
the present; case we lind that the Ram"
garh Raj was claiming n, right- to resume
the village on the death of the original
•grantees , while the heirs on the other
hand, were claiming a permanent and
heritable interest. The heirs were no
doubt willing to pay ront as istamrari
mokarraridars but the landlord was not
willing to accept rent from them in that
capacity. The parties were not ad idem
and in my opinion no tenancy from year
to year can be held to have been created
upon the circumstances established in the
present case. In 1901 the Bamgarh Raj
brought a suit against Narsingh Dayal
Sahu to resume a village granted under a
^similar istamrari mokarrari grant. This
-case went up to the Calcutta High Court
.and the decision of the Calcutta High Court
is reported as Narstngh Dayal v. Ram
Narain (l). Chakouri, son of Indranath,
4>ne of the original mokarraridars, was
examine:! as a witness for the defendant
in thafe case, and in the course; qf that
deposition he had asserted that on the
death of the original njokarrarjdars the
Ittirs were in possession as permanant
mokarraridars. This was a clear asset-
tion of adverse possession. Then again
(1) [1908] 30 Cal. 888.
it appears, in 1904, the Kaja made an
attempt to take direct possession of t&e
village and succeeded ra getting kabtalih
yats executed by the tenants , but he
could not take actual possession and the
defendants continued in actual possession
by receipt of rent from the tenants. This
was also an assertion by the defendants
of an adverse interest. The adverse in-
terest, however, claimed by the defen-
dants was the interest of a permanent and
heritable tenure-holder.
The points raised in the present case
are similar to those raised and decided
by this Court in Han Gir v. Kumar
Kamakhya Narain Singh (2), Ramrachya
Singh v. Kumar Kamakhya Narain
Singh (3), Gharan Mahto v Kumar
Kamakhya Narain Singh (4) and Kumar
Kamakhija Narain Singh v ftechu
Singh (/)). [n all those cases it was held
that under circumstances very similar to
the circumstances of the present case, the
heirs or assigns of the original mokarrari-
dars wore in possession adversely to the
landlord, and that there was no creation
of a tenancy from year to year as asser-
ted by the landlord. It is not necessary
to discuss the point at any length
in the present case, as it is conce-
ded by both sides that the cases re-
ferred to above cannot be distinguished
from the facts of the present case. I
would, therefore, hold that the posbessiori
of the defendants in the present case' was
adverse to the landlord since the death of
the last surviving grantee, and that the
suit so far as the prayer for a decree for
ejectment is concerned must be dismissed,
There was, however, a claim for arrears
of rent and cesses for ihe years 1974-1976
Samba t, and the learned Subordinate
Judge made a decree for arrears of rent
for those years. There is no reason why
this part of the decree should not he
affirmed. The decree of the learned Sub-
ordinate Judge will, therefore, be modified.
The decree awarding direct possession fo
the plaintiff will be set aside, and t/ve
decree awarding rent and cesses for ;tjie
yearn 1974-1976 will be affirmed. As re-
gards the costs, the principal question was
the question of limitation and the, appel-
jants have succeeded,; they are, therefore.
(2) A.I.B. 1924 Patna 672.
(a) A.I.R. 1925 tatna 316.
<4) A1.R. 1926 Patna 367.
(5) A.I.R. 1925 Pfttna 499.
Patna
JANG BAHADUR v. KING-EMPEROR (Jwaia Prasad, J.
1926
entitled to their costs in this Court as
well as in the Court below.
Adami, J. — I agree.
Decree modified.
# A I R. 1926 Patna 244
• ' JWALA PKASAD, J.
Jang Bahadur Singh and others — Ac-
cused— Petitioners.
v.
King-Emperor — Opposite Party.
Criminal Bovision No. 417 of 1925,
Decided on 23rd October 1925, against a
decision of the Dist. Mag., Palamau,
D/- 18th June 1925.
5jC Penal Code, S. 425— No miwhicf is committed
by damage done to one's own 'property.
A got a decree for possession of land with mesne
profits and took out execution which was struck
off for want of notice under Civil P. 0., O. 21,
R.'32. He took out a fresh execution, but before
it wan concluded the judgment-debtor raised a
crop on the land whioh was taken away by ser-
vants of the decree-holder. In an action for mis-
chief against the servants;
Held : that they were not guilty of mischief as
the crop, though raised by the judgment-debtor,
really belonged to the decree-holder whoso right
thereto had been declared by a competent Court.
[P 245 0 1, 2]
B. C. De — for Petitioners.
Harih ar Prasad Singh and Devaki Pra-
sad Sinha — for the Crown.
Judgment. — This is an application to
»#et aside the conviction and the sentence
passed upon the petitioners under S. 426
of the I. P. C. The subject-matter of the
accusation against the petitioners is said
to ho that the petitioners cut away ahout
ip maunds of unripe paddy crop from a
field measuring about 5 bighas in village
Gurturi. The occurrence took place on
fehe Crd November 1924 and the paddy
cut away was sown in Asarh 1331 corres-
ponding to June or July 1924. Cutting
o£the paddy is not denied, but the peti-
tioners urge that they had right to cut
tire cfop and, therefore, they have com-
nritted no offence in doing so. The peti-
tioners are servants of Bameswar Bhagat
and the complainant is a servant of tho
Raja of Eanka. Between Bameswar
iMta'gat and the Baja of Banka there bus
been litigation over, amongst otheis, tho
village Gurturi where the land in ques-
tion in this case is situate. Bameswar
Bhagat brought an action in ejectment
against the Baja of Banka, which was
recovery of possession with mesne profits
of village Gurturi along with some othe*-
villages. The suit was dismissed by the
Subordinate Judge, but was decreed by
this Court, the judgment whereof is re-
ported in 1918 P. H. C. C. 156 : [Rames-
war Bhagat v. Ginvar Prasad Singh.]
This Court set aside the decision of the
Subordinate Judge and gave a decree to*
the plaintiff Bameswar Bhagat in 1917
for possession with mesne profits from,
tho date of dispossession to the date of
delivery of possession. It was confirmed
by their Lordships of tho Judicial Com-
mittee in appeal by the Baja in April
1922. The decree of the Privy Council
was put in execution by Bameswar Bhagat
and the delivery of possession was effec-
ted on the 25th September 1923. On the
4th October 1923, the Baja put in an
objection to the delivery of possession
upon tho main ground that the proceed-
ings in execution leading up to the delr
very of possession were null and void and
inoperative inasmuch as the execution
was proceeded with, without notice-
having been served upon tho judgment-
debtor under O. 21, B. 22 of the Code of
Civil Procedure. This objection prevailed
and the delivery of possession was set
aside on tho 20th February 1924. At
that time there was no crop on the land
and obviously tho crop which was on the-
land when the delivery of possession was.
effected was harvested and the decree-
holder admitted that the crop was re-
moved by the Baja inasmuch as he had
grown it previous to the delivery of pos-
session. This incident is only important
inasmuch as the Courts below have held,
and perhaps rightly, that tho Baja would
not have allowed the decree-holder to-
grow the paddy crop thereafter in the
following Asarh i. e., June or July 1924,,
the subject-matter of the present case
under S. 426. The decree-holder Bames-
war Bhagat put the decree again into*
execution on the 27th November 1924,
and got the notice served on the 8th
June. The judgment-debtor filed an-
objection on the 8th July 1925, which is.
still pending. It is obvious from the
above account of the two * execution pro*
ceedings, as well as from the various
orders passed in the last execution case,
that the Baja is strenuously opposing the
delivery of possession of the property to-
the decree* hold or Bameswfrr Bhagat and
1926
JANG BAHADUR v+ KING-EMPEROR (Jwala Prasad, J.) Patna 345
certainly he would not have allowed him
to grow the crop in question.. So far, the
finding to! the Court, .below is, correct.
The question then Us whether llalneswar
Bhagat committed any mischief « in re-
moving the crop in question which was
grown by the judgment-debtor, the Baja
of Banka. The Magistrate convicted the
accused upon the following finding :
" I find that there is overwhelming evi-
dence to show that the paddy belonged
to the Baja of Banka and the three accused
forcibly cut it when it was not suffi-
ciently ripe and the prosecution has fully
proved the case against all the three
accused. "
This finding has been upheld by the
lower appellate Court and certainly the
accused persons would have been guilty
if the crop in question belonged to the
Eaja of Eanka. It was no doubt grown
by him but, it did not belong to him.
The decree of the High Court, which was
•confirmed by the Privy Council, adjudica-
ted upon the right and title of the decree-
holder in the land in Gurturi. It has
been declared that the lands belonged to
Bameswar Bhagat and. that the Kaja of
Banka is a irere trespasser. The decrees
have further held that Bameswar Bhagat
is entitled to the mesne profits of the pro-
perty which is the lands in Gur.turi.
<Jl. 12 of S. 2 gives the definition of
4lmesne profits" thus :
" Mesne profits of property means thosu
profits which the person in wrongful
possession of such property actually re-
ceived or might, with ordinary diligence
have received therefrom, together with
interest on such profits, but shall
not include profits due to improvements
made by the person in wrongful posses-
sion. "
The Baja of Banka being a trespasser
has no right either to the lands or to the
-profits thereof, namely, the crops which
he might raise thereon. If he raised
the crops the benefit of it would go to the
decree- holder. Therefore the crop raised
by the Baja in law does not belong to
vhim but belongs to the decree-holder
Bameswar Bhagat.
It is concluded that no mischief is
committed by a person with respect to
damage done tq his own property. Under
S. 425 mischief must be done to the
property belonging to another person, but
where a person's right is declared by a
Court he commits no mischief by
damaging the property. Here no loss
can be caused to the Baja of Banka ; for
he, can .always . ask the Court in . .which
; the ; execution is pending to .take into acr
count the paddy, which has been removed
by the petitioners., Jackson, J. in the
case of Empress v. Rajcoomar Singh (l)
observed as follows :
" Now it is clear from the decision of
the civil Court, which was then in force,
that Sharna Churn Lahiri was not at
that time legally entitled to have those
bamboos put together in that place in the
form of a naubutkhana, and consequently
there was no causing of wrongful loss in
the act done by the accused persons, '*
The principle laid down in the case of
Parmesivar Singh v. Emperor (2), may be
applied to the case in hand. The autho-
rities upon the question were discussed
by me in the ease of Bam Kishun Singh v.
Emperor (3). I held there :
" A rightful owner is entitled to phy-
sically turn out a trespasser or one trying
to infringe upon his right. A person
exercising this right should, however, not
use more force than is reasonable to
defend his possession from a trespasser. "
In the present case the petitioners are
not alleged to have used any force. They
went quietly and cut away the crop in
question. It is not incumbent upon the
decree-holder to obtain possession pf the
property through Court, If he can turn
out the judgment-debtor peacefully with'
out using unnecessary force he will save
the trouble of going to the executing
Court. It is only when a decree- holder
finds that it is not possible for him with*
out breach of the peace to obtain posses-
sion of the property or properties decreed
in his favour in the civil Court that he
resorts to execution proceedings.
The dispute at best, between the parties
is of civil nature wherein the appropria-
tion of rent by the judgment debtor from
the tenants as well as the appropriation
of profits from the bakasht lands will all
be taken into account in determining the*
amount of mesne profits that the judg-
ment-debtor is liable to him for the*
period during which he was in wrongful
possession of fche property. It is wrong in
principle to punish a person who obtains
a decree from a civil Court after contest
(1) [1877] 3 .Cal. 578=1 oTiTH, 852.
(2) [1911] 88 Cal. 180=15 C. W. N. 224~il
Or. L. J. 682.
(8) A. I. R. 1922 Patna 197.
246 Patna ABDUL GHAPFAB v. V. B. DOWNING (Jwala Prasad, J)
1926
for his trying to recover possession of the
property without using force, The wrong
is done by the judgment-debtor who still
olings to the property in spite of the
decree of the Courts against him and not
the decree-holder who tries to recover
possession of tbe property decreed to him
without resorting to force.
The application is allowed. The rule
is ifcade absolute and the conviction and
Sentence of the petitioners are set aside
The fine, if realized, will he refunded.
Application allowed
>!< A. I. R. 1926 Patna 246
J \VALA PR ASA I), J.
(Sheikh) Abdul Cfhnffar and
Appellants.
/' B. Downtiif/ and othet^ ~* Respon-
dent s.
Reference in Appeal No. J3o ol 19^2,
from oiigmal decree to tbe Taxing Judge,
Decided on i7fch November 1925.
%Cou>t-fcn Aif Sch 2, ///, 1C— \Vntten
yoit'ct of apjvinhncnf filed even by a ban i*>U i
vvmf he stmnitcd.
The power of appointment in Avriting hied b^
ui adiocate, ^v bother ho is ,i barrister or not,
authorizing him to mida or do any app3<iniiico,
application or .iot on bahalf of his client, would
requn-o n Court-fee pavable upon a vakaLitnama
as prescribed in Art. 10, Sch. '2, of the Act
[P 249 0 lj
•S Mf Niamatullah —for Appellants.
L N. Singh— for tbe Crown.
Judgment. — This is a refoionco to
me as a Taxing Judge under 8. 5 of tbe
Indian CourHoos Act. Tbe question
is whether a particular document requires
an> stamp. Tbo document is a letter
of appointment given by two persons,
Sheikh Abdul Ghaffar and Sheikh Abdul
•Tabbar, appellants in .First Appeal
No. 135 of 1922 pending in this Court,
to Mr, S. M. Naimatullab, Barriater-at-
1ft w; who has been enrolled a^ an
•\dvocate of this Couvt. The letter of
appointment runs as follows
1 Dear Sir,
" I/we hereby appoint you to act and
i>lead on my/our behalf in the above-noted
case and to make or withdraw all
deposits that may have to be made or
withdrawn on my/our behalf in connexion
with the said case." It bears the
following heading : " E. A. No. 135 qf
1923, Sheikh Abdul Ghaffar (Appellant-
Bespondent) v. F. B. Downing (Besponr
dent — Opposite Party)."
This is in accordance with the Noti-
fication No. 57t dated the 1* th September
1925, published in the Gazette on th&
7th October 1925, which runs as fol-
lows :
• " Notwithstanding anything contained
'in 0. 3, B. 4 (3) of the First Schedule of
the Code of Civil Procedure, 1908, iu>
advocate shall be entitled to make or do-
any appearance, application or act for
any person unless he presents an appoint-
ment in writing, duly signed by such
person or his recognized agent or by some
other agent duly authorized by power-of-
attorney to act in this behalf ; or unless
he is instructed by an attorney or pleader
duly authorized to act on behalf of such
person."
Previous to the aforesaid notification
no advocate who was a barrister was-
required to present any document em-
powering him to act by virtue of
01. (3) of B, 4 of 0.3 of the Code-
of Civil Procedure. The first clause of
that rule requires that the appointment
of a pleader to make or do any ap-
pearance, application or act for any person;
shall be in writing and shall be signed
by such person or by his recognized
agent or by some other person duly
authorized by power-of attorney to-
act in this behalf, The word " pleadei,"
is defined in S. 2, 01 (15), Civil P. C.,
as " any person entitled to appear and
plead for another in Court, and includes
an advocate, a vakil and an attorney of a
High Court." Therefore, in order to
exempt an advocate from the necessity
of filing his appointment by his client
in writing, 01. (3) of B. 4 of 0. 3
was 'enacted. The effect of the recent
notification referred to above is -to-
dispense with 01. (3) of B. 4 and
an advocate has now to file bis appoint-
ment in writing as any other legal
practitioner in the High Court. The
appointment is for the purpose of
authorizing him to make or do any
application or appearance or act on
behalf of a suitor in this Court, B* 1
of O. 3 enacts " any appearance, applica-
tion or act in or to any Court, required
or authorized by law to be made or dona
by a party in such Court, may, except
where otherwise expressly provided by
1926
ABDUI* GHAFFAII v. k\ B. DOWNING (Jwala Prasad, J.) Patna 247
any law for the time being in force, be
made or done by the party in person
•x>r by his recognized agent or by a pleader
duly appointed to act on his behalf."
The subsequent rule defines " recognized
agents " as including amongst others,
persons holding power-of-attorney.
authorizing ' them to Jake and do such
appearance or applications or acts on
behalf of such parties. Therefore the
letter of appointment authorizing an
advocate to make or 'do appearance or
application or act on behalf of any party
in a litigation in this Court is a power-
of-attorney. It is distinguishable from a
power-of-attorney given to one who does
not belong to the legal profession
inasmuch as an advocate is a pleader
within the meaning of the term as defined
in the Code of Civil Procedure. The
letter of appointment being a povvor-of-
attorney is not a document exempted
from payment of stamp duty ; for all
powers-of -attorney are chargeable to duty
whether they come within the definition
of a power-of-attorney given in 01. 21
of S. 2 of the Stamp Act or are powers-
of-attorney which go by the special name
of vakalatnamas or mukhtarnamis. The
former are chargeable with duty
prescribed in Art. 48, Sch. J , of the Indian
Stamp Act and the latter under Act 10,
Sch. 2, of the Court-fee* Act. There
can, therefore, he no doubt that the
letter of appointment in 'question in the
present casa filed by Mr. Naimatullah
and for the matter of that any similar
power-of-attorney called by whatsoever
name filed by an advocate, whether he
is a barrister or not, must bear a stamp
duty. Formerly the barrister-advocates
were exempted from filing their appoint-
ment in writing and therefore there
could be no question of their payment
of any duty ; but since they are now
required to put in their appointment in
writing for the specific purposes of
making or doing any appearance,
application or act on behalf of any
suitor in this Court or in the Courts
subordinate to this Court the letter of
appointment must be stamped 'with duty.
Under the old rules also the pawer-of-
attorney in question was chargeable
with duty ; for it authorizes Mr. Naimat-
ullah to withdraw deposits in Court
on behalf of his client.
It was ruled long ago by Sir Edward
Chamier, C. J., that if a barrister wanted
to perform the functions of a pleader h«
must file a vakalatnama : vide letter
No. 5306, dated the 15th August 19l7t,
from the Registrar of this Court to the
Registrar of the Circuit Court, wherein
it is stated that counsel must file a
written authority similar to that required
from vakils to enable him to withdraw
money. In the case of Laurentius
EJcka v. Dukki Koeri (l), I have referred
to the case of Mr. Misra, a barrister-
advocate of this Court, practising at
Cut tack. He applied for refund of
money on behalf of his client and filed
a petition under his own signature with-
out filing a vakalatnama. The learned
Chief Justice observed that if Mr. Misra
wanted to perform the functions of a
pleader he must file a vakalatnama.
This view has been maintained in this
Court in several cases and a practice has
been established of not allowing refund
of money to an advocate unless he is
especially authorized in that behalf and
files duly stamped vakalatnama. The
stamp law requires that a refund of
money can only be made to a person
holding a power-of -attorney duly stamped
from the person on whose behalf with-
drawal is sought. Therefore, in so far as
the lettor of appointment in question
authorizes Mr. Kaimatullah to withdraw
deposits on behalf of his client, it is
chargeable with a Court-fee prescribed for
a vakalatnama under Art, 10, Sch. 2, of
the Court-fees Act irrespective of the
notification in question. The power-of-
attorney authorized Mr. Naimatuilah to
act in the appeal on behalf of his client
and the object of the Taxing Officer in
referring the case to me is for the pur-
pose of having a decision upon the general
question whether a power of appointment
which authorizes an advocate to act,
who is a barrister or not, should be
stamped as a vakalatnama under Art. 10,
Sch. 2, of the Court-fees Act ; for he says
that the question is one of importance and
ia likely to be raised frequently until the
matter is finally decided. The general
question is whether a power of appoint-
ment, which authorizes an advocate of
this Court to make or do any appearance,
application or act on behalf of his client,
should be stamped as a vakalatnama
under the Court-fees Act. The recent
notification requires an advocate of this
Court , whether he is a barrister or not
(1) A. I. B. 1926 Patna 73.
248 Patna ABDUL GHAFFAB v. F. B: DOWNING (Jwala Prasad, J.)
1926
to file a power of appointment in writing
for the purpose of acting, appearing or
making application on behalf of his client.
I have already held that such a power
of appointment must bear a stamp as a
power-of-attorney either under Art. 48.
Sch. 1, read with 01. 21, 8. 2 of the
Stamp Act or as a vakalatnama or mukh-
tarnama under Art. 10, Sch. 2, of the
Indian Court-fees Act.
It was held in the Full Bench case of
Parmanand v. Sat Prasad (2) that a
document purporting to authorize the
person in whose favour it was executed,
who was not a certificated mukhtar or
pleader, to appear and do all acts
necessary for the execution of a decree
of a Court, outside the United Provinces,
which had been transferred to a Court
in those Provinces for execution, required
to be stamped as a power-of attorney
with a one-rupee stamp and not as a
vakalatnama or mukhtarnama. To the
same effect is the Full Bench decision
of the Madras High Court in a Reference
under S. 46 of the Indian Stamp*Actt 1879
(3). The distinction drawn is based on
the principle that a pleader should
file a power -of -attorney called mukhtar-
nama or vakalatnama as provided
for in Art. 10, Sch. 2. of the Court-
fees Act ; whereas any person who
is not a pleader may file , a powrr-of-
attorney as provided for in the Stamp
Law.
Now the word " pleader" as defined
in S. 2, 01. J/5 of the Code of Civil Pro-
cedure, includes an advocate, a vakil and
an attorney of a High Court ; and his ap-
pointment to make or do any appearance,
application or act for a suitor, will, for
the purpose of R. 4, 0, 3. 01. (1), be an
appointment of a pleader. Inasmuch as
the appointment in writing of a pleader
under R. 4, O. 3, requires a fee prescribed
for the power-of-attorney known by the
name of vakalatnama in Art. 10 of
Sch. 2 of tho Court-fees Act, a similar
power of appointment in writing filed by
an advocate, whether he is a barrister
or not, will also require a stamp pres-
cribed for a vakalatnama. It is contended
that the word 4< vakalatnama " ap-
plies to a power-of-attorney given to a
vakil and consequently a power-of-
attorney given to an advocate would not
come under the word " vakalatnama "
(2) [1911] 88 All. 487=8 A. L. J. 878.
(3) [1886] 9 Ma*. 358 (P. B.).
mentioned in Art. 10, Sch. 2, of the
Court -fees Act.
Reference has been made to the Legal"
Practitioners Act which recognizes three
classes of practitioners called vakils,
pleaders and advocates ; and it is said that
the word " vakalatnama " used in the
aforesaid Art. 10 of the Court-fees Act
refers or ly to the power-of-attorney filed
by a vakil and not to a power-of-attorney
filed by an advocate. The argument
ignores the fact that the pleaders of the
subordinate Courts, who are not vakils in
the special sense of the term as not being
entitled to practise in the High Court,
are also required to file vakalatnamas for
which a fee is payable as prescribed in
Art. 10, Sch. 2, of the Court-fees Act,
The word " vakil " used in Art. 10 doesl
not, to my mind, refer to the special
class of practitioners known as " vakils. "I
It is a vernacular word and connotes in
English a document which authorizes one
person to represent another. The word
" vakil " itself means an agent or repre-
sentative authorized to conduct any
business on behalf of another person ; and
in the Muhammadan law, persons who
conduct marriages on behalf of the
principals are called vakils. Persons who
conduct a case in Court for another came
subsequently to be called vakils and such
agents were recognized in the Law Courts
prior to the establishment of the British
Courts in India and any pleader practi-
sing in the lower Courts even now is
popularly called a vakil though he is not
a vakil in the special sense of the term
which applies only to one entitled to
practise in the High Court. The word
pleader, " as used in the Code of Civil
Procedure, includes a " a vakil " and an
" advocate, " and in the Government of
India Act, S. J01 (d), a vakil is described
as a pleader of a High Court. Art. 10
of the Court- fees Act uses the word
" vakalatnama " as meaning a power-of-
attorney executed for the conduct of any
case in a Court, and its various provisions
indicate that the word " vakalatnama «
relates to a power filed by a legal
practitioner to conduct a case on behalf
of a suitor irrespective of the class to
which that legal practitioner belongs.
The word " vakalatnama " there refers
to a power-of attorney filed by a pleader
as used in the Code of Oivil Procedure,
S. 2,01. 15 and O. 3, R. 4. Therefore
a power-of-attorney filed by an advocate
1926 GANGADHAR MISBA v. DEBENDRABALA DASI (Jwala Prasad, J.) Futon ,249
would also come under the category
3f vakalatnarna mentioned in Art. 10
of the Court-fees Act, when it authorizes
%n advocate for the purpose of conducting
a case to make or do any appear-
ance, application or act on hehalf of his
client.
I, therefore, hold that the power of ap-
pointment in writing tiled by an advocate,
whether he is a barrister or not, autho-
rizing him to make or do any appearance,
application or act on behalf of his client,
would require a Court-fee payable upon a
vakalatnama as prescribed in Art. 10,
Sch. 2, of the Act.
Order accordingly.
A I. R. 1926 Patna 249
JWALA PRASAD, J.
Gangadhar Misra — Plaintiff — Appel-
lant.
v.
Ram Debendrabala Dasi — Defendant —
Respondent.
Eeference, Decided on 20th Ootober
1925, made by the Taxing Officer,
•Cuttack.
Court Fees Act, S. 7 (Iv) (c)— Declaratory wit—
Plaintiff obtaining adinterim Injunction in lower
Court, but losing the writ and In appeal seeking
same relief — Ad Interim prayer brings the case
under CL ic).
Where in a declaratory suit the plaintiffs ob"
tallied an ad interim injunction in the lower Court
but there they lost the case and in appeal sought
reliefs which they had sought in the first Court;
Held ; that tho ad interim prayer is a substan-
tial prayer which makes the relief a consequential
one bringing the case within S. 7 (iv) (o). 39 Cat.
704, Bel. on. [251, C, 1]
The facts are stated in the Order of
Eeference by the Taxing'Officer as follows"-
This Court-fee matter arises out of an
appeal by the plaintiffs. The suit was
brought on the footing that they were the
•tankidars of mouza Pratap Bamchandra-
pur with its two independent off-shoots of
Bakshibad and Dianbad and that as such
they were entitled to realize rents from
their "'khatak " or subordinate tankidara
the defendants numbered 4 to 187. The
peskash jama " ( or tanki revenue ) of
the mauzas was to be paid to Government
not direct, but through the zamindars,
Defendants 1 and 2, who, however, accord-
ing to the plaint fraudulently got them-
selves recorded in the Settlement khe-
wats as having " kh as dakhali " or direct
zamindari rights in .the mauzas. These
dakhali rights were also affirmed by the
revenue Court in a suit, No. 1313 of
1917-18, brought (by the zamindars,
against the appellants and some of the
subordinate tankidars, for the rents of
Bakshibad and Dianbad. The zamindars
also brought a similar rent suit, No. 1865
of 1923-24, regarding the parent mauza
of Pratap Bamchandrapur. According to
the plaint, this is what led to the insti-
tution of the suit ; and the prayers made
were : (ka) that it be declared that De-
fendants 4 to 187 have no relationship
of landlord and tenant with defendants
1 to 2 but are "khatak" tankidars under
the plaintiffs and have been paying the
41 tanki jama" to them ; and (kha) that a
decree may be passed awarding to the
plaintiff such other reliefs as they may be
entitled to. There was also a prayer for
the costs of the suit with future interest,
but that will obviously not affect the
category or valuation of the suit and can
be left out of account.
The plaintiffs valued the suit at
Bg. 11,000 for jurisdictional purposes,
and they paid a Court-fee of Bs. 15 on the
ground that the suit was one for a de-
claration pure and simple. They valued
the appeal in the same way and paid the
same Court-fee on it. The Stamp Bepor-
ter objected that this wa-j not a pure
declaratory suit, since a cloud having been
cast on their title, the appeal, like the
suit, sought in effect to get rid of that
cloud and clear up the title and posses-
sion of the plaintiffs-appellants. On the
authority of the two Patna cases Harna-
ray an v. Siiresh Pandey (l) and Rachhya
Rautv.Mt. Cliandoo (2), he considered
that the appellants ought to pay an ad
valorem fee on the market-value of the
mauzas in dispute. This view was not
accepted by the appellants, and the
matter was thus referred to me under
S. 5 of the Court Fees Act. The learned
vakil for the appellants has contended
before me that the appeal, like the plaint,
has been properly stamped, for the rea-
sons given by the learned Subordinate
Judge in dealing with Issues 4 and 3. He
has also urged that if ad valorem fees be
held payable, the valuation should be
made, on the lines of S. 5 (v) of the Act,
at ten times the amount annually
(1) [1931] 68 L 0. 203,
(2) A. I, B. 1928 Pat. 113.
250 Patna
GANGADHAK v. DEBENDBABALA (Jwala Prasad,
1926
payable to Government for these mauzas,
lying as they do in a temporarily-settled
estate.
I desire to refer at the outset to some
confusion that seems to have occurred
owing to the way in which the plainb has
been framed. The Stamp Reporter thought
that relief was prayed for in respect of
two mauzas ( Bakshibad and Dianhad )
only ; and the learned vakil for the ap-
pellants also was unable to tell me why
exactly the third and parent mauza
( Pratap Ramchandrapur ) had been
brought in. A careful perusal of the plaint,
with particular reference to paragraph IS
shows that relief was prayed for in res-
pect of all the three mauzas. The result
is that the deficit, if any, will have to be
calculated with respect to all the three
mauzas.
Turning now to the contentions before
me, the first que-jtion is whether the suit
can be properly regarded as a declaratory
suit within the meaning of .\rfc. 17 (in)
of the second schedule of the Act. The
learned vakil for the appellants adopts
the reason given by the learned Subordi-
nate Judge i'or answering this question in
the affirmative ; and that reason is that,
being in joint possession, the plaintiffs
could not consistently have prayed for
any relief but the declaration that they
are entitled to realize the tanki rents
from the subordinate tankidars. But Raj
Krishna Dey v. Bipin Behari Dey (3) is'an
example of a case where a suit brought
for a declaration that the plaintiff was
shebait, notwithstanding an entry in the
collectorate register that he was joint
•with the defendant, was held to be not a
pure declaratory suit. It is true that in
that case the plaintiff has to add a pra-
yer for consequential relief on an objec-
tion made by the defendant under S. 42 of
the Specific Relief Act ; but even so, the
case is a complete answer to the conten-
tion that in the present cise the plain-
tiffs could not have asked for any but a
declaratory relief. Objections under S. 42
of the Specific Relief Act are, however,
matters for the Court and nob for the
Taxing Officer, as the learned vakil has
rightly urged before me. But is it quite
correct to say that the plaint in tho pres-
ent case did really ask for any other
relief ? In the first place, there is that
~^T7"^f. .W.N, 591^16
C. L. J. 194.
prayer (kha) for such other reliefs as the
plaintiffs may be found entitled to ; and
it seem* to me that the prayer does nofc'
cease to be a prayer for further relief
merely because it is couched in general
terms. Secondly, the plaint is unmistaka-
bly designed to reduce the three mauzas
into the possession of the plaintiffs to the
exclusion of the xamindars, and almos£
inevitably foreshadows an injunction in
respect of the rent suit of 1923-24
brought by the zemindars. This view is
confirmed by the fact that, during the-
progress of the suit the plaintiffs actually
moved for and obtained such an injunc-
tion and as far as can be gathered from
the order-sheet of the suit, the provi"
sional injunction issued by the learned
Subordinate Judge is in force at the pres-
ent moment. In a somewhat similar
case J)eokali Koer v. Kcdar Natk (4), the
first two prayers, which were for declara-
tory reliefs, were followed by a prayer
for any other relief " which the Court
may find the plaintiff entitled to." The
declarations sought were found to be not
warranted by S. 42 of the Specific Relief
Act. but before coming to the conclusion
that the suit was nob one to obtain a
declaratory decree " where no consequen-
tial relief is prayed " Jenkins, C. J.,
observed that * the third prayer ex-
pressly seeks relief, though it is general in
its terms." In confirmation of the view
apparently, that consequential relief was
prayed for in that case, his Lordship
proceedorl to refer to the interim injunc-
tion obtained by the plaintiff, and re-
marked that an injunction is consequen-
tial relief. Were it not for the fact that
Deokali's case (4) can, not altogether
without force, be distinguished on the
ground that the declaration sought in the
present case is substantially warranted
by S. 42 of the Specific Relief Act, I
should have considered myself bound on
the authority of that ruling to hold that
the present is not a suit within Article
17 (iii) of the second schedule of the
Court Fees Act. Coming to the second
contention on behalf of the appellants, it
seems clear on the authorities that in the
face of the prayer for the declaration, the
present suit cannot be regarded as one for
possession within S. 7 (v) of the Court
Fees Act : vide Harih ar Prasqd Singh v.
Shyain Tjal Singh (5), Dhakeswar Prasad
(4) [1912] 39 Cal. 7<H=16 C. W~X.~83*.
(5) [1913] 40 Cal. 615.
1926
KRISHNA CHANDRA v. RAJA. MAHAKUR
Patna 251
Singh v, Jivo Ghaudhury (6), Ugramohan
v* bachmi Prasad (7),Shama Prasad Sahi
y Sheoparsad Singh (8) and Khetramohan
Mahapatra v Ganeih Lai (9).
. I am, therefore, inclined to hold that
the present suit comes under S. 7 (iv) of
the Court -Fees Act, which provides for
suits " toohbain a declaratory deoree or
order where cansequential relief is
prayed, " and as the plaintiffs ( with
whom I am at present concerned in their
capacity of appellants only ) seem to be
seeking relief in respect of ail the three
mauzas, they ought, in my opinion, to pay
ad valorem fees on Bs. 11,000, their own
valuation of the subject-matter of the
suit and appeal. But I have not been
able to find any direct authority for or
against my view. There are reported
decisions in which it has been laid down
that we ought not to look beyond the
plaint in determining Courfc-feos, but the
contrary seems to have been done and
the object and effect of plaints considered
in several other reported cases. The
questions that arise for decision in the
present Court -fee matter are ;
(1) Whether a general prayer for relief
such as is found in (kha) in the present
case, will suffice to convert what would
'otherwise be a declaratory suit into a suit
within 8. 7 (iv) (c) of the Court-fees Act ;
and
(2) Whether such a general prayer for
relief, taken with the interim injunction
Subsequently obtained by the plaintiffs,
will have that effect.
The^e questions are of general import-
ance, in my opinion, and must, therefore,
be referred for decision under S. 5 of the
Act. Let the papers be therefore, placed,
before the Taxing-Judge at Patna for a
final decision under S. 5 of the Court
Fees Act.
Jwala Prasad, J. — This is a reference
made by the Registrar of the Cuttack
Circuit Court relating to revenue.
The plaintiffs-appellants must pay ad
valorem Court-fee under S. 7 (iv) (c) of the
Court-Fees Act. Two reliefs are sought
for in the plaint, (ka) that it be declared
that Defendants 4 to 188 have no rela-
tionship of landlord and tenant with
Defendants 1 and 2, but are "khatak"
taukidars under the plaintiffs and have
(Q) [1918] 8 Pat. L. J. 448.
(7)[19iO] 6 Pat. L. J. 339.
(8) [1920] 5 Pat L..J.3^.
(9K1921] 6 P. L. J. 101=2 Pat. L. T. 607.
been paying the " tanki jama " to them ;
(kha) any other reliefs to which the
plaintiffs may be entitled may be granted
to them. The third prayer is for costs
which may be ignored.
The general relief contained in (kha) does
by itself subject the plaint to the liability
of ad valorem Court "fee inasmuch as such
a prayer is almost customary and being
vague and indefinite is never deemed to
be a substantial relief. The prayer (ka) is
couched in terms that would make it
declaratory but the plaintiffs have ob-
tained an ad interim injunction in the
lower Court which still subsists. The;
plaintiffs have lost the case and in appeal
seek reliefs which they had sought in
the first Court. The ad interim prayer
is a substantial prayer which makes the
relief a consequential one bringing the
case within S. 7 (iv) (c) of the Court Fees
Act. In the case of Krishna Das v. Hari
Charan(lO) the plaintiff had described
the suit as one for declaration of title
with consequential relief, although the
relief was in the nature of a declaration
only. Therefore there was no dispute
as to the category in which the suit foil.
But the case of Deokali Kuer v. Kedar
Nath (4) lends strong support to the view
which I have taken. In 'that case there
was no specific prayer in tho memoran-
dum of appeal for an interim injunction
and there was, as in the present case,
only a prayer for declaration of plain-
tiff's title. But in that case, as in the
present, there was an interim injunction
in the Court below on the application
of tho plaintiff and that was construed
by Sir Lawrence Jenkins, C. J., as bring"
ing the case within S. 7 (iv) (c).
» The questions put in the reference are
answered as above and the plaintiff is
bound to pay ad valorem Court- fee.
Order accordingly.
* (10; [1911] 14 C. L. J. 47=15 0. W. N. 823.
A. I. R. 1926 Patna 251
Ross, J.
Krishna Chandra Gauntia — Defen-
dant — Appellant.
v.
Raja Mahakur — Plaintiff — Respon-
dent.
Second Appeal No. 26 of 1924, Decided
on 29th July 1924.
252 Pataa
KRISHNA CHANDRA v. RAJA MAHAKUR
1926
Court Pees Ad (187.0), S. 1 (v)—SuU . for- posses-
< -,. i . \ . :
Where the suit in one for potjsefpfr'n of land
after determination of the question. of title ;*nd
the title is gone into, the cane falls within 8. 7
(v) and the Court Fes i« piyablo on the market-
value of the land : 27 Mad. L. J. 475 ; M C. W. N.
151, PoU. ; 17 C. HP. #• 120, /Wai. ; 16 C. L. J.
375. J&rp/. [P. 253, C. 1]
Facts are stated in the order of
the Taxing Officer as follows :
This is a Court* fee matter, arising out
•of a suit instituted by the respondent for
declaration of title, as an occupancy raiyat,
to and recovery of possession of 9*31 acres
of gounfci raiyati land. According to the
plaint, the appellant had first settled the
•disputed land with the plaintiff-respon-
dent on a*h annual rental of four purugs
of paddy; and had later on agreed to
settle the land with the plaintiff in per-
petuity for a nazarana or salami of
Bs. 300 ; but had afterwards dispossessed
him and succeeded against him in a pro-
ceeding under 3. 145 of the Criminal
'P. C. For the purposes of the Courb-fee
and the jurisdiction, the suit was valued
under S. 7 (v) (b) of the Court Fees Act
at five times the annual rental of Bs. 3
(which was taken to be the equivalent of
the four purugs of paddy). The first
Court decreed the suit ; and the defendant
appeals to this Court, after an unsuccess-
ful appeal to the lower appellate Court,
and has, on both occasions, valued the
appeal in the same manner as the res-
pondent valued the suit. The Assistant
Begistrar as Stamp Be porter would treat
the suit as one, not under S. 7 (v) (b),
but under S. 7 (iv) (o), of the Court E\)es
Aot, and would assess the Court-fee in
each Court on Bs. 300, taking this amount
as a minimum for the market-value of
the disputed land since the plaintiff had
set up a settlement on a salami of that
amount. If this be correct there would
.be a deficit of Bs. 26-6-0 in the Court-fee
on the plaint and, if tbat should bind the
appellant, also on each of his two appeals.
It has, however, been urged on behalf
of the appellant that S. 7 (iv) (c) cannot
apply as against him, because the decree
of the first Court, which is all that be is
interested in getting upset, shows that
no declaration was treated as sought and
none was given either : Ramakrishna Beddi
v. Kotta Koti Reddi (l) and Haidari
Begum v. Gulzar Bano (2). I am inclined
this contention as sound.
(1)
(2)
__
1) [1907] 80 Mad, 98=16 M. L. J. 468 (P. B.).
2) [1914] 86 All. 822=12 A. L. J. 481.
It has been further urged that tbe suit
being one between landlord and tenant
for recovery of possession of land v from;
which the tenant-plaintiff had been dis-
possessed, S. 7 (xi) (e), of the Court Pees
Act, should be beld to apply and the
matter valued according to tbe rent of
the preceding year, namely, four purugs
of paddy. But S. 7 (xi) (e) speaks of a
tenant being "illegally ejected" and
these words have been held to differ in
scope from the word " dispossessed, " in
Sundar Mai Marwari v. Murray (3).
This interpretation was, however, not
followed in Jamla Singh v. Kingsley (4),
but this latter ruling does not bear on
the Court Fees Act. I am thus inclined
to think that the appeal must be valued
not under S. 7 (xi) (e) but under 8. 7 (v)
of the Act.
The learned vakil for the appellant
has not been able to show me that if
S. 7 (v) be held to apply, the matter
comes within clause (a) or (b) or (c)
of S. 7 (v). The valuation must, there-
fore, be based on " the value of the sub-
ject-matter " or " the markeb-value of
the land." In order to avoid delay and
cost of an enquiry on this point the
learned vakil has agreed that Bs. 300
might, in the circumstances, be taken as
the value of the subject-matter of the
appeal. He has, however, asked me to
refer to the Taxing Judge the question
whether this matter is not governed by
S. 7 (xi) (e) as a question of general im-
portance, especially in view of the facts
that Sunder Mai Manoari v. Murray (3),
was not followed in Jamla Singh v.
Kingsley (4), and there is no ruling t»f
the Patna High Court on the point.
Even if S. 7 (xi) (e) be held to apply, the
taking of four purugs (l purug—7 maunds)
as equal to Bs. 3 only is manifestly wrong
and the learned vakil has — again to avoid
delay and cost — agreed that the annual
rent may be taken to be worth Bs. 50.
Under the provisions of S. 5 of the
Court Fees Act I direct that the matter
be placed bufore the Taxing Judge for
final decision. The points arising are :
(i) Whether the suit falls under sub-S.
(iv) (c) or (v) or (xi) (e) of S. 7 of the
Court Fees Act
(ii) Whether the appeal should be
valued under sub-S. (iv) (c), (v) or (xi) (e)
of 8. 7 of the Court Fees Aot.
m!912] 16 0. L. J. 875.
1918] 17 0. W. N. 1201,
1926
RAMSUNDER v. EMPEROR (Mollick, J,)
Patoa 25$
Ross, J. — No one appears in this case.
The oases referred fco on the question,
whether the case falls within S. 7 (xi)
(e) of the Court Fees Act or not, are not
of much assistance. The decision in
Sunder Mai Marwari v. Murray (3)
really proceeded on another ground,
namely, that the suit was not one bet-
ween landlord and tenant only, but also
between the tenant and other persons
who claimed to have acquired an interest
from the landlord. The construction of
two words "illegally ejected" suggasted
in that decision is obiter and does not
appear to be a final decision. On the
other hand in Jamla Singh v. Kingsley
(4) there is a decision that illegal eject-
ment is included in dispossession, but
that was not a decision on the Court Fees
Act.
The decisions in Bala Sidanta v. Peru-
mal Chetti (5) and Pramatha v. Amiraddi
(6) indicate that in a suit under S. 7 (xi)
(e) of the Court Fees Act the Court will
not try a question of title. The present
suit is one for possession of land after
determination of the question of title
and the title was gone into. The ea-je
in my opinion falh within S. 7 (v) of
the Act and the Court fee is payable
on the market-value of the land, i. e.t
Rs. 300.
Reference answered.
8. 486 altered the charge to one under S. 149 reacT
with 8, 436 and tried the oase with the help of
(5]
(6)
M i J475=1 L. W. 641.
[1920] 24 C. W. N. 151.
A. I. R. 1926 Patna 253
MULLICK AND KCJLWANT SAHAY, JJ.
Ramsunder Isser and others — Accused —
Appellants.
v.
Emperor — Opposite Party.
Criminal Appeal No. 158 of 1925, De-
cided on 5th November 1925, against an
order of the Sess. J., Darbhanga, D/- W29th
August 1925.
(a) Criminal P. C., S. 227— Alteration of charge
from 8. 436 to S. 436 read with 8. 149 does not
take away , operation of notification requiring
S. 436 offence triable by jury— Trial of altered
charge with assessors Is void—Criminal P. C. S. 269.
Where by a notification the Government had
directed that in a particular district certain
offences, including an offence under 8. 436, 1. P. C.
were to be tried by a jury and not with the aid
of assessors, and the S. J., of that district upon a
commitment of the accused with charge under
Held : that the trial was void as being without
jurisdiction. The trial of an offence under S. 149^
read with 8. 486 is a trial under S. 436 as the
Court must always first determine whether the
offence under S. 486 has been committed by an
individual and next whether 3. 149 makes the
participators responsible. Exactly same is the case
with S. 34, I. P. C.
Held : further that the Sessions Judge ough fc
not to have withdrawn the charge under S. 436
and substituted that unuer S. 149 read with 8. 486
which put the accused under a disadvantage at*
they were deprive! of the right of trial by jury,
the ass3ssor's opinion being less final on a question
of fact than the verdict of a jury. [P. 254, 0. 1, 2]
(6) Penal (lode, S. US—Guilt of principal Is
gutlt of participator and not a separate offence.
It is truo S, 149 is an offe ice in respect of which-
there has been participation. It prescribes a
new set of conditions to whioh the section shall
become applicable, but i i the end the guilt of
the parson shall be the guilt attaching to the prin-
cipal's crime. [P. 254, 0. 1
Ha*an Imam, B. N. Mitter, 0. N.
Mukerji and D. L. Nandkeolyar — for
Appellants.
H. L. Nandkeolyar — for the Crown.
Facts. — The complainant alleged that
the zatnindar with the help of his ser-
vants made an attack on his house and-
caused his hut to be set on fire. The
tahsildar of the zamindar also made a
cross-complaint that the complainant and
his people wrongly rescued certain buffa-
loes which were seized as they were
found grazing and dostroying some grass
fields. The police found the complain-
ant's case to be false arid declined to send
up the zamindar and his people for
trial.
Mullick, J. — (His Lordship after stat-
ing facts the most important of which
are stated above proceeded as follows.)
The Bub-Divisional Magistrate, however,
thought that there was a prima facie case
and he directed a charge-sheet to be sent
up against the five appellants and even-
tually he framed charges under S. 436
I. P. C. and S. 436 read with S. 109, 1, P. C.,
against the appellants and committed
them for trial to the Court of Sessions.
In the Sessions Court a curious pro-
cedure was adopted. The charge framed
by the Sub-Divisional Magistrate upon
the evidence recorded by him as regards
the offence of arson and abetment of
arson vas dropped and a new charge of
which there had been no mention in the
committing Magistrate's Court was added .
at the suggestion of the Public Prosecu-
254 Patna
BAMSUNDER v. EMPERC^ (Mullick, J.)
1926
tor, namely, one under S. 149 read with
S. 436, I. P. C. The alteration had an
important bearing upon the trial for
in the Darbhanga district certain offences
including an offence under S. 436 and
specially enumerated in a notification
published in the official Gazette on llth
September 1921, are triable by jury.
All other offences remain triable by as-
sessors. In the opinion of the learned
Sessions Judge an offence under S. 119
read with S. 436 not being an offence
under S. 436, but a separate offence the
accused could not claim the right of trial
by jury.
Therefore tho first question that arise»
is one of jurisdiction. Was the learned
Judge right in holding that a trial for an
offence under S. 149 read with S. 436
and a trial for an offence under S. 436
are trials for different offences so that the
notification does not apply. It may be
contended that neither S. 34, I. P. 0.,
nor S. 149 create distinct offences and
that they are merely rules of evidence or
of common law which fix liability upon
joint wrong-doers. On the other hand
it may be argued that just as specific
provision has boon made for abetments,
attempts and conspiracies and they are
treated as separate offences, so also does
S. 149 create a distinct and separate
offence and that the offence of one who
participated is not the same as that of
him who set fire to the house. Some
support for this view might at first
sight seem to bo furnished by the judg-
ment of Lord Sumner in Barendra
Kumar Gosh v. Kmprror (l). Lord
Sumner there speaks of S. 149 creating a
specific offence and dealing with the
punishment of that offence alone, but
the learned Judge was there merely con-
sidering the difference between 8. 34,
S. 149 and S, 114 of the Penal Code and in
particular whether any of these sections
were redundant and how far they over-
lapped. He came to the conclusion that
although Ss. 34 and 149 overlap they do
not wholly cover the same field, and as
regards S. 114 his opinion was that it
was evidentiary and not punitory. Tho
observations of his Lordship do not affect
bhe questions now before us. It is true
S. 149 is an offeace in respect of which
there has been participation. It pre-
scribes a new set of conditions to which
jjhe section shall become applicable, but
(1) A. I. R. 1926 P. C. 1.
in fche end the guilt of the person shall
be the guilt attaching to the principal's
crime. Now when the notification of
the llth September 1921, declares that
the trial of an offence under S. 436 must
be by jury and not by assessors, the as*
sessors are incompetent to determine
whether a certain set of facts constitute
the offence. It follows that the disabi-
lity continues where the inquiry is
whether upon the additional set of facts
widening the field of liability prescribed
in S. 149 the accused has rendered him-
self punishable for the game offence.
The trial remains a trial tinder S. 486,
the Court must always first determine
whether that offence has been committed
by an individual and next whether S. 149
makes the participators responsible, and
so it i,s with S. 34 also. The trial in the
present case was a trial for the offence of
arson and by no stretch of argument can
I persuade myself that the object of the
notification was that while Amrit Gope
would have been triable by a jury those
who assisted in the prosecution of the
common object of tho unlawful assembly
were triable by assessors, whose opinion
was less final on a question of fact than
the verdict of a jury.
We cannot toll on the facts before us
for what reason the alteration of the
charges was made. It was open to the
loai-nod Sessions Judge to add an alterna-
tive charge, but I do nob think that it
was a proper exercise of discretion to
withdraw the charge, which the commit-
ting Magistrate thought to be proved and
pub the accused under a disadvantage by
substituting another so that he might be
deprived of the right of trial by jury.
In my opinion, therefore, the trial was
held without jurisdiction and the question
is whether we should order a re-trial.
(His Lordship then dealt with the
evidence and held that the circumstances
disclosed did not justify conviction and
that it was not necessary to order a re-
trial and in conclusion set aside the con-
viction).
Kul want Sahay, J. — I agree,
Conviction set aside.
1926
StTA I$AM v, KHTTB LAT, (Dawson-Miller, 0. J.)
Patna 255
A. I. R. 1926 Patna 255
DAWSON MIL&EB, C. J., AND
MACPHERSON. J.
Sita Bam Singh — Appellant.
v.
Khub Lai Singh —Respondent.
Second Appeal No. 814 of 1924, Deci-
ded on 27th May 1925, from a decision
of the Sub-J., Patna, D/- 20th July 1922.
Evidence Act, S. 32 — Admission by a Hindu
widow regarding the existence of a loan cannot be
split Into two but mutt be considered as a, whole
for ascertaining the purpose of loan.
An admission by a Hindu widow that she bor-
rowed a loan for a particular purpose cannot be
split up into two parts making one part admissi-
ble and the other inadmissible, but must b3 ad*
mitted as a whole for the purpose of ascertaining
the purpose and nature of the loan under S. '62.
[P. 255, C. 2]
Manuk and S. Dciyal — for Appellant.
Sultan Ahmad and S. N. Ral — for
Respondent.
Dawson-Miller, C. J. — In my opin-
ion the matter* in dispute in this ca*eare
-concluded by the finding of fast of the
lower appellate Court. The suit was
brought by the reversionera of Rrtmautar
Singh against the mortgagees under a
mortgage) granted by his widow Dhan-
wanti Kuer after his death to secure pay-
ment of a sum of Rs. 400. The mortgage
hypothecated certain property which
'formed pxrt of the estate of her husband.
That was in the year 1(J05. A suit wa-j
brought during the widow's lifetime by
the mortgagee* on the mortgage. They
succeeded in that suit and put up the
property for sale in execution of the
decree and themselves purchased it. The
widow died in 1920 and the present suit
was brought by the reversioners claiming
to recover the property.
The question for determination in 'the
suit is whether the mortgagees were en-
titled tD a charge upon the whole estate
•or only upon the life-interest of the
widow, and that again depends 'upon
whether the sum borrowed was borrowed
fby the widow for purposes of legal neces-
sity. The allegation of the defendants is
that of the Rs. 400, R?. 226 had been
borrowed in order to pay for Dhanwanti's
husband's sradh. Rs. 174, the balance,
was for the coat of litigation and main-
tenance. The evidence shows that al-
though the income of the estate was
.about Rs. 2,000 still, after her husband's
<leath, Dhanwanti Kuer, the widow, was
ninable to get the estate into her po ses-
sion. Therefore it seems highly probable
that she was in a position in which it
might be necessary to borrow the money
for her expenses. Both the trial Court
and the Subordinate Judge on appeal*
found that the money was borrowed by
Dhanwanti Kuer for purposes of legal
necessity and that she was in need of
money at the time. That decision, how-
ever, has been challenged on the ground
that the learned Subordinate Judge ad-
mitted in evidence a statement of Dhan-
wanti Kuer, who, as 1 have intimated,
was dead at the time when the present
suit was brought, made in a previous suit
in the year 1908 in which she stated that
she took a loan from Faujdar Singh and
Sheoraj Singh to defray the expenses of
the funeral rites of her husband. The
learned Judge accepted that statement as
admissible under S. 32, Gl. (3), of the
Indian Evidence Act. It has been con-
tended that the only part of that admis-
sion contrary to her pecuniary interest is
the fact that she took the loan and not
the remaining part that she took the loan
for a particular purpose. I am not able to
agree to this proposition. I think the
whole statement must be taken in order
to ascertain exactly what the nature of
this loaii was. There might be a differ-
ence in her pecuniary liability, 'certainly
in tho liability of the estate she at that
time represented if the loan was bor-
rowed for necessary expenses or if the loan
was borrowed 'for purposes which were
not to 1)6 regarded as necessary expenses,
u*nd I do not see very well how you can
split up the admission into two parts.
The whole thing works together and
each part is necessary to explain, the
other. This I think is the view which
has been taken in dealing with cases of
this sort ever since the old case of Hig-
IKWI v. Ridgioay (l), which was decided
in the year 1823. The learned Judge ac-
cepted that statement which was not ne-
cessarily conclusive and not necessarily
binding upon the reversiqners but which
I think he wag entitled to accept as a
corroboration of the defendant's * story
that in fact the money had been bor-
rowed by Dhanwanti Kuer for purposes of
legal necessity, and the further state-
ment of one of the defendants himself
that he had made enquiries at the date
when the money was borrowed and he
foSH^ J.!iaj5 it was required bv Dhanwanfci
~ (l) [is^Sj 2 8m. L. C. 348.
2.jfi Patna AMJUKA PRASAD V.COMMR., FOR INCOME-TAX (Dawson- Miller, C.J.) 1926
Kuor in order to pay for her husband's
aradh. The learned Judge said :
" Having regard to the statement of
Mt. Dhanwanti Kuer, above allu-
ded to I see no reason to doubt the evi-
dence of these witnesses that Rs. 200 was
borrowed by Dhanwanti for her husband's
sradh. It is clear from her deposition
also that litigation commenced soon after
her husband's death."
That is really the only criticism which
has been made of this judgment and it
<loes not seem to rno that the criticism is
a. sound one. The mitter is concluded by
the findings of fact arid I do not think
that the Iearnf3cl Judge took into consi-
deration any evidence which he was not
legally enfcitlod to consider.
The appeal will ho dismissed with
costs.
Macpherson, J. —I agree.
Appeal d
X A. I. R. 1926 Patna 256
l)AWSON-Mll<LK!t, C. J., AND
M.YCIM{I<UIS()N, J.
Ambika Prasad Singh — Assesseo.
v.
Commissionar for Incomrtcir.% Bihar
and Oriss'i — Opposite Party.
Misc. Judicial OJHG No. 147 of 19:21,
Decided on llth June 19^~>.
* Income,- far, Act (Lt of U)22), *ST. 14 (I) -Sec-
tion doflt not apply whoi a member reccirt"* in-come
from property nut, tared as- joint property .
Tho whol3 obj )cfc of th« s:;c*.tion is to oKompt
from taxation in the hamta of an individual that
whioh has already boon taxod in the h.-vids of tin-
joint family as such. If, howovor, tb'» individual
roccivos an incomo .iliundo from property which
has not bnvi taxtul, as that of a Hindu joint
family, then it won! I app3ar that thu provisions of
S. 14 have no application whatever. ( P '256, 0 2]
7v. P. Jay cixrval and N. P. Prtt.wd — for
Assossee.
Sultan Ahmad — for Opposite Party.
Dawson-Miller, C. J. — This is a
oase stated for the opinion of the Court
by the Income-tax Commissioner under
S. ()6, sulrsootion (j), of the Income-tax
Act, 19iM
The assosseo, Arnbika Prashad Singh, is
the father of the present proprietor of
the 9-annas Tikari Raj. The asscssee has
no interest in that property, but his son,
t ho proprietor, has boon in the habit of
making him an allowance yearly out of
the proceeds of the property of the Tikari
Haj. Upon that the assessee has been
to income-tax ant1 the question
which is submitted for our opinion in
this case is formulated by the Income-tax
Commissioner thus :
" The question for the determination
of the High Court is whether, when a
man receives an annual allowance from
his son out of a property which the son
inherited from his maternal grandfather,
this sum is exempt under the provisions
of sub-S. (1) of S. 14 of the Indian
Income-tax Act, 1922."
B. 14, sub-S. (l), provides as follows :
" The tax shall not be payable by an
assessee in respect of any sum which he
receives as a member of a Hindu undivided
family."
The learned Commissioner was o£
opinion that as the asses-tee received this
sum as an allowance from his son and not
by reason of any right to share in the
proceeds of the Tikari Raj, that property
not being the property of an undivided
Hindu family lie did not come under
the provisions of S. 14, sub-S. (l). His
view of that section is that it only ap-
plies to cases where the a-Jsessee receives
the inoorae in the capacity of a member
of a Hindu undivided family. If he
receives it as a mere gratuitous allowance
to which he is not in law entitled by
reason of being a member of a joint family
then he does not come under the provi-
sions of S. 14. That is the only question
which has been submitted for our opinion.
It is contended bv Mr. Jayaswal on
behalf of the as^cssoe that if he is joint
with his son for any purpose, and he
contends that in the present case he is
joint for some purposes, then anything
which 'ho may receive from his son is
received by him as a member of a Hindu
undivided family. I cannot think that
the section bears any such interpretation.
The whole object of the section is to
exempt from taxation in the hands of an
individual tint which has already been
taxed in the hands of the joint family as
such. If, however, the individual receives
an income aliunde from property which
has not hoen taxed as that of a Hindu
joint family, then it would appear that
the provisions of S. 14 have no applica-
tion whatever. In my opinion the learned
Commissioner took a correct view of the
section and the question propounded for
our opinion must on the facts stated be.
answered in the negative.
Macpherson, J. — 1 agree.
BAGHUNANDAN v. KI$HUI$DBO
flahay, J.)
Afl. R 1026 Pallia
i unandan Th ak wr ~~Def endant —
Appellant.
v.
Kishundeo Narain Mahta and
s — Plaintiffs and Defendants— -Res-
pondents!
Second Appeal No. 298 of 1922, Decided
on 27th March 1925r from a decree of the
Dist. J., Darbhanga, D/- 6th December
1921.
Deed — Construction — Conveyance of land~~
Difference between boundaries and area given
— Land actually comprised within the boundaries
should be treated as conveyed.
Where a land conveyed is describad by bounda-
ries as well an by area, if there is a difference
between the boundaries and the area, the land
actually comprised within the boundaries will be
treated to have been conveyed ; 18 C. L. J. 541 >
Foil. [P. 257, C. 2]
Sant Prasad — for Appellant,
S. M. Mullick, S. N. Bose and Nawal
Kishore Prasad No. 2 — for Kespondents.
Facts. — This was an appeal by the
Defendant No. 1 against the decree of the
District Judge of Darbhanga, dated the
6th December 1921, whereby he con-
firmed a preliminary decree for partition
made by the Munsif of Samastipur. A
suit for partition was brought by the
plaintiffs on the allegation that in execu-
tion of a rent decree obtained by the
Darbhanga Raj against one Bhagwat Lai
a certain holding consisting of several
survey plots within two khata numbers
were sold and purchased by the plaintiffs
and Defendants Nos. 1 and 2. The
Defendants Nos. 3 and 4 were alleged tc
be the benamidars of the plaintiffs in
whose name the sale was concluded, the
said Defendants Nos. 3 and 4 being the
servants of the plaintiffs. Their cise was
that half the holding was purchased by
the plaintiffs in the names of the Defen-
dants Nos. 3 and 4 and the remaining half
was purchased by the Defendants Nos. 1
and 2. The present suit was brought for
partition of the holding so purchased
amongst the plaintiffs and the Defendants
No, 1 and 2. The Defendant No. 2
admitted the title of the plaintiffs and
expressed his readiness for the partition.
The Defendants Nos. 3 and 4 admitted
ihai they were the benamidara for the
The Defendant No. 1 alone
the1 suit. Various objections
1926P/33#34
Were fcftken by the Defendant No. 1 whiett
were alt disallowed by theMuosif. Qa
appeal only on* of the points taken by
the Defendant No* 1 was prewed and thai
related to on a of the plots sold at the rent
tele, namely Survey Plot No. 6234 in
Khata No. 151. The defence was that*
before thd 'execution sale the defendant
had purchased this Plot No. 6234 along
with other lands from the old tenanti
Bhagwat Lai under a private purchase
and that he was in possession thereof and
that what was sold in the renfe sale was*
only 14 dhurs out of the total area of
1 bhiga 3 kathad 12 dhurs which was thd
area of Plot No. 6234. He, therefore, con-
tended that the plaintiffs were entitled td
partition only 14 dhurs of plot No. 6234
and not the entire area of 1 bigha
3 kathas and 12 dhurs. Both the Courts
below refused to entertain this objection
of the Defendant No. 1. On a construe*
tion of the sale certificate, the plaint and
the decree in the rent suit they came to
the conclusion that what was sold was
the Entire Survey Plot No. 6234 and not
only 14 dhurs out of the area comprised
in the plot.
- Kulwant Sahay, J.— (His Lordship
stated facts as set out above and pro-
ceeded,) In second appeal it is contended
that the construction put upon the sale
certificate is erroneous. It has further
been contended that the suit was barred
by S. 66 of the Code of Civil Procedure*.
As regards the first contention, on refer-
ring to the sale certificate, it appears that
Plot No. 6234 was described by bounda-
ries ; and admittedly, as found by th«
Munsif, the boundaries given cover the
entire Plot No. 6234, and are- not
confined to only 14 dhurs out of
Plot No, 6234. The area given in
the sale certificate is no doubt only
14 dhurs. There is a further description
of this plot by giving the number of trees
standing thereon. The learned Munsif
has held that the trees which are given
in the sale certificate as standing on
Plot No. 6234 and which were sold and
purchased by the auction-purchasers were
not confined to the 14 dhurs but Were
scattered upon the entire Plot No. 6284.|
Where a land conveyed is described by
boundaries as tffcli as by areas, if there is
a difference between the boundaries and
the area, it is settled law that the land
actually comprised within the boundaries
will be treated to have
258P«tn*
BUP LAL SINGH t. SECY. OP STATE
In the case of Gossain -Das Kund* v.
Idrittunjoy Agnan Sardar (l), the sale
certificate under which the parties had
purchased gave boundaries of parcels sold
as well as the area of each plot. There
was a difference between the areas and
the boundaries and it was held that the
purchaser took plots as defined by the
boundaries and if within those boundaries
there was more or less land than that
stated in the sale certificate, he obtained
a title to whatever was contained within
those boundaries. This case is exactly
applicable to the facts of the present case.
Here also the sale certificate gives the area
of the Plot No. 6234 as well as the
boundaries. The area given does not tally
with the bounderies. The boundaries
cover a larger area than what is shown
in the certificate. Therefore the entire
area included within the boundaries must
be considered to have been sold. Over
and above the boundaries we have got a
description of the trees which have been
found to stand scattered over the whole
Plot No. 6284, I am, therefore, of opinion
that the learned District Judge was right
in holding that what was sold and pur-
chased by the auction- purchasers \fras the
entire Plot No. 6234 and not only 14 dhurs
out of this plot. No doubt it is admitted
that some of the other plots included in
the sale certificate cover an area less than
the old holding of Bhagwat Lai, but in
the case of those plots the description
given is, " minjumla " that is, not the
entire plot, but only a portion thereof.
In the case of Plot No. 6284 there is no
such description.
As regards the second contention of the
learned vakil for the appellant that the
suit is barred by S. 66 of the Code of
Civil Procedure, it is enough to say that
having regard to the fact that the Defen-
dants Nos. 3 and 4 disclaimed their title
under the purchase and admitted the title
of the plaintiffs. S. 66 of the Code does
not operate as a bar to the present suit.
This question does not appear to have
teen raised in appeal before the learned
Judge.
This appeal must be dismissed with
costs.
Appeal dismissed.
(I) [1918] 160.L,a,
A, I. R. J926 Pataa 258
MULLIOK A. C. J. AND KULWANT
SAHAY, J.
Rup Lai Singh— Plaintiff.
v.
Secretary of State for India— Defen-
dant.
Civil Reference No. 1 of 1925, Decided
on 27th July 1925, made by the Sub-J.
Muzaffarpur.
(a) Tort— Secretary of State— Donee of th*
power exercising it unreasonably Is guilty of tort,
(per Mulllck, Ag. C. J.).
When a statute confers a power it implies that
the donee of that power shall be competent to do
all that is needful for its exercise subject to the
limitation that he cannot go beyond what is
reasonable. If, in order to carry out the law,
he does something which the Courts consider in
the circumstance* unreasonable, he will be guilty
of a tort. [p 259 C 1, 21
(6) Bengal Troops Transports and Travellers
Assistance Regulation (11 of 1806),S. 3 (1)— Native
officer can Impress cart against owner's consent.
In case of carts let on hire, the native and
police officer referred to in paragraphs 3 and 4
of B. 3, CL 1 can legally impress them against
the consent of their owner. [p SJ59 0 2]
S. Saran — for Plaintiff.
L. N. Sinha — for Defendant.
The following facts appear from the
order of reference :
It appeared that in order to facili-
tate the march of a detachment of
•cavalry through his district the Collector
of Muzaffarpur ordered a native officer
to provide the troops with bullock carts.
The native officer, acting under Begula^
tion XI of 1806, impressed a number of
carts which had been hired by the appel-
lant, Buplal Singh, for the purpose of
carrying out a contract for the repair of
certain roads. The Subordinate Judge of
Muzaffarpur found that the impressment
was made against the will of the appel-
lant. He further found that as a result
of such impressment the coolies collected
by the contractor were idle for two days
and that he had to pay them during this
time. The contractor claimed as damages
the pay of the coolies. The Subordinate
Judge was of opinion that a claim for
damages would lie if the act of the
Secretary of State, who was the Defendant
No» 1 in the suit brought by the appel-
lant, was a tort. But he was doubtful
of the scope of Regulation XI of 1806
and, under 0. 46, of the Civil P, Q,
he referred the case to the High
Court for an opinion on S. 3 of
KHUDI HAI v. LALO BAI (Ms/ ft)
Patn*
(Regulation. The question put by* him
was:
Whether ^e Native and Police officer refer-
red to in paragraphs 3 and 4 of the first clause
of 8. 3 of Regulation XI of 1806 can legally
impress a cart let on hire against the consent of
.the owner.
Mullick, A. C. J. — The native
officer is directed by paragraph 3 of S. 3
of the Regulation to provide the troops
with whatever bearers, boatmen, carts
and bullocks may be necessary to prose-
cute their route, The next paragraph
empowers him in case of difficulty to
seek the assistance of the nearest police
officer who is to afford his aid in provid-
ing the number of persons and of carts
'and bullocks required. The section does
not in terms empower the 'native officer
-or the police to impress any carts or
bullocks against the will of their owner
but ifc is obvious that this is intended.
Jt is not necessary here to consider
whether private carts can be seized ; but
as regards carts ordinarily let out on hire
it is impossible to conceive that when a
regiment is on , the line of march the
jrefusal of the owner would be sufficient
to oust the jurisdiction of the officer con-
cerned. That could not have been' intended
by S. 3 having regard to the object for
which it was enacted. This is made
clearer by comparison with S. 8 which
relates to the supply of carts, etc., to
military officers not commanding or pro-
ceeding with a corps or detachment and
to other persons passing through the
-country. The third paragraph of this
section, by implication, empowers the
police officer to impress carts kept for
hire and to compel bearers and boatmen
who aro accustomed to act as such to
undertake such involuntary service.
Prom this it would appear that in the
case of regiments on the march it is cer-
tainly open to the native officer or the
police officer to impress carfcs or bullocks
which are ordinarily let out for hire.
It is contended on behalf of the plain-
tiff that the Regulation could not have
intended to empower the native officer
to use means which were contrary to law
and thereby encroach upon the liberty of
the subject. But the answer to this is
that when a statute confers a power it
implied that the donee of that power
shall be competent to do all 'that is need-
ful for its exercise subject to the limita-
tion that he cannot go beytnd what is
reasonable. If, in order to carry out the
law, he does something which the Courts
consider in the circumstances unreason-
able, he will be guilty of a tort. The
answer, therefore, to the question put by
the learned Subordinate Judge, in my
opinion, is in the affirmative.
Kulwant Sahay, J.— I agree that in
case of carts let on hire, the native and
police officer referred to in paragraphs 3
and 4 of S. 3, C]. 1, of the Regulation can
legally impress them against the consent
of their owner.
Reference answered in the affirmative.
* A. I. R. 1926 Patna 259
DAS AND* Ross, JJ.
Khudi Rai — Appellant.
v.
Lalo Rai and other?— Respondents.
Appeal No. 1266 of 1322, Decided on
12th June 1925, from the appellate
decree of the J. C., Chota Nagpur, D/-
26th July 1922.
% Civil P. C., O. 23, J7. I— Application made
for permission to withdraw with liberty to bring
fresh suit on same caiw of action — Permission
granted — No mention made about liberty to bring
suit— Liberty to bring fresh suit will be deemed a*
granted.
Where an application is made by a plaintiff to
withdraw from a suit with libarty to bring a fresh
suit on which an order is passed giving the per-
mission to withdraw from the suit, although
nothing is said in the order as to the plaintiff's
liberty to institute a fresh suit on the same caua6
of action, that order ought to ba read along with
the petition and construed as granting permission
to file a fresh suit j 35 Col. 900, Foil. [P 260 0 1]
S. K. Mittei — for Appellant.
G. S.JPrasad — for ^Respondents,
Da«, J. — I am unable to agree with
the view taken by the learned Judicial
Commissioner. The plaintiff instituted
a suit for arrears of rent and the defence
which found favour with the learned
Judicial Commissioner, was that the suit
was barred inasmuch as the plaintiff 8
instituted a previous suit in respect of the
same cause of action, but withdrew it.
It appears that in the previous suit the
plaintiffs presented a petition for liberty to
withdraw from the suit with permission
to bring a fresh suit. The Court, how-
ever, gave the plaintiffs permission to
withdraw from the suit, but did not in
terms give them liberty to ." bring a fresh
suit. The learned Judicial Commissioner
300 HM** MATHITRA PEASAD v. JAGHSWAB FBASAD (Adami, J.)
ta&B the view that the order operated as
a refusal of the permission. With this
view I ana unable to agree. There 4a a
decision of the Calcutta High Oourfc which
is to the effect that where an application
is made by a plaintiff to withdraw from
a suit with liberty to bring a trash ifeit
on whiqb an order is passed giving the
permission to withdraw from the suit al-
though nothing is said in thp order as to
the plaintiff's liberty to institute a fresh
suit on the same cause of action, that
order ought to be read along with the
petition and construed as granting permis-
sion to file a fresh suit ; See Golam
Mdhamed v. Shibendra Pada Banerjee (I)/
This view was accepted by the Madras
High Court in * Narayana Tantri v.
Nagappa (2).
It appears that there were pther points
which were not dealt with by the learned
Judge. It is true that the learned Judge
says that this was the only point pressed
before him, but the learned vakil for the
respondent says that it was unnecessary
to press other points because the learned
^Judicial Commissioner accepted the con-
tention that the suit was barred.
I would allow the appeal, set aside the
judgment and the decree passed by the
learned Judicial Commissioner and
remand the case to him to be disposed
of according to law. The appellant is en-
titled to the costs of this appeal.
Costs incurred in the Court below
will be costs of the appeal which will be
determined by the learned Julioial
Commissioner.
RpS«> J.— • I agree.
Appeal allowed.
(1) [1908] 35 Cal. 990-12 C. W. N. 993.
(2) [1918] 34 M. L. J. 515 (F. B.).
A. I. R. 1926 Patna 260
ADAMI AND KULWANT SAHAY, JJ.
Maikura Prasad Singh and ott era-
Defendants — Appellants.
v.
Jageswar Prasad Singh — Plaintiff —
Bespondent*
Appeal No. 87 of 1928, Decided on 8th
January 1926, from the original decree of
the Snl, 8ub-J., Palamau, D/* 18th V&hr-
mry " r
Chota Jfeffwr Encumbered XstaUt Act (6 of
1876, before amendment by Act 8 B and 0. <?., •/'
19#y, $. «v Cl. (I) **4 S, 12, Cl. W-^&ck*** of
payment of debts by manager, and typrwal 'of
Khtme by Cowmlstianer—Ftrtod during
e$tatt 1$ under protection und*r
Estates Act Is excluded In computing
Manager Incut* no liability In df awing up pjheme
•—Determination of debt by manager Is not judi-
cial decree.
Tfcaro is no doubt that the Act, is Inartiafcip in
its drafting. Too strict interpretation, cannot be •
placed on 8. 12. It could never have b,ean in
contemplation of the Legislature that the mere
approval by the Commissioner of a scheme should
for over deprive all creditors of 'redress. Tbe tot
clause of S. 3 becomes ineffectual when the vest*
ing order itself is cancelled by a subsequent noti-
fication by merely drawing up a scheme for pay-
ment. The manager does not make himself liable
to creditor since there is no contract between the
manager and the creditor. The determination of
a debt by the manager is not a judicial proceed-
ing and his decision as to what the debt is does
not amount to a decree. The word " bar " in
regard to pending proceedings in Cl. 1 of 8. 3
means that all pending proceedings shall be
stayed. [P. 2654, 0. 1, » '
Ganga Charan Mukerji — for Appellants.
S. M. Mullick and Hareshwar Prasad
Singh — for Eespondent.
Adami, J.— Thi3 appeal arises out of
a suit for the recovery of Es. 20,705-7-1
as principal and interest due upon a-
handnote executed by Defendant No. 1
as karta of the family on behalf of 'him-
self and his brother Defendant No. 2.
The handnote was executed in favour of
the father of the plaintiff on the 18th of
October 1902, for a sum of Eg. 6,198.
The loan was taken for the purpose of
meeting the cost of litigation and saving
the joint family property. On the 18th
of June 1904, the defendants applied^ tp
the Deputy Commissioner for protection
under the Qhota Nagpur Encumbered
Estates Act, and on the 30th of Optober
1904 an order was passed vesting their
estate under a manager under the provi-
sions of the Act. The order was pub-
lifched in the Gazette on ttje llth of
January 1905. After publication of the
order the manager called upon the cre-
ditors to submit their claims. The de-
fendants in their application had given
a list of their debts and the second item
in the schedule is this debt of Rs. 6,198
on the bond of 18th of October 1902.
Interest at 1 per cent, per month
risen to BS. 829-11 and the
was Rs.' 7,027-il. The appUofttion. was
signed anfl verified by bptb tb
ants, the manner prpoeeded
mine the cUims upflej* S. 8 of Act VI pf
1878 and tne defendants admitted the
The m^n^er fcb^eafter drew up
for the repayment of this debt
of Bs* 6,198 ap^. interest Be. 914,, That
sobers, is 5x. 4. The scheme was sub-
mitted to the Commissioner under S. 11
-of tbs Act and was approved by him.
Aoqording to S, 11 a scheme H when
approved by the Commissioner shall be
-carried into effect;/' I am referring to
A0t VI of 1876 as it stood before the
Amending Act, Pehar and Orissa Act, VIII
of 1932. Tbp manager, however, failed
to carry out the scheme so far as it
affected this debt, and no money was
received from him by the plaintiffs.
On the 21st of June 1921 the estate
was released from the operation of the
Act by notification under order from the
Board of Revenue. The notification was
published in the Gazette on the 13th of
July 1921. The notification did not
state under what section the release was
ordered. It merely stated that the pro*
visions of the Act had ceased to apply
to the proprietor of the estate. There-
of ter the plaintiff, Lain Jageshwar Praead
Singh, instituted a suit out of which
this appeal arises on the 9th of May 1922.
The plaintiff claims that the period
during which the estate was under pro-
tection of the Act should be excluded
jn computing limitation. The plaint also
alleges that the defendants admitted the
$ebt both when they submitted their
application for protection and also when
the manager was determining the claim.
The defendants pleaded that the suit
was barred by limitation and that there
was no legal necessity for the loan in
1902. Defendant No. 1 admitted exe-
cution of the handnote, but denied that
-consideration had passed. He alleged
that in 1904, when he was intending to
apply for protection under the Chota
Nagpur Encumbered Estates Act, know-
ing that he had a daughter to marry and
that it would be hard to obtain money
frooi the manager, he executed several
handnotes in collusion witE and in favour
of various relatives, so that those relatives
might submit claims to the manager and
£$t the money from him and make the
mpney over to the defendant so that he
could spend it on his npc$g8*ry expepsei,
Defendant No. 2 denied that he was any
p^rty (p fche loa,n, pr fty$ Defendant
Jfo, 1 bflrrqwed tfr* nipnpy f
He *H00g£ .*§( fee
from Defendant No, 1 and wag
not bound by the handnote.
The learned Subordinate Judge con-
sidered with great care the question
whether th$ period during which th$
estate was under protection could be ex-
cluded when computing the period of
limitation. He noticed that the second
clause of S. 12 of the Act does not oxeet
the present case, because the estate was
released after the Commissioner had given
approval, and, therefore, the provisions of
the sixth clause to that section could not
be applied to the case in tfoeir strict
interpretation ; but he found himself
unable to put a strict interpretation up*
on the section and found that the sixth
clause provides in general terms for all
cases where the estate is reused from
management, before the debts have been
paid off. He held that S. 12 applied to
the case and that the plaintiff was en*
titled to the benefit of the section. He
also found that the provisions of S. 15 of
the Limitation Act applied and enabled
the plaintiff to exclude the period of
protection, He disbelieved the defend-
aht's story about the absence of Considera-
tion and also the story about the taking
of the money in order to provide for the
defendant's daughter's marriage. He
held that Defendant No. 1 borrowed the
money a<* karta of the joint family for
the purposes of the family and that De-
fendant No. 2 was liable. He decreed
the plaintiff's suit.
]$r. Ganga Char an Mukherji has argued
this appeal with great ability op behalf
of the defendants-appellants. The main
part of his argument has been devoted to
the question of limitation. The three
questions which arise under this head
are : Whether S. 12 of the Ohota Nag-
pur Encumbered Estate* Aefc, 01. 6,
saves the suit from being barred by limi-
tation ; secondly, whether if 8* 12, 01. 6
does not apply, S. 15 of the Limitation
Aot applies ; and, thirdly, whether there
was such aoknpwledgment by the defend-
ants ag would save the suit from being
barrel by limitation. Mr. l^ukhprji has
tpken us through the sections of the En-
cumbered Estates Act and hia argument
is that the first clause ot S. 3 of the Act
is an absolute bar to ail proceedings and
suits *ftpr j$# puWie**iofl pf a a
uo4*r $. 2 ql *hf &>tf IfeiqMi
that the sixth pjftu** $f & J3 rofcr*
262Palna MATHTTSA PRASAD v. JAO^SWAR PBASAD (Adami,!)
to release covered by 01. 2 of the section,
that is to say .
If the Commissioner 'at any time before a
scheme has baen approved by him under 8. 11
thinks that the provision* of this Act should not
oontinue to apply to the casa of the holder of the
uaid property or his heir.
In the present case the estate was re-
leased after approval of the scheme by the
Commissioner, and, therefore, the sixth
clause cannot apply and there can be no
revival of claims. His contention is
that the first clause of S. 3, which is the
bar to all proceedings still holds good
even though the estate has been released
because sub-01. 6 of S. 12 does not apply
| in the circumstances of this case. There
is no doubt, as has been often remarked,
that the Chota Nagpur Encumbered
Estates Act, 1876-; is inartistic in its
drafting. That this has been recognized
with regard to such circumstances as we
find in the present case is shown by the
amendments made by the legislature by
the Bihar and Orissa Aot, VIII of 1922,
whereby in S. 4 the following words
have been added to the second clause
ofS. 12:
Or i! after the scheme has baeu HO approved
an application is made under S. il*B, for the
relinquishment of the property.
The framers of tho Act do not seem to
have contemplated that when a scheme has
once been approved and has to be carried
into effect under S. 11, there could be
release under any circumstances other
than those mentioned in the first three
clauses of S. 12, and as the Act stood before
the amendment of 1922 the strict word-
ing of the Act seems to show that no
revivor was contemplated 'in circum-
stances other than those mentioned in cl.
2 of S. 12. The learned Subordinate
Judge has, I think, taken the right view
in holding that too strict" interpretation
cannot be placed on S. 12,
S. 3, it is true, states that on the pub*
lioation of order under S. 2 all pending
proceedings shall be barred and all pro-
cesses, executions and attachments for or
in respect of debts and liabilities shall
become null and void, whereas the second
and third clauses are limited in their
operation to the period during which
such management continues. It is con*
tended that save in the case mentioned
in S. 12, 01. 6, the bar shall be absolute
and that fco procees or execution or'attach-
ment can, after the publication of an order
under 8. 2, be served dr made.
But surely when the order itseff is
cancelled -by a subsequent notification,;
the effect of the first clause of S. 3 dis-
appears. It could never have been in
contemplation of the Legislature that the
mere approval by the Commissioner of a
scheme should for ever deprive all credi-
tors of redress. But I think it is quite
clear that, even 'were it to be held that as'
the Aot is drafted no revivor of proceed^
ings is allowed, the provisions of S. 15
of the Limitation Act must apply.
Though the word " bar" is used with re-
gard to pending proceedings in 01. 1 of
S. 3, its real meaning is clearly that they
should be stayed, for 01. 6 of S. 12 shows
that in certain circumstances proceed-
ings may be -revived. In the present
case we have not to do with proceedings
which were pending at the time the-
notification was published; the question is
whether any process can issue or any suit
be instituted after the order of release.
01. 1 of S. 3 states that processes* exe-
cution and attachments shall became-
null and void on the publication of- an
order under S. 2.' After' that order- has
been cancelled, there is no bar to any
process, execution or attachment ; there
has really been merely a stay. The order
under S.2 bringing the estate under protec-
tion was a vesting order staying all pro-
ceedings, and under S. 15 of the Limi-
tation Act I am satisfied that there
should be a revivor, the period of pro-
tection being excluded. I would refer to
the case of Raja Jyoti Prasad Singh Deo
v. Ranjit Singh (l). • It is true that there
Das, J., did not consider the difficulty
which we have now before us with regard
to the wording ;of 01. (2) of S 12 ; but
it may be that in that case the point did
not arise, The general principles, however]
are given as to the right of revivor. I and
quite satisfied that the plaintiff is entitl-
ed to exclude the time during which he
was barred from suing on the debt due
to him by reason of the estate being
under protection. Mr. Mukherji has
argued that after the manager had exa-
mined the claim and had judicially deter-
mined the debt under S. 8 of the Act*
the plaintiff could have sued the manager
within three years of the determination •
of the debt ; but I think1 that this con-
tention cannot in any way be upheld, for
under the wording of 01. 1 of S. $•
any such suit would be barred. Secondly'
(1) A, I. R. 1982 Patna 23T, ' ~
1986
JHAPSI SAO v. ALIMAN
Fata* 963
it is contended that when the manager
heard the claims and determined the debt
and thereafter drew up * scheme, he' wAs '
in fact contracting with the plain-
tiff to pay the debt in a certain manner
and within a certain time ; and when in
1916, which was the last date of payment •
under the scheme, he had failed to pay to
the plaintiff, the plaintiff might have
sued him on the contract ; hut it is clear
that iq a case like this there was no con-
tract between the manager and the plain-
tiff. The manager determined the scheme
without reference to the wishes of the
plaintiff. Thirdly, it is argued that even,
if a suit In respect of such determined
debt was barred during the period of
management, what would revive after re-
lease from management would be the debt
determined by the manager and not the
original debt. In the present case
the manager 'determined the ori-
ginal debt to be due but decid-
ed that he would pay interest at 6 per
cent, and not at 12 per cent, per annum.
After the release the whole scheme came
to nothing and anything arranged in the
scheme would not affect the revival of
the original debt at the original rate of
interest, Mr. Mukherji would have us
hold that the determination of a debt by
tfye manager is a judicial proceeding and
his .deoisitn as to what the debt is
amounts to a decree. But here the orgi-
nal and determined debts are exactly
the jsarae and so the point does not arise.
I must hold that the plaintiff was entitl-
ed to exclude the period of management.
It is certainly hard on the defendants
that their debts should have been allowed
to accumulate for so long a time as 19-1/2
years : but it has to to be remembered
that through the protection of the Act
the defendant's property has been pre-
served.
The plaintiff has also suffered in not
being able to obtain repayment of the
debt during so long a period. The debt
would be barred, even if the period of
management were excluded, if the
defendants had not in 1904 acknowledged
their indebtedness. The schedule to their
application in 1904 cites and admits the
debt. That application is signed and
verified by both the defendants. Again
when the debt was examined by the
manager tinder 3. 8 the Defendants both
admitted it, and in his written statement
Defendant No. I acknowledged that he
admitted the cfebt before the manager.
These acknowledgment save the claim from
the bar of limitation. (His Lordship then
discussed the findings regarding passing
of consideration and legal necessity and
proceeded). I can. see no reason1 to differ
from finding arrived at by the learned
Subordinate Judge, and I would, therefore,
dismiss the appeal with costs*
Kulwant Sahay, J,— I agree.
Appeal dismissed.
A. I. R. 1 926 Patna 263
DAS AND Boss, JJ.
Jhapsi Sao and others — Plaintiffs — '
Appellants.
v.
Bibi Aliman and others — Defendants
— Respondents.
Second Appeals Nos. 55, 116 and 263
of 1923, Decided on' 1st December 1925,
from a decision of the Dist, J,, Patna,
D/- 9th November 1922.
Bengal Tenancy Act (8 B.C. of 1885 ), 8. 22
(2) — Collectorate partition after purchase of rat-
yatt folding by acpVwm-— Allotment as bakasht
land to takhta of another co sliarer— Partition
does not take away privilege 4f purchasing co-
sharer— Bengal Estates Partition Act (5 B. C. of
1897), 8. 119 to no bar.
The fact that revenue [authorities allotted car-
taiu lands as bakasht lands does not estop the oo-
sharer holding direct possession of the said lands
under 8. 22 (2) from continuing to hold them in
hia khas occupation on payment of rent to the
cof sharer to whose takhta it has been allotted.
Such a defence IB not barred by S. 119 of the
Bengal Estates Partition Act sj.nce the allotment
made by the 'revenue officers is not contested.
8. 22 (2) confers a privilege on the purchasing co*
sharer which is in derogation of the common law
right of the other co- sharers as stated in the judg-
ment of the Judicial Committee in A. I. R. 1924
P. C. 144. Partition only removes the necessity
for the limitation on the effect of the purchase
and would set free the holding to be operated'
upon by the ordinary provisions of the law, la
other words, 8. 22 (2; imposes a limitation on the
rights of the co-sharers for the benefit of the pur-
chasing co-sharer, and there is no reason why
this limitation should be removed by reason only
of a partition taking place: A. L B. 1925 Pat*
547, Appr. [P 365 C 1, 21
P. C. Mawk and S. M. Mullick—to*
Appellants. »+
Sultan Ahmed, Hassan Jan and Ah*
mad Baza — for Bespondents.
Facti.— These three appeals were
directed against the judgment of the
learned District Judge of Patna affirming
JHAPSI SAO v.
a decision of the Subordinate Judge in
suite brought by the plaintiffs for recQ"
very: of possession of certain lands as
being bakasht lands to which they were
entitled as the result of a partition. Mauza
Dariapur Hasan was originally an estate
bearing Tauzi No. 68 in the Fatna Col*
Jectorate. It was first partitioned in the
year 1901, and on that partition one of
the takhtas created was a takbta of 14
annas 10 dams which became Tauzi No.
5146. One of the proprietors of that
estate was Dr. Abdulla. The record
of rights was finally published on the
22nd of February 191J when the lands in
suit were recorded as bakasht lands sub-
ject to the incident that they were held
by the defendants by virtue of purchase
on payment of a proportionate share of
rent to their cosharers ; that is to say,
as being held under S. 22 (2) of the
Bengal Tenancy Act. In 1912 further
partition proceedings in respect of Tauzi
No. 5J46 began and certain orders were
passed by the Board of Revenue which
will be referred to later. The share of
Dr. Abdulla became Tauzi No. 5146 (pew)
and this 'estate was subsequently sold to
the plaintiffs. The plaintiffs brought
these suits to recover possession
of the lands held by the defendants, The
Courts below held concurrently that the
lands in suit were acquired by the defen-
dants or their ancestors by purchase.
There was no finding that the lands were
acquired by the defendants or their pre-
degessors before they became cosharers
in the village. The learned District Judge
held that on this finding the defendants
were entitled to continue to possess the
lands on payment of rent under S. 22 (2)
of the Bengal Tenancy Act, and that
they were not liable to be ejected from
cultivating possession.
ROM, J."— (After stating facts as set
out above hie Lordship proceeded). The
contentions on behalf of the plain-
tiffs-appellants are : first, that the defen-
dants are estopped by the judgment of the
Board, of Revenue in the partition pro*
oeedings from claiming to retain posses-
sion of these lands; secondly, that the
claim of the defendants is virtually one
contesting the allotment made by the
Board of Revenue and eannot be enter-
tained under 8. 119 of the Estate Parti-
tion Act ; and thirdly, that the
tion of these holdings.'by the de
a? ep-proprietora
(B**,J.)
the benefit of all tip proprietors and that
they were not entitled to retain posses-
sion of the lands after partition of the
estate, the plaintiffs' remedy against ex-
clusive possession by any coghargr being
a suit for partition. The first two ^con-
tentions do not call for any detailedrcon-
sider^tion. It is true that the defendants
gave up their claim that these
lands were raiyati lands, in the partition
proceedings, and that the lands were
allotted as bakasht lands by the Board
of Revenue in order to equalize the
amount of bakasht lands held by the
different proprietors in the different
takhtas ; it is true that the judgment of
the Board of Revenue shows that the
allegation that lands were raiyati lands
was not pressed before the Board, but
there is nothing to show that the defen-
dants ga've UP the position recorded in the
record of rights that they held the lands
under S. 22 (2). The order of the Board
of Revenue was that if the arrangement
suggested in the judgment could be made
without any valid objection, effect should
he given to it ; otherwise the existing
arrangement would have to stand. It
appears that effect was given to the
arrangement suggested and the partition
was confirmed.
Subsequently it was brought to the
notice of the revenue authorities that
there had been a misunderstanding and
that the lands which were allotted
as bakasht were not lands of which direct
possession could be given. But as the
partition had been confirmed, nothing re*
suited from these subsequent prgqeedings
except certain pious observations. The
contention of the learned pouusai for
the appellants is that the judgment
of fche Board of Revenue gave them a
clear title to direst possession of these
lands and that the subsequent proceed-
ings were ultra vires. The *ubsequepfc
proceedings were without any effect and
difl not purport to effqct anything. But
the judgment of the Board pf Bevenue
whether due to a i^isunderrtwding or
not, could not take away any title to the
possession, qf these lands which wag in
the defendants, and did not purmrf to flp
so. Strictly speaking all that it declared
was that the lands were takasbt U*u}&
and this is not denied. JJut whether they
werg bafcvaht lapds Q{ which direct pos-
wonjd be given to the proprietor
th* tekhta iu whfch they
SAOV.
,. I on partition is another Question
^altogether and is unaffected by the judg-
.ment of the Board of Revenue. Nor do
Fsee how S, 119«of the Estates Partition
Act can assist the appellants. That is a
section which bars certain suits and it is
not available to the plaintiffs in these
actions and to argue that the defence is
in effect contesting the allotment made
by the Board of Bevenue is in my opinion
begging the question at issue.
The main argument on behalf of the
; appellants rests on certain observations
of the Judicial Committee in Midnapore
Zamindari Company Ltd. v. Naresh
Narayan Hoy (l) where it is said that
partition is the remedy which a co-
owner has if he and his other co-owners
cannot agree as to how the lands which
they hold in common should be manag"
-ed ; and further:
'* if the Midnapore Company has in fact been
cultivating any of these lands, it cannot by such
separate use of the lands have acquired any jote
rights in them. Even if the Midnapore Company
purchased any jote rights in lands held in com-
Bion by the cosharers, such a purchase would in
law be held to have been a purchase for the bene-
fit of all the cosharers, and the jote right BO pur-
<5ha/*n would by the purchase be extinguished."
Now this general statement of the law
must be read subjerft to the provisions of
S. 22 (2) of the Bengal Tenancy Act,
where the consequences of the purchase
of an occupancy holding by a person
jointly^interested in the land as proprietor
are enacted. Learned counsel relies on
the language of that sub-section and con-
tends that if it be construed strictly it
has no application after partition occurs.
'The section enacts that a co-proprietor
acquiring an occupancy right in land
" shall be entitled to hold the land subject to the
payment to his co-proprietors ...of the shares of
the rent which may be c^m ^unc to 1 ime pay-
able to them."
He argues that as from the moment of
partition there are no longer any co-pro-
prietprs, the sub-section ceases to have any
pperaWon ; &ud the land must be treated
as ordinary bakasht land falling to the
Direct possessipn of the proprietor of the
takhta to which it is allptted. In princi-
ple! dp not see 'why this ponsequenqe
^hould oneme. S. 22 (§) ppnfers a privilege
PR the purchasing cp$Jjarer which is Tp
aerogatipn pf the Qommpn law rigbfc pf
toother gosharer* ** stftte4 in tbe judg-
manfc Qf the JuOj<ua4 Cpmmitto, quoted
k \M^^ ftw > fe
.» (Boss, J J
265
partition tp take away that privilege.
On the contrary it would appear, that the
partition only removes the necessity for
the limitation on the effect of the pur-
chase and would set free the holding to be
operated upon by the ordinary provisions
of the law, In other words, Section
22 (2) imposes a limitation on the rights
pf the cosharers for the benefit of the
purchasing co-sharer ; and there is no
reason why this limitation should be
removed by reason only of a partition
taking place. That no undue stress is
to be laid on the word "co-proprietors'
in the sense contended for by the
appellants would appear from the
decision of this Court in Bambahadur
Lai v. Gungora Kuer (2) where the
status conferred by S. 22 (2) was
discussed and it was held that the
status created was a peculiar status
which attached to the cosharer so long
as he remained a co-sharer ; it was held
that when the cosharer parted with
his interest in the estate he lost the
right to retain land under that section.
But in referring to the decisions where
it had been held that on partiGiou the
purchasing cosharer was entitled to
retain possession of land recorded in
his name under S. 22 (2) of the Bengal
Tenancy Act, Kulwant Sahay, J. said,
"in these cases the interest of the co-sharer who
had purchased the holding 4id not oease, he
continued to be the proprietor after the partition
and hence it was held he was entitled to retain
possession."
His right to possession was therefore^ nptf
limited to the period of the oo«prpprietpr-
ship.but continued because the eo-proprie*
tor continued to be a proprietor (thpugh
of another takhta) after the partition.
The authorities bearing directly on the
question are conclusive in favour of
the respondents. In Ram Prasad v, Qo,pal
Chand (3) the precise qu,esti(jn, spw
under consideration was dealt with and
it was held that the defendants could
not be ejected from such lands upon
partition, and that the legislature never
intended nor did the language of section
22 (2) give rise to the interpretation
that the co-proprietor acquiring an
occupancy holding by purchase, although
entitled to retain possession on payment
of rent to his cosharers, must give ifc
up the moment the estate in which
is partitioned aigtong
(2) A. I. R, 1925 Pitpa
(3) [1921J 2 P. L. T, W3
266 Patna
ISHWARDAS V. BlSESWAR LAL (Das, J.)
the co-proprietors. The same view was
taken in Nandkishore Singh v. Mathura
Sahu (4) where the argument that the
purchasing co* proprietor's ceased to
be co-proprietors after the partition
and that the partition effected a
complete change in the status was dealfc
with and was negatived. A similar view
was taken in Basdeo Narain v. Eadha
Eishun (5), a case which dealt with
8. 22 (2) of the Act as it st6od
before the amendment in 1907. In
that case their Lorships observe as
follows:
Now if this bo correct, something must happen
subsequent to the acquisition of the holding
by the cosharer landlord to put an end to the
holding. It is suggested that the partition
between tho cosharer landlords puts an end
to the holding; but in my judgment there is
no foundation for this argument in the Bengal
Tenancy Act and we have not been referred
to any cases which support the argument put
before us by the learned vakil appearing on
behalf of the respondents.
Learned counsel for the appellants
relied on the decision in Qitamnddin
Khan v. Ramyad Singh (6) as laying
down a different principle. Now that
case was expressly deckled on the ground
that it was not a case under S. 22
(2) of the Bengal Tenancy Act, and the
decisions referred to above, which wero
considered, wore not dissented from but
were1 distinguished precisely on that
ground. The lands in that case were
treated as ordinary bakasht lands of
the maliks without more, which on
partition would necessarily go to the
proprietor of the takhta to which they
were allotted.
On the principle and on authority I
am of opinion that the dscision of the
learned District Judgo in this case was
correct and that the appeals should be
dismissed with costs.
Das, J.— I agree.
Appeals dismissed.
(4) A. 1. R. 192^ Patna 193.
. (5) A. I. K. 1922 Patua 62.
(6) A, I. R. 1922 Patna 354.
* A. I. R. 1926 Patna 266
DAS 'AND FOSTER, JJ.
Ishwardas Manvari and another — Judg-
ment-debtors— Appellants.
v.
Biseswar Lai Marwari and others — -
Decree-holders — Respondents.
Appeal No. 256 of 1924, Decided on
30th November 1925, from an order of
the Sub-J., Manbhum, D/- 16th August
1924.
% (a) Civil P. <?., 0. 21, R. 92— Notice— There
is no limitation for notice under the rule.
Art. 16G of the Limitation Act provides a
period of 30 days for ac application to set aside
a sale in execution of a decree. There is no
limit of time under the Limitation Act for
serving notices upon the persons affected by the*
order under R. 92 : 4 P. L. T. 491, Foil.
.[P 267 C 1}
#(&) Civil P. C.t 0. 21,Rr.9Qand&2—AlL
parties affected by an application under R. 90
need not be parties to the application, but tliak
they should have notice.
It is not necessary to have all the parties
affected by the application as parties to the
application. Tho whole object of the rule is to
provide that no adverse order should be passed iu
the absence of the persons affected by the order,
and R. 92 protects all tho persons who may be
affected by an adverse order. As an application-
under 0. 21, R. 90 is in tho suit itself, all the
decree-holders are already parties to the proceed-
ing; the auction-purchaser is the only person
who is not a party to the suit. [P 267 C 21
S. C. Mazumdar and B. P. Varma—
for Appellants.
A. B. Mukherji and 17. N. Banerji—
for Bespondents.
Das, J.— Biseswav Lai Marwari,
Begraj Marwari and Kissen Lai Marwari
obtained a decree for R. 33,587 as against
the appellants, and 'in execution of the*
decree put up to sale the property which
is the subject-matter of the present
application. At the auction sale, the
property was purchased by the decree-
holders as also by one Salegram Marwari.
The sale took place on the 23rd and 24th
June 1924. On the 23rd July an ap-
plication was presented on behalf of th»
appellants under the provision of O. 21,
B. 90 of the Code for setting aside ^the
sale. In the cause title of that applica-
tion Biseswar Marwari and Salegram
Marwari appeared as the opposite party.
A -point was taken before the Court
below that the application was nod
maintainable inasmuch as two of tha
decree-holders were not made parties to*
the application. The point found favour
with the learned Subordinate Judge
1926
SHEO PHA.SAD v. EMPEROR
Patn* 26?:
with the result that he dismissed the
application without investigating the
merits of the case. Hence the appeal to
this Court.
Article 166 of the Limitation Act pro-
vides^a period of^SO days for an application
to set aside a sale in execution of a decree.
The article refers to the application
under 0. 21, R. 90 of the Code which
provides for an application to set aside
a sale on the ground of material irregu-
larity or fraud in publishing or conduc-
ting it. E. 92 provides that no order
shall be made by the Court 'until notice
of the application has bean given to all
persons affected • thereby. The learned
vakil -appearing for the- appellants con-
tends that there is no limit of time under
the Limitation Act for serving notices
Upon the persons affected by the order
and that the learned Subordinate Judge
•should have acceded to his application
for having notices served on '.the decree-
holders. In my opinion the contention
is right and ought to be upheld. This
view has been taken both by the
Bombay High Court and in our Court.
In Ganesh Bab Naik v. Vithal Vaman
Mahalaya (l) the auction-purchaser was
not made a party to the proceedings
under O. 21, 'R. 89 of the Code, and it
was contended that the application was
not maintainable in the absence of the
auction-purchaser. Scott, C. J., with
the concurrence of Chandavarkar, J., in
dealing' with the point said as follows :
The first point in this appeal is a preliminary
point taken by the auction-purchaser that he
was a necessary party to the ^application of the
judgment-debtor under 0. ^21, R. 8{J and that
the application is bud as he was nut made a
party to it within thirty days. The contention
is based upon the decision of the Allahabad High
Court in All Gauhar Khan \. Bansldhar (2).
The point, however, is now provided for by the
Civil Procedure Code of 1908. ^ 0. 21. R, 92,
which says that where in the case 'of an applica-
tion under R. 89, the deposit required by that
rule is made within thirtv days from the date of
sale, the Court shall make an order setting aside
the sale, provided that no order shall ba made
unless notice of the application has been given
to all persons affected thereby.
A similar view was taken by this Court
in Mt. Bibi Zainab v. Paras Nath (3).
The decision of this Court is binding on
us, and it is a decision with which I
entirely agree. The learned advocate
appearing on behalf of the respondents
(1) [1913] 37 Bom. 387=15 Bom. L. R. 244.
(2) [1893] 15 All. 407=(1893) A. W. N. 173.
(3) A. I. B. 1924 Patua 37; -
contends that an application under
O. 21, E. 90, cannot be 'entertained by
the Court unless all the persons affeotfd
by the application are named in the-'
cause title. With great respect, I think,
that R. 92 meets the objection com-
pletely. There is no particular meaning
in.the contention that it is necessary tc
have the parties affected by the applica-
tion as parties to the application. The
whole object of the rule is to provide
that no adverse order 'should be passed
in the absence of the persons affected
by the order, and K. 92 protects 'all the
persons who may be affected by an ad-
verse order by provid ing that :
no order shall be made unless notice of the
application has b^en given to all pjrsou*
affected thereby.
In one sense all the decree-holders
are already parties to the proceeding ; for
an application under 0. 21, R. 90 is an
application in the suit itself and there-
fore it seems to me that they are all
parties to the 'proceeding. The auction-
purchaser is the only person who is not
a party ,te the suit ; but so far as the
auction- purchaser in the present case is
concerned, he was cited as an opposita
party in the proceedings under 0. 21,
R. 90. In'my opinion the learned Subor-
dinate Judge should have acceded ta
the application of the decree-holders and
issued notices upon those decree- holders
who were not named in the cause titla
as the opposite party.
I would accordingly allow the appeal,.
set aside the order passed fby the Court,
below and remand the case to that Court
for disposal according to law. Costs are
reserved and will be dealt with by the'
learned Subordinate Judge.
Let the record be sent down at once.
Foster, J. — I agree.
# A. I. R, 1926 Patna 267
ADAMI, J.
Slieo Prasad and others — Accused —
Petitioners.
v.
Emperor — Opposite Party.
Criminal Revision No. 25 of 1926r
Decided on 18th February 1926, against,
an order of the Judicial Commissioner
Ranch;, D/- 21st November 1925.
SHEO PBAS&P *.
# Penal Code* 8. 415— Merely taking, thupib*
impression on a blank piece of paper Is not suffi-
cient.
Mere taking thumb-impression, on a blank
piece of paper is not .sufficient to prove an inten-
tion to use the paper dishonestly and does not
constitute an offence under 8. 415. [P 269, C 1]
Rai Guru Saran Prasad and S. R. Sen
Gupta — for Petitioners.
Judgment .—The Petitioners Nos. 1
and 2 were convicted in the trial Court
•under S. 417 read with S. ^ 511 and
sentenced to rigorous imprisonment
for three months and a fine of Es, 50
each ; the third petitioner, a constable,
was sentenced to three months' rigorous
imprisonment with a fine of Bs. 20
under S. 417 read with S. 114 of the
Indian Penal Code, On appeal the convic-
tions, under S. 417 read with S. oil, of
the first two petitioners have been
changed to convictions under S. 417 ;
the conviction of Petitioner No. 3 under
S. 417 read with S. 114 wag maintained.
The sentences have been maintained.
The Petitioner No. 1 is the landlord
of village Narekela and Petitioner No. 2
is his relation.
There had been a paddy looting case
in the village and the sub-Inspector,
accompanied by the constable, Petitioner
No. 3, went to the village in order to
take recognizance from certain tenants
who were to be witnesses in the case.
The Sub-Inspector stayed at the house
of Petitioner No. 1. The witnesses were
called to that house to give recognizance
to appear. The Sub- Inspector was ait-
ting in the room, and the first and second
petitioners as well as the constable were
also there. Before thumb- impressions
were taken on the recognizance bonds,
it was suggested that it would be well
first to test the ink with which the im-
pressions were to he taken. The wit-
nesses were therefore called forward to
give their sample thumb-impressions on
u blank piece of paper ; one of them re-
fused, bmt the otfem allowed the con-
stable to ink their hands, and their
impressions were taken on the blank
piece of paper. The Petitioner No. 1
supplied the paper, and after the ipr
pressions were put on it took it away.
The next day the witnesses, who had
put their fchumpnmpreseions OB the
w$pt to their padree, the Jfev.
Bpdson, J*utf toltf hiin whftt
..I ^xpi^ed fco Mm &
that the landlord, with whom fctuair
(A4»mi, J.)
lotions were strained, might use, the
blank piece of paper with the tfctu»b-
impressiops upon it for the purpose of
bringing a case against them. Tbe padre
went to the police station and told the
Sub-Inspector the fears of the villagers
and tba Sub-Inspector promised to get
the paper back. Nqxt day the constable,
Petitioner No. 3, was sent to the village
from the police station and recovered
the blank piece of paper from the peti-
tion^r NQ. 2 and tore away from it the
portion containing the thumb impres-
sions. The thumb impressions
taken on the 28th November
Npthing more was done till the 13th
February 1925 when the Sub'Pivisional
Officer of Gumla went on tour to the
village. There he was told by the ten-
ants that they were frightened that th.9
Petitioner No. 1 might inake use of the
document on which thw had put their
thumb-impressions. Their statement
was taken and was treated as a com-
plaint, and proceedings were started
against the three petitioners, and they
were convicted of an attempt to cheat
and, in the case of Petitioner No. 3,
of an abetment of the offence of cheating.
An appeal was made to the Deputy
Commissioner, Kanchi. He held that
the facts showed, not an attempt to
cheat, but a substantive offence of cheat-
ing and altered the convictions accord-
ingly.
The learned Judicial Commissioner
was then moved to refer the case to this
Court, but he refused ; for he found that
the appellate Court had come to the
right conclusion in finding that the
petitioners had committed the offence
of cheating.
The prosecution case was that the pe-
titioners intended from the first to
Qbtain f?om the tenants thumb-impres-
sions on a blank piece of paper by re-
presenting to them that the reason for
taking $he thumb-impressions was in
order th$t the ink to be used might be
tested, and that their dishonest or
fraudulent intention was afterwards to
convert the blank piece of paper into
sqtne document which they Bright use
against $he tenants for their own end.
Bqth the Qourts below h%ve fpund
that the acfcipn of the petitioners
amounted to more th$n a p*$p$r^ipn for
the offence, ^vid^ntiy tn*e Courts held
that the netitionew fraudulently or dis-
ffttt
honestly deceived the tenants, »ni
intentionally induced them to put their
thumb-iHapreasioos on the btaak paper,
an action which they would not have
taken if they had not been deceived by
the petitioners ; also that the action,
which the tenants were deceived into
taking was likely to cause damage
or harm to the tenants in body, mind,
reputation or property. Tbere can be
no doubt that, if the petitioners had
this fraudulent or dishonest intention
and deceived the tenants and thus in-
duced them to give their thumb-impres-
sions, on the wording of S. 415 the
offence of cheating would be complete
when the action was taken. But there
are elements in this case which, to my
mind, cannot bring the action of the
petitioners under the purview of S. 415.
In the first place, with regard to the
intention, it is assumed that the peti-
tioners intended to convert the blank
piece of paper into some written in-
strument and to use it for their own
purpose dishonestly. Had the petitioners
gone one step further and made any entry
on the blank piece of paper, if they had
begun writing the words " I promise ; "
there might have bean some good reason
for concluding that the intention was
to use this paper for dishonest pur-
poses. But in the present case all we
lhave is a blank piece of paper with
thumb-impressions upon it ; there is
nothing written on the paper, and that
being so, there is hardly sufficient to
show a dishonest intention. It is not
enough to assume that probably the
intention of the petitioners was to con*
vQrt the blank paper into a written
document. ^Were we to find that the
mere presence on the paper of thumb
impressions was sufficient to show an in-
tention to use that paper dishonestly,
then the hobby of autograph collecting
would be a dangerous one.
Then again the Court must be satis-
fied that the tenants were deceived.
One tenant refused to give his thumb-
impression : the other tenants in their
evidence state that they gave their
thumb- impressions unwillingly. It is
clear, I think, thumb- impressions were
given by these tenants not under the
impression so much that they were being
ttsed as a test, but because the Sub-
Inspector apd the constable were pa*
sent and they wdre told to put tneitf
IH BIBI v. MPr.KmsttNA BtBi
869*
thtxaxb-impreasions on the paper. their
action in going to the padre uex t day
and telling him what their fears were-
would point to the fact that they were-
not deceived. To my mind the elements
necessary for constituting the offence 'of
cheating were not all present in the pre-
sent case. There may have been a pre*
paration to cheat but the action of the
petitioners fell short of an attempt at
cheating and the substantive offence of
cheating. No attempt was ever made'to
use the blank piece of paper, and, so far
as we know, nothing was ever written
on it. The petitioners could not even be
prosecuted for an. attempt at forgery
until they had made some entry on the*
I) lank paper which would show a stage-
going further than mere preparation,
The convictions of the petitioners
must be set aside and they must be
acquitted and set at liberty the fines, if
paid, will be refunded.
Convictions set asidt
# A. I. R 1926 Patna 269
DAS AND FOSTER, JJ.
Mt. Rajdulari Dili and others — Plain-
tiffs— Appellants.
v.
Ml. Krishna Bibi and anotha — Ob-
jectors—Bespondonts.
First Appeals No*. 193 and 206 of
1924, Decided on 9th December 1925,
against the decision of the Dist. J., Bha-
gaipur, D/- 23rd June 1924.
tfc Will— Execution— Proof— Ordinarily parties
propounding must prove the due execution — Party
writing Will getting benefit under It— Court
must be careful In satisfying Itself that the in-
strument expresses tlie true will of the testator,
but this Is the rule of prudence and not of law—
Evidence Act, S. 101.
It is not open to doubt that the onus probandi
Hea in every case upon tho party propounding
the Will ; and he must satisfy the conscience of
the Court that the instrument so propounded i*
the last Will of a free and capable testator. But
the onus is in general discharged by the proof of
capacity and the fact of execution from which
the knowledge of and assent to its contents by
the testator will be assumed. This is the general
rule, but if a -party writes or prepares a Will,
Under which he takes a benefit, that is a cir-
cumstance which ought generally to excite tha
suspicion, of tba Court, and calls upon it to to
yigUaut and jealous iu examining thi evidence
ia support oj the instrument, in favour of which
it ottgnt not to pronounce unless* the suspicion is
"270 Patna
BAJDOLARI BIBI v. MT. KNISHNA BIBI (Das, J.)
removed apd it is judicially satisfied that the
paper propounded does express the true will of
the deceased Barry v. "ButUn [(1838) 2 Moor P. C.
480, lief. ; Tyrrell v. Patntvn (1894) Pro. Dv.
J51, Kef,] But the rule mentioned above that a
Court should be cautious is a-< rule of prudence
not a rule of law. The circumstance in at most
a suspicious circumstance of more or less weight
according to the facts of each particular case,
but in no cane amounting to more than a cir-
cumstance of suspicion,* and the benefit to bo
derived by such writer must bo a pecuniary bene-
fit, a legacy, for instance, more or lens of a sub-
stantial nature. [P 270, C 1, 2]
P. C. Manuk, 8. M. Mullick. A. T. Sen,
G. S. Prasad, Kailaslipati, G. P. Das,
fihiveshwar Dayal, Navadwip Gh. Ghose
and N. G. Roy — for Appellants.
K. P. Jauasioal, S. M. Gupta, T. N.
'Sahay, L. K. Jha, Hassan Jan and
Murari Prasad — for Respondents.
Da«, J.— This appeal arises out of an
application for probate of an instrument
dated the 24th July 1923, and purport-
ing to be the Will of Baghunandan Lai
who died on the 31st August 1923. He
left behind him two daughters Bajkumari
Bibi and Sarat Kumari Bibi, the widow
of a deceased brother Krishna Bibi, a
sister Kajdulari Bibi and two sons of the
-sister, Lachmi Prosad, . and Hari 'Prosad.
By the alleged Will five persons Eai Baha-
dur Sakhi Chand, Bai Bahadur Suraj
Prosad, Ganenh Lai, Madhusudan Das and
Maulvi Jamaluddin were appointed exe-
cutors and trustees and, subject to cer-
tain legacies, the whole of the estate
was, in substance, devised to the trustees
with directions that they should open a
fund called " Baghunandan Poor Stu-
dents Fund " and give scholarships and
pecuniary assistance to the poor boys of
.the colleges and schools in the province
of Bihar irrespective of religion or creed.
The legacies provided by the Will are as
follows :
Bs. 500 per month to each of his
daughters from generation to generation ;
Ba. 150 per month to Krishna Bibi ;
Bs. 500 to his sister Bajdulari and after
*her death to her sons ;
Bs. 300 to Bam Bibi, widow of a
deceased uncle of the testator and after
her death to her son Sri Krishna Das and
Bs. 200 to his cousin Madhusudan Das.
On the 27th February 1924, four of the
executors nominated in the Will, namely,
Bai Bahadur Sakhi Chand, Ganesh Lai,
Madhusudan Das and Maulvi Jamaluddin
applied for grant of probate to them, and
caveats were filed on behalf of the daugh-
192$
of the deceased as also on behalf of
his sister-in-law Krishna Bibi. We are
not concerned in these proceedings with
the caveat filed on behalf of Krishna Bibi
who supported it by an affidavit in which
she raised the question as to whether the
testator had power to execute the Will
in question. The eldest daughter Baj-
kumari Bibi beyond filing the caveat took
no further part in 'the proceedings ; but
there was an active opposition on the
part of the youngest daughter who was
a minor and who was represented in those
proceedings -by her father-in-law. Two
important questions of fact were raised
on her behalf, first whether the deceased
had testamentary capacity to execute the
Will ; and secondly, whether there was
undue influence exercised on the deceased
by Jamaluddin. The learned District
Judge has answered both these questions
in favour of the propounders of the Will ;
and the decision of the learned District
Judge on these points has not been chal-
lenged before us on behalf of Sarat Ku-
mari Bibi. But the learned Judge rejected
the application for probate on the ground
that there was no sufficient evidence that
the deceased was aware of the contents
of the Wrill and that the Will expressed
his intention ; and the only point which
we have to consider in this appeal is
whether the learned District Judge was
right in rejecting the application for
grant of probate on the very narrow
ground assigned by him.
The principal incidents in connexion
with the execution of the Will according
to the case of the propounders may be
ahortly stated. The testator dictated the
instructions of the Will 'to Hasan Ali a
few days before the Will was actually
executed. Hasan Ali, according to the
evidence of the propounders of the Will,
evidence which has been accepted by the
learned District Judge, had taught the
testator Urdu in his younger days and
had kept up some sort of connexion with
the testator ever sinee. Now these in-
structions were taken down by Hasan Ali
in two or three loose sheets of paper and
were made over by the testator to Jamal-
uddin on the 21st July, with instruc-
tions that he should take them to
Mr. Banjit Sinha, a leading vakil practis-
ing at Bhagalpur, and have a Will drafted
by the vakil on the footing of thesa in-
structions. On the evening of the 21sfc
July, Jamaluddin saw Babu Banjit Sinha
1926
RAJDULAKI BIBI v. MT. KUISHNA BIBI (Das, J.) Patna 271
.and the latter dictated a Will to him in
Urdu. On the morning of the 22nd July,
Jamaluddin read out the Will as drafted
'by the vakil to the testator and made
over both the instructions and the draft
Will to the testator. On the 23rd July,
<the testator gave the draft Will to Jamal-
iiddin and asked him to make another
•copy of it 'omitting the 12th paragraph
containing the appointment • of executors
and trustees and the appointment of
Jamaluddin as the life manager of the
estate. According to the evidence of
Jamaluddin the object of the testator was
to take the opinion of Rai Bahadur Surja
Praaad on the draft prepared by Mr. Ran-
jit Sinha without letting him know that
he was proposing to appoint him one of
the executors and trustees under the
Will. The deceased then sent for Rai
Bahadur Surja Prasad, a leading vakil
practising in Bhagalpur, and the latter
came to see him that evening about
•6 p. m. The copy of the draft prepared
by Ranjit Babu, that is to say, the draft
as dictated by Ran jit Babu with the
omission of the 12th paragraph of it, was
then read out to the Rai Bahadur in the
.presence of the testator and the Rai
Bahadur proposed to take it home with
him and fco consider the matter the next
morning. This was acceded to and tho
Rai Bahadur took the draft with him.
On the morning of the 24th' July, Jamal-
uddin .saw the Rai Bahadur who made
certain verbal alterations in the draft.
Under instructions from tbe testator
Jamaluddin then made a fair copy of the
draft adding the missing , paragraph. He
then read it out to the testator who ap-
proved of it. At about 2 o'clock that
day, the testator accompanied by Jamal-
uddin and his medical attendant Satish
Babu motored to tho office of the Dis-
trict Sub-Registrar and sent for the Rai
Bahadur from the District Court. The
Rai Bahadur came to the rnofcor'car
where the deceased was waiting for him
and the deceased then executed the Will
In the presence of the Rai Bahadur and
Satisb Babu, who put their signatures as
attesting witnesses. Jamaluddin then
signed the Will as the scribe thereof.
"The whole party then walked into
.the office of the District Sub-Registar
and the testator presented the Will,
in a sealed cover for being deposited
with the Sub-Registrar. The Sub-Regis-
itrar aeked him whether he had executed
the Will voluntarily and "with an under*
standing of its contents" to which the
testator answered in the affirmative.
The testator left for Calcutta on the 25th
July, .where he died on the 31st August.
Before dealing with the grounds as-
signed by the learned Judge in support
of his conclusion a little more in detail
it will be useful to refer to the 12th
paragraph which seems to me to be the
key to the decision. That paragraph
runs as follows :
For carrying out the above mentioned pro-
visions I, the executint, appoint fivo trustees :
(1) Rai Bahadur Babu Sakhi Chand, Superin-
tendent of Police at present manager of the
Jagannath Temple residing at present at Puri
(2) Rai B-ihadur Surja Prasad, son of Babu RaK
Behari Sahay, deceased, Vakil, resident of Ma-
halla Khanjarpur, district Bhagalpur, (3) Bibu
Ganesh Lai, iny Knalera brother-in-law (oousiu-
in-la\v) resident of Malialla Guzri, Patna City,
(4) Babu Madhusudan Das, son of Babu Ram
Narayan Da«, deceased, (who i?) my relative,
resident of Mahalla Golaghat, Bhagalpur and
proprietor of the Gopal Steam Press, Bhagalpur
(5) Maulvi Jamaluddin Khan, the present ma-
nager of my estate, resident of Mahalla Im-
.unnagar, district Bhagalpur. The said Maulvi
has up to this time bjeu serving me faithfully
and conscientiously and he is acquainted with
every thiiig. He is therefore assigned thy posi-
tion of manager for life in addition to that of a
trustee, His montly salary for manager's work
is fixed at Rs. 250. Over and above this salary,
proper conveyance charges shall ba given to hiui,
and travelling and daily diet expenses shall be
given as in my time, or the trustees may make
proper arrangement thcrofur in such manner an
they may think proper. In case of increase of
the income of the estate, the trustees shall
allow him such increment of salary ab may bo
decided upon by them. This item of expendi-
ture shall b3 a charge on my estate under the
head establishment* charges. Travelling ex-
penses both ways etc. shall bo paid to trustees
Nos. 1 and 3 when they shall como over on
business of tho estate and the same rule shall
apply to the trustees living at a distance. ThiH
(item of) expenditure shall ba a charge on nay
estate under the head — Allowance to trustees,
The learned Judge refers to the evi-
-dence to show that Jamaluddin took an
active part in the preparation of the Will
and he refers to the 12th paragraph of
the Will to show that Jamaluddin took
a benefit under the Will ; and professing
to be guided by Barry v. Butlin (l) and
Tyrrell v. Painton (2) he thought that
probate should not be granted unless
those propounding the Will satisfied the
conscience of the Court that the testator
knew and approved of the contents of the
Will. Now it happened that the testator,
~ (1) [1838] 2 Moor. P. C. 4bO. ~~
(2) [189i] P. D. 161.
Patna
BAJDCLARI BlBl v. Mf . KaisttNA BiBt (Das, 1)
who was an educated man and was a
Municipal Commissioner and had served
his town aa Honorary Magistrate, signed
the Will in the presence of Bai Bahadur
Surja Prasad, a witness whose testimony
cannot be impeached in any Court of law
and was in fact not impeached in the
arguments before us. It also happened
that the testator himself went to the
office of the District Sub- Registrar and
deposited the Will with him under the
provision of the Indian Registration Act
and that in answer to a question put to
him by the District Sub* Registrar, he
said that he had executed the Will" with
an understanding of its contents." Bub
the learned Judge thought that the case
was one in which the signature of the
testator did not carry with it the pre-
sumption of knowledge of the contents of
the Will ; and, as in his view there was
not sufficient evidence of knowledge he
thought that it was not a case in which
he should pronounce in favour of the
'validity of the Will.
It is not .open to doubt that the onus
probandi lies iu every case upon the party
propounding the Will ; and Ko must
satisfy the conscience of the Court that
the instrument so propounded is the last
Will of a free and capable testator. But
the onus is in general discharged by the
proof of capacity and the fact of execu-
ti'm from which the knowledge of and
assent to its contents by the testator will
be assumed. This is the general rule ;
but on this an exception has been en-
grafted which was stated in these words
in Barry v. Butlin (l).
If a party writes or prepares a will, under
which ho takes a benefit, that is a circumstance
which ought generally to excite the suspicion of
the Court, and calls upon it to be vigilant and
jealous in examining the evidence in support of
the instrument, in favour of which it ought not
to pronounoo unless the suspicion is removed
and it is judicially satisfied that the paper pro-
pounded does not express the true will of the
deceased.
As was said in Tyrrell v. Paittion (2) :
the principle is that whenever a Will is pre-
pared tinder circumstances which raise well-
grounded suspicion that it does not express the
mind of the testator, the Court ought not to
pronounce in favour of it unless the suspicion is
removed ;
but it is obvious that the rule to which
expression is given in the two cases cited
above is a rule of prudence not a rule of
1§ w ; and it is worth while stating the
following passage from the judgment of
Baron Parke to show the meaning and
the dxtent of the rule upon which th&
learned Judge in this cade has so largely
founded his judgment :
AH that can 03 truly said
said the learned Baron
is that'if a person, whether, attorney or not,
prepares a Will with a legacy to himself, it is, at
most, a suspicious circumstance, of more or lees
weight, according to the facts of each particular
case ; in some of no weight at all, as in the case
suggested, varying according to circumstances ;
for instance, tha quantum of the legacy and the
proportion it bears to the property disposed of,
and numerous other contingencies, but in no
case amounting to more than a circumstance of
suspicion, demanding the vigilant care and
circumspection of the Court investigating the
case, and calling upon ifc not to grant probate
without full and entire satisfaction that the
instrument did express the real intentions of
the deceased.
Now, is there a suspicion inherent in
the Will itself that it does not express
the mind of the testator ? The learned
Judge says that Jamaluddin, the writer
of the document, takes a considerable
benefit under the Will and that that is a
circumstance which must excite the sus-
picion of the Court. The benefit, in my
opinion, must be a pecuniary benefit, a
legacy, for instance, more or less of a
substantial nature ; but in this case
Jamaluddin does not take a legacy under
the Will. All that is provided for in
the Will is that Jamaluddin should be^
retained as manager for life at a salary
of Rs. 250 per month. (His Lordship
then discussed the circumstances under
which Jamaluddin was appointed the
manager under the Will and proceeded.)
In my opinion it is satisfactorily estab-
lished that the testator knew and ap-
proved of the contents of the Will,
I would allow the appeal, set aside the
order passed by the Court below and
direct that probate do issue. In regard
to the question of costs, most serious
charges were made against Rai Bahadur
Surja Prosad and Jamaluddin by Jugal
Kishore Prosad, the father-in-law of
Sarat Kumari Bibi. I think that he-
should pay the costs incurred by the
petitioners in this Court and in the Court
below. We assess the hearing fee in this
Court at Rs. 1,500. This judgment will
govern the other appeal and there will
be no order for costs in that appeal.
Fetter, J.—I agree.
Appeal allowed*
1926
M. & 8. M. BY. Co. v. FIRM GOPAL BAG (Buoknill, J.) Patna 273
A.I. R. 1926 Pain a 273
BUCKNILL, J.
Madras and Southern Mahratta Ry.
Co. — Defendant No. 2 — Petitioner,
v.
Firm, Go pal Eai Ram Chundci —
Plaintiff — Opposite Party.
Civil Revision No. 114 of 1925, Decided
on llth June 1925, against a decision of
the Small Cause Court Judge of Bhagal-
pur, D/ • 4th December 19^4.
(<z> Damage* — Breach of contract — Railway
Company entrusted with goods to be carried — •
Route not fixed — No delay in delircry — Railway
is free to carry goods by any route.
Where there was no contract on behalf of the .
Railway Company that they would carry the
goods by any particular route and there was no-
thing except tho name of the place of despatch
and the name of the place of consignment con-
tained in tho contract between the parties con-
cerned.
Held : so long as tho goods were delivered at
the place of consignment and so long as thcv
were delivered in due course, i. e., within a
reasonable time, it mattered not to tho plain-
tiffs or to anyone else by what particular route
tho goods may have b<*en, for the convenience of
the Railway Company, despatched by the carriers.
'[P. 274, C.I]
(b) Damages — Suit for — Gauw .of action bawd
on breach of contract — Damages based on delay
cannot to claimed.
Where tho suit as framed is not ono brought
in tort for damages due to loss occasioned to the
plaintiffs on account of the retardation in deli-
very but simply for compensation for the loss of
the articles which were found missing, the action
is founded on breach of contract and in no sense
on tort based upon the delay and damages
founded on delay cannot bo claimed.
[P. 274, C. 2]
N.C. Sinha, N.C. Ghosh and B.B. Ghosh
—for Petitioner.
B. C. Sinha and E. A. N. Sinha—
for Opposite party.
Judgment. — This is an application in
civil revisional jurisdiction made under
somewhat peculiar circumstances. The
matter relates to a suit brought by the
opposite party here against among other
defendants the Madras and Southern
Marhatta Railway Company on behalf of
which Company the present application
has been made. The facts in the case
were very simple.
The plaintiffs in the suit were con-
signees of some packages of cloth ; these
packages of cloth were despatched from
Bangalore City in the south of India to
Bhagalpur station on the Bengal and
North • Western Railway Company's
1926 P/35 & 36
system. The route by which the goods
were actually to travel was not of course
indicated in any of tho papers which
formed the contract between the
consignors, the consignees and tho
Railway Companies over whoso sys-
tems the goods might travel. There
might have been a variety of Railways
over the lines of which tho packages
might have gone ; at any rate we know
the East Indian Railway Company, tho
Bengal and North- Western Railway
Company, and Madras and Southern
Mahratta Railway Company were or
might have been concerned. Now there
is no doubt that when tho consignees
came to take delivery of the packages
there was a shortage of 21 seers of cloth
in one package ; no one knows and no one
can tell whore or how this missing cloth
was abstracted or why the shortage ex-
isted. Tho plaintiff in due course
brought a suit for compensation for the
loss of these articles and it was heard
before the Small Cause Court Judge at
Bhagalpur. The action of course was for
damages for breach of contract and on
the face of the contract had there been
no intervening circumstances the suit
would no doubt have been impossible to
defend ; but as is so often the case in
these cases relating to the carriage of
goods by Railways in India the Company,
that is to say. the applicants here, had
contracted with tho party, for whom they
were carrying these goods under special
terms. The special terms are contained
in what is known as risk note ; the person
on behalf of whom the goods are carried
obtains their carriage at a low rate or
what is frequently termed a special
reduced rate ; but in consequence of
obtaining the carriage of his goods at this
low rate he absolves specifically the
Railway Company from responsibility for
loss undf r certain circumstances. Tho
principal points of importance in the
present risk note which covered the arti-
cles in question in this caye are to the
effect that the Railway Company is to be
held not responsible for any losg, destruc-
tion, deterioration or damage to any of
the goods consigned except in the event
of any complete parcel being lost under
circumstances which could be shown to
be due to the wilful neghct of the Rail-
way Administration or to other circum-
stances, such as, theft and the like to
which I Tjeed not here refer as they are
274 Patim
MD. IBUAHIM v. OHHATXOO LAL
1026
not material. Tho defence, therefore, of
the Railway Company was simply that
they were protected from the claim made
by the plaintiffs by virtue of the exemp-
tions from liability contained in this
risk note to which I haee referred. It is
very difficult to see how the Small
Cause Court Judge camo to the conclu-
sion that the plaintiffs could succeed.
However, ho seems to have arrived at
this conclusion on grounds which I must
say appear to mo to be erroneous. In
the firnt place, ho seems to think that,
because the goods did not travel so far
as they possibly could on the Ifengal and
North -Western Railway Company's sys-
tem, they bad been despatched or carried
on what ho calls a wrong route. There
IB, however, to my mind no force in such
u suggestion ; there was no contract on
behalf of the Railway Company that they
would carry the goods by any particular
route ; there is nothing except the name
of tbe place of despatch and the name of
the place of consignment contained in
the contract between the parties con-
cerned ; it appears to rno that so long as
tbe goods were delivered at the place of
consignment and so long as they wero
delivered in due course, i. e., within a
reasonable time, it mattered not to tbe
plain titts or to anyone else by what
particular route the goods may have been,
for the convenience of the Railway Com-
pany or for wh^t other reason we do not
know, despatched by the carriers. The
Small Cause Court Judge has also based
his finding in favour of the plaintiffs
upon another ground and that is that
there was delay in delivery of the goods.
As a m-itter of fact it does not appear to
me that there was undue delay in the
delivery of goods ; the plaintiff could have
obtained delivery earlier than they did ;
but there was considerable correspon-
dence and discussion as to whether tho
plaintiffs would take delivery without
conditions or what is known as open
delivery, that is to say, delivery under
protest. There is, however, a far more
important objection to the case being
decided in favour of the plaintiffs on the
ground of delay and this is that the suit
as framed was not as. one brought in tort
(or damages due to loss occasioned to tho
plaintiffs on account of the retardation
in delivery but simply for compensation
for the loss of the article? which were
found missing, Certainly the action was
founded on breach of contract and in no
sense on tort based upon the delay.
There were no damages proved to have
been sustained by the delay in the deli-
very and the action was brought simply
upon the question of whether or not there
had been breach of the contract and
whether or not the Company was liable
in view of the exemptions which were
contained in the Risk Note Form H. I
am quite unable to see bow the plaintiffs
can in this case succeed. I think the
decision of the Small Cause Court Judge
was wrong in law. The route was im-
material and the idea that there were
any damages, due to delay, appears to me
to be quite untenable. Tbe action should
have been dismissed, and although one
must feel some sympathy with the plain-
tiffs in respect of their loss it is quite
clear to my mind that if they accepted
the provisions of tho Risk Note Form H
they must put up with the loss.
Under these circumstances the decision
of tbe Small Cause Coure Judge of the
4th of December last must bo set aside
and the suit must be dismissed. There
will be no ordor as to costs of
Court.
Suit dismissed.
# A. I. R. 1926 Patna 274
DAS AND Ross, JJ.
Muhammad Ibrahim and others — De-
cree-holders— Petitioners.
v,
Chhattoo Lai and others — Judgment -
debtors — Opposite Party.
Civil Revision No. 328 of 1925, De-
cided on 5th January 1926, from the
order of the Munsif, Muzaffarpur, D/~
20th June 1925.
# Civil P. C., S. 41— Court to which decree ts
transferred for execution ccaw to liavc jurisdic-
tion after It /ia« taken, action wider 8. 41.
The mere striking off of an application for
execution does not terminate the jurisdiction of
the Court to which the decree is sent for execu-
tion to execute the -decree ; but the jurisdiction
ceases as soon as the Court takes action under
S. 41 and certifies to tho Court \vhiah passed the
decree the circumstances attending the failure
on the part of the transferee Court to execute the
decree. tP. 276, C. 2]
Khursaid Hnsain and Syed Ali — for
Petitioners.
T. AT. Sahai and A. N. r/rtf-HEot Op*
posite Party.
1926
MD. IBRAHIM v. CHHATTOO LAL (Das, J.)
Palna 275
Das, J. — This application is directed
against the order of the learned Munsif
of Muzaffarpur, dated the 29th June
1&25. The circumstances are these : On
the 18th May 1925 the petitioners ob-
tained a decree for Es, 144-5-9 against
Chhattoo Lai in the Court of $ Small
Causes in Calcutta. On the application
of the petitioners, the Small Cause
Court, Calcutta, sent the decree for exe-
cution to the Muzaffarpur Court under
the provisions of S. 39 of the Code of
Civil Procedure. The petitioners applied
ior execution in accordance with* law ;
but ultimately, on the 2ist May 1924,
his execution ca^e was dismissed for
default and the learned Munsif in seisin
of the matter certified to the Calcutta
Small Cause Court the circumstances
attending the failure to execute the
decree, The order of the learned Munsif
is not before us, but wo must presume
that he acted under S. 41 of the Code of
Civil Procedure. Thereafter certain pro-
perties belonging fo the judgment-debtors
were sold at the instance of Mohan
Prosad Sahu who had obtained a decree
as against the judgment-debtors and
there being assets of the judgment-debtors
in the hands of the Muzaffarpur Court
the petitioners applied, on the 20th April
1925, for attachment of the surplus sale-
proceeds which amounted to Rupees
3,436-15-3. On the 27th April 1925
Es. 1,432-15-9, out of the surplus sale-
proceeds in the hands of the Muzaffarpur
Court, was attached at the instance of the
petitioners, the Court at the same time
directing that the petitioners should
obtain another order from the Calcutta
Small Cause Court transferring the
decree for execution to that Court. The
order of the Calcutta Small Cause Court
transferring the decree for execution to
the Muzaffarpur Court was received on
the 30th April 1925. Thereafter other
decree-holders who had obtained decrees
as against the judgment-debtors came in
and the surplus sale* proceeds were at-
tached at the instance first of Mohan
Prosad, then of Bihari Lai and lastly of
Sham Narain Singh. On the 24th June
1925 the petitioners applied for liberty
to withdraw Es. 1,432-15-9 out of the
surplus sale* proceeds, They contended
th at their attachment was first in order
of time and that they were entitled to
withdraw the sum attached without refer-
ence to the right« of the other at-
taching creditors. Similar applications
were presented on behalf of the other
attaching creditors and they applied for
rateable distribution of the assets. The
learned Munsif took the view that S. 73
of the Code of Civil Procedure did not
apply to the facts of the case and that
the distribution of the assets could only
be made in order of respective attach-
ments. That being the position, the
petitionei-s contended that their attach-
ment being first in point of time, they
were clearly entitled to withdraw the
sum of Es. 1,432-15-9 from the Court.
In dealing with that application tho
learned Munsif cirae to tho conclusion
that the attachment at the instance of
the petitioners was wholly irregular
inasmuch as tho Muzaffarpur Court was
no longer in seisin of the execution case
am it is the propriety of this order
which is the subject-matter of tho appli;
cation before us.
I am of opinion that tho view taken by
the learned Munsif is correct and that
this application must be dismissed. I
entirely agree that the Court executing'
a decree sent to it has tho same powere
in executing such decree as if it had been
passed by itself ; but tho point is whether
on the 27th April 1925, tho date of the
order of attachment of Es. 1,432-15-9, tho
Muzaffarpur Court had any jurisdiction
over the matter. It will be remembered
that on the 21st May the Muzaffarpur
Court had not only .dismissed the execu-
tion case for a default but acted under
the provision of S. 41 of the Code of Civil
Procedure. Various cases have been
cited before us by Mr. Khursaid Hussain
but those cases decide that the mere
striking off of an application for exacu-
tion does not terminate the jurisdiction
of the Court to which the decree is sent
for execution to execute the decree ; but
at tho same time those cases recognize
that tho jurisdiction ceases as soon as the
Court takes action under S. 41 of the
Civil P. C. and certifies to the . Court
which passed the decree the circum-
stances attending the failure on .the part5
of the transferee Court to execute the
decree. In the Full Bench case of
/. G. Bagram v. /. P. Wise (l) the question
was whether or not a Court to which a
decree passed by another Court has been
transmitted under the provisions of S. 280
of Act VIII of 1859 was competent of
(1) 1 BA TJ. U. 91-10 W. K. 4(5 (P. B~).
276 Pataa
SADIICT SARAN v. NAND KUMAR
192&
its own aufchority to entertain a fresh
application for execution after the first
application had been struck off by itself
for default. It will be noticed that in the
Code of 1859 there was no provision
similar to the one contained in S. 223 of
the Code of 1882 or S. 41 of the present
Code. In dealing with this point
Mr. Justice Mitter said as follows :
It will b.} further observed that the law does
not contain any express provision as to how and
when the execution records are to bo re-trans-
mitted to the Court by which the decree was
passed. I do not mean to say that such a thing
cannot b3 done at all, but all that I mean to say
ie that it can bo done only when an order to that
effect has been received from the said Court, or
from some other Court exercising appellate juris-
diction over the matter.
It was clearly recognized by Mr. Jus-
tice Mifcter in the Full Bench case to
which I have referred that the jurisdic-
tion to execute a decree by a Court to
which the decree is Hont for execution
teases when an order is passed by that
Court to the effect that it is unable to
execute the decree. In delivering the
judgment of the Full Bench, Peacock,
C. J.t said as follows :
The order for striking oft the application for
execution of the decree did not strike the copy of
the decree oil tho records of the Court to which
it was sant for execution ; and so long as it re-
mains there, the Court to which it was sent may
deal with it, and any application for execution
of it, as if it was a judgment of that Court.
But in this case the decree was no
longer in the record of the Muziffarpur
Court on the 27th April 1925. This was
the view which, I think, was taken by
Mookerjee, J,, in Manorath Das v. Ambika
Kant Bose (2). That learned Judge said
that the Court to which a decree is trans-
ferred for execution retains its jurisdic-
tion to execute the decree until tho exe*
cut ion had been withdrawn from it or
unfeil it had fully executed the decree
and had certified the fact to the Court
whicli sent the decree or had executed
it so far as that Court was able to do
within its jurisdiction and certified that
fact to the Court which sent the decree.
In my opinion S. 41 of the Code makes
it quite clear that the Court to which a
decree is sent for execution has no juris-
diction to deal with execution case after
it takes action under S. 41 of the Code.
I would dismiss this application with
costs. Hearing fee : two gold mohurs.
Ro$i. J.— I agree.
Application dismissed.
(2H1909J 18 0. W. N. 533-9 0. L. J. 443.
# A.l.R. 1926 Patna 276
JWALA PRASAD AND BCTCKNILL, JJ.
Sadhu Saran Pandey — Appellant,
v.
Naitd Eumar Singh and others — Res-
pondents.
Second Appeal No. 84 of 1923, Decided
on 4th November 1925, in connexion
with the setting aside of the abatement
order in the appeal.
# (a) Civil P. C., O. 22, R. 4 — One of tlie
lie Irs brought on record In time — Suit or appeal
does not. abate.
Where a respondent dies leaving more than one
heir, and one of the heirs is substituted as heir on
the record within time but substitution of the
names of the other heirs is made after the time
allowed, appeal will not abate under R . 4 of 0. 22,
A. L R 1925 Palna 123, Foil [P 276 C 2]
# (b) Civil P. (7., O. 22, Rr. 4 and 9— Each
of the appellants Is entitled to apply under the
rules independently.
Each one of the appellants is entitled to prose-
cute tho appeal and to apply for settiag aside
abatement and for substitution. [P 277 C I]
A. K. Hay and Ambicapada (Jpadhi/a
— for Appellant.
Sambliu Saran — for Respondents.
Judgment. — This is an application to
set asido abatement and substitution of
the persons named in the petition as
heirs of the deceased respondent. Notices
of the appeal were served upon respon-
dents Nand Kumar Singh, Ramsingar
Singh and Mathura Prasad Singh. There-
after Nand Kumar Singh died, in whose
place the appellant substituted the name
of his widow, Mt. Ramkali Koer At a
subsequent stage it turned out that Nand
Kumar had another widow named Sheo-
ratan Koer and that Mathura Prasad
Singh was also dead leaving his widow
Sri Krishna Koer. The appellant there-
fore applied for setting aside the abate-
ment and for substitution of the co-widow
Sheoratan Koer, as an heir of Nand Kumar
Singh in addition to the first widow al-
ready brought on the record. They also
applied for substituting Sri Krishna Koer
in place of Mathura Prasad Singh.
As far as Nand Kumar Singh is con-
cerned there is no difficulty ; for Ramkali,
one of his widows, was brought on the
record within time and the appeal did
not, therefore, abate so far as he was con-
cerned. In accordance with the autho-
rity of this Court in the case of Lilo So-
nar v. Jhagru Sahu (1) and in consonance
with R. 4, of O. 22, the appeal against
(1) A. I. R. 1925 Patna 123. *
1926
FARIDUDDIN AHMED v. ABDUL WAHAB (Adami, J.)
Patna 277
Nand Kumar Singh could not abate, as
one of his heirs was already on the re-
cord. The bringing in of Sheoratan
Koer on the record is oniy lor cue
purpose of the final disposal of the appeal.
As regards Mathura Prasad Singh the
contention has been that the application
for substitution of his widow in his place
was not made in time, nor was the ap-
plication for setting aside abatement.
There has been, no doubt, a great delay in
making the application in this hehalf ;
but the circumstances of the case show
that the appellant came.to know of the
•death as alleged by them at a time which
is well within the time they are entitled
to make an application for setting aside
the abatement. The notice upon Mathura
Prasad was duly served and the appeal
has far advanced. No doubt the appellant
is required to be diligent in prosecuting
his appeal ; but after he gets the notice
served upon the respondent he is not re-
quired to watch the movements of the
respondent and as to whether he is dead
or alive. The law, therefore, is that he
must make an application within ninety
clays of his knowledge of the death ; but
it has to be seen whether the date of
knowledge has been falsely alleged. There
is no reason why the appellant who has
been prosecuting this appeal so diligently
would allow the appeal to abate if he had
known of the death of Mathura Prasad
Singh earlier than what is stated in his
application. Mr. Sambhu Saran says that
•the appellant must have known of the
•death of Mathura Prasad at least on the
20th of September 1924, when notice of a
rent suit brought by the widow of Ma-
thura Prasad against one of the appel-
lants was served upon him. In support
of this contention he has filed a certified
rcopy of a notice of the aforesaid suit.
The service return shows that the appel-
lant refused to give the receipt. This in
itself does not show that the summons or
notice was actually served upon the ap-
pellant. Moreover, the notice to one of
the appellants is not notice to all, and
there is nothing to indicate that the ap-
pellant apprised the death of Mathura
Prasad to thb rest of the appellants. Each
one of the appellants is entitled to prose-
cute the appeal and to apply for setting
aside abatement and for substitution.
Therefore the certified copy of the notice
Bled by Mr. Shambu Saran is not con-
clusive upon the point.
In the circumstances of the case I
would set aside the abatement and allow
substitution as prayed for. The name of
Sri Krishna Koer oe suDStitutea in the
place of Mathura Prasad Singh, deceased.
The name of Sheoratan Koer, co- widow of
Bamkali Koer, be included as a respon-
dent and a legal representative in place
of Nand Kumar Singh.
Application allowed.
* A. I. R. 1926 Patna 277
ADAMI, J.
Fariduddin Ahmed — Petitioner.
v.
Abdul Wahab — Opposite Party.
Civil Eevision No, 477 of 1925, De-
cided on 18th February 19 6, against
the order of the Dist. J., Patna, D/- SOfch
November 1925.
* Civil P. C., 0. 26, n. 4— Plaintiff having
no choice of forum — Commission may be hsucd for
his examination.
The general ground on which an application
to examine a plaintiff on commission is refused
is that the plaintiff has hi* choice of forum and
therefore should not be allowed to ask for hi*
examination elsewhere than in the Court in
which he 1ms instituted his suit.
Where the petitioner applied for the removal
o" a guardian appointed by Court and for his own
appoinment as guardian in a particular Court
and he had no choice of forum, and he himself
and also the minor whose guardian was sought
to be removed had been residing within .tho
jurisdiction of that Court and it was only
because he got a post elsewhere that lie had re-
moved from the jurisdiction of the Court.
Held ; that commission should be issued for
his examination outside the jurirdistion of the
Court : A. L It. 1925 Pat. 125, Dist. [P 277 C Ij
K. Hussain Ali Khan and S. M. Wasi
— for petitioner.
W. II. Akbari and Ghulam Mohammad
— for Opposite Party.
Judgment. — This application i$ direc-
ted against an order of the District
Judge of Patna, directing a commission
to issue for the examination of the
opposite party and his wife at Dacca.
The opposite party is a Eeader in
Arabic at the Dacca University ; his
wife is a girl aged about 19 who is the
daughter of the petitioner. The peti-
tioner had been appointed the certificated
guardian of the girl and her property
before her marriage to the opposite
party. La*st June when the opposite
278 Patna b\uui
party was living in Patna, where his
wife's property is situated, he made an
application for tho removal of the
petitioner from tho guardianship and for
the appointment of himself in his place.
The girl was then residing with her
father. Tho wife was enceinte, and the
opposite party, who had got tho appoint-
ment of Reader in the Dacca University,
took away his wife from her father's care
to Dacca, and since then the opposite
party and his wife have beon residing
in Dacca. In October or November last,
when tho case came on before tho
District Judge, the opposite party ap-
plied to l)e allowed to be examined on
commission in Dacca, and, after hearing
tho objection of tho petitioner, the Dis-
trict Judge ordered tho commission to
issuQ for tho examination both of tho
opposite party and of his wife. Tho
ground given by the Opposite Party for
the issue of such commission was that
his wifo was likely to be giving birth to a
child in tho near future and that she
would not be able to leavo Dacca, nor
would ho himself bo able to leave her
in that condition ; also as .Header in
Arabic at tho University, it would bo
difficult, if nob impossible, for him to
leave his duty.
Tho grounds taken before this Court
are that, though a commission may bo
issued for the examination of a defen-
dant or witnesses, it is irregular to grant
such a commission in the case of tho
plaintiff who has had the choice
of forum and must abide by his choice.
Ct is also urged that it will cause great
haras,amont» to tl}0 p£t'it'i9PGV ^ ^e nas
to go to Dacca, and also, if the" girl k
under tho charge of her husband at tho
time the examination is conducted on
commission, it is likely that the opposite
party will bo able to have influence with
her,
Wi*>» ~.,'a.vd to the n/rguwent that in
. ^lu,^. ^ w Commission
tho case of a plaintiff a . .,
should not issue outside tho jurisdiction,
the learned advocate has relied on the
case of Mttkammad Akbar All Khan , v.
Herbert Francis (l). There tho plaintiff,
residing in London, had instituted a smtj
against the defendant, residing in Patna
in the Patna Court, and applied for his
examination on commission in London.
Das, J., after reference to the several
cases, held that the plaintiff, having had
(1) A/l.R. 1925 Pattta 125.
N. AHMED v. AI;DUL WAUAB (Adarni, J.)
1926
the choice of forum was not entitled to
claim to be examined on commission
outside the jurisdiction. The cases- of
Sarat Kumar Ray v. Bam Chandra
Chatterji (2),Nadinv. ^Bassett (3) and
Boss v. Wood ford (4) we're relied! on.
The general ground on which an. applica-
tion to examine a plaintiff on commission
is refused is that the plaintiff had his
choice of forum and, therefore, should not
bo allowed to ask for his examination
elsewhere than in the Court in which he
has instituted his suit.
In the present case the opposite party
had no choice of forum ; he himself was
residing in Patna and so were his wife
and the positioner, and his wife's pro-
perty was situate also in Patna. It was
only because ho received the appoint-
ment of Header in Arabic at the Dacca
University that ho had to go to Dacca.
Under tho circumstances of this case,
I think that the order of the District
Judge should be upheld. However, the
issue of a commission to Dacca will
cause tho petitioner expense and trouble,,
and I think it should bo directed that the
costs of the commission to the petitioner
should be deposited by the opposite
party before the commission issues and
I would direct accordingly. Also, if it
can bo managed, tho learned District
Judge should direct that the examina-
tion of the wife of the opposite party
should be conducted in tho presence of
an officer of tho Court at Dacca else-
where tlian in the opposite party's
house.
Subject to these mod iiicat ions, the ap-
plication is rejected. Hearing fee : two.
gold molnirs,
Application 'partly allured*.
1ST
(3)
A. i. B. . . oco
[1884] 25 0. H. D. 21=63 L. J, Oh. 253
=32 W B 70=49 I». T. 454.
(4) [1894] 1 Oh. 88=63 L. J. Oh, 191=70
L. T. 22=8 R. 20=47 W. B. 188.
1926
NlLMADHAB V. EMPEROR (Adaoii, J.)
Patna 279>
# A. 1. R. 1926 Patna 279
AD AMI AND BUCKNILL, JJ.
Nilmadhab Chaudhury and others —
Appellants.
v.
Empcro) — Opposite Party.
Criminal Appeals No, 80, 8i and 86 of
1925, Decided on 23rd July 1925, from
a decision of Asst. Sessions J., Saran,
D/- 28th March 1925.
$ (a) Criminal P. C., S. 337— Approver dis-
closing offence oilier tlian tliat lie Is charged with,
while tnaklng full disclosure^ should not be pro-
ceeded against for tlie furttier disclosed offences.
Where an accomplice has been allowed to be-
come an approver and iu his confession he dis-
closes offences other than that which was tho
subject of the charge against him and from
liability to answer for the consequences of which
lie waa, even wrongly, under tho impression that
he had freed himself by his confession and
pardon ; tho Crown should not proceed against
him for such other offence*. No question can
arise where tho offence clearly pardoned and that
or those further disclosed by the appro\or aro
obviously closely linked together. [P. 28G, 0. 1, 2]
(b) Criminal P. C. (as amended In 1923),
S*. 164 and 1 — Change by amendment is made to
allow Presidency Magistrate to record confession —
Application of Code to police 1$, but to Magistrate
Is not, barred by S. I— (Per Adaml, J.).
The change by amendment of 1923 is made to
allow a Presidency Magistrate to record a con-
fession in the course of a police investigation.
Although S. 1 bars the application of the Oodo
to tho police it does not bar an application of tho
Code to a Magistrate or any 3-Fagistrate not being
a police officer. [P. 282, 0. *2]
(c) Ct Iminal P. C., 8. 1G1 — Confession— Evi-
dence Act, S. 24— (Per Adaml, J.).
The Codo itself contains no provisions as to tho
confession being made in open Court.
{P. 283, CM]
(d) Criminal P. C., S. 161 — Accused asked as
fo his willingness to make voluntary statement,
his reply In the affirmative and warning htm
subsequently Is sufficient' — (Per Adaml, J.).
It is sufficient compliance with the law if tho
accused when asked whether he wishes to make a
statement voluntarily, replies that he does,
then he is warned that any statement he might
make would be used as evidence against him
and even then he replies that he is willing to
make a statement. [P. 283, C. 2]
(e) Evidence Act, S. %±— Approver
The hope of being made an approver does not
show that the confession is not voluntary.
[P. 282, 0. 2]
(/) Criminal P. C., S. 164, and Ch. XIV— Con-
struction
Even though the police in Calcutta may not
conduct their investigations iu precise accordance
with the provisions of Ch. XIV, to construe
S. 164 which would exclude its utilization in
Calcutta during the police investigation at any
time afterwards before the commencement of the
enquiry or trial, is to read it in a comewhat
strained and unnatural sense; A. I. R. 1925
Col. 687 ; 15 Co*. 595 (F. B.), Dlst. [P, 287, C. 2]
Alt Imam, B N. Hitter, 11. N.
Base and K. N. Mitra — for Appellants.
Sultan Ahmed — for the Crown.
Ad ami, J.— Tho throe appellants have
boon found guilty of the offence of
criminal conspiracy and havo been sen-
tenced to throe years' rigorous imprison-
ment and a fine of Bs. 50 each under
S. 120 B of tho Indian Penal Code ; the
appellant Nilmadhab has been sentenced
to six years' rigorous imprisonment and a
tine of Bs. 100 under S. 467 and to three
years' and a fine of Bs. 50 under S. 420 ;
the other two appellants havo received
like sentences under Ss. 467 and 420
read with S. 34 of the Indian Penal Code.
Nilmadhab Chowdhry has alao been sen-
tenced to one year's rigorous imprison-
ment under S. 419.
The case for the prosecution has been
set out in a very careful judgment by the
learned Assistant Sessions Judge in great
detail and with much cave. It is not
necessary therefore to state here more
than a short story of the circumstances.
Tho appellants Nilmadhab Chowdhry,
Haripado Mukherjee and Sudhir Kumar
Bannerjoo in 1921 were residing in
Calcutta. The first named kept a baker's
shop, the third named a tobacconist shop,
and Haripado Mukerjee waa employed as
a telegraphist at the Central Telegraph
Office. Havipado and Sudhir used to
meet at Sudhir's shop and talk over their
straitened circumstances. Haripado was
a relation of Sudhir and one day told
him that lie had hit on a plan for getting
money. He said that it would be easy
to obtain money by means of bogus
telegraphic money orders ; it would only
be necessary to forge telegraphic money
order forms and place them in the clip
in the Telegraph Office and then arrange
for some one to be at the oliice of receipt
to take over the money covered by the
telegraphic money order. Sudhir told
Nilmadhab of this plan and they asked
Haripado to come and see them. He,
however, did not come at first for he had
gone away, so a telegram was sent to a
man in Ohittagong to find out what his
address was. Haripado saw this telegram
in tho Telegraphic office, and came to
see Sudhir and Nilmadhab, and plans were
then made. (Then the judgment stated
their plans proposed to be carried out*
280 Patna
NILMADHAB V. EMPEilOB (Adami, J.)
1926
in different places and proceeded.)
Nilmadhab accepted the pardon and
gave evidence before the committing
Magistrate and in his deposition made
a full statement of what had hap-
pened in 1921 in connexion with the
telegraphic money orders to Ohapra as
also of the tapping of the telegraphic
wires and of the forgery of the Govern-
ment currency notes in 1923. Haripado
and others were committed to the
Criminal Sessions of the Calcutta High
Court and there again Nilmadhab gave
evidence, but at the Sessions his evidence
related only to the note forgery case and
he was not allowed to make statements as
to the previous events. The result of the
trial was that Haripado and his fellow
accused were acquitted by Mukerjee, J,
4ind the jury.
Thereafter, on the strength of the
previous investigation in 1921, and the
•confessions of the three appellants, they
were put on trial before the Assistant
Sessions Judge of Saran and have been
•convicted as stated at the beginning of
this judgment, Each of the appellants
has lodged a separate appeal, but the
three have been heard together.
Before the committing Magistrate and
4ilso before the Assistant Sessions JuHge,
the appellant Nilmadhah claimed that
the pardon tendered to him in Calcutta
in the Note forgery case absolved him
from prosecution with regard to the
present case in Chapra ; but the Courts
have overruled the objection. In his
behalf Sir Ali Imam now claims before
us, that having been tendered the pardon
in the note forgery case, which is known
as the Masjidhari case, the prosecution of
Nilmadhab is unwarranted, and that he
ought to be granted the protection of the
Crown.
I have cited above the application for
tender of pardon and the order granted
by the Magistrate in Calcutta. From
the order it is clear that the pardon
related to the case of a big and wide-
spread .conspiracy to forge and utter
Government currency-notes and Nilma-
dhab was required to make a full and
true disclosure of the whole of the
circumstances within his knowledge rela-
tive to the offence. It can be argued,
as it has been argued, that the order
shows clearly that the pardon was
intended to extend only to the case then
on inquiry, and also it is reasonable to
argue that the conspiracy for the forging
of the Government currency notes was
an absolutely distinct conspiracy from
that which had as its object the obtaining
of money by bogus telegraph orders ;
two years elapsed between the two con-
spiracies. Strictly speaking I think
there would be good ground for holding
that the conspiracies were different and
the cases also were separate. But there
are several considerations which lead
one to think that Nilmadhab, at the time
he accepted the pardon and undertook
to make a full discovery of all the
circumstances conceived that the pardon
covered all the events which were
disclosed by him in his confession and
his statement before the committing
Magistrate. Nilmadhab had made a con-
fession which showed the connexion of
the appellants with one another right
from March 1921 and he gave a con-
nected narrative of events since then,
leading up to the forgery of the currency
notes. The inquiring Magistrate allowed
him to make a statement in his deposi-
tion of all those occurrences, and in fact
two witnesses were called from the
Telegraph Department to give evidence
as to the telegraph money order fraud,
which had really nothing to do with the
Masjidbari case. Had it been the inten-
tion to confine the pardon only to the
forgery case it would have been the duty
of the Magistrate to warn Nilmadhab
against making any incriminating state-
ments in his evidence which were not
relevant to the forgery case ; but no such
warning was given. Nilmadhab had
made a full confession and it is likely
that he considered it incumbent upon
him, under 'his promise, to make :
A full and true disclosure of tlio whole of the
circumstances within his knowledge relative to
the offence.
to include in his evidence a narration
of the part he and his associates had
played in the fraud at Chapra. The fact
that'tho inquiring Magistrate allowed him
to give evidence of these previous activi-
ties shows I think that he considered that
his enquiry covered them, and the pro-
secution also called witnesses who had
nothing to<do with the note forgery 4iase,
but deposed with regard to the bogus
telegraph money orders.
Sir Ali Imam has relied on the case of
Qu6en-Empress v. Oanga Charan (1).
^ 11 All. 79=(1888)A. W.N. 289.
1926
NILMADHAB V. EMPEROR (Adami, j.)
Patata 281
There a person was charged before a
Magistrate at Benares with offences
punishable under Ss. 471, 472 and 474 of
the Penal Code, having made a confession
to a Magistrate in respect of those
offences. In that confession he men-
tioned that part of the forgery had been
committed in Calcutta and he was sent
down to Calcutta and there charged
before a Magistrate with offences punish-
able under Ss. 467, 473, and 475. The
Magistrate at Calcutta tendered him a
pardon and it was accepted, and the
approver gave evidence for the prosecu*
tion. The prosecution failed, but the
pardon was not withdrawn. Subse-
quently the Magistrate at Benares con-
tinued the trial there under 83. 471, 472
and 474. Ganga Charan pleaded not
guilty; but he did not specifically, plead
his pardon as a bar. It was held in that
oase by Straight, J., that the terms of
the pardon granted to the accused by the
Calcutta Magistrate protected the accused
trom trial at Benares. That case was
somewhat different to the present one,
because there the offence at Calcutta
was mixed up with the offence at
Benares and they were cognate oases.
In the present case the offence with
which Nilmadhab is now charged cannot
be said to be an offence cognate with
the offence in the Masjidbari case ; a long
interval of time separated the two ; still
the remarks made by Straight, J., in his
judgment have application to the present
oase. He said :
Though approvers may be infamous persons
they are nevertheless entitled to have faith kept
with them by the Courts, and in dealing with
the question as to what a pardon is to cover, and
how far it is to extend, I should not ba inclined
to apply too technical tests and should rather
look to substance than mere matters of form.
He referred to the wording of S. 339
Criminal P. C. as to the consequences
that follow on a non-compliance -by an
approver with the conditions of his
pardon and its withdrawal ; and said :
He may be tried for the offence in respect of
whioh the pardon was tendered or for any other
offence of which he appears to have been guilty
in connexion with the same matter It must
be borne in mind that in countenancing these
pardons to accomplices the law tloes not
invite a cramped and constrained statement by
the approver ; on the contrary it requires a
thorough and complete disclosure of all the
facts within his knowledge bearing upon the
offence, or offences, as to which he gives
evidence, and when he has given his evidence,
I do not think that the question, of how far it is
to protect him ; and what portion of it should not
protect him, ought to be treated in a narrow
spirit.
In a note by Mr. Greaves to the 4th
edition of Bussel on Crimes, Vol. Ill,
page 597, it is said :
If however, the prisoner, having been admitted
as an accomplice to one felony ba thereby
induced to suppose that he has freed himself
from the consequences of another felony, the
Judge will recommend the indictment for such
other felony to be abandoned. Where an
accomplice made a disclosure of property which
was tne subject-matter of a different robbery by
the same parties under the impression that by
the information ho had -given previously as to
the robbery of other property he had delivered
himself from the consequence of having the
property he so disclosed in his possession
Coleridge, J. recommended the counsel for the
prosecution not to proceed against the accom-
plice for feloniously receiving such property.
Then again the learned Judge says :
I need not point out the importance, when a
pardon is tendered, of encouraging the approver
to give the fullest details, so that paints may bo
found in his evidence, which may be capable oi
corroboration, and this is what I understand the
Criminal Procedure Code to mean when it speaks
of a full and true disclosure of the whole of the
circumstances within his knowledge.
I agree with the learned Government
Advocate that this case I have oited is
not altogether on all fours with tho
present case, but I do think that tho
appellant Nilmadhab understood that in
order to carry out his promise ho had to
make a full disclosure of everything he
knew and therefore told about the
proceedings at Chapra in 1921.
Sir Ali Imam has pointed out, too,
that it would be most unsafe that there
should be any impression allowed to
gain ground that a promise of pardon
once tendered can be broken by the
Crown. There are indications through-
out the inquiry before the Magistrate in
Calcutta that the Chapra case was Held
to be in some way connected with the
Masjidbari case.
Had it been the intention to confine
the pardon only to the Masjidbari
case, the appellant should not have been
allowed to make any statements in hi?
deposition with regard to the earlier
occurrences.
Though technically the contention of
the Crown is correct, I think that in
this case it is right to give Nilmadhab
the benefit of any doubt there may be as
to his understanding of the pardon and
to hold that the pardon granted in
Calcutta should excuse him from
prosecution in the present case. On
282 Patna
NILMADHAB v. EMPEROU (Adami, 3 .)
1926
those grounds I would 'acquit the appel-
lant Nilmadhab.
On bohalf of the appellant Haripado,
his counsel, Mr. Boso, contends in the
first place that tho confession made by
Haripado was not a confession covered
by 8s. 164: and 301 of the Code of
Criminal Procedure ; and, oven assuming
that tho confession could bo recorded
under those sections, there were such
^rave irregularities and such disregard
of tho provisions of the Code with regard
fco tho manner in which tho confession
should be recorded that Ilaripado's
confession should bo held to be
inadmissible. He urges that'tho evidence
to prove that tho confession was made
voluntarily is wanting and that without
tho confession there is little or no
evidence to prove tho charges against
Haripado.
Mr. Jk)80 ban rolled chiefly on .tho
judgment of Mukherjee, J., in the
Masjidbari caso This judgment is repor-
ted i\\H<niperor v. Panchlowari Dutt (2)
and 1 may say that Mr. Boso has adopted
all tho arguments used by tho learned
'Judge in that case,
Tho point taken is that, undor S. 1
of tho Code of Criminal Procedure, tho
Code does not apply to tho police in the
towns of Calcutta and Bombay, and as
S. 164 lies within Chapter XIV of the
Code which is headed ' Information to
tho Polico and their powers of investiga-
tion " an investigation by tho police in
Calcutta is not made under the Code.
It is argued that the confessions were
made in the course of an investigation
by the police and, therefore, tho Code
does not aptly. Tho learned Judge, as
also tho learned counsel, rely on tho
caso of Queen- Empress v. Nilmadhab
Mitter (3). It was there hold that
S. lot does not apply to a confession
made before a Presidency Magistrate.
That decision was come to before the
amendment of tho section in 1923. Be-
fore the amendment tho section began :
" Every Magistrate not being a police
officer may" but in 1923 before those
words, the words
Any Presidency Magistrate, any Magistrate
of the 1st Class and any Magistrate ot the 2nd
Glass, especially empowered in this behalf by tho
Local Government may if ho is not a police
officer
(afiri. K. 1025 Oaf. 58?;
(3) [1888] 15 Cftl. 505 (F, B.),
were substituted. It is quite obvious
that the change was made to allow a
Presidency Magistrate to record a
confession in Calcutta in tho course of a
police investigation, otherwise the
amendment seems altogether meaning-
less. S. 1 bars the application of the
Code to the police ; it does not bar an
application of the Code to a Magistrate
or any Magistrate not being a police
officer. We cannot believe that the
amendment was made without the
intention of giving a Presidency Magis-
trate power to record a confession. It is
sought to be explained that the addition
of the words " Any Presidency Magis-
trate " has been made in order to allow
such a Magistrate to record confessions
where tho police have conducted
an investigation outside Calcutta*
The Assistant Sessions Judge has
decided the point, which he fully con-
sidered, by finding that as a matter oC
fact tho investigation into the present
caso was made in Chapra and had con~
eluded in September 1921.
S. 164 allows tho recording of a con-
fession by a Presidency Magistrate to he-
made at any time after a police investi-
gation has closed so long as it is before
the commencement of tho inquiry or
trial. In tho present case tho investiga-
tion at Chapra had closed and the confes-
sion was recorded before the commence-
ment of the trial. If tho confession was
not made under the Codo of Criminal
Procedure then tho rest of the arguments
by Mr. Boao regarding irregularities and
contraventions of tho provisions of the
Code of Criminal Procedure will have
little or no force.
Mukerjeo, J., in his judgment, hav-
ing found that the confession was not
recorded under tho Code, comes to the
conclusion that S. 80 of the Evidence Act
will not apply to the confession which
came before the Court without any pre-
sumptive force of its own, and its admis-
sibility must be judged as that of any
other evidence ; and, after citing the
rules drawn up by the Government of
Bengal for the recording of confessions and
noticing that some of those rules bad not
been observed by the Presidency Magis~
trate who recorded Haripado's confession,
states —
The position would have been quite different if
the confession did not stand before me divested of
the presumption under S. 80 of the Evidence Act
a nd had been duly recorded under some provisions
1926
NlLMADHAB V. EMPEROR (Adauii, J.)
Fata* 283
of the law, or, at any rate, if I was able to hold
that all proper precautions had been taken in
recording them.
The learned counsel, following
Mukherjee, J.'s judgment, contends that
the confession is bad because Haripado
was arrested on the 4th December and
was kept in custody of the police until he
made his confession before the Magistrate
on the 13th.
Elsewhere in his judgment Mukherjee,
J., stated that he absolutely disbelieved
the allegations made by Haripado that
lie had been tortured or illtreated or
induced by the police to make his confes-
sion, but yet he thinks that the custody
of the accused by the police was against
the rules and had an effect on his decision
as to tho voluntary character of tbo
confession. As a matter of fact tbo rules
of the Calcutta Police are not tho same as
(jho provisions of tho Codo as to the
detention of accused persons. It appears
that, according to the custom of the
Calcutta Police, tho accused are kept in
custody by tho police during an investi-
gation but are produced every clay before
the Deputy Commissioner who sees them
and questions them as to whether they
have been illtreated by the police or
whether any inducement has been held
out to them ; and in this case we have
evidence that this custom was observed
and no complaints were made to the
Deputy Commissioner by Haripado or
Sudhir.
The next contention is that under tho
rules tho confession should have been
recorded in open Court, whereas tho
evidence shows that tho Presidency
Magistrate on subsequent days bad
Haripado brought to his house where a
statement of his confession was continued.
Tho Code itself contains no provisions as
to the confession being made in open
Court. On the first date the Magistrate
recorded the confession in Court, after
taking every precaution to sec that no
police were present. It is complained
that the confessions were recorded piece*
meal, but it was unavoidable owing to
their length. It would have been better
perhaps if during the period of the con-
fession the accused had not been returned
to the custody of the police at night ; but
there is nothing to show in this case that
Haripado was in any way tampered
with.
The next objection is that the Presi-
dency Magistrate did not properly warn
Haripado and did not tell him that he
was a Magistrate. The Magistrate was
called as a witness and states that, to the
best of his memory, he did warn Hari-
pado that ho was a Magistrate, and ho
has also given full evidence that he was
quite satisfied that tho confessions were
made voluntarily.
I have read through the confession and
tbo warnings given by tbo Magistrate to
Haripado, and in my opinion they fully
meet tbe requirements of tbo law, Thej
Magistrate states that before bo recorded)
tbo confession be took tbo precaution that;
bo was satisfied that there was no police
officer in Court and that be questioned
Haripado as to tho time during which,
and tho places whore, bo bad been under
tho control of tho police. Ilaripado told
him that he was arrested at 4 a.m. on
the 1th December and was taken to the
Bartola tbana on a Saturday and was
sent from Lai Bazar Police office at 2
p. m. on the 13th December to have bis
confession recorded. It may be that tbo
Magistrate might have obtained more
details as to tbo police custody but I
think there was sufficient compliance
with tbe law. Haripado was asked
whether be wished to make a statement
voluntarily and ho replied that he did,
and then ho was warned that any state-
ment ho might make would be used as
evidence against him ; but Haripadc
replied that be was willing to make a
statement.
It was next contended that the confes-
sion is bad because it is recorded in
English. Haripado is a Bengali and go-
was the Magistrate; but it appears that ho
made his confession partly in English and
partly in Bengali, a mixture of both.
Under tbo circumstances I bold that in
recording tbe confession in English tho
provisions of S. 364 were complied with.
Haripado knows English well and ho
read through his statement and corrected
it, showing that he fully understood it. ^
It is hinted that Haripado made hi&
confession under the impression that, if
ho confessed, he would be made an
approver, and, therefore, tbe confession is
bad. It may be that he did hope to be
made an approver, but unless this induce-
ment was held out to him by some person
in authority, the thought in his own mind
will not affect the admissibility of tha
confession. There is no sign of this,
284 Palna
NILMADHAB v. EMPEKOK (Adami, J.)
1926
inducement; having been held out to him.
He made a very full and convincing con-
fession which bears ovory sign of being
voluntary and has no traces in it of being
tutored or invented. As a matter of fact
Haripado was kept in custody with
Nilmadhab and Lalit, who had also con-
f eased, and when it was proposed to
segregate the men they expressed their
<losiro to remain together.
Haripado retracted his confession by a
petition dated the 23rd December which
was filed in Court on the 27th. It
ia stated that tho retraction was made
because H-tripado saw that he was
not going to bo made an approver.
The hopo of being made an approver does
not show that tho confession was not
voluntary.
It was lastly urged that as the confes-
sion was retracted it can only be. acted
upon if there is strong corroboration, and
it is contended that in tho present case
corroboration is wanting ; for instance
the evidence that Haripado had consor-
ted with Budhir and Nilamdhab is scanty
and tho Assistant Sessions Judge has
relied on certain evidence to prove associ-
ntion which really carries no proof. It
was pointed out that the fact that
Haripado and Nilmadhab both dealt with
tho same Kabulis in borrowing money
can have little effect in tho present case,
since tho evidence shows that the borrow-
ing was in 1923, whereas tho present of-
fence was committed in 1921. But tho
confessions show that these men joined
in borrowing money from Kabulis from
tho start, and tho evidence that after-
wards in 1928 they were still borrowing
together is corroborative. Prosecution
Witness No. 26 says that he never heard
Haripado and Nilarnadhab talking to-
gether in the baker's shop, but ho saw
them together.
Then Mr. Boso dealt with the point
that the learned Assistant Sessions Judge
had drawn inference against Haripado
from the evidence that he had taken
leave from the telegraph office on
several occasions. He was present on
the two days when telegraphic money
orders in this case were despatched
from Calcutta. He contends that no
inference should bo drawn from this.
But it is striking that Haripado was
present on those days and had been
absent both before and afterwards. The
confession of Haripado, though refracted,
is strongly corroborated by the confes-
sions of Nilmadhab and Sudhir and those
two confessions are strongly corroborated
by the mass of evidence which has been
recorded in this case. Haripado is an
intelligent man and was a telegraphist
and would be able to act, as he is said to
have done by Nilmadhab and Sudhir,
showing the other two how to prepare
bogus money orders while he himself
would have the opportunity to place
them in the clip.
In my opinion the confession of
Haripado was made voluntarily and is
corroborated, and I have no doubt in my
mind that his conviction was correct.
With regard to Sudhir, the learned
vakil who appears for him has stated
that his arguments are the same as those
of Mr. Bose on bahalf of Haripado. But
the case against Sudhir is supported also
by the evidence of witnesses who saw
him at Chapra as well as by the other
confessions. In each of these confessions
the accused implicates himself to the
same degree as he implicates tho other
accused. Even were there no confession
by Sudhir, the oral evidence en the
record is fully sufficient to prove his
guilt ; for he has been fully identified by
Sahebjan and the witnesses from
Darbhanga. I have no doubt about his
guilt.
It has been contended that the sen-
tences passed on these appellants are too
severe. But considering the seriousness
of the offence and the amount of which
they have cheated the Government and
the public, I do not think that the
sentence of six years' imprisonment
which they are called upon to undergo is
by any means too severe. I am not in-
clined to reduce it.
The learned Assistant Sessions Judge
has written an exceedingly good and
careful judgment which meets every one
of the arguments put forward on appeal
before us fully and completely. He has
shown the greatest care in dealing with
the documentary evidence and in
explaining tho methods which are
followed in despatching telegraphic
money orders through the Calcutta tele-
graph office. He has taken the greatest
pains over the case and shown that he
has fully understood and considered
every point in it.
The result of the appeal is that the
appellant ISiimadhab Qhowdhury will be
1926
NlLMADHAB V. EMPEROR (Buoknill, J.)
Patna 285
acquitted and set at liberty, and the
appeals of Sudhir and Haripado are dis-
missed.
Bucknill, J.— The learned counsel,
Sir Ali Imam, who hag appeared for the
appellant Nil Madhab Chowdhury has
only raised before us one point upon his
client's behalf. It is simply that he was
granted a pardon in a criminal case the
circumstances in which were relative to
the offence of which he has been convic-
ted in the present proceedings which are
now before this Court ; and that in view
of this pardon he cannot properly be
convicted of the offence of which he has
actually been convicted. In order to
appreciate this plea, it is necessary to
ascertain exactly what took place. (Here
his Lordship reiterated the facts as
stated in the previous judgment and pro-
peeded.) Now the learned Government
Advocate who has appeared here in sup-
port of the present conviction of tho
appellant, suggests that the admission at
the Magisterial enquiry of all this evi-
dence to which I have just referred, was
a blunder ; and he points to the fact, in
support of his suggestion, that at the
trial it was all dropped ; no questions
being then asked by the standing counsel
for the Crown of the appellant and of
other witnesses relating to the money
order frauds. It may here be mentioned
that the prosecution failed and that the
accused in the note forgery case were all
acquitted. There can be no question but
that the appellant fulfilled all the condi-
tions under which his pardon was
granted.
But the appellant was then proceeded
against in connexion with the money
order frauds : he was tried before the
Assistant Sessions Judge at Sir an ; he at
once raised the plea that in view of the
pardon which had been granted to him
in the Masjidbari note forgery case he
could wot be put on his trial in con-1
nexion with the money order frauds. This
defence having been raised as a plea in bar
was heard by the Additional Sessions
Judge, who decided the point against
the appellant ; against this order the
appellant appealed to this Court ; tho
matter came before Mr. Justice Mullick
and myself and we ordered that he should
be allowed definitely to take this plea at
the trial. The point was heard before
the Additional Sessions Judge at the
trial and was argued at considerable
length. The learned Additional Sessions
Judge came to the conclusion that tho
note forgery case was in no way associ-
ated with the money order frauds and
that consequently the pardon granted to
the appellant did not extend so far as to
protect him against a prosecution for his
participation in the latter crime. The
matter, however, is not quite so simple
as it might at first sight appear.
One of the most important considera-
tions is as to why the appellant should
have been allowed to implicate himself
in offences other than the note forgery
if it was not thought by those who
represent the Crown directly or indirectly
that such other offences were associated
with or relative to the note forgery
case. Another important considera-
tion is as to from what Conse-
quences the appellant was under 'the
reasonable impression that he had
delivered himself when he received a
pardon in consideration of his turning
approver. It is true that when he made
his confession it had not apparently been
then mooted to him that ho might ob-
tain a pardon and bo called as a prosecu-
tion witness , but he was allowed with-
out any warning to implicate himself in
most serious crimes which were not then
the subject- matter even of enquiry, far
less of any threatened charge against
himself. Although it can be argued that
tho three branches of crime in which tho
appellant admitted that he had taken
part wero not in point of time or partly
in point of character directly connected
with each other, it is idle to contend that
they did not form a part of the doing* of
a criminal association of persons, the
membership of whose band varied to
some extent but remained constant, so
far as the appellant and his co-accused
Haripado were concerned.
Then, again, with full knowledge that
the appellant had hopelessly involved
himself in a series of offences, the Public
Prosecutor, when suggesting that ^the
appellant should be allowed to become
an approver, puts forward aa a reason the
suggestion that the whole plot must be
brought to light and selected the appel-
lant as the most suitable of the accused
for utilization by the Crown as a prosecu-
tion witness because of the fact that tho
appellant had already made a full dis-
closure of the whole conspiracy. Un-
doubtedly the language of the pardon it-
286 Pataa
NlLMADHAB V. EMPEROR (Bucknill, J.)
1926
self is restricted because it merely speaks
of the case being one of a big and wide-
spread conspiracy to for&o and utter
Government currency notes ; but, on
the other hand, the pardon is offered if
the appellant makes a full and true dis-
closure of the \vholo of the circum-
stances within his knowledge relative
the offence. How then can one infer what
were at that time thought to bo the
wjiolo of tho circumstances relative to
io tho offenco ? What did tho appellant
think they were and what did the Public
Prosecutor and the Additional Presidency
Magistrate also think they were? To
my mind from the fact that the whole
of tho incidents relating to the money
order frauds and tho tapping of tho
telegraphs was given in evidence at tho
magisterial enquiry indicates that tho
impression of the appellant, tho Public
Prosecutor and tho Additional Chief
Presidency Magistrate was that those
incidents wore relative to the no to
forgery case. Had that impression not
existed, it would indeed 1 ) difficult to
contemplate either that the appellant
should have given evidence relating
thereto or that the Public Prosecutor or
the Magistrate could possibly have al-
lowed so much testimony in no way
relevant or relative to the note forgery
case to havo been given.
The fact that later on at tho trial it-
self, tho standing counsel thought tit
not to allow a repetition of this evidence
to bo adduced does not seorn to nio to
affect tho position. I have* no doubt
that, had he been asked the necessary
questions the appellant would have re*
iterated what ho had siid before, but
he was simply not called upon to do so.
That fact cannot in tho least affect tho
position as it existed when he was offered
and accepted the pardon nor tho atti-
tude of mind of tho appellant, the Pub-
lic Prosecutor and tho Magistrate when
the pardon was tendered, agreed to and
granted.
The oaso known as Garsirtcs case (4)
(of which report tho Library of this
Court does not unfortunately contain a
copy but which is quoted in Kussell on
Crimes, 4th Ed. Vol. 3, p. 597) supports
nay view that, where an accomplice has
been allowed to turn Kirg's Evidence
(i, o. has been, a* it is termed in India,
perm i 1. 1 od to hpoorr? e an approver) , anil
(4) Titfui'a r,ow, is.
in his confession discloses offences (iix
that case another robbery by tho same
parties but quite distinct from the rob
bery the subject-matter of the charge]
other than that which was the subject
of t.ho charge against him and from lia-
bility to answer for the consequences of
which he was (even wrongly) under the
impression that he had freed himself by
his confession and pardon, the Crown
should not proceed against him in con-
nexion with such other offences. No
question can of course arise where the
offenco clearly pardoned and that or
those further disclosed by the approver
are obviously closely linked together ;
such as, for instance, occurred in the case
of Quecn-'Emprass v. (langa Char an (l)
hut a remark of Straight, J in his judg-
ment in that cise is well worthy of
note ; it is this :
It must be borne in mind that in countenan-
cing tht.'t$e pardons to accomplices the law does
not invite a cramped and constrained statement
by the approver ; on the contrary it requires a
thorough ani complete disclosure of all tho facts
withi-i his knowledge bearing upon the offence
or offences as to which he gives evidence ; and
when he has fciven his evidence. I do not think
that tho question of how far it is to protect him
and what portion of it should not protect him,
might to be treated in a narrow spirit.
I myself cannot but think that the
course of events in this case, namely,
tho confession, the knowledge of the
Puhlic Prosecutor of tho full reference
in it to the money order frauds, tho wide
language used in tho Public Prosecutor's
application and in part of the Magis-
trate's offer of pardon, the connexions
(such as they wore and small though
they might be) between the offences dis-
closed and the admission at tho magis-
terial enquiry of evidence as to the
money order frauds show that, at the
time of the pardon, it was undoubtedly
thought by all concerned that tho dis-
closures as to the money order frauds
were really relative to the note forgery
case.
In this view, therefore, the appellant's
appeal must succeed.
It is suggested by the learned Govern-
ment Advocate that the Magistrate had
no power to grant such a pardon of so
wide a character. This must of course
depend upon whether tho disclosures
relating to the money order frauds were
really relative to the note forgery case
but even if the Magistrate was wrong in
thinking that they were both relevant or
1926
NlLMADHAB V. EMPLROR (JBucknill, J.)
Patna 287
even relative it would not be, I think,
in the contemplation of the Crown that
if its Court purported to grant such a
pardon such Court's action should be
jettisoned to the giave jcopauly of the
subject.
For the above reasons I think that the
appeal of the appellant Nilmadhab Chow-
dhury must be allowed, that his convic-
tion and sentences must be quashed and
that he must forthwith be set at liberty.
With regard to the appeals of the
other two appellants Haripado and
Sudhir, I have had the advantage and
opportunity of reading the ludgment of
my learned brother with which 1 may
say at once that I entirely agree and to
which I desire only to add a few words.
"With regard to the intention of the
Legislature in amending S. 164 of the
Criminal P. 0. in 1923 by the introduc-
tion ot tho words " Any Presidency
Magistrate," an examination ol what
took place in the Legislative Assembly
leaves no doubt. On tho 31sfc January
1923 (see Legislative Assembly Debates,
Vol. Ill, Part II, 1023, paqc 1717) it
will bo found that Sir Henry Moncrieff
Smith in moving the amendment said *
Sir, before we leave sub-Gl (1) of 01. 81, I
>hould like to invito Iho attention of the
to what is obviously a somewhat senous omission
iu the clauso us drafted by the Joint Committee.
It has till jiibt this moment escaped the notice
of the House. In the wa> it is drafted no Presi-
dency Magistrate can record a statement or a
< onfes&iou. I think this is a most serious defect
,tnd 1 sh-mld hko to ask the indulgence of tho
House to enable me to move an amendment
\\hich will remedy that dnfpct. Tho amendment
\\ill run as follow : "That in eub-Cl. (i) of
01. 84, before the \iord 'Any Magistrate' the ^ords
Any Presidency Magistrate be inserted.
The motion was adopted.
It may of course justly be said that
what the intention of the Legislature was
is not really material when a tribunal
is called upon to place a construotion
upon the words of a section in an enact-
ment ; but I thought that it would be
as well to dissipate any doubt there
might be with regard to what was in
fact the intention of the Legislative
Body. It is quite true that in the case
of Emperor v. Panchlcon Dutt (*2),
Mukherji, J., has held that S. 164 of the
Criminal P. C., does not apply to a con-
fession recorded in a presidency town in
the course of a police investigation not
held under the orders of a Presidency
Magistrate under 8s. 155 and 156, sub^
S, 3 of the Criminal P. O. With every
respect to the opinion of that learned
Judge 1 cannot but think that in coining
to his decision he has relied upon the
case of Quern-Empress v. Ntlmadhab
^fitter (3), but that case was decided
prior to the amendment to which I have
made reference above.
I ani at a loss to understand how
S. 1 of the Criminal P. C., can be ie~
garded as preventing a Presidency Magis-
trate fro.n recording a confession in ac-
cordance with the provisions of 8. 164
he is not a Commissioner of Police or a
member of tho Police force. It is said
that S. 161 can orly bo utilized when
an investigation is being made by tho
police under tho provisions of Chapter 14
of the Code or at any time afterwards
before the commencement of tho inquiry
or trial resulting from such an invoiti-
gation , and that as in Calcutta investi-
gations by tho police are not effected
under the provisions of Chapter 14 the
operation of S. 104 cannot be brought
into play. I can only say that iu m\
view this is a narrow construction of
the section with which 1 do not feel
thafc I can agree, although I am far
from suggesting that it is not a possible
construction. In my opinion, oven
though the police in Calcutta may not
conduct their investigations in precise
accordance with the provisions of Chap-
tor 14, a construction of 8. 1G4, which
would exclude its utilization in Calcutta
during a police investigation or at an>
time afterwards before the commence-
ment of tho enquiry or trial is to read ifc
in a somewhat strained and 'unnatural
sense.
As for tho remaining points raised b}
the learned counsel for these two appel-
lants I can only say that I could see no
ground for thinking that there was an>
irregularitv in the way in which the
confessions were recorded nor tho least
indication that they were not entirely
voluntary. They bore too intrinsic evi-
dence of truth and though tho appellants
have now retracted them, they were in
mv opinion most amply corroborated.
Appellant No. 1 acquitted.
Other appeals dismissed
288 Patna
DBBI PRASAD v. JALDHAR MAHTON
# A, I. R. 1926 Patnm 288
MULLICK, AO. 0. J., AND KlJLWANT
SAHAY, J.
Dtbi Prasiid — Plaintiff — Appellant,
v.
Jaldh'ar Mali ton and others — Defen-
dants— Respondents.
Letters Patent Appeal Nog. 20 and 21
of 1924, Decided on 15th July 1925.
from a judgment of P. R. Das, J.,D/- 27th
November 1924.
# (a) Civil P. CM S. 11-— Erroneous decision.
An erroneous decision on a point of law can
be res judicata ; A. I. ft. 1924 Patna 265, Foil.
[P. 288, 0. 2]
# (6) Civil P. C., S. 11— Cause of action recur-
ring one —Still matter directly and substantially
•In Issue Is res judicata.
Even if tho C;UIHO of action for a suit is a re-
curring one, every matter decided in a previous
suit may be re* judioata which was substantially
and directly in issue. [P. 288, 0. 2]
B. C. Sink a — for Appellant.
Murari Prasad — for Respondents,
Mullick, Ag. C. J.— A suit for rent
for the years 1315 to 1317 F. was brought
by the appellant against the respondents
or their predecessors in the year 1910 in
the Court of tho Munsif of Barh. Tho
plaintiff alleged that the defendants were
his raiyats and were liable to pay
ohauraha rent which is rent paid in rice.
The Munsif found that the defendants
were the plaintiff's raiyats but that they
were not liable for the rent inasmuch as
the plaintiff had omitted to show them as
his raiyats in Part II of a road coss
return which ho had filed in the course of
a previons revaluation. He accordingly
dismissed the suit.
The case was finally taken on appeal to
the High Court, and in 1917 Mr. Justice
Atkinson affirmed the Munsif's finding
and held that 8. 20 (b) of the Road Cess
Act was a bar to the plaintiff's claim.
The lents for the years 1318 to 1321 F.
have become barred by limitation and the
present suit is brought for the years 1322
to 1325 F.
The defence taken by the tenants is
that the judgment ,in the previous case
raises a bar under 8. 11 of the Civil
P. C. The Munsif, and the District
Judge in appeal, both decided against the
defendants' contention and decreed tho
plaintiff's suit. In second appeal Mr.
Justice Das has found that Mr. Justice
Atkinson's decision, even if it was erro-
neous, was res judicata and that the pre-
sent suit cannot succeed.
Since the judgment of Mr. Justice
Atkinson in the previous suit it has been
held by a Division Bench of this Court
that it is immatarial whether a landlord
in his cess revaluation return enters a
raiyat's land in Part I or Part II and
that so long as the land is contained in
the return the landlord is entitled to
recover his rent. Assuming, therefore,
that Mr. Justice Atkinson's decision was
wrong the question is whether S. 11 of
the Civil P. C. makes that decision res
judicata for the purposes of the present
suit. The question depends on whether
tho point now in issue was directly and
substantially in issue in the previous
suit. It does not appear from anything
that has been said in the judgment of the
Courts below that the matter was not
raised in the previous suit or that it was
only incidentally raised : nor has the
learned vakil for tho appellant to-day
shown us anything from 'the pleadings- in
the previous suit which would lead us to
hold that the issue was not identical in
the two cases or that it was not directly
and substantially raised. He rests his-
argument before us almost entirely upon
the fact that the view of the Cess Act
taken by Mr. Justice Atkinson has been
pronounced to be wrong by a later deci-
sion of this Court and he contends that
an erroneous decision on a point of law
can never be res judicata.
This point has been considered in
Itamlal Malikand v. Deodhari Bay (1),
and unless we are prepared to make a
reference to a Full Bench we must follow
that judgment. In my opinion that
reasoning contained therein is correct
and the present suit is barred by res judi-
cata. It is now settled that even if the
cause of action for a suit is a recur-
ring one every matter decided in the suit
may be res judicata which was substan-
tially and directly in issue. The result
is that the appeal will be dismissed with
costs.
The judgment will also govern Letters
Patent Appeal No. 21 of 1924.
Kulwant Sahay, J.— I agree.
Appeal dismissed.
(1) A. J. R. 1924 Patna 265.
1926
PAKSHAN SAHI \. RICHARDSON (JwaU Prasad, J,)
* A. I. R, 1926 Patna 289
JWALA PBASAD, J.
Parshan Sahi and others— Plaintiffs —
Appellants.
v.
(3. L. Richardson and others — Defen-
dants— Respondents .
AppeU No. 18 of 1923, Decided on 16th
November 1925, from the appellate de-
cree of the Addl. Sub-J., Muzaffarpur,
D/- 38th September 1922.
# Civil P. C., S. 11— Application clialUnging
validity of a compromise decree under S. 151 dis-
missed— Subsequent suit for the same purpose is
not barred— Civil P. C., S. 151.
Dismissal of an application under S. 151 chal-
lenging tho validity of a comBromiso decree is
not a bar to a subsequent suit brought for the
purpose of avoiding the decree on the ground of
fraud. 18 C. W. N. 1204 Dist. 39 L C. 891, Foil.
[P X) <2C 1]
L. N. Sinh a—for Appellants.
S. Dayal and Sambfw Saran — for Bes-
pondents.
udgment. — The plaintiffs are the
appeHants. They ask for an adjudica-
tion of their title to and confirmation of
possession over 1 bigha, 9 kathas, of land
situate in mauza Yusufpatti, pargana
Morwah Khurd, bearing tauzi Nos. -4388
and 4390. They also seek to recover
Ks. 173-8-0 as the price of sugarcane
raised on the disputed land, and an in-
junction restraining the 'defendants first
party from paying the price of the sugar-
cane to the defendants second party.
The disputed land is a part of a holding
consisting of 6 bighas 9 kathas and
1 dhur. The holding belonged to the
defendants second party and one Abdhu
Singh. It was sold in an execution sale
and was purchased in the name of Plain-
tiff No. 1, Parshan Sahi, on the 19th
May, 1896 (vide sale certificate, Exhibit
M, which shows the area sold to be
3 bighas and not 6 bighas as claimed by
the plaintiffs). The plaintiffs base their
title upon this auction-purchase and up-
on a compromise said to have been filed
subsequently in Suit No. 360 of 1918
whereby the defendants and Abdhu
Singh relinquished their claim to the
land. The plaintiffs say that in spite of
the said compromise the defendants
brought a Small Cause Court suit against
the defendants first party and obtained a
decree for the price of the sugarcane
which was supplied by the plaintiffs to
1926 P/97 A 88
the defendants first party who now
refuse to give the price of the sugarcane
to the plaintiffs.
The plaintiffs base their cause of
action upon this refusal and on account
of resistance of the possession by the
defendants. Defendants second party, on
the other hand, contend that at the auc-
tion sale they purchased the property in
the farzi name of the Plaintiff No. 1 who
is their close relation and that the al-
leged compromise is fraudulent, void and
inoperative and that they and not the
plaintiffs are entitled to the price of the
sugarcane. The defendants first party
have no objection to the payment of the
price of the sugarcane to tho party who-
may be held by tho Court to be entitled
to receive the same. The real contest is>
therefore between the plaintiffs and tho
defendants second party, and several
issues were raised in the trial Court. The
only important issues tried in tho lower
appellate Court are :
(1) Have the plaintiffs got any title to
the disputed land ? and
(2) Is the compromise decree binding
on the defendants ?
The Courts below have concurrently
held that tho plaintiffs have failed to-
prove their title to the land in dispute,
and that in spite of tho purchase being
in the name of the Plaintiff No. 1, the
defendants continued to be in possession
of the property. They have further held
that the auction-purchase was only farzi;
that the real purchasers ^ore the defen-
dants second party in tho name of their
close relation, Parshan Sahi, whose father
Ramdihal was tho maternal uncle of
Ramdhari, Defendant No. 5, and that
Abdhu Singh is a full brother of Ram*
dhari. The lower appellate Court has
further held that neither any dakhal*
dehani was taken out by the plaintiffs-
nor any chalan for payment of tho pur-
chase money has been produced and
though the sale took place prior to 1895
and the finally published record-of- rights
in 1897, yet the name of Parsban was
not substituted therein. Similarly the
batwara papers of 1915 contained tho
name Awadh Singh in respect of several
plots including Plots Nos. 12 and 24
which are the disputed ones. His name
also appears in Exhibits E, J and J (a)
In the criminal case (Exhibit N) Defen.
dant No. 5 was found to be in possession .-
It has not been shown before mo that the
290 Patna PARSHAN SAHI v. RICHARDSON (Twala Prasad, J.)
1926
finding of the Court below as to the pur-
chase being farzi in the name of Plain-
tiff No. 1 and the continuity of the
possession by the defendants over the
property in spite of the sale is in any
way vitiated by the Court in not having
taken into consideration any relevant
ovidence on the record. The finding of
the Court below that the plaintiff did not
acquire any title by the auction purchase
of 1896 in the name of Plaintiff No. 1,
is a finding of fact and not open to chal-
lenge in second appeal. As to the com-
promise (Exhibit 4) the Courfc below in
concurrence with the trial Court has
come to tho conclusion that it was a
fraudulent one. Tho compromise peti-
tion was filed in it Suit (No. 300 of 1019)
.after the aforesaid criminal case was up-
held. Under this compromise. Rain-
dhari, Defendant No. 5, and Abdhti relin-
quished all claims to tho entire land.
The compromise, as stated therein, was
to bo given effect to by executing a
registered deed. No registered deed was
however executed. The compromise
petition has not been legally proved and
Defendant No. (> who in son of defendant
No. 5, is no party to it. The Court below
has hold that it has not been proved that
tho defendants had any knowledge of tho
terms of tho compromise petition, Tho
finding of the Court below that tho com-
promise petition is 'fraudulent and in-
operative is again a finding of fact and
cannot bo challenged in second appeal.
The learned advocate on behalf of the
appellants has, however, urged that the
compromise has become final and is not
open to challenge by tho defendants in
this suit. In support of this 'contention
ho has referred to the case of Kailash
Chandra v. Gopal Chandra (l). In that
case, after tho compromise was filed in
;i suit and decree prepared in accordance
therewith one of the plaintiffs applied
to tho Court for a review of tho decree
and to set aside the compromise and his
application was based upon tho allegation
that he had not consented to the com-
promise. The review petition was dis-
missed by tho trial Court. Subsequently
H suit was brought by another plaintiff
;ilong with the plaintiff who had applied
ior the review of the judgment. The
ground of attack to the compromise
taken in the suit was the same as in the
review petition, viz., that the plaintiffs
(i) [u»i4] TsT7 w.~x. ~i2bT^*-'o TOrns."
had given no consent to the compromise.
It was further suggested that there was
fraud. The alleged fraud was, however,
negatived and the only ground of relief
was the absence of consent. It was held
that the dismissal of tho petition of re-
view was a bar to tho subsequent suit
contesting the validity of the compromise
filed in the previous suit. It seems to
me that the aforesaid case was decided
upon the principle of res judicata inas-
much as the review matter and the
subsequent suit were founded upon the
same ground, viz., the absence of the
consent to the compromise in question.
Tho parties and the subject-matter of the
relief sought were the same in both tho
proceedings in tho 'suit and the review.
Tho matter in controversy in the review
proceeding arid m tho suit was decided
and the relief sought was refused and tho
Courfc which dealt with the review-
matter was competent to deal with the
suit. All tho conditions embodied in
S. 11. of tho Code of Civil Procedure
were fully satisfied.
The learned advocate on behalf ot the
appellant, however, contends that the
principle of tho aforesaid case would
apply to tho present case inasmuch as
the defendants had challenged the com-
promise decree in an application made by
them under S. 151 of tho Civil Procedure
Code and their petition was rejected.
There is no substance in this contention.
The application under S. 151 was not an,
application which the defendants could,
as a matter of right, press. It simply in-
voked the inherent power of the Courfc
In the next place the matter was not
gone into in the Court bolow and the
application under S. 151 was dismissed
summarily upon the ground stated by
the Munsif that he could not, under tho
provision of S. 151, give the defendants
the relief which they sought. There was
no decision as to whether the compro-
mise was fraudulent or not in the
miscellaneous application of the defen-
dants under S. 151 of the Civil Proce-
dure Code and no res judicata can
apply to a matter left undecided. The
defendants in the present case stand on
a firmer ground. They attack the com-
promise upon tho ground of fraud. The
learned Chief Justice, Sir Lawrence
Jenkins, in the case referred to above,
olearly stated that in the review question
the allegation of fraud was negatived. In
1926
GuBKBDHAN DAS V. JAGAT NAUAIN (Foster, J.)
Patna 291
the present case the ground of fraud
urged to impugn the validity of com-
promise by the Court below has been up-
held. The case will, therefore, be
governed by the principle laid down by
this Court in the case of Eamratan'Singli
v. Khublal Gope (2). The defendants
were quite competent to take the plea
of fraud in order to avoid the com-
promise and fraud having been once esta-
blished, the compromise is void and can-
not stand.
The result is that the decision of the
Court below is affirmed and the appeal
is dismissed with costs.
Appeal dismissed.
(2) [1917J 39 1. C. S9l, ' ~"
* A. I. R. 1926 Patna 291
DAS AND FOSTER, JJ.
(Itfberdhan Das and another -Objectors
Appellants.
v.
Jayat Naraiu — Respondent.
Appeal No. 48 of 1925, Decided on
loth February 1926, from an order of the
Dist. J., Saran, D/- 5th December 1924.
% Provincial Insolvency Act, Ss. 56 (3), 4 and 5
— Ss. 56 (8) Implies that Court must have ap-
pointed Receiver in Insolvency and that the power
to recover property Is reserved to the Court — En-
quiry by the Court mus>t be a judicial inquiry,
Two inferences seem to bo deduoible from
S. 66 (3) • first, that the Court before it takes any
action under this sub- section in the way of
realization of proparty must have appointed a
Receiver ; and that means a Receiver in insol-
vency and not a Receiver ad Interim before the
adjudication. Secondly, the power to remove
property from the possession of any person is
reserved to the Court.
S. 4 read with S. 5 intends that the Court in
such matters of forcible realization of property is
to act with the procedure and no doubt with the
judicial caution of a civil Court. Under S. 4
decision of a dispute between the debtcr and the
debtor's estate on the one hand, and claimant
against it on the other, is to be final and binding ;
and under S. 5 the Court in regard to the pro-
ceedings under the Act is to have the same powers
and to follow the same procedure as it has and
follows in the exercise of original civil jurisdic-
tion. An enquiry by the so-called Receiver would
not after adjudication bo an enquiry of a person
having authority under the Act, and he has no
power to make any decision as is mentioned in
S. 68, nor would a Receiver in insolvency have
power under S. 56 to remove property from the
possession of others than the insolvent.
[P. 201, C. 2, P. 292, C, 1,2]
Hareshicar Prashad S Mi a— to? Appel-
lants. .
Ram Praiai — for Respondent,
Foster, J. — It appears to me to be
beyond question that the appellants have
right on their side in the matter before,
us. They are the sons of one Girdhar
Das, who came into Court, so far as the,
papers before us indicate, as early as 29th
March 1924. Ho as a creditor lodged an
objection to the application of another
creditor for tho adjudication of insolvency
of Goberdhan Das. It was not till tho
2nd August 1924, that Goberdhan Das
\vas adjudged an insolvent. Meanwhile
a local pleader, Babu Jagat Narayan, had
been appointed ad interim Receiver.
Unfortunately tho Court overlooked at
the time of the adjudication the necessity
of the formal appointment of a Receiver
in insolvency invested with the powers
and duties indicated in Ss. 56 and 59 of
the Provincial Insolvency Act. Throe days
after the adjudication, tho present appel-
lants, who are the sons of Girdhar Das,
although they had not been subsituted in
place of their father, put in a petition
asking that an enquiry be held as to tho
ownership of a houso in Mahalla Ratan-
pure in Chapra town by the Receiver. It
appears that this house had becm recorded
by the Receiver as tho property of tho
insolvent and in fact as his only immov-
able property. Tho substitution of tho
present appellants in tho placo of their
father took placo a few days later, and
when they next appeared before tho
Receiver they undoubtedly appeared a*
party-creditors and they were claiming
the houso to be their own. Now, ib is
quite clear that tho Court could before
adjudication depute the Receiver ad
interim to collect evidence as to tho
assets of the insolvent, but it is clear
that tho Receiver could not in a claim
case of this nature pass the final order.
In S. 56 (3) of the Act it is laid clown
that when
tho Court appoints a Receiver, it may remove
tbo person in whoso possession or custody any
Huch property as aforesaid is from the possession
or custody thereof : provided that nothing in
this section shall bo deemed to authorize the
Court to remove from tho possession or custody
of property any person whom the insolvent has
not a present right so to remove.
Two inferences seem to bo deduoible
from the phraseology of this enactment.
The Court, before it takes any action
under this sub-section in the way of1
realization of property, must have ap-
pointed a Receiver ; and that means aj
Receiver in insolvency and not a Receiver I
ad interim before the adjudication.
Patna
FIRANOI SINGH v. DURGA
1926*
Secondly, the power to remove property
from the possession of any person is
reserved to the Courfc, Another matter
bo be noticed in the new Insolvency
Act is that the new S. 4 read with 8. 5,
which was the old S. 47, apparently
intends that the Court in such matters of
forcible realization of property is to act
with the procedure and no doubt with
the judicial caution of a civil Oourt.
Under 8. 4 the decision of a dispute
between the debtor and the debtor's
estate on the one hand, and claimant
against it on the other, is to be final and
binding ; and under S. 6 the Court in
regard to the proceedings under the Act
is to have the same powers and to follow
the same procedure as it has and follows
in the exercise of original civil jurisdic*
tiop. Now, what 1 deduce from this is
that the claimants who are here in
appeal have a right to be heard judicially
and to have from the Court a final deer
sion before the property is wrested from
their possession. No doubt after the
order under appeal the property has been
taken possession of. But if that act has
boon ultra viros it can only be ignored.
The appellants did, as I have said, put
in a petition before the Receiver in
August last after they had been subsitut-
od in place of their father as creditors
and as claimants. They applied for time
continually, and in fact they do not
appear to have taken any active step in
the presence of the so-called Receiver.
So in November we find that the so-
called Receiver reported the fact to the
Court. The Court then had the respon-
sibility before it of carrying out the law
which I have quoted from Ss. 56 and 4
and 5 of the Provincial Insolvency Act.
But instead of holding an enquiry the
Court passed an order on the 15th
November 1924 to the effect that the
possession of the house with all other
things mentioned in the Insolvency peti-
tion be given to the Receiver through
the Nazir. This order was passed with-
out the slightest attempt at making an
enquiry. Again, on the 5th December, the
District Judge passed the second order
which is the order under appeal. He
mentioned that the present appellants
had prayed that they might be allowed
to adduce evidence in support of their
claims having been unable to do so previ-
ously on account of malarial fever. As he
was not satisfied with this explanation of
tho appellants' previous conduct, he re-
jected the application.
Now it is perfectly obvious that the
learned Judge had no power under the
law to reject that application on these
grounds. An enquiry by the so-called
Receiver would not after adjudication be
an enquiry of a person having authority
under the Act. The Court had no evi-
dence whatever before it and had never
in fact taken measures to hear the evi-
dence in respect of this claim. The so-
called Receiver had no power to make
any such decision as is mentioned in S. 68
of the Act ; nor, as I have said before^
would a Receiver in insolvency have
power under S. 56 to remove property
from the possession of others than the
insolvent.
It appears to me therefore that tho
order under appeal was one which was
entirely without jurisdiction. It is now
the Court's duty to appoint a Receiver in
the regular manner ; and in regard to
the claim before it to pass a judicial
decision as if this claim was a question
agitated in an original civil Court fol"
lowing the same procedure so far as it
can be followed. The decision thus
arrived at after hearing the appellant's
evidence, and such evidence as the Recei-
ver may adduce, will obviously have the
force of a decree under S. 4 and will be
appealable to the High Court under S. 75.
As the case stands there has as yet been
no judicial treatment of this claim. I
would therefore order accordingly allow-
ing tho appeal. Tho appellants will get
their costs out of the estate.
DAS, J. — I agree.
Appeal allowed.
# A.I.R. 1926 Patna 292
ADAMI AND BCJCKNILL, JJ.
Firangi Singh
v.
Durga Sinqli
Criminal Reference No. 63 of 1925,
Decided on 6th November 1925, made by
the Dist. Mig., Gaya, on 25th July 1925.
* Criminal, P. C., S. 249— S. 249 does not
apply to warrant caw— Order of release in a
toarrant caw under S. 249 ts void and proceedings
cannot be re-opened at the Instance of a private
party— Criminal P. C., S. 403.
8. i*9 is only intended to apply to summons
oases instituted otherwise than upon complaint
1926
FIRANGI SlNGn v. DCTRGA SINGH (Buoknill, J.)
Patna 293
and not to warrant eases. If an order of relaasa si
passed in a warrant oase under 8. 249, the order
is Toid and the oase still being on the file a fresh
case respecting the same offence cannot bo started
on a compUiut by a private party. [P. 273, C. 2]
Manohar Lai — for Keferenco.
H. Li. Nandkeolyar and K. P. Jaya&tcal
— against Reference.
Bucknill, J. — This was a reference
made to this Court by the District
Magistrate of Gaya under the provisions
of 8. 438 of the Criminal Procedure
Code. This reference came before
Maopherson, J., on the 2nd of September
last and that learned Judge, thinking
that a novel point arose in connexion
with it, referred the matter to a Bench :
the learned Judge also considered that
it was desirable that the Crown should
appear,
The difficulties which have occasioned
this reference arose out of some rather
confused criminal proceedings ; and to
what appear to be some mistakes in pro-
cedure made by two Sub-divisional
Officers which under the circumstances
are rot perhaps surprising. The posi-
tion m;iy be thus shortly explained.
Last October there was a dispute about
irrigation b tween the inhabitants of
two villages called Kunj and Chad in
the Gaya district. As a result no less
than three cases were started. What
is called Case No. 1 was a summons
case ; the charge was under S. 143
of the Penal Cade and was against the
men of both the villages. What is called
Case No. 2 was a warrant case drawn up
against certain persons under the pro-
visions of Ss. 148, 323 and 430 of the
Penal Code. It was against villagers of
.Kunj and in connexion with that case a
man of Chari village liad been injured.
What is called the third oase was also
a warrant case. This was directed
against the villagers of Chari. All the oases
came before the Sub-divisional Officer.
He tried Case No. 2 but kept Cases Nos.
1 and 8 pending until the result of the
trial with which he was proceeding.
The upshot of Case No. 2 was that; he
•convicted the accused. He then, in res-
pect of the Case No. 1, passed an ord-r
( as he was entitled to do) under S. 249
of the Code of Criminal Procedure stop-
ping the proceedings and releasing the
accused. In Case No. 3 he also passed a
similar order, purporting to act under
S. 249 ; he also directed the case to be
entered as false*
No question arose as to the Sub-
divisional Officer's power to deal
as he did deal with the fir^t
case. But a question does arise whethdr
he had any power to deal with Case No.
3 ( a warrant case ) under the provisions
of that section. But in Case No. 2
there was an appeal and the Sessions
Judge reversed the decision of the Sub-
divisional Officer, and set aside the con-
viction. The Sub-divisional Officer's
order of conviction took place on the
23rd March last and his two orders
relating to Cases Nos. 1 and 3 were made
on the same clay. Tho learned Sessions
Judge's decision was on the 6th May last.
The next thing which happened was
that on the 16th June the person who
had been the informant in the Case No.
3 applied to the Sub-divisional Officer
(who was not the same individual as tho
Sub-divisional Officer who had tried Case
No. 2) making what purports to be a
complaint ; at any rate he was examined
on oath by the new Sub-divisional
Officer ; he sent for the connected re-
cords , and on tho 26th of June he passed
an order summoning the accused.
The District Magistrate in his refer-
ence suggests that both tho orders of the
Sub-divisional Officers of the 27th March
1925, purporting to stop Case No. 3
under the provisions of 8. 249 of *tbe
Code of Criminal Procedure and that of
his successor of tho 26th June summoning
the accused on what appears to be a
complaint made by the informant in
Case No. 3 are wrong and should bo
set aside. There seems no doubt that
both these orders must be set aside. In
the first place there appears to be no
good authority of any kind for suggest-
ing that S. 249 can be utilized in respect,
of a warrant case. The heading of
Chapter XX of the Code of Criminal
Procedure which comprises Ss. 241 — 24S
refers to the " trial of summons cases by
Magistrate " and, as has been pointed out
by the learned Assistant Government
Advocate, it is quite clear that, upon
a perusal of Ss. 247 — 249, the last-named
section is only intended to apply to,
summons cases instituted otherwise than
upon COED plaint. It is true that Mr.
Sohoni on page 61 4 "of his work on the
the Code of Criminal Procedure (llth
edition) seeing to think that the proce-
dure contemplated under 8. 249 might be
applicable to warrant cases ; but it is
294 Pallia
SINGH v. DITIIGA SINGH (BucknilJ, J.)
1926
an old section , and so far as can be
ascertained there is no ease which lays
down such a proposition. Indeed from
reading the preceding sect ions it certainly
Heems evident' that S. 249 only deals
with summons cases instituted otherwise
than upon complaint. S. 247 rejates to
summonses issued upon complaint and
what the Magistrate's duties are if the
complainant does not appear. 8. 248
contemplates the possibility of with-
drawal of a complaint by a complainant
whilst S. 249 contemplates the powers
of a Magistrate as to stopping cases and
releasing the accused in any case in-
stituted other than upon complaint.
This order therefore thus made by the
Sub-divisional Officer on the 23rd March
last is obviously one whicli ho could not
make, and although it is in effect of no
value it is, I think, desirable, in order
that, thero should bo no future difficulty,
that we should formally declare that it
is illegal and, so far as may bo if at all
necessary, set it aside.
Now, although it has been suggested
that what the complainant in Case No.
:i did when ho came up before the new
Sub-divisional Oilicer with his petition
on the Kith of Juno last amounted only
really to an informal drawing of the
attention of the Sub-divisional Officer
to the fact thai, Case No. 3 was still in
existence on his file and had not been
disposed of. I do not think that such a
suggestion can on examination be seri-
ously entertained ; nor was it, I think,
very seriously put forward by the learned
counsel who in effect appeared in support
of what the Sub-divisional Officer had
directed by his order of the 26th June.
The fact remains that it would seem
that the Sub-divisional Officer treated
the petition as a complaint ; he exam-
ined the accused on oath and in this
wuy ho seems to have treated thp
matter as one of which cognisance was
being taken under the provisions . of
S. 190(1) (b) of the Code of, Criminal
Procedure ; in other words as a fresh
affiair. It need hardly perhaps bo
pointed out that, as the order made by
his predecessor on the 23rd March pur-
l>orting to act under S. 249 was
void, the case was still really on, his file
and cognizance had already been taken
of itumlerS. 190 (1) (a), ,
tt has been suggested, solnewhat tenta-
tively, that the order in Cafe No,
3 made by the Sub-divisional Officer on
the 27feh March last, although purport*
to be made under S. 249, might be
regarded as one made properly under
S. 253 (2) as ifc is argued that the upshot
is really the same and that it is merely
a difference of form. I am not prepared
to say that there is no difference in the
effect of stopping a case under S. 249
and the discharge of an accused
under S. 253 (2) ; but in this case I da
not think that such a question is mate-
rial or really arises because the Sub-
divisional Officer expressly purported to
deal with the matter under S. 249 and
in addition ordered that the case should
be entered as false. Now in his order of
the 2Gth June the new Sub-divisional
Officer after reciting what had previously
taken place and the order made in the
third case observes :
Dnrgi Singh, who is the complainant in
No. :), now comes up and files this petition that
his Ciiso might now be taken up and dealt with
according to law. His prayer seems reasonable,
I accordingly summon tho accused under S?.
•130 and 147, I. P. C. Also suunnon prevention
witness for that date,
Now tho learned Assistant Govern-
ment Advocate has pointed out that
it was not open to the Sub-divisional
Officer to take any such action as he did
in re-opening a warrant case which was
already on his file on an application of
a private party. It seems very clear
that what the Sub-divisienal Officer did
(although his order is not particularly
lucid) was that he really started a case de
novo ; but this he could not do because
Case No. 3 was still really on his file.
There seems no doubt that ho thought that
his predecessor's order with regard to Case
No. 3 was a valid one and that it was-
not was never brought to his notice. It is
quite clear that he could not act us he
did in re-opening the case supr
poaing, that what lie did could be
regarded as his having done so upon the
application of a private party. The
learned Assistant Government Advoeate
points ojit that the Sub-divisional Officer
•could of course re-open the case either
uppn application by the Crown or sue*
motu, but in this case he did neither.
Whilst the police case was already on
his file he could not start a fresh case
upon a complaint. There is no autho-
rity of any kind given to us to controvert
the views .which have been placed
before us by the learned Assistant
1926
BAM LAL SINGH v. MX. SEPTI (Boss, J.)
Patna
Government Advocate. We, therefore,
consider: (a) that the order of the Sub-
divisional Officer of the 27th March
under 8. 249 of the Code of Criminal
Procedure was altogether an invalid
order. It is hereby set aside. The
result to that the Warrant Case No. 3.
is still on the file of the Sub-divisional
Officer, (b) the order of the Sub-
divisional Officer of the 26th June is
also invalid ; it too must be set aside.
The result will be as before that the
Warrant Case No. 3 is still on the Sub-
divisional Officer's file as ifc stood on
the 27th of March last at the time of tho
invalid order purporting to be made
under 8. i^i9 with regard thereto, (c)
The reference of the District Magistrate
of 25th July 1925 is therefore accepted,
(d) Tho Sub-divisional Officer either of
his own motion or of course upon tho ap-
plication of the Crown may, if bo so
thinks fit, proceed with the Warrant
Case No. 3.
Adami, J. -I agree.
Reference answered.
A. I. R. 1926 Patna 295
DAS AND Ross, JJ.
Ham Lai Singh — Plaintiff — Appellant.
v.
1ft. Seyti — Defendant — Respondent.
Appeal No. 1357 of 1922, Decided on
9th June 1925, from the appellate decree
of the Sub-J.; Patna, D/- 25th July 1922.
Evidence Ad, .S. 58 — Admission of execution of
a document — Attestation need not be proved —
Executant a pardanashtn lady — Consideration
must, be proved — Pardhanashln lady.
Admission. of execution of a document dispenses
\vith tho necessity of proof of proper attestation ;
0 Pat. L. J. 165 Appl.
Where the defendant mortgagor was an illite-
rate pardanashin Lady;
Held, \ that the mere admission of her execution;
of the document is not sufficient to dispense with
the necessity of proving the passing of con-
sideration. [P 205 C 2]
A. K. Bay — for Appellant.
S. 37. Niamatullah — for Respondent.
Ross, J. — This is an appeal by the
plaintiff in a suit on mortgage. The trial
Court passed a decree for money holding
chat the mortgage bond had not been
proved as a mortgage. The learned
Subordinate Judge held that the plaintiff
was not entitled to a decree and decided
the cross-appeal in favour of the defen-
dant holding that no consideration passed.
With regard to the question of proof
of the mortgage bond it was contended on
behalf of the appellant that the learned
Subordinate Judge had erred in law.
There was a clear admission of execution
in the written statement. All the attest-
ing witnesses were summoned, but only
one appeared and his statement was that
tho executant did not sign the deed in his
presence. Tho plaintiff was therefore
entitled to prove the execution by other
evidence. The learned Subordinate Judge
referred to tho decision of this Court in
Him Bill v. Itamdhan Lai (l) as laying
down the proposition that where evidence
is adduced which shows that the deed
was not properly attested, an Admission
of the execution will not havo*ho effect
of establishing the document. It is true
that there are remarks to that effect in
tho course of tho judgment, but the
decision followed tho decision of the Cal-
cutta High Court which laid down that
admission of execution dispenses with the
necessity of proof. Consequently in view
of tho clear admission of execution in the
written statement it must be taken that
this document was sufficiently proved.
But the question still remains whether
any consideration passed and, on this
point, there is a finding of fact against
l.he appellant. It is contended that tho
burden of proof was wrongly thrown uppn
the plaintiff in view of the fact that
there was an earlier admission by tho
defendant that she bad borrowed thh
money from the plaintiff to pay off a rent
decree. But that admission was made in
tho plaint in a contribution suit in which
tho present plaintiff was, according to
the finding of the Court below, acting as,
agent on behalf of the defendant. Con-
sequently the admission cannot have its;
natural effect inasmuch as it is practically
the statement of the agent, /, <?., the
plaintiff. The defendant is an illiterate
pardanashin lady and tho mere admission
of her execution of the document is not
sufficient to dispense with the necessity
of proving the passing of consideration.
In my opinion tho learned Subordinate
Judge was right in his treatment of the
alleged admission in the plaint in the
contribution suit, and there was no error
of law in this part of his judgment. Con-
sequently this appeal is concluded by the
(1) [1921] 8 P. L. J. 465=62 I C. 540*2 P.L.T.
752.
£90 Patna SOBDA SANTAL v. EMPEROR (Kulwant Sahay, J.)
1926
finding of fact and must be dismissed with
costs. As there is a deficit Court-fee due
on the cross-appeal in the Court below,
the defendant will not he allowed to
execute the decree for costs until the
deficit is made good.
Da*, J. — I agree,
# # A I. R. 1926 Patna 296
Ross AND KULWANT SAHAV, JJ.
Subda Kantal and another — Pebi-
1 loners.
— Opposite Party.
Criminal Revision No. 20 of 19^
Decided on IGth February 1926.
# # (al Criminal I\ C.. S. 840— Ai»
authority In writing ti necessary fot an advocate
»/• vdlclJ In criminal caw*.
No iippointmcut in writing is necessary in
order to entitle an advocate or u v.ikil to act for
:m accused parson in criminal oa'W. ft* 2U8 0 1]
ib) Patna High Court Jlubs, CTt.1 17, R. 5/t—
/iule docs not prcwrtbe (i written authority for an
advocate In criminal caws.
It has boon tho in variable practice in 1'atua
High Court to allow advocates to appear and act
for accused persons in criminal cases without
any authority In writing. Tho new R. 5A of
tfhuptor 17 of tho High Court KuleH makes it
obligatory for an advocate of the Putaa High
Court to file an appointment in writing in civil
oases ; but it does not in any way interfere with
tho practice in criminal oases. [208 C il
(<•) Court Fees Act, Sch. 2, Art. 10— Article
prescribes fees only and does not create necessity
for an authority.
The Article merely -means that when an
authority i* filed, such authority must be
stamped. It docs not make it necessary that a
vakalatnama or mukhtarnama must be filed in
Criminal cases. [P 297 C 1J
S. M Qupta — for Petitioners.
(Jovcrnmeiit Advocate — for the Crown.
Kulwant Sahay, J.— Mr. S, M. Gupfca,
an advocate of this Court, presented an
application for revision on behalf of
Subda Santal and another, under the
provisions of Ss. 435 and 439 of tho
Criminal Procedure Code. Tho applica-
tion was admitted and notice was ordered
to issue. Mr. Gupta was thereupon
asked by the office to supply an authority
on behalf of the petitioners duly stamped.
He objected on the ground that in
criminal cases no authority in writing
was necessary. Tho Registrar has
preferred the matter to us ; und t[he
question for decision is whether a duly
stamped appointment in writing is
necessary to be filed by an advocate or a
vakil of this Court appearing on behalf
of accused persons in criminal cases.
As the matter was of importance we
thought it necessary to issue notice to
the Government Advocate ; and we have
hoard the Government Advocate as well
us Mr. Gupta. Mr. Gupta contends that
no authority in writing is necessary for
an advocate or a vakil in criminal oases,
and the Government Advocate supports
him.
The office has! drawn our attention to
the rules of this Court. R. 21 of
Chapter XII of the High Court Rules
provides that
it criminal appeal which is to bo presented to
the Court shall in tho first instance be given to
the trial clerk, who shall note on it "whether
it is properly ntamped, i* within time and is
admissible, and shall return it at once.
Rule 1 of Chapter XII prescribes that
the rules in Chapter ill shall apply as
far as psssiblo to applications made under
Chapter XII which deals with tho
procedure in criminal cases. R. 4 (iv) of
Chapter III provides that every petition
shall be
presented either by the petitioner or his
declarant or his recogni/ed agent or his pleader
or some person appointed in writing in each case
by such pleader to present tho'same
and the note attached to this rule says
that " pleader " means advocate, vakil
or attorney. These rules do not
prescribe that in criminal cases an autho-
rity in writing has to be filed by an
advocate or vakil when presenting a
criminal appeal or application.
Rule 5A of Chapter XVII of the High
Court Rules prescribes that
noth withstanding anything contained in
O. 8.TR. 4 (8) of the First Schedule of the Code
of Civil Procedure, 1908, no advocate shall be
entitled to make or do any appearance, applica-
tion or act for any person unless he presents an
appointment in writing, duly signed byaubh
person or his recognized agent or by some other
agent duly authorized by power of attorney to
act in this behalf ; or unless he is in st r noted by
an attorney or pleader duly authorized to act on
r>ehalf of such person.
This rule refers to civil cases governed
by the Code of Civil Procedure and has
no reference to criminal cases. There
is, therefore, nothing in the
High Court Rules requiring an advocate
or a vakil to file an appointment in
writing when presenting a criminal
apeal or application.
1926
SUBDA SASTAL v. EMPEBOB (Kulwant Sabay, J.)
997
Section 340lof the 'Criminal Procedure
Code 1398 provides that
any person accused of an oftenoe before a
criminal Court, or against whom proceedings are
instituted under this Code in any such Court
may of right bo defended by a pleader.
Tho word " pleader " is defined in
S. 4 (r) of the Code, when used with
reference to any proceeding in any
Court, to mean
a pleader or a mukhtear authorised under any
law for the time being in force to practise in such
Court, and includes (1) an advocate, a vakil and
an, attorney of a High Court so authorized ; and
(2) any mukhtoar or other person appointed \\ith
the permission of the Court to act in such
proceeding,
S. 419 of the Code prescribes that
every appeal shall be made in the form of a
petition in writing prebented by the appellant or
his pleader.
The Criminal Procedure Code, unlike
the Civil Procedure Code, nowhere
prescribes the tnodo of appointment of
pleaders ; and I find no authority for the
proposition that in criminal cases a
pleader must file an authority from his
client in order to enable him to present
an application or appeal on behalf of his
olient, and to act for him in criminal
cases.
Article 10 of Schedule II to the Indian
Court Fees Act prescribes a fee for
mukhtarnamas and vakalatnamas when
presented for the conduct of any case to
any civil or criminal Court including a
High Court. This merely moans that
Iwhen an authority is filed, such
lauthority must be stamped. It does not
make it necessary that a vakalatnama or
mukhtarnama must bo filed in criminal
oases.
When we examine the older enactments
relating to procedure in criminal cases,
we find it provided that persons accused
of criminal offences are entitled as of
right to be defended by pleaders. Aet
XXXVIII of 1850, which was known as
the Moffussil Prisoners' Counsel Act,
provided that in all Courts and before
all Magistrates, every person on trial for
commission of any offence shall be
admitted to defend himself either
personally or by his authorized agent
and it provided that
in those Courts in which any person n >w has
by tow the right of employing ' -whomsoever he
can employ as counsel or pleader nothing in
this Aot shall ha deemed to restrict that
right ; in all other oases those persons
only shall ba deemed authorized agents
within the meaning of this Act who are either
Advocates of one of the Supreme Courts of justice
established by Boyal Charter, or authorized
pleaders of the civil Courts of the East India
Company, or, by leave of the Court, Magistrate
or other person before whom the prisoner is on
trial, any ather person who is employed by the
prosecutor or prisoner as his agent.
This Act docs not prescribe the mode
of appointment of authorized agents, and
it enacted that advocates of tho Supreme
Court and authorized pleaders of civil
Courts were deemed to bo authorized
agents of an accused person.
In the Code of Criminal Procedure
(Act XXV of 1861) no provision was
made as to tho mode of appointment of
pleaders, although S. 432 of the Act
provided that
Every person charged before -an\ criminal
Court with an offence may of right be defended
b\ counsel or authorized agent.
Act XXXVIII of 18 ">0 was repealed
by Act XVII of 1862 in places where
the Criminal Procedure Code was
brought in force, but it did not in any way
affect the right of an accused person to
employ a pleader, and no provision was
made for the mode of appointment of
such a pleader.
Act VIII of 1HC9, which was tho Code
of Criminal Procedure Amendment Act,
gave tho same right to persons charged
with an offence before any criminal
Court to bo defended by any barrister
or attorney of a High Court, or by any
pleader duly qualified under the provi-
sions of Act XX of 1865, or any other
law in force for the time being relating
to pleaders. Section 11 of Aot XX of
1865 authorized pleaders to practise in
criminal Courts. Heie also the mode
of appointment was not prescribed.
Act X of 1872, which was an act for
regulating the procedure of the Courts
of Criminal Judicature provided in 8. 186
that;
Every person accused in any criminal Court of
an offence may of right be defended by any
barrister or attorney of a High Court, or by an>
pleader duly qualified under the provisions of Act
XX of 1865, or any other law in force for tho
time being relating to pleaders,
Tho question was raised in the Madras
High Court, as to whether an advocate
or attorney of the High Court or an
authorized pleader appearing in defence
of an accused person under 8. 186 of the
Act of 1872 was required to file a
vakalatnama, and the High Court ruled
that no vakalatnama was in such a case
required f vide VII, Madras High Court
Beportg; Appendix XL.
298 Pallia
SUBDA SANTAL v. EMPEROR (Boss, J.)
1926
We have referred to the provisions of
the present Code of Criminal Procedure
relating to the right of an accused person
to be defended hy a pleader ; and we find
that from the earliest times the Legisla-
ture has refrained from making any pro-
vision prescribing the mode of appoint-
ment of a pleader to act for a person
accused of an offence in criminal Courts,
The Legislature did think it fit to make
Huch provisions for appointment of
pleaders in civil cases, but refrained from
making any such provision as regards
criminal cases.
J, therefore, find no provision either
in the Criminal Procedure Code or in the
rules of the High Court requiring an
advocate or vakil of this Court to file a
duly stamped appointment in writing in
criminal cases. It has been the invari-
able practice in this Court to allow
advocates to appear and act for accused
persons in criminal cases without any
authority in writing. The now rule 5- A
of Oh. XVII of the High Court Rules
makes it obligatory for an advocate of
this Court to file an appointment in
writing in civil cases ; but it did not
in any way interfere with the practice
in criminal cases. It may be observed
that in some criminal cases, such as
capital sentence cases, the Crown ap-
points a pleader to represent a person
accused of an offence, and in those cases
clearly no appointment in writing from
the accused person is required. 1 am of
opinion that it will unduly restrict the
right of an accused person to be defended
by a pleader in a criminal case if he is
required to file a stamped authority
enabling the pleader to defend him.
I, therefore, am of opinion that no
appointment in writing is necessary in
order to entitle an advocate or a vakil
jto act for an accused person in criminal
cases; and that no appointment in writ-
ing was necessary to bo filed in the pres-
ent case.
ROM, J.—- 1 agree.
This is an application in revision
against an order passed under S. 145 of tho
Code of Criminal Procedure. Section
340 of the Code provides that any per-
son accused of an offence before a crimi-
nal Court, or against whom proceedings
are instituted under this Code -in, such
Court, may of right be defended by * a
pleader ; and it makes no difference to
the present question whether tke peti-
tioner is a person accused of an offence
or a person against whom proceedings
have been taken under 8. 145 of the
Code of Criminal Procedure. There is
nothing in that Code which requires any
written authority to defend an accused
person ; and it differs in this respect from
the Code of Civil Procedure. Whereas
tho former Code entitles an accused per-
son to be defended of right by a pleader,.
without more, 0. 3, R. 1 of the latter
Code enacts that any appearance, appli-
cation, or act in or to any Court, required
or authorized by law to be made or done
by a party in sucli Court, may, except
where otherwise expressly provided by
any law for the time being in force, be
made or done by the party in person, or
by his recognized agent (defined in It. 2}
or by a pleader duly appointed to act on
liis behalf. "While, therefore, an accused
person can either defend himself or be
defended by a pleader, a party to a civil
suit can appear either in person or by a
recognized agent or by a pleader duly
appointed to act on his behalf. The
present question has arisen out o( R. 5 (a)
which lias been recently added to Ch.
XVII of the Rules of the High Court.
Now, while it may be argued that al*
though that rule refers to 0. 3, R. 4 01. (3)
of tho Civil P. C., yet that reference does
not limit its application to civil pro*
ceedings and the rule, in terms is of
general application, still, I think that
when the language of the rule is con-
sidered, it must be held to have been
framed with reference to O. 3 of the-
Code of Civil Procedure. The language
closely follows that of 0. 3, R. 1, and
the object of the rule apparently was to
abolish the special privilege conferred
on advocates by R. 4 of that order. I
therefore do not think that the rule*'
should be construed in a general sense or
as intended to affect or alter the criminal
practice in this Court.
1926
CHANDRA PUASAD v. KIXG-EMFEROB
Palna 299
A. I. R. 1926 Patna 299
ROSS AND KtTLWANT SAHAY, JJ.
Chandra Prasad and anotha — -Accused
— Appellants.
v.
King-Empero) — Opposite Party.
Criminal Appeals Nos. 216 and 223 of
1925, Decided on 3rd March 1926, from
a decision of the S.-J., Darbhanga, D/- 9bh
December 1925.
Penal Code, S. 409— Post office clerk delivering
Vt P. P. to party and receiving money — Entry not
made In register nor money credited— Offence is
committed.
A post office clerk delivered some value payable
parcels on 30th May 1025, 27th May 1<»25 and
23rd May 1025 and kept money s which were
entrusted to him as a public servant up to
9th June 1925 in violation of the rules by which
he was bound, and give a false explanation that
the money had not been received until the
Oth of Juno. He also made entries in his register
showing that the articles were .still undelivered
in the post oftico lon£ after they had been doli-
\ertd and the money for them had been received.
Held : this amounts to a denial of the receipt
of the monev and is conclusive evidence of cri-
minal breach of trust. Ti. v Jackson (1 C. & A'.
:-584) App]\ 26 I. C. 307 : 40 I. C. 803 ; and 10 Horn.
256, DlsL
Held : further that the negligence of the post-
master in charge whose duty was to check the
delivery register, in not properly checking the
register, cannot take tho place or proof that the
money received on account of these articles was
entrusted to his care, and ho cannot therefore be
charged of a criminal breach of trust.
[P. 301, C. 2]
Dooki Prasad Sinha, B. P. Vanna and
liaghosarau Lcil, S. P. Varma, B. N.
Mirta} Bhagwan Prasad and Kamada
Natli Moitra — for Appellants.
Asst. Govt. Advocate — for the Crown.
Judgment. — These are two appeals,
one by Chandra Prasad who was Sub-
Post master of Boserah sub post Office,
and the other by Debendra Nath Ganguly
who was a clerk in the same office,
against their conviction under S. 409 of
the Indian Penal Code. The appellants
were charged with criminal breach of
trust in their capacities of public servants
in respect of three sums of money,
namely Bs. 307-15-0 which was paid
for V. P. letter No. 641 on the 30th of
May 1925, Ks. 119-7-0 which was paid
for V. P. letter No. 3 on the 27th of May
1926 and Us. 303 which was paid on
aocpuut .of insured .V. P. parcel No. 738
on the 23rd of May 1925, these sums
not being accounted for until the 9th of
June 1925.
The defence of the sub- post master
was that the V. P. articles referrred to
in the charges were all along in the
exclusive custody of Debcndranath
Ganguly and that the money realized
for them was never made over to him
and he did not know that it was realized
before the 9th of Juno. The defence of
Debendranath Ganguly was that the
letters and parcel were not delivered to
the addressees on the 23rd, 27th and
30th of May, but on tho 9th of June.
This latter defence was found to bo
untrue at the trial where it was conclu-
sively shown that the sums of money
referred to in the charges had been paid
to the post oilico on tho dates specified
therein ; and in tho appeal, this defence
was, abandoned. Tho facts, as found by
the learned Sessions Judge are no longer
disputed. Those facts are that V. P. letter
No. 641 was sent by Messrs. 11. D. Nandi
and Co. of Taltola to a firm in Boserah
called Friends and Co. of which tho solo
.proprietor is Lachminarain Purvey. Tho
lottor contained the railway receipt for
a bicycle consigned to sender. The lettor
was despatched on tho 25th and arrived
at Boserah on tho 27tb. It was received
by Debondranath Ganguly in the usual
course and entered by him in the Begis-
ter of V. P. articles received. lie also
issued a receipt form on the 27th of May.
The money was paid to Debendranath
Ganguly by Lachminarain Purvey on
the 30th of May 1925, but the V. P.
letter appears in the register in an
entry made by Debendranath Ganguly as
still undelivered on the 4th of June, and
the meney order in respect of this re-
ceipt was not issued until the 9th of
June.
V. P. lottor No. 3 was sent by Jhalln
Sahu Bijaclhar Bam of Benares to Bhai-
lal Gobind Lai of Boserah on the 19th
of May. It contained the railway ro-
ceipt for a bag of German silver lotas.
The letter was received on the 21st of
May and was registered by Debendranath
Ganguly, who also issued the usual re-
ceipt form. On the 27th of May Badri-
lal, the proprietor of the firm, paid
Bs. 119-7-0 to Debendranath Ganguly
and got delivery of the letter. In this
case also the money was not remitted
to the sender by Debendranafch Ganguly
until the 9th of June.
The insured parcel No. 738 which was
said to contain gold-leaf was despatched
100 Patna
CHANPBA PR AS AD v. KING EMPEBOB
by 8. C. Singh from Strand Road, Cal-
cutta, to Bhailal Gobind Lai at Roserah
on tho 22nd of May and was received
at Boserah on tlie 23rd and entered as
an ordinary value-payable article in the
register by Debendranath Ganguly on
that date. He also issued the usual re-
ceipt form. The money, Rs. 303/-was
paid by Badrilal on the date of receipt,
namely, the 23rd of May, to Debondra-
nath Ganguly and the parcel was deli-
vered to him. The parcel was still
Hhowu as undelivered on the 1st of June
and on the 4th of June, by Debendranath
Ganguly in his register and the money
was not remitted to the sender until the
9th*of June.
The contention on behalf of the sub-
7>o8t master, Chandra Prasad, is that as
the money was never entrusted to him,
he cannot be held guilty of criminal
broach of truHt. The learned Assistant
{•fovernment Advocate contended that
both tho appellants are post office ser-
vants and both are bound by the terms
of their appointment to dispose of the
property entrusted to thorn in accordance
with the contract which is implied
under tho rules. If they arc bound by
the rules to send money received on
account of value- payable articles to the
sender on tho date of receipt, or, at the
latest, on the next day, as the rules pro-
vide, they violate the contract if they
dishonestly retain the money. Thtf duties
of the parcels clerk are to receive parcels
and deliver them and make over the
money received for them to the poat
master. The duty of the post master is.
as soon as he receives tho money, to send
it to the cash office at Samastipur. It is
admitted by tho learned Assistant
Government Advocate that the proseoa-
tion has not proved that tho money was
received by the post master, but it is
contended that the post master wilfully
suffered tho parcels clerk to dispose of
tho money in a manner contrary to his
legal obligations. He knew of the re-
ceipt of the money in the post office, and
if he dishonestly omitted to send off the
money, he is guilty of criminal broach
of trust. It is argued that once the
money comes into the post office to the
knowledge of the post master, it is en-
trusted to him. He has made some of
the entries in the register of value- pay*
able articles received and has also ini-
tialled the balance of articles undisposed
of. Now it seems to me that on the
facts found no charge is proved against
the post master. He may have been
negligent in supervision ; and from the
fact that the parcels clerk, who was in
receipt of a salary of Rs 74 a month,
must have been of almost the samo
standing in the service as himself, his
pay being Rs. 78 a month, it is not
unlikely that he exercised insufficient
control. But from the mere fact that
ho made some of the entries in the
Register and initialled the daily balance
of articles undisposed of, it cannot be
inferred that he knew that these moneys
hand been paid. If he had checked the
Register with the articles actually in
had, the fraud must have been discovered
but his failure to do this cannot take the
place of proof that the money received
on account of these articles was entrusted
to his caro. In the case of the insured
article) Article 393 of the Post Office
Manual requires that in sub— post offices
where the pay of the sub-post master
is loss than Rs. 100 a month, the duty
of examining the insured parcels must be
por formed by the sub- post master and
the undelivered insured parcels must be
kept under lock and key in his personal
custody. But this rule is not available
to the prosecution for two reasons ; first,
the insured article was entered in the
Register as an ordinary V. P. article,
and secondly, it was delivered to the
addressee on the date of receipt.
There is, in my opinion, no case against
Chandra Prased, and his appeal must be
allowed.
Tho case of Debendranath Ganguly
stands on a different footing. Learned
Counsel argued on his behalf that accept-
ing the findings, the facts do not amount
to an offence under 8. 409. They prove
that certain sums of money were re-
ceived on the 23rd, 27th and 30th May
and were not transmitted until the 9th of
June. But this only amounts to deten-
tion of the money and the prosecution
must prove that within the period of
detention the money was converted to
the appellant's own use , but there is
no such finding and there is no evidence
to show that the money ever left the
Post Office ; and the period of detention
was so short that it was not safe to pre-
sume that the appellant intended to
cause wrongful loss or gain. The follow*
ing decisions were referred to : R&r v»
1926
OHANDBA PRASAD v. KING EUPBUOR
Pate*
(l) where it was held that the
sum of money received was insufficient;
to support an indictment for embezzle*
inent , although it was observed that had
the prisoner denied the receipt of the
money, the case might have been different
Arohbold in his Criminal Pleading and
Practice 26th Edition, p. 618, refers to
this decision and says that it must be
taken to be overruled bv the contrary
decision in R. v. Jackson (2) where it was
held by Coleridge, J., that Where it is the
servant's duty to account for and pay
over the monies reoeivad by him at
stated times, his not doing so wilfully is
an embezzlement, although he does not
actually deny the receipt of them. The
next case was in Be Kuppili Prakasarow
(3). The head-note to that case says that
where the only evidence against the
accused with'misappropriating a telegra-
phic money-order is that the postal
account contained entries of delivery on
dates different from those on which the
actual deliveries were made, that merely
create? a suspicion and is not a sufficient
proof of misappropriation. The Ending
was that there was no evidence to show
that the sum was mis-appropriated by
the accused and not by the post-man.
The decision therefore, went on the
facts which are entirely different from
the facts of the present case. The next
case was Mathura Prasad v Emperor (4)
where it was held that the detention of
money by a servant or clerk for fifteen
months after its receipt raises a very
serious doubt of bona tides against him,
but the detention is not conclusive proof
of criminal misappropriation or criminal
breach of trust. The decision in that
case, however proceeded on the absence
of any rules regarding the* paying in of
money realized, as well as on facts
showing that the accused had attempted
on various occasions to pay the money,
but it had been refused by the Treasurer.
Knox, J. observed
In the present case the estate is a private,
estate. No attempt has been made on the part
o! the prosecution to prove that any rule of the
estate, or any contract, express or implied, lay
between the estate and Mitbura Prasad regard-
ing the time and the manner in which all such
moneys were to be deposited. It is easy to aay
that they should be deposited without delay, but
(1) [1887] 7 0. & P. 838,
(2) [1844] 1 C. and K. 884.
that must be a matter of proof *s muoh as any
other rruttar of fact in the case.
This observation clearly differentiates
that case from the present where the
rules of the Post Office are definite that
the money must be remitted on the day
of receipt or che latest on the following
day. Eeference was also mado to
Rambyas Rai v. Emperor (5) but that
decision proceeded entirely on the facts
which negatived any dishonesty on the
part of the accused in retaining certain
documents. The last case was Queen
Empress v. Ganpat Tapidas (6). There
money received on account of the
Government had been detained for sonio
time by a revenue patel. He had how-
ever, taken formal receipts for the money
from the payees and ifc was found that
the reason for his not immediately pay-
ing the money to them was that they
were willing to trust him with the
money. That decision had therefore no
application to the present case. The
accused Debendranabh Ganguly kept
these moneys which were entrusted to-
him as a public servant for periods of
seventeen, thirteen and ton days "in
violation of the rules by which he was
bound. This in itself raises a case which
he has to answer. He gave a false ex*
planafcion that the moneys had not been
received until the 9th of June. Ho also
made entries in his register showing
that the articles were still undelivered
in the post office long after they had
been delivered and the money for thorn
had been received. This amounts to a
denial of the receipt of the money and
is conclusive evidence of criminal breach
of trust. In my opinion, therefore
Debendranath Ganguly was properly
found guilty of the charges framed
against him.
The result is that the appeal of
Chandra frasad is allowed and his con-
viction and sentence are set aside and he
is ordered to be acquitted and released
from bail. His fine, if paid, will be re-
funded. Ttye jjppeal of Debendranath
Ganguly is dismissed and he will
surrender to his bail to undergo the rest
of his sentence.
Appeal of Chandra Prasad allowed :
Appeal of Debendra Nath dismissed.
(3) [19163261.0.307.
(4) [1917] 40 I. C. 308.
(5)
(6)
[19181 47 I. 0. 667.
1886] 10 Bom. 266.
302 Patna
* A. I.R. 1926 Patna 302
ROSS ASD KULWAXT SlIAV, JJ.
Mohammad Yatin - ~ Accuflod — Peti-
tioner.
King- Emperor Opposite Party.
Criminal Revision No. .020 of 1925,
Decided on 5th February 1925, against
!»n order of the Mag. 1st 01., Muxaffar-
pur, D/- 21st October 1925.
# (a) Criminal P. C,, S. \Q3-ticope is n-ldc —
Jurisdiction doc* not refer merely to cluirto:ler
or stains of Court but refer; ahn in irant of
jurisdiction on oilier grounds a?irU a< want of
^anctlnn under *S'. 10^.
TUo wording of 8. 103 is vory wido and tlio
jurisdiction of the Court does not merely refer to
the character aud status of the Court to try the
offence, but also reform to want of jurisdiction on
other grounds an shown by illustraUonn (f) and
<g) to the flection. It also covers cases where the
trial is held to be without jurisdiction fa* want
of a sanction under S. 105. Where there was
no trial of the accused on the merits as the con-
•s lotion WIIH set aside on the ground of want of
jurisdiction in the Court to try the accused.
8. 403 (1) does not operate as a bur to his second
trial. 3G Mad. 308, l>l*t. from ; 3D All. 203 ; 4<>
/, C. 710 ; Hex v. Marsham (1912), 2 A. fi. 8(>2 ;
Peter v. John (18 /,. J. .!/. C. 1H9) ; and 2 IP. /?.
JLOO. Foil. [VWt.V 1. -1
(6) Criminal trial It h for the Crown and
9wt for the High Court to consider whether pro-
ceedings should be dropped on the yroutid of har-
assment to accused.
It is for the Crown to consider whether
tho case is a tit ono in Avhich the proceed-
ings should be allowed to go on, or whether
it is prooer to drop the proceedings. It
is not competent for the High Court to quash
tho proceedings on the ground that the original
complaint was made by tho accused long ago
jind the accused is harassed thereby. [LJ 304, C 2)
S.P.Varma, S. Fazla All and Si/ed
Ali Khan — for Petitioner.
//, Zy. Nandkeolya) — for the Crown.
Kulwant Sahay, J.— On tho 25th Oc-
tober 1923, tho petitioner, Sheikh Mo-
hammad Yasin, lodged an information
before the police charging Abdul Wahid
and others with offences under Ss. 148
and 302 I. I*. 0., his case being that the
said accused persons had committed riot-
ing armed with deadly weapons, causing
the deatli of Mohammad Jan, the father
of the petitioner.
Tho police held an investigation, but
before they had submitted their report
on the 5th of November, 1923, the peti-
tioner Qied u petition before the Magis-
trate complaining against the police iu-
tv estimation and praying thats the case
Mi>. YASIN v. KING-EMPEROR (Kulwant Sahay, J.)
1926
should be enquired into, and the persons
accused by him 'should be summoned.
Thereafter the police submitted their
final report to the effect that tho case
was intentionally false, and they applied
for the prosecution of the petitioner
under S. 211, 1. P. C. Notice was issued
upon the petitioner to show cause why
he should not be prosecuted for institut-
ing a false case. The petitioner filed a
petition showing cause in which he as-
serted that the case was a true one.
The Magistrate, Ixowever, ordered that
the petitioner Yasin should be summoned
under S. 211 on the basis of the com-
plaint put in by the Sub- Inspector of
Police, and he directed that further
proceedings in the case which was
started on the information of Yasin be-
fore the police should be terminated,
and that the order to show cause to he
served upon Yasin should bo cancelled.
Yasin thereupon moved tho Sessions
.Fudge who made a reference to this
Court (Or. Beferenco No. 27 of 1924)
which was heard by Adami, J., on the
14th May 1324. Adami, J., held that tho
petition of Yasin showing cause im-
pugned the enquiry by tho police and
amounted to 'a complaint. The Magis-
trate should have examined Yasin on
oath as a complainant, and either called
upon him to prove his case or should
have dismissed his complaint under S. 203,
Criminal P. C. He did neither of these.
Mr. Justice Adami held that, although
it would have been proper to dispose of
the complaint of Yasin in tho first in-
stance, and then entertain the complaint
against him under S. 211, yet as the
complaint had been made, he directed
the proceedings upon the complaint of
the Inspector under S. 211 to proceed.
Yasin was accordingly committed to the
Sessions on a charge under S. 211 and
convicted by the Assistant Sessions Judge
of MuzafiFarpur and sentenced to five
years' rigorous imprisonment. Against
this conviction, Yasin preferred an ap-
peal to this Court which was heard by
Bucknill and Boss, JJ., and their Lord-
ships' judgment is reported in Moham-
mad Yaiin v. Emperor (l). Their Lord-
ships in that case held that the petition
of Yasin filed on the 5th of November
1923, must be treated as a complaint be-
fore the Magistrate, and that the offence,
if anv, committed by fche petitioner was
(I) A. I. K. 1!>«J5 Patnn 483.
1926
MD. YASIX v. KING-EMPEROR (Kulwant Sahay, J.)
Patna 303
an offence which was committed iri or in
relation to a proceeding in Court and,
consequently, a complaint in writing by
the Court or by some other Court to
which it was subordinate was a condition
precedent to cognizance being taken of
tho offonce under S. 211. They held
that by making the complaint to Court,
fcho informant, viz., the present peti-
tioner, had withdrawn the information
from the category of mere police pro-
ceedings and had raised it to the category
of a proceedings in Court. This neces-
sitated a complaint by the Court if tho
informant was to bo proceeded against.
Their Lordships were of opinion, there-
fore, that the proceedings in which tho
petitioner had been convicted were
wholly without jurisdiction because the
bar imposed by S. 195 of the Criminal
P. C.,had not been removed, and they
•directed that tho conviction be set aside.
This decision of tho High Court is
dated the 19th December 1924, there-
after, on the 24th of January 1925, the
Police Inspector made an application bo-
fore the Sadr Sub-divisional Magistrate of
Muzaffarpur praying that tho petitioner
might be re- tried under S. 211 I. P. C.,
in relation to the same offence, after
a complaint under S. 47G, Criminal P. C.
Notice was issued on the petitioner to
show cause why proceedings should not be
taken against him under S. 211 I. P. C.,
and on the 2Gfch February 1925, Jbho peti-
tioner filed a petition of objection be-
fore tho Magistrate in which he con-
tended inter alia that the petitioner
eould not be tried again upon fche same
facts upon which he had been tried be-
fore. The Magistrate, however, ex-
amined the petitioner on oath in conne-
Kion with his original petition of tho 5th
of November 1923. The petitioner ex-
amined witnesses in support of his allega-
tion ; but on the 21st of April 1925, tho
Magistrate found his original com-
plaint to be intentionally false, and
eventually on 14th August 1925, ho
made a formal complaint against tWe peti-
tioner under S.476,'Criminal P. C. The
said complaint was made over to another
Magistrate of the 1st class who com-
mitted tho petitioner to the Court of
Sessions for an offence under S. 211
by .his order dated the 21st October 1925.
The petitioner has come up in revi-
sion to this Court against this order ;
and the main ground taken bv the
learned counsel on his behalf is that the
petitioner, having once been tried and
acquitted by a Court of competent juris-
diction, is not liable to be tried again
for the same offence, Reliance has been
placed on sub-S. 1 of S. 403 of the Crimi-
nal P. C, It has also been contended that
tho present proceedings were started
against the petitioner before his original
complaint had been disposed of and he
was called upon to show cause in the
present proceedings before the truth or
otherwise of his complaint made on the
5fch of November 1923, was enquired into.
The first question depends on the con-
struction of the judgment of this Court in
tho appeal preferred by tho petitioner
against his conviction by the Assistant
Sessions Judge reported in Mahomed
Yashi v. Emperor (l). As 1 have already
observed, the conviction was set aside by
this Court on the ground that the
proceedings were ab initio void and
without jurisdiction on account of the
bar imposed by S. 195 of the Criminal
P. C. nob having been removed. S. 403
(1) of tho Criminal P. C., provides that
st person who has onco been tried by :i Court
of competent jurisdiction for an offence and
convicted or acquitted of .such offence shall,
while such conviction or acquittal remains in
force, bo not liable to be tried again for tho
yanio offence, nor on the same faetn for any
other oftenco for which a different charge from
the one made against him might have been
made under 8. 236. or for which ho might have
been convicted under S. 237.
The question is whether the judgment
of .this Court in the appeal from tho
previous trial was an acquittal of tho
petitioner after his trial by a Court of
competent jurisdiction .as is contended
for by the learned counsel for the
petitioner. In my opinion, the lirsfc
trial of the petitioner cannot be said to
be a trial by a Court of competent
jurisdiction so as to bar a .second trial.
It has been contended that the Court
which tried the petitioner on the first
occasion was a Court of competent
jurisdiction within the meaning of tho
section, and the conviction was set aside
on a point of law which did nofc affect
the jurisdiction of the Court which held
the trial ; and reliance was placed upon
a decision of the Madran High Court in
re. K. Ganapathi Bhatta v. Emperor (2).
This decision to a certain extent lends
^^HP^J^E-yi0-?0?^6^-!0— PUi!}0. JLe_arned
"(2) [1913T30 Mad. 308-~1:0 I. C. :J10=iM M.~L~
J,4G3.
304 Pfttea \in. YASIN v. KING-EMPEBOB {Kulwanfc Sahay, J.)
counsel ; but in my view the learned
Judges pnt a too narrow construction
upon the provisions of 8. 403 (i) of the
Code.
They 'observed that sub-S, (l) of
»S. 403 refers to the character and status
of the tribunal when it refers to compe-
tency to try the offence. The reasoning
adopted in that case was that a sanction
under S. 193, Criminal P. C. was not a
condition of the competency of the
tribunal, but it was only a condition
precedent for the institution of proceed-
ings before the tribunal, and that the
want of sanction under S. 195 did not in
any way affect the jurisdiction of the
Court to try tho accused of the offence
charged. In my view the wording of
8. 403 is very wide and the jurisdiction
of the Court does not'merely refer to the
character and status of tho Court to try
the offence, but also refers to want of
jurisdiction on other grounds as shown
by illustrations (f) and (g) to the section.
I think it covers cases where the trial
is held to be without jurisdiction for
want of sanction under S. 195, of the
Code. This view was taken by the
Allahabad High Court in Hussain Khan
v. Emperor (3). In that case the accused
persons were tried for an offence under
S. 82 of tho Indian Registration Act
without the permission required by S. 83
of the Act having been obtained, They
were convicted by the Magistrate, but
the conviction was set aside by the
High Court on tho ground of want of
permission under S. 83 of the Act. A
second trial was held after obtaining
the permission under S. 83 and the
accused persons wero again convicted.
It was hold by Knox, J., that the second
trial was not barred by S. 403 of the
Criminal P. C., it being held that the
Court which had tried the case in the
first instance was not a Court of compe-
tent jurisdiction to hold the trial owing
to the absence of the sanction under
S. 83 of the Act. The same view was
taken in Nanakram v. Emperor (4) : a
similar view was taken in Rex- v,
Matsnam (5), in Peter Bradshaw v. John
(ft) am! bv the Calcutta High
11M17] |89 '"ill. ift)8=i>9 1. 0. 690=15 "VCr*.
136.
(4) [1918] 46 I. 0. 71tJ.
(5)[ - -
ii K. B. 362=81 L. J. K. B. 957=107
* T. 89=23 Cose. .0. C. 77=76 J P
284=-- 28 T. UB.891.
18 L. J. M. 0. 189.
Court in Queen v. Muthooraperthad
Panday (7).
It is further to be observed that this
Court did not make an order of acquittal
upon the appeal in the previous convic-
tion but merely directed that the
conviction should be set aside. There
was no trial of the accused on the merits
by this Court, and the conviction was
set aside on the ground of want of
jurisdiction in the Court to try the
petitioner, I am, therefore, of opinion
that S. 403 (l) does 8not operate as a bar
to the second trial of the petitioner in
the present case.
The second ground taken was that the
proceedings were initiated against the
petitioner before the disposal of his
original complaint of the 5th of Novem-
ber, 1923. In my opinion there is no
substance in this objection either. This
Court did not direct an enquiry into the
complaint of the petitioner Yasin. As a
matter of fact, the Magistrate did
examine the petitioner and dismiss his
complaint - although after the initiation
of the enquiry ; but the dismissal was
before the making of the complaint.under
S. 47f>. The commitment of the peti-
tioner, therefore, to the Court of Sessions
cannot be quashed.
It has boen contended on behalf of
the petitioner that the matter is too stale
and that the petitioner has already been
sufficiently harassed, and a fresh prosecu-
tion of the petitioner for the same
offence should not be allowed to proceed.
It is no doubt true that the complaint
was made by tie petitioner so long ago
as November 1923, and he has been
subjected to a good deal of 'harassment
on account of the previous prosecution,
and it is for the Crown to consider
whether the case is a fit one in which
the proceedings should be allowed to go
on, or whether it is proper to drop the
proceedings. It is not competent for us
to quash the proceedings on the ground
that the original complaint made by
the petitioner was more than two years
ago.
In the result this application must be
dismissed.
Rots, J.— 1 agree.
Application dismissed.
(7) [1865] * W.R. Or. 10,
IBM KBISHNABAX/LABH v. GOVERNOR OP BnTAB(Daw9on-Miller, C. J.) Patna 805
* A. I. R, 1926 Patea 305
DAWSOK'MlLLER, C.J., JWALA PRASAD
' AND B0CKNILJ,, JJ.
Krisli naballabh Sin ay — Petitioner.
v.
Governor of Bihar BAH! Or ism —Oppo-
site Party.
Misc, Judicial Case No. 55 of 1926,
Decided on 27th April 1926.
$ (a) Government of India Act (1910 amended
1926), 8. 72, C?s. (3) a>id (4).
In 01. (3) to S. 72D,. as amended in 1025, fcho
words ''payments or emoluments payable to or
oa account of a person in respect of his oftioe "
iochide tho tour expenses and the travelling
allowances of the Governor and the Members of
his Council and the Inspector-General of Police,
and therefore those cxponsjs are non-voluble
it-ems.
Even assuming for the s iko of argument that
the " tour expenses" and "the travelling allowan-
ces'1 were not exempted from being submitted ti
the veto of the Council, the question cannot bo
raised before the High Couit by reason of
Clause (4). " [P 310 C 1]
(6) JiiriylMlon—.lct of Sta'e — Court Cannot
question.
No Municipal Court has any jurisdiction to
question, control or interfere with the appropri-
ation of the revenue of India by the Local
Government provided it is for the purpose of the
government of India. The appropriation will bo
,m act of State which essentially concorns the
exercise of Sovereign power : Salaman v. The
Secretary of Sta't for India (1006), 1 K. H. 618,
7fe/. ' [P311C1]
(c) Spfclflc Relit./ .ic>, ,Sf. 4 >- - Powr to U<u* irrtt
Writ of mandamus c.m bo issued only by the
High Courts at Calcutta, Bombay, Madras and
Rangoon, in their original jurisdiction but not by
the other High Con its i. <?., Allahabad, Patna and
lahore. fp 3142 C 1]
id) Practice—Relief.
It Is meaningless to have a power and to p.is*»
an order without having the power to enforce it.
fP 31 2 C 2]
D. P. Sink a, A. Prosed, It. S fir an,
L. M. J. Mukharji, D. fj. Nandkeolyar and
fi. P. Sinha—tor Petitioner.
J. A. Samuel — for Opposite Party,
Daw ton- Miller, J.— In this case the
Court is moved on behalf of Mr. Krishna*
hallabh Sahay, a member of the Bihar
and Ovissa Legislative Council, to is^ue a
writ of mandamus to His Excellency the
Governor of Bihar and Orisea requiring
fyim under S. 72 D of the Government of
India Act, 1910, to submit to the vote of
the Legislative Council of Bihar and
Q4ssa in the form of demands for grants,
proposals for the appropriation of certain
items of the provincial revenues forming*
part of the civil budget estimate for the
1926 P/39 & 40
current year. The items in question are
three in number! namely, (a) a sum of
Bs. G5,000l the estimated tour expenses of
the Governor and his. staff; (b) a sum of
R«. 10,000, the estimated travelling allow-
ance of the Members of the Governor's
Executive Council, and, (o) a sum of
Us. 10,000, the estimated travelling allow-
ance of the Inspector-General of Police.
We are further asked to issue a writ of
mandamus to the Governor of Bihar and
Orissa, the two Members of his Executive
Council and tho Inspector* General of
police, directing them "to secure such
legal sanctions and authority for the pro-
posed appropriation as may under the
law 1)6 deemed necessary/' \Ve are fur-
ther moved to issue a writ of injunction
restraining the same parties from using
any portion of tho revenues of tho
province for tho purposes aforesaid "until
proper legal sanction and authority
deemed necessary under the law have
been obtained therefor."
It appears from the petition of the
applicant that in submitting tho budget
estimate for the current year tho Local
Government has treated the items in
question as " non- voted,1' that ia to say,
items the appropriation of which is not
subject to tho control or aancMon of the
Legislative Council. The case made on
behalf of the petitioner is twofold. First.,
ho contends that tho items of exj>onditure
mentioned are of the class commonly
described as "voted" items, that is to say,
items tho expenditure of which can ocly
be sanctioned by tho vote of tho Legis-
lative Council of tho province-, and not
"nou- voted" as they arc described in tbo
budget estimate. By reason of these
items being withheld from the voto of
the Legislative Council tho petitioner
complains that his right as a Member of
the Council to exercise control over tho
proposed appropriation of thig ]>art of the
revenue has been infringed. In the
second place ho contends that oven if the
Local Government is right in treating
tho items in question us "non-voter3,"
neither the Governor nor tho other
parties named have obtained tho necessary
sanction which should authorize them to
appropriate the sums in question tp the
purposes proposed. We aro not told what
the necessary legal sanction IB and as I
understand , the argument* it follows that
if the items in question have 4 n fact been
properly , treated as *' non-voted," still
306 Pate* KlUSHNABALLABH v. OovBBNOR op BIHAR (Dawson-Miller, 0. J.)
neither the Governor nor anybody else
has obtained any authority under the
Government of India Act to appropriate
rind spend the same.
A preliminary objection was taken by
the Government; Advocate, who appears
for the opposite party, that this Court
Iras no power to issue a writ of manda-
mus ; and although I am by no means
<ntis6ed that wo have such power, it is
not necessary definitely to determine the
question for assuming, without deciding,
that we can issue in proper cases a writ
of mandamus I think the application fails
on the merits.
Under the Government of India Act
the province of Bihar and Orissa, as in
the case of other presidencies and pro-
vinces, is governed, in relation to reserved
subjects, by the Governor in Council and
in relation to transferred subjects, save as
otherwise provided, by the Governor
acting with Ministers appointed under
the Act, and all orders and other procee-
dings of a Governor's province shall bo
oxpressod to bo made by the Governor
of the province, and shall be authenticated
*s the Governor may, by rule, direct; and
orders and proceedings so authenticated
rthali not bo called in question in any legal
proceedings on the ground that they were
not duly made by the Government of tho
province. This will appear from a peru-
sal of Ss. 46 and 19 of tho Act.
Under B. 72 D of the Act proposals for
the appropriation of the revenues of the
province can only be made on the recom-
mendation of tho Governor communicated
to the Legislative Council. That section
contains provisions which shall have
Affect with respoct to business and pro-
cedure in Governors' Legislative Councils.
3ub-S. (2) provides as follows :
(L>) Tho eHtimatad anmnl expenditure and
revenue of tho province ahull bo laid in the form
of a •nfttemcnfc bafore the Council iu each year,
and tho projoails of tho Local Government for
tho appropriation of provincial revenues and other
moneys in any ye^r shall bo submitted to tho
voti of tho Council in tho form of demands for
grants. Tho Council may assent, or refuse its
aagent, to a demand, or may reduce the amount
therein referred to either by a reduction of tho
wholo grant or by the omission or reduction of
Any of tho items of expenditure of which the
xjrant is composed.
Then follow certain provisos which
are not material to the present case
except the last which provides, as already
stated, that no proposal for the appro*
priation of revenue shall be mafle except
on tha recommendation of the Governor.
Sub-section (3) sets out certain beads of
expenditure which are exceptions to the
general provisions of sub-Section (2) and
need not be submitted to the Council.
This sab-section, as it existed1 before the
amending Act of 1925, 15 and 26 Qeo.
V., c. 83, provided as follows :
(3) Nothing in tho foregoing sub-section shall
require proposals to b3 submitted to the Council
relating to the following heads of expenditure :
(i) Contributions payable by the Local Govern
ment to the Governor-General in Council ; and
(ii) interest and sinking fund charges on loans;
rind
(iii) expenditure of which tho amount i*
prescribad by or under any law ; and
(iv) salaries and pdo&ions of persons appointed
by or with tho approval of His Majesty or by
the Secretary of State in Council ; and
(v) salaries of Judges of the High Court of the
province and of tho Advocate General.
The only clause of the above sub-
section which is material to the present
discussion is Clause (iv).
Sub-section (4) is also of importance; it
provides as follows :
(4) If any question aris39 whether any proposed
appropriation of moneya does or docs not relate
to tho above heads of expenditure, the decision
of tho Governor shall bo final.
In addition to tho salaries and
pensions mentioned in sub-Section (3)
(iv) allowances are given to the Governor
and other Government officers to cover
tho actual travelling expenses incurred
by them in travelling in the interests of
the public service. Those are 'provided
for under the Civil Service Regulations
and thq Fundamental Rules which have
statutory sanction. In so far as they
are payable out of the provincial budget
such allowances have always hitherto
been submitted to the vote of the
Legislative Council of the province since
the reforms cime into existence in 1919,
for they 'are not included in tho term
" salaries " or any other of the exempted
heads of expenditure mentioned in sub-
Section (3) of Section 72 D. By the
amending Act of 1925, however, sub-
Section (3) of Section 72 D of the princi-
pal Act has been amended. Section 1
(3) of the amending Act of 1925 enacts
that the following provision shall be
added at the end of sub-S. (3) of S. 72 D
of tho Act of 1919.
For the purposes of this sub-section the
expression ' salaries and pensions * includes
remuneration, allowances, gratuities, any
contributions (whether by way of interest or
otherwise) out of the revenue* of India to any
provident fund or family pension fund, arid a»y
19K KRlSHNABAiiLABH v GOVERNOR OF BIHAR (Dawson.Miller, C. J.) PlMM SOT
>ther payments or emoluments payable • to or on
Account of a portion iu respect of his office.
In cousequenoo of this amendment the
tour and travelling allowances of the
Government officers named have been
treated -by the Local Government in the
budget of the, ' current year as heads of
-expenditure. Which need not be submitted
to the Legislative Council.
The first question then is whether the
Governor's tour allowance and the
travelling allowances of tho other
afficers named come within the amend*
ment. In my opinion they are clearly
covered by the words of the amending
Act *and the Local Government was
justified in withdrawing them from the
vote of the Legislative Council and
treating them as " non-voted " items.
It was argued that the tour allowance
•}f tho Governor and the travelling
«.llo-vances of the other officers wore not
payments to or on account of a person
in respect of 4m office, but I am unable
to accede to this argument. The
allowances are payable to Government
officers only to cover the actual travel-
ling expenses incurred by them when
travelling in the interests of the public
service ; in other words, in performing
a part of the duties incumbent upon them
by reason of their office. But in any
case, if any question arises whether
any proposed appropriation of moneys
floes or does not relate to the heads
of exependitura mentioned in sub-
6. (3) the Governor's decision on the
matte* is final as provided* under sub-
S. (4) and* cannot be called in question,
Bven-if Wfc thought, which is by no means
the ca«e, that the Governor's decision on
the matter was erroneous I consider that
it cannot be questioned in a Court of
Law. It was argued that his decision
was only to be considered final for the
purposes of the business and procedure
in the Legislative Council and that it
was not final for all purposes, but the
business and procedure of the Legislative
Council is the only question with which
we are .concerned in this master and if
the items in question were, by the deci-
sion of the Governor, withdrawn from the
vote of the Legislative Council the Coun-
cil can have no right to require them to
be submitted and there has been no in-
fringement of the right claimed by the
petitioner. The first point raised by the
applicant, therefore, fails.
The second point raises a question
whether the local government has legal
sanction to appropriate these items o!
revenue for the purposes of tour and
travelling expenses. To determine this
question it is necessary to consider oer-
tains sections of the Act in some detail.
The scheme of the Government of India
Act appears to be that, except as other-
wise provided in the Act and the rules
made thereunder, the control of tho
revenues of India shall rest with the
Secretary of State or the Secretary of
State in Council who have the right to
delegate, in certain cases, to various
officers or bodies tho powers so conferred.
Section 2 (i) vests in the Secretary of
State, subject to the provisions of the Act,
all tho powers and duties relating to the
Government of India and the revenues of
India formerly exercised or performed
by tho East India Company or the Court
of Directors or Court of Proprietors be-
fore 1858 and sub-8. (2) provides as
follows : —
(2) In particular, tho Secretary of State may
subject to tho provisions of this Act or rules made
thereunder, superintend, direct and control all
acts, operations and concerns which relate to th«
government; or revenues of India, and all grant*
of salaries, gratuities and allowances, and all
other paymentn and charges, out of or on tho
revenues of India.
This control may be relaxed by rules
properly framed for tho purpose and a
grant or appropriation of revenue may
be made in accordance witb the provi-
sions and restrictions prescribed by the
Secretary of State in council. Sections
19 A and '21 aro in this connexion im-
portant and tho material portions may
be quoted. They are as follows : —
19 A, The Secretary of State in Council may,
notwithstanding anything in this Aot by rule
regulate and restrict tho oxercisn of the powers of
superintendence, direction and control, vested in
the Secretary of State and tho Secretary of Statj
in Council by this Act, or otherwise, in BUC!I
manner as may appear necessary or expedient in
order to give effect to tho purposes of the Govern •
ment of India Act, 1919.
Tbe rest of the section provides for
obtaining the sanction of both Houses of
Parliament to proposed rules relating to
to subjects other than transferred gub"
jects and for giving either House of
Parliament an opportunity of annulling
rules when made relating to transferred
subjects.
Section 21 reads as follows ; « —
21. Subject to the provisions of thia Act, and
rules made thereunder, the expenditure of the
revenues of India, both in British India and
308 Pat** KRLSHNABALLABH v, GOVERNOR OF BIHAR (Davrson- Miller, 0. Jj IS2$
It should be pointed out that the-
subjects now under discussion are
reserved prov incial subjects. The second
and third clauses of . the resolution are
not material. Clause 4 is as follows:
Subject to the observance of these rules and to
tho provibiona ot 8. 72 D of tho Government
of India Act, the Governor in Council haa full
po\vor to sanction expenditure upon reserved
provincial subjects and, with the previous ecu -
s.mt of his Finance Dapartrnent, to delegate Siioli
power upon such conditions aa he may »thiuk fit
to any officer subordinate to him. Any sanc-
tion given under this rule \vili remain valid for
tho specified period for which it id given, subject
in the case of voted expenditure, to tho voting ot
Mippl} in each year.
Then follow certain rules enumerat-
ing tho cases in which a Governor in
Council must obtain the previous sanc-
tion of the Secretary of State in Council
before incurring expenditure on reserved
provincial subjects out of the revenues
of India. These rules need not be re-
ferred to in detail. It is sufficient to say
that they in no way limit the powers ot
the Governor in Council to sanction the-
expenditure which is now called u>
question. It is clear, in my opinion „
ujx)n '^ j>eruftal of the statute and the
resolution and rules referred to that the
action of tho opjKHite party which i*
called in question in the present proceed-
ings is regular and constitutional, and no
cause has been shown why the Court
should exercise its powers of mandamus,
assuming such powers are within it*,
competence.
Moreover, 1 am of opinion that evoii if
this Court possesses the power which it
is asked to exercise, S. 110 of thodoveru-
meut of India Act is a complete bar to?
the exorcise of such power in tho present?
instance. The section provides that,
amongst other persons uich Governor
and each of tho Member.-* of the JSxecu-'
tive Council of a Governor shall not
(;v) bo Mibjuct to the original jurisdiction of
any high Court by reason of .inything counselled,
ordered or done " by any of them in his public
capacity only : nor
(b) be liable to be arrested or imprisoned in
any suit or proceeding in au> High Court acting
in tho uxeroisp of its original jurisdiction ; nor.
(c) Ixj subjiH't to UK» original criniVno) juri^-
diction'of any High Court in ro^peet of an>
offence not bein^ treasou or felony.
It was argued that although S. 110
might take away the jurisdiction of the
Court with regard to acts already done
it did not deprive the Court of the right
to restrain acts in contemplation,,
namely, the future expenditure of the
, bliall ba subject to thn control fojf tho
Secretary of State iq Council and no gr.int or
appropriation of any part of thoso revenue* or of
any other property coining into the possession
of tho Secretary of Stato in Council by virtue of
tho Ciovorutneiit of India Act, 1H58, or this Act,
Hhall bo mivdo \vitbout tho concurrence of a
majority of vuto.s at a nifctiiig of tho Council of
India,
Provided tint a grant or appropriation made
in uocordanco vuth provisions or restrictions pre-
Horibjd by the 8 je rotary of SUto in Council with
the ooncuiTunco of a majority of votes at a meet-
ing of tho Council shall b^ duemod to b3 mad<;
with tho concurrenc: of a majority of such vote*.
Frotu UIOHC sections it scorns clear that,
wubjoct to the provisions of tho Act
which in certain cases require tho vote of
the provincial Legislative Council in pro-
vincial subjects before an appropriation
of revenue can legally be undo, the Sec ro-
tary of Htato iu Council may by a majo-
rity of .votes proscribe tho manner in
which tho grants and appropriations may
be m;ule by locil governments and when
made they shall be deemed to bo made
with the B:inotion of the Secretary of
Stfc'.o in Council. The object of those
provisions was no doubt to facilitate
the expenditure of tho revenue by avoid-
ing tho cumbersome procedure of apply
ing for sanction for appropriation of
the revenues in ordinary matters of
routine in carrying on tho government
of the dijToront presidencies and pro-
vinces of India.
Various resolutions have from time to
time been passed and various rules have
been formulated by the Secretary of
State in Council under these and other
suctions of the Act with a view to
facilitating tho routine work of tho
appropriation of tho revenue, and careful
restrictions in all important matters
have bcon imposed upon tho powers
delegated to tho Governor in Council.
The only resolution on tho subject which
1 need refer to is No. 1119-K. A., dated
the 29th Sopcembor 192:2, published in
tho Gazette of India of the 7th October
J92iJ. The first clause of tho resolution
runs as follows :
JliK Majesty's Bjcivtxry of Suite for India in
Council bus boon pleased to make the rules ap-
pended to thiji resolution, (Mining the elites of
expenditure on reserved provinci.il .subjects
tvhioh a Governor in Council inuy not ^action
\\ithouttheprevions consent of the Secretary of
<>f State iu Comujil. Those rule** nup^rsodc ull
previous ruloa of a biuiihir nature and, subject to
their observance, orders regarding specific cases
of expenditure passed by the Secretary of State
iu Ockmcil or the Oovernor General in Council
unfttr regulations previous y in force will no
iong*f be binding.
1926 KBISHKABlLliABH V. GOVERNOR OP BlHAR (Jwala Prasad, J.) P*ta* 800
items of revenue in question, The
£uture expenditure, however* is a matter
already 'counselled or ordered by the
•Governor and it would be contrary to
the spirit and intention of the enactment
feo hold that tho Court had power to
prevent tho doing of an act which, whon
done, it would have no power to call in
question. " l
In my opinion this application should
bo dismissed with costs. Wo fix the
Bearing foe at 25 gold mohurs.
Jwala Prasad, J.~~(His Lordship
seated facts of tho case us sot out in the
udgment of the Chief Justice and pro*
ceeded as follows.) Tho Government of
India Act has made provisions for the
clarification of subjects, iu relation to
the functions of Government as "central"
juid provincial " subjects, and for the
transfer ^from among tho "provincial"
subjects of 'subjects to the administration
of the Governors of the Provinces acting
with Ministers appointed undor tho Act,
and tho subjects not so transferred arc
oil led " reserved subjects." The three
presidencies and tho several provinces
including tho provinces of Bihar and
Orissa are to be governed in relation to
4t reserved subjects." by a Governor in
Council and in relation fco " transferred
subjects'* by the Governor acting with
Ministers appointed under tho Act
($. 46). Provision ha* also been raado
under the Act for tho allocation ot
revenues or other moneys to the Provin-
cial Governments ; S. 45 (a) (b). Under
"H. 72 (D) (2) tho estimated annual expen-
diture and revenue i>f the province
" shall be laid " in thfe form of a state-
ment before the Council in each year,
and the proposals of the Local Govern •
ment for the appropriation of provincial
revenues and other moneys in any year
'* shall bo submitted to the vote of the
Council " in the form of demands for
grants." The Council " may assent, or
refuse its. absent " to a demand, or may
reduce the amount therein referred to
either by a reduction of tho whole grant
or by the omission or reduction of any
of the items of expenditure of which the
grant is composed. Under the first part
of this clause the entire estimate of the
annual expenditure of revenue called
the -Civil Budget Estimate is to b'6 laid
before the Council. But all the iterris
of expenditure are not subject to the
absent of the Council and are-, therefore,
not liable to be submitted to it* vote.
Such items are called " noirvotable "
items. They are governed by the rules
laid down by the Secretary of State in
Council in whom vests the superinten-
dence, direction and control of all acts,
operations and concerns which relate to
the government or revenues of India,
and all grants of salaries, gratuities and
allowances, and all other payments and
charges, out of or on tho revenues of
India (S. <J, 01. 2). Tho revenues of Indiaj
are received for and in the name of Ilia
Majesty and are to be applied for tho
purpose of tho Government of- India
(S. 20). The Secretary of State has and
performs all tho powers arid duties rela-
ting to tho Government or rovonuen of
India as used to be exercised or per-
formed by the East India Company, tho
Court of Directors, etc , mentioned in
S. {2> In order to facilitate the Govern-
ment of India, tho powers of the
Secretary of State have by rules of
devolution, l^een delegated to the Gover-
nor-General in India and to tho several
Governors in Council of tho presidencies
and tho provinces, and those Local
Governments have al»o control over tho
revenues and other moneys allocated to
thorn. Cl (3) of S. 72 (D) exempts
certain proposals for tho appropriation
of provincial revenues from having to
bo submitted to the vote of tho Council.
That clause runs as follows :
Nothing in the foregoing sub-section shall
require proposals to bo submitted to tho Council
relating to the following heads of expenditure.
Among those heads are " salaries arid
pensions" of persons appointed hy and
with tho approval of His Majesty in
Council or by tho Secretary of State in
Council." This is what was originally
contained in the Government of India
Act, 19H>. Tho tour cxponse* and tho
travelling allowances of the Governor
of the Province and other ofticerH were
not included in tho items which wor,o
not to he submitted to the Legislative
Council and hence such items used to bo
included in tho proposals of the Local
Government and used to he submitted
to the vote of the Council in tho form of
demands for grants.
Clause (3) has, however, boon amended
now by the Government of India (Civil
Services) Act, 1925, (15 and 16 Geo. 5,
Ch. 83), and to Sub-S. 3 the follow-
ing proviso has bcon added :
310 P*te* KRISHNABALLABII v. GOVERNOR OF BIHAR (Jwala Prasad, J.)
For the purposes of thin onb-seotion the
oxpiesaion 'salaHee and pension s' includes re-
muneration, allowances, gratuities any contribu*
tionte (whether by. way of interest or other wiaa)
out of the revenue* of India to any provident
fund or family pen.sion fund, and any other
payments or eraolumuntn payable to or on ac-
count of a person in respect of "bin office.
The words " payments or emoluments
payable to or on account of a person in
respect of his office " would certainly
include the tour expenses and the travell-
ing allowances of the Governor and the
Members of his Council and the Inspector-
General of Police.
The original S, 3 has undergone a fur-
ther important amendment and that is,
that not only, salaries and pensions of
officers (mentioned in Cls. 4 and 5 oC
the original sufrS. (3) hut also " salaries
and pensions " payable to the dependants
of these officers will not be required to
be submitted to the Council.
It was, however, urged that the items
in question would increase the amount
which they are entitled to got under
S. 85 of tho Act read with tho 2nd
schedule^ and consequently these items
are not " lawful expenditures " and they
are not on t Mod to appropriate the same
from tho provincial revenues. No doubt,
under S. 85 these officers are only entitled
to bo paid out of tho revenues of India
Buch salaries, not exceeding in any case
tho maximum, as are specified in that
behalf in Schedule II of tho Act. Sub-
8. 3 of that section says :
Tho remuneration payable to a person under
tins section shall commence on hi* i. iking upon
himself tht* execution of his <.l)ico, and *hall he
tho whole pro lit or advantage which ho phall
«*njov from his t I)K'«) during his continuance
therein,
Tho proviso to tho section makes sub-
S. 8 inapplicable to tho allowances or
other forms of profit and advantage which
may have been sanctioned for such per-
sons by the Secretary of State in Council.
In other words, tho travelling allowance
and other advantages would bo over and
above the salary fixed by S, 85 road with
Schedule II of tho Act.
Thero is, therefore, no force in this
contention.
Assuming for the sake of argument that
tho '.' tour expenses " and " tho travelling
allowance*, " the items in dispute in the
present case, were not exempted from
being submitted to the vote of the
Council, even then the question cannot
be raised before us. It appertains ex-
clusively to tho jurisdiction of ths
Governor. 01. (4) of S. 72 <D) runs **
follows :
If any question arises whether any proposed
appropriation of money does or does not relate to
the above heads of expenditure, the decision ol
the Governor shall be final.
The question with respect fco the dis^
puted items was before the Governor 011
two occasions : first, when the Civil
Budget Estimate was prepared and laid
before the Council and these items wer*e
not included in the proposals for th<*
appropriation of public revenues to b«
submitted to the vote of the Council,
and, secondly, when the petitioner sent;
notice of motion for a nominal reduction
in the amount of the provision for the
tour expenses of the Governor; The
Governor then disallowed the motion
upon the ground that it related to non*
voted items of expenditure. Thus, the
petitioner directly raised tho dispute a*
to whether tho disputed items would be
exempted from the vote of the Council
under 01. 3 of S. 72 (D). This dispnt*
became tho subject-matter of tho decision
of tho Governor and under 01. 4 of this
section his decision has become final ard
it cannot now bo re-opened.
Tho petitioner further submits th&u
the decision was final only " with respect
to business and procedure in Governor*
Legislative Councils " as stated in CL (!)
of S. 72 (D) and its finality is gone when.
the matter lias como to this Court. Bui
his prayer is to set aside that decision.
with a view that the disputed items be
submitted to the vote of tho Council.
Henco the question raised relates to the
business and procedure in tho Council.
This Court, therefore, bus no jurisdiction
to destroy the finality of the decision of
the Governor.
Again, the act of the Governor in
matter in question is not subject to the
jurisdiction of tho High Court under S. 11(>
(A) of tho Acs, This provision in S, 110
dates back to the time of the Suprema
Court of Judicature at Fort William- in
Bengal (Ss, 1 ami 2 of the East India
Company, 1780, 2lGeo. 3, Ch 70) under
which the Governor-General in Coun«i!
of Bengal was not subject, jointly or
severally, to the jurisdiction of
Supreme Co\art of Fort William in Bengal for
or by reason of any act or order, or any other
master or thing whatsoever counselled, ordered
or done by tbem in their public capacity atid,
toting *a Governor General to Council",.
192* KlUSHNABALLABH V. GOVHBKOR OF BlHAB (JwaU
, J.) PatHA 31 1
This provision remained unaffected
under the subsequent statutes and was
extended- to apply to the acts and orders
of Governors and Lieutenant-Governors
and Members of their Councils. It has
been re-affirmed in the present Govern-
ment of India Act, 1919.
The first prayer asking for a writ of
mandamus upon the Governor for sub-
mitting the proposals for the appropria-
tion of the items in question to the
Council must, therefore, be disallowed.
The second relief seeking for a writ of
mandamus on the opposite party to
tttcure a legal sanction and authority
(or the proposed appropriation seems to
be equally barred by the provisions under
the Government of India Act. The tour
expenses and the travelling allowances
of the opposite party relating to the re-
served subjects and being excluded from
the jurisdiction of the Legislative Coun-
cil must be controlled by the Secretary
of State in India and governed by the
rules framed by him. It has not been at
all shown that the appropriation of
these items has, in any way, in-
fringed the rules laid down by
the Secretary of State in Council or is
beyond the authority of the Local Gov-
ernment under the pjwors vested in them
by tbe rules of devolution ; for aught we
know the appropriation in question is
within the power of the Local Govern-
ment under the rules framed by the
Secretary of State for India in Council,
and it is not within our province to
examine these items and to say whether
or .not they are within the authority
vested in the Local Government. It may
be mentioned that no Municipal Court
has ^any jurisdiction to question, control
>r interfere with the appropriation of
tho revenue of India by the Local Gov-
ernment provided it is for the purpose of
foe Government of India. The appropria-
tion will be an act of State which es-
sentially concerns the exercise of So-
vereign power : Salaman v. The Secretary
of State for India (1).
The last prayer is to issue a writ of
injunction restraining the opposite party
from using any* portion of- the revenue of
the province for the aforesaid purposes
until legal sanction and authority are
obtained. But no injunction can be
granted independently of any suit having
II) UOfc] 1 K. B. 613 =s 75 L. J. K. B. 418 =
94L.T.868.
been brought* Therefore, this prayer is
also not within the jurisdiction of th<*
Court to grant.
The application, therefore, must fail
with respect to ail the reliefs sought.
Hence it is not necessary to decide as to
. whether this Court has power to issue a
writ of mandamus.
It may, however, be mentioned tha$
mandamus or a command is a high prero-
gative writ of a moat extensive remedial
nature. In form it is a command issued
in 'the King's name from the King'*
Bench Division of the High Court onlj ,
and addressed to any ])erson, corporation
or inferior Court of Judicature requiring
them to do something therein Bpeoified
which appertains to their office and
which the Court holds to be consonant
to right and justice. It is used princi-
pally for public purposes and to enforce
the performance of public rights or
duties. It enforces, however, some pri-
vate rights when they are withheld by
public officers. The issuing of this writ
being part of the original jurisdiction of
the Court of the King's Bench is a mat-
ter within the exclusive cognisance of
and is assigned to the King'* Bench
Division of the High Court (Jud. Act.
1873, 8.84). It is a general rule that
this writ is only to be issued where n
party has no other specific remedy, The
jurisdiction is altogether in the discretion
of the Court.
Section 40 of the East India Company
Act, 1772 (13 Geo. 3, Ch. 63) empowered
His Majesty's Court of King's Bench to
award a writ or writs of mandamus,
requiring the Chief Justice and Judges of
the Supremo Court of Judicature at tho
time being, or the Judgos of tho Mayor's
Court at Madras, Bombay or Bencoolen,
as tho case may require and are hereby
respectively authorised and required ac-
cordingly, to hold a Court with all con*
venient speed for the examination of
witnesses and receiving such proofs con*
cerning the matters charged in such in*
dictinonts or informations respectively
laid or exhibited in the said Court of King's
Bench for misdemeanour or offences
Committed in India.
Similarly, S. 44 empowered His Majes-
ty's Courts at Westminster to 'award
writs of mandamus to Supreme Court
of Judicature for the time being or tbe
Judges of the Mayor's Court at Madras,
Bombay or Bencooleu for the examina*
tU2P«Uu
v, GOVERNOR OF BISAB (Buoknitl, J.)
1926
tiun of witnesses in rospoct of civil suit*
filed in the said Mayor's Courts at West'
minister: vide also S, 3, 42 Geo, 3. C.
85 to the samo effect.
This Indian High Courts Act of 1861
empowered the Crown to establish, by
Letters Patent, High Courts at Oaloutta,
Madras and Bombay in which the Su-
preme Courts en well as the SadarDiwani
Adalat and tho Sadar Nizamat Ad&lat
were all merged, the jurisdiction and
pwer* of the abolished Courts being
transferred to the new High Courts,
Inter, other High Courts were estab-
lished, suoh a*, Allahabad, Patna and
Lahore. These High Courts have ap-
pellate jurisdiction over the subordinate
Courts and extraordinary original juris-
diction in certain matters ; but they
Iiavo not got the ordinary original juris-
diction of tho Supreme Courts, which
was inherited by tho Migh Courts of
Calcutta, Madras and Bombay. <TJio
right to issue or awttfd writ of manda-
mus, which might have existed in the
Supremo Courts, wai therefore not in-
herited by tho High Courts, other than
Caloufetu, Madras and Bombay, In as*
rnuoh a? thab right appertains exclusively
to tho origin il side of tho King's Bench.
This is the reason why S, 45 of tho
Specific Relief Act gives power only to
sho High Courts of Calcutta, Bombay
iind Madra* (and Rangoon has since been
•iddcd) in their original jurisdiction, to
H-MG writs of mandamus upon public
officers and corporations with respect to
t/hoir public dutio^ when there is no spe*
<-Jn'c remedy available to the injured per-
son. S. 50 expressly lays down that the
High Court shall not have power to
issue a writ of m indamus, Therefore,
<>horo is nothing to show that tho power
to award a writ of mandamus as tho
prerogative right of tho Crown, which
WAS conferred upon tho King's Bench,
was in its entirety conferred upon tho
Indian High Courts exoopt in tho form
and to the extent provided for in S, 1-5
of tho Specific Relief Act. There is no
case showing that a writ of mandamus
was over awarded by any High Court,
o&oopt as provided for in S. 45 which
dous tut Apply to the Patna High Court
ostabtishod in 1916 or the 'Allahabad
High Court established in 1866. It is
njtioaahie that tho latter Court had
come into existence long before the Spe-
cific Eelief Act \MIS cnnctcd ; still it (^
not included in S. 45 of the Act as hav-
ing the power to issue writ of mandamus.
These later High Courts have nob in-
herited all the powers of the Supremo
Courts on their original side : vido their
respective Letters Patent. The point,
however, need not bo pursued further
for, as already observed, no definite de-
cision on this point is necessary in this
case.
Another reason why the application
must fail h that even if this' Court were
to issue any writ of mandamus or in-
junction, there is no power in tho Court
to enforce it, and it seems to mo that it
is meaningless to have a power and to
pass an order without having the power
to enforce it. As against opposite party
Nos. 1 to 3 there is the statutory bar to
the High Court having jurisdiction over
thorn with respect to acts done by them
in their official capacity. This bar is in
existence from the earliest time.
For those reasons I agree with the
order proposed by tho learned Chief
Justice.
Buckntll, J.— (After setting out facts
and reliefs as claimed his Lordship • pro-
ceeded.) Since tho institution of the
Reforms under tho Government of India
Act, 1919 and up till tho Budget of this
year, items of expenditure such as the
three to which specific reference has been
made above were, wo arc informed, as a
matter of fact included in the vofcable
portion of the budget which was submit-
ted to tho vote of tho Provincial Legisla-
tive Council. This year, however, Jthese
and other items of similar character were
placed in tho nsn-votable portion of tho
budget and this was done because, as tho
result of recommendations of what is
known as the Loo Commission, the law
relative to what parts of the revenues
were votable or non-votablo was altered.
Jty 8. 7kJ-D of tho Government of
India Act, 1919, it was provided that in
Governors' Legislative Councils the esti-
mated annual expenditure and revenue of
tho province should bo laid in the form of
a statement before the Council in each
year and that the proposals of tho Local
Government for the appropriation of
provincial revenues and other moneys iu
any year should be submitted to the
vote of the Council in the form of de-
mands for grants. The Council might
assent or refuse its assent to a demand
or might reduce the amount therein
1*28
KaiSHNABAI/LABH V. GOVERNOR OF BlHAR (Buoknil), J.) PfttaA 313
referred to oifcher by a reduction of tho
whole grant or by the omission or
r&ducfciota of any of the items of
#xpen«Ntare of which the grant was
pompoaed. Under the Scheme of tho
Government of India Act, 1919, certain
subjects of administration were handed
over to fche control of tho Governors and
Ministers ; these were called "Transfer-
red14 subjects. Other subjects rested
under the control of the Governor and
Executive Councillors. These wore
called "Reserved" subjects. If assout of
a 'demand relating to a "Reserved" sub*
joe* was refused by tho Legislative
Ooimoil, tho Governor could certify
that the expenditure was essential for
(.he discharge of his responsibilities in
connexion with the subject. No proposal
for the appropriation of any revenue
could itt any ease bo made except on tho
recommendation of tho Governor. Pre-
sumably" with ' regard to refusal of a
demand for a grant in connexion with a
"Transferred" subject tho decision of tho
Council was (subject to certain emer-
gency powers of the Governor) substan-
tially final, But, in addition to tho
<Hstinofeion which was drawn between
r,he effective powers of the Legislative
Council relative to "Transferred" and
"Reserved" Subjects, there were also, by
<uir3ection (;)) of section 72D of tho Gov*
eminent of India Act, 1919, certain
heads of expenditure in connexion with
which no proposals neod be submitted at
till to the Council ; that is to say that
upon theso heads of expenditure tho
Council has no power to vote; theso items
were consequently termed non- voted. In
tho Government of India Act, 1919, they
consisted of several heads, namely:
(i) Contributions payable by the local
Oovernment to tho Governor *(»<?noral in
Council;
. {ii) interest and sinking fund charges
on loans;
(iii) expenditure of which tho amount
is prescribed by or under any law ;
(M salaries and pensions of . persons
appointed by or with -the approval of
His Majesty or by tho Secretary of State
in Council ; and
(v) salaries of Judges of the High
OoTirfc in the province and of the Advo-
eatfc-Qenera]. Now this sub-section was
materially altered by tho provisions of
section (l) of the Government of India
{Civil ^Service) Act, 1920, Sub-clauses
(iv) and (v) were deleted and in their
pfaoe was substituted a sub-clause (iv)
reading thus :
Salaries and pensions payable to or to
tho defendants of
(a) persons appointed by or with 'tUe
approval of His Majesty or by tho Secrfc-
tary of State in Council.
(b) Judges of tho High Court of the
Province.
(c) The Advocate General.
(d) Persons appointed before the firdt
day of April, 1921, by the Governor-
General in Council or by a Local Govern-
ment to services or posts classified by
rules under t hi •* Act as superior services
or posts.
(o) Sums payable to any person who La
or has boon in tho Civil Service of the
Crown in India under any order of tho
Secretary of State in Council or thu
Governor General in Council or. of a
Governor, made upon an appeal made tp
him in pursuance of ruloa made under
this Act.
This sub-section (3) then had added to
it tho following provision of definition :
For tho purposes of this sub-section the ex-
pression Salaries and pensions' includes remune-
ration, allowances, gratuities, any contribution
( whether by way of interest or otherwiw) out of
the revenues .of Jncliu to any provident fund or
family pension fund, and iuiy other payments or
emoluments payable to or on account of a per-
sons In re-pect of hifl office,
It is by virtue of thin provision of
definition that the items of tour and
travelling allowances have been placed
in this year's budget in the notrvotablo
list. In tho Government of India Act,
1919 (and not in any way altered by the
amendment of 1925) suJrS, (4) of
S. 72D read* thus ;
If any question arises whether any proposed
appropriation of moneys does or does not relate to
tho abovo heads of expenditure, the decision of
tho Governor nhall 1)3 final.
Now the learned vakil who has appea-
red for the applicant has suggested that
those tour and travelling allowances do
not -fall -within this provision of definition.
It is difficult to understand how it can
seriously bo suggested that these items of
tour and travelling allowances to these
respondents are not payments payable to
them or on their account in respect of
their offices. In any case, oven if that
was not so, by sub-S. (4) of S. 72D
(jusfc quoted above) tho decision of tho
Governor on this question must be
regardo4 as final ; and again, apart even
314 PftftUft KaiSHNABALLABH V. GOVBBNOa OF BlHAB (Bucknill, J)
frou) the provisions of sub-S. (4) of
3. 72D, the provisions of 01. (a) of
H. 110, sub-S. (l) of the Govern-
menfc of India Act 1919, would appear
effectually to prevent the High Court
from making any order against the
Governor in respect of his having thought
fit to place those tour and travelling
allowances in the non-votable portion of
the budget. The m \terial parts of sub*
8, (l)of S. 110 of the Government of
India Act, 1919, road thus :
The Governor-Gdnoral,cich Governor, Lumto-
mint-Governor an i Chief Commissioner -and each
of the members of the Executive Council of the
f^owraor- General or of a Governor or Lieutan.int
Governor and a Minister appintod under this act
shall not (a) 03 subject to the original jurisdic-
tion of any High Court by reason of anything
ootmsellod, ordered or done by any of thorn in
his public capacity only.
There is no doubt that it was in his
public capacity as Governor that the 1st
respondent ordered these tour and travel*
ling expenses to be placed in fcho non-
votable portion of the budget and it
would nob appear to mo that he is in
any way amenable to this C:mrt in res-
pect of such action.
Now it is quite true that this applica-
tion is declared to be ma'le to this Court
in its extraordinary civil jurisdiction,
but it is admitted by the learned vakil
who has appeared for tho applicant that
the issue of a writ of mandamus or an
order prohibiting anyone from doing
anything, if such could be effected at all,
is done by this Court in its ordinary
original civil jurisdiction.
The learned vakil, however, further
contends that, oven assuming that this
Court is of the opinion that these tour
and travelling allowance? rightly fall
within the provision of definition added
to S. 72D by the Aofc of 19Jo or that,
whether right or wrong, the Governor
has power to take such a step without;
this Court bain^ able to exercise any
control over such action,' still, he (the
Governor) has no power to order the dis-
bursement of any suoh sums as the law
at present stands. It is not made very
clear to me by the learned vakil wbo
appeared for the applicant, in whaUw&y
he prpppses that tlie Governor should
obtain this authority to disburse these
sums ; but he suggests that a vote of the
Legislature would be effective to enable
him to do so or that possibly a further
Act of the Impaml Parliament miizht be
necessary. The learned vakil has put for-
ward two reasons why he contends that
the Governor has no authority to
make any disbursement; of these tour and
travelling allowances. In the first plaoo
with regard to the Bs. 65,000 appropriated
to the tour and travelling allowances of
the Governor himself, the learned vakil
points to S. 85 of the Government
of India Act, 1919. He contends that
under that section there is fixed
as payable to, amongst other per-
sons, the Governor of this Province a
salary not exceeding the maximum spec*'
tiel which in this case amounts to.
Bs. 1,00,030 (per annum) and that,* if
tour and travelling expenses are to
included in the expression " salaries
pensions " in the provision of definition
added toS. 72D of the Aot of 1919 by tks
Act of 1925, then the maximum, salary
payable under 3. 85 of the Act is exooe:
ded by Bs. 05,000; or in other words the
Bs 65,000* must bo piid out of the salary
of Bs. 1,00,000, the maximum payable by
way *of salary to the Governor under
S. 85 of the Act. There are two £allaok^
in this argument : in the first place the
word " include " in the provision of
definition added by the * Act of
does not moan (as I read it; more than
indicate what for the purposes of the
section (that is to say whether the sum?
can be included in the non'votable por*
tion of the budget) is corn-prised - in. the
moaning of the words " Salaries and peer
sions ." It does not occlude the opera-
tion of fcho other portions of the Aoi
upon the incidents connected with
" silaries or ponsiona". It is necessaiy
to look at sub-S. (3) of S. 85 with it»
proviso. This sub-section reads:
The romu ^oration piyabla to a p^rs^n
this section *h%ll oominjnco oa his taking
hiais-ilf thi execution of hi* OiVi^e, and shall bo
the whole profit or advantage which he eh air
enjoy from his ofike daring his continuance
therein ; provided that nothing in this sub-
notion shall apply to the allowances or
other forms of profit and advantage whicl}
may have bocjn s motioned for such person^
by the Sacrotary of Sfcato iu Council.
In my view travelling allowances clearly
fall within this proviso. The argumeafc.
therefore that S. 85 operates / ia
such a m inner that travelling allow*
anoes of a Governor must come out of his
salary a? fixed by S. 85 falls to tba
ground ; if it did not the position would
indeed be an absurdity,
raw
KRISHNABALtABH Vr GoVKRXOtl OF BlIIAR (Budtnill* J.) P*fe0t 3K
The second reason H bioh the learned
vakil puts forward for his contention
that the 'Governor cannot order disburse*
ment of any of these tour and travelling
Allowances appropriated for himself is
that no such tour arid travelling allow-
ances have been sanctioned by the
Secretary of State in Council. I think
that it may be convenient here to state
that the Court is informed at the Bar
that the procedure adopted with regard
to the fixation of the quantum of travel*
ling allowance is somewhat as follows.
The Governors' staff and the heads of
different departments put forward, when
preparing their annual estimates of what
they contemplate will be the expenses of
administering their departments an ap-
proximate estimate of what would bo
required for their travelling expenses.
These are considered by the Governor in
Council and if passed, entered in the
budget/ Then when an official travels he
submits to the Accountant-General
through the head of his department a
bill for his travelling expenses and if
passed by the Accountant-General an
order is given to him to receive the sum
from the Treasury. It is clear that
under the various provisions of the sec*
tions of the Act quoted by my Lord the
Chief Justice that it is within the power
of the Secretary of State in Council to
prescribe payment of expenses of tho
nature under discussion by rule or regu-
lation or in other expedient manner.
Now in Notification No. 1-U9 B. A,,
dated Simla, the 29th September 1922
(Vide Gazette oMndia October 7th, 1922,
page 1216) it is stated that His Majesty's
Secretary of State for India in Council
had been pleased to make certain resolu-
tions 'and rules with regard to expend!*
ture by a Governor «in Council on Re-
served provincial subjects. Tho rules set
out numerous instances in which a
previous sanction of the Secretary of
State in Council lias to be obtained by a
Governor before he can authorize ex-
penditure upon various subjects. The
4th section of tho resolution states that
subject to the observance of these rules
and of the provisions of Section v 72 D of
the Government of , India Act, the
Governor in Council has full power to
sanction expenditure upon Reserved pro-
vincial subjects with the previous con-
B€tat of his Finance Dapartment and to
delegate such power upon such conditions
that be may think fit to any officer*
subordinate to him. Now, if, as has al'
ready been expressed in my view to be
the case, these tour and travelling ex •
penses can properly be placed in the
category of the non-votable portion of
the budget, this resolution (which wae*
ordered to be published and which was
published in the Gazette of India) ob*
viously gives the Governor in Council
power to sanction the disbursement, a?
occasion may arise, of these sums which
are appropriated for these tour and
travelling necessities. , In practice, of
course, to each head of department is
delegated the putting forward for sane*
tion by the Accountant General of the
travelling expenses of the officers of the
department as occasion, arises and as and
when travel actually takes place.
The whole application would, there"
fore, appear to have been dealt with and
concluded by the above observations.
It is true, that, upon the assumption
that this Court might have agreed with
the contentions put forward by the appli*
cant an interesting but now purely aca-
demic discussion was initiated as to
whether this Court has any power k
issue a mandamus. 1 do not think that
it would be profitable or desirable now
to express any final view upon this ques-
tion. I am not sure that prior to tho
Indian Speeificatettef Act (Act 1 of 1877}
the High Court of Calcutta had itselt
power to issue a mandamus but at any
rate by Chapter 8 of that Act the positior
with regard thereto appears, to have
been very materially altered. S. 50 of
the Act declares that neither the Higi
Court nor any Judge thereof is hereaftei
to issue any writ of mandamus and by
Ss. 45 and 55 procedure which may be in
lieu of mandamus and by way of prohi-
bition or injunction is provided. As &
matter of fact S. 45 of the Act only
refers to the High Courts of Judicature afc
Calcutta, Madras and Bombay (and by ft
later addition Eangoon) all of which
Courts possessed considerable original
jurisdiction. As is, of course well known
the Letters Patent constituting the High
Court o£ 'Judicature at Tatna were only
issued on 1ihe 9'th of 'February 1916,
It was suggested by the learned vakil
for the applicant that this High Courtr
had inherited from the Calcutta High
Court much of its inherent jurisdiction
PABMESHWAR v, KING-EMPERGK (Boss, J.) ,
1026
including a right to issue a mandamus.
In the circumstances of the present ap-
plication I am content to leave the
matter there. When the occasion arises
the question oan perhaps be further dis-
cussed with advantage, but it is notice-
able to observe that oven by 8. 45 of tho
Specific Belief Act nono of the High
•Courts therein mentioned can - make any
order binding on a Governor, It would
te rather carious if the High Court
of Patna was in law endowed with
greater powers than tho High Court of
Calcutta from which ifc was in 19 It)
territorially separated.
Summarising, therefore, my conclu-
sions, I am of the opinion : (a) that the
tour and travelling allowances mentioned
m the applicant's petition ure rightly cap'
able of inclusion in the non-votable por'
tionpf the budget; (h) that tho Governor's
deoisiod on such a question i$ final ; (c)
that tho High Court has no jurisdiction
over the Governor in connexion with
such a matter or any original jurisdic-
tion over the Governor or tho Executive
Councillors in connexion with anything
tiounsellod, ordered or done by any of
them in their public capacity; (d) that the
maximum salary fixed by 8. 85 of the
Government of India Act for tho
Governor of tho Province does not in-
oludo tour and travelling allowances ;
(o) that tho Secretary of State in Council
has sanctioned tho disbursement by tho
Governor ( and by officers to whom he
has delegated his authority) tour and
travelling allowances subject, of course,
1 3 the, consent of his Finance Depart-
ment. I recognize, however, that the
withdrawal from tho control or vote of
tho Legislative Council of such largo
sums as in tho aggregate those tour,
travelling and other allowances make up
is a matter upon which members of the
Council and tho members of the tax- pay-
ing community also may feel that they
have a grievance, hut that is not a ques-
tion with which this Court is in any way
oonoerned. The law with regard to tho
j natter is in my view perfectly clear and
the only duty of this Courtis to inter-
net it,
I agree therefore that this application
should* be rejected.
Application dismissed.
A. I. R. 1926 Patna 316
ROSS \ND KtJLWANT S\TCAYt JJ-
l — Petitioner.
v.
Km neror —Opposi to P.i r fcy.
Criminal Revision No. 55 of 1926,
Decided on 18th February 1926, from an
order of the 8. J.,' Bhagalpur, D/- 4th
January 1926,
(a) Penal Code, Ss. 411 and 414 —Accused
found seated around tltc stolen properly disputing
as- to Its distribution, can be convicted.
Tho evidence th.it) tho accused were all in t\u>
liouso wherefrqui tho stolon property was re-
covered disputing as to what was to bj done with
Ui3 Inofcv. H sutfiYiont for their conviction.
[P 317 01'
(b) Koldente »!•;/, 8. 1-54 — Witnesses, being
nciglibGur<i or supporting dcfen<w or not support-
ing prosecution ?s no ground for discrediting.
fh&ni as liostilc — There must be something In
their deposit-Ion* contradictory. * •
The grounds that witnesses do not support tho
prosecution story, but thoy are neighbours pf the
.iccusod and they h:ive bjeu won over by thein>
that one of them ie a tout and tho other is a man
of straw and quite unreliable, arc no reasons for
declaring the witnesses hoRtilo ; and unless there
is something in their deposition^ which is con-
flicting with earlier 8tatomeut.< made by thorn,
which "would afford ground for thinking thai
they have been gained over by tho defence, the
prosecution is not entitled to declare thorn
hostile, Tho fact that tho witnesses a to neigh-
bours of tho accused is not sufficient ground for
treating them as hostile in order to discredit tho
statements that they rrudn favourable to tho
defence. % [P 'U7 0 2, P 318 0 1]
1'ttnus, S. P. Varma and Bhagwat
Prasad — for i'oti tioncr.
IL L. Niirtdkeoli/a* — for the Crown.
Ross, J.—Tho [H3titionor is one of
eight persons who have been convicted
under S*. 411 and ill .of tho Indian
Penal Oodo in connexion with the theib
of three large bales of cloth and one bq?
containing packages of medicine bottles.
from tho railway station at Bhagalpur.
Tho stolen property was recovered; in A
house rented by one of the accused,
Hingheswar Lai, situated near the rail'
way station.
The first contention on behalf of the
petitioner is that there is no evidence or
finding that the petitioner was in posses-
sion of any of the stolen goods ; and as
regards S. 414, there is no evidence 6f
any overt act done by the accused to*
wards disposing of or making away with
the property. Now the findings of the
appellate Court are that
i-O9n \^ ii, p vt i^Auity .A-n <tf t£f]
9 OTNtV JU «1tWtt4JW>*T TT ATI V. JCV.
The evidence la'JtopUc&te tfcfc appellants is
that they wero all in this houso on tho 9th of
March 1926 disputing a^to what was to ba done
wifch the booty.
And, again, that
About a dozin people wore s^ea dUcus^Dg as
to how the cloth was to be divided,
The findings of tho trial Court aro
more detailed and are that the witnesses
have proved that the packages were found
cut through and the cloth in the hales
was lying open in tho house of Singhes-
war Lai and all tho first nine accused
were sitting inside the houso and quar-
relling over the division of the property,
and were claiming a share in the same.
There is a further finding that there i*
also sufficient evidence to show that the
accused had cut open the packages of
cloths and assisted in concealing or dis-
posing of the stolon property.
The learned counsel for tho petitioner
referred to tho case of fiey. v. Wiley (l).
In that case the jury convicted tho
accused hut fcho case was reserved for tho
opinion of the Court of appeal. There
was;a division of opinion and the ma-
jority of the Court held that tho convic-
tion was wrong. The facts tire thus
stated by Baron Martin :
Two me u stole- some fowls which they put into
i sack, ami carried to the house of Wiley's father,
for the purpose of selling thorn to Wiley. All
three want together from the house to an out-
house ; the b.ig was carried on tho back ot one of
t-he thieves J aud whoii tho policemen went iu,
the sock was found lying on tho floor unopened,
:und the three men around it m if thoy wera
bargaining, but no words wore hoard. Xow I
um of opinion that Wiley, under those cireum-
wtanejs, never did receive those fowls.
Lord Campbell, whose opinion was
tlut of the minority, said that
The material question is, whether there Luis
been ;t possession malo aniino : and ;ill tho
Judges, I boJie\v, ;iro ot opinion that thare may
be a sujftoient possession, though there U not ;i
manual po^ses-sion.
In that ease there was no possession
by the accused Wiley. But here posses-
sion is the basis of the ii tiding ; and the
only question in debate between tho
accused was as to the actual division of
the property. Wiley's case (l), t hero-
fore, is no authority on the present ques-
tion ; and, in view of the findings, I am
of opinion that so far as that question is
concerned the conviction under Ss. Ill
aud 414 is sustainable.
The anain question, however, relates to
(1) [ISSofa Den, 0. C. 37~T. and M.' 367—20
*U 3, M. C. 4^15 Jur. 184-4 Co*. C. 0.
414.
&S, J.)
the ease of this particular accused* His
defence was that he was faisely impli*
eated and had been brought by the police,,
from outside, to the house where tfat*
stolen property was found. The learned
Sessions Judge has referred to the evi-
dence of thirteen witnesses, nine of whom
are police Officers, two ace search wit-
nesses, and two aro private persona who
were declared hostile. Four of the
police officers speak to the presence of
the petitioner in the group of men in
the house. But whereas Ramrachya
Singh (P. W.No. 22) says that he assisted
Ramrup Singh, who is prosecution wit-
ness No. 13, in arresting Parmeshwar
Dayal, Ramrup Singh himself says noth~
ing on this point. Prosecution \vitness
No. 20, who identified the petitioner iu
the house, called him BhubanoshwarL
There is therefore some uncertainty
about tho case of this man on the pro*
secution evidence alone.
Now the two witnesses who wero
declared hostile, Abdul Wahid (P. W.
No. 19) and Madan Barhi (P. \V. No. 20),
in their cross-examination made state-
ments consistent with tho defence raised
by the petitioner. They &ay that Bar-
mesh war Dayal was brought subsequently
by the police from outside, from tho
direction of his own house. The con-
tention on behalf of the petitioner with
regard to this evidence is that there was
no justification for declaring those wit-
nesses hostile. Tho learned Sessions.
Judge has said nothing on this point and
the reasons given by tho trial Court are,
in my opinion, no reasons at all. What
the trial Court said was that these wit-i
nesses do not support tho prosecution;
story, but they are admittedly neighbours
oj the accused and they have been won
over by them. Witness No. 19 is a tout
and Witness No. 22 is a man of straw and
quite unreliable. These are no reasons
for declaring the witnesses hostile; and
unless there is something in their deposi-
tions which conflicted with earlier
statements made by thorn, which would
afford ground for thinking that they hod
been gained over by the defence, the pro
secution is not entitled to declare them
hostile.
Now Abdul Wahid was only examined
to prove that he had let his houso to
Singheswar and he did make that state*
ment. He was then cross-examined by
the defence ; and, apparently because of
318JPi
SHEODHAH v. BAHSAROOP (Ross, J.)
Sf86
-statement* made in that croag-examin**
-»on, he way allowed to be cross-examined
ijy the prosecution. Madan B*rhi was
not examined in chief, but only tendered
{or cross-examination ; and it was after
his cross-examination by the defence that
he was allowed to be crofS'exarained by
the prosecution. This procedure was, in
uoy opinion, erroneous ; and tko fact that
these witnesses are neighbours of the
accused i* not sufficient ground for treat-
ing them as hostile in order to discredit
the statements that they made favour-
able to the defence. Apart from this, a
Jarge body of evidence was given on
behalf of Parmeshwar Dayal to show
the circumstances in which he was
arrested. It is true that some of the
witnesses are persons of little considera-
tion and others are his own relatives :
-but one of the witnesses is a Sub-Re*
^istrar whose evidence was prim a facie
entitled to considerable weight.
The learned Sessions Judge has not
discussed the evidence of this or any
other defence witness with a view to
showing why it should not be relied upon ;
ho has merely said that he prefers the
prosecution evidence, and has considered
certain probabilities. The trial Court
disbelieved the Sub Registrar on the
ground-that ho is a caste-fellow of the
petitioner. This reason is in my opinion
insufficient ; and the Evidence of this
witness ought to have received fuller
consideration.
In View of the doubt that is thrown
on the prosecution case by the defects of
the prosecution evidence itself, which I
have referred to above, it seems to me
that there is a distinct element of doubt
as regards the complicity of the peti-
tioner* I would therefore allow this
application and set iside the conviction
and sentence of Parme.hwar Dayal and
direct tliHrt he be avvjui'-ted and released
ffrom bail.
Kul want Sahay, J.— I
agree.
Application allowed.
AIR. 1926 P*ta»3lS
MULUCK AND BOSS, JJ,
Skeodhar Prasid Singh — Defendant —
Appellant.
v.
Rimmroop Singh— Plaintiff— Respon-
dent,
Mtso Appeal No. 23 of 1925, and Civil
Rav. No. 53 of 1925, Decided on 7th
April 1925, agiinst orders of fche 1st Sub-
Jo Chapra, D/- 19th January 1925 and
2nd February 1925.
(a) Civil- P. C., 0. 39, II. I—Court should I?
satisfied before granting temporary injunction a*
to Uierc being a terlous question and as to the
probability of plaintiff * success.
la order to entitle the plaintiff* to an interlocu-
tory injunction, though the Court is not called
upoa to decide finally upon the right of the par-
ties, it ij necessary that the Court should Iw
satisfied that there is a serious question to bo tried
at the haaring and on the facts hoforo it therein
a probability that the plaintiff is cutitlc*! to re-
lief, Preston \. Luck (1884) 27 Ch. 7), 49
^oW. [P. 319, C 1
(6) Bengal Ferries Act (1 J). C. of 1885), 8. 9 -
Scopc.
The jipproval of tha Com Tits sionor i* limited
to tlvj tjrm of the leas* and not to the wholo
lea»>. [p. 319, Q 2J
(c) Civil P. C., O. 30, R. I— Suit for declaration
only— No permanent Injunction claimed— W 1u-
ther interlocutory Injunction should Ic granted,
(Quaere )
Whether it is competent to the Court to grant-
an interlocutory injunction in a suit which i<* a
suit for a declaration only, and whero nopermenent
injuactioi is cUinud. [P. 3200 1J
Khursiid Hussain and Dlnesh Chandra
Varmn — for Appellant.
K. B. Diitt> Nirsu Narain Singh, B. P-
Sinn,*, b. S. Pmil Siiyh anl 'B. N.
Singh —for Respondent.
Ross, J. — The Local Government act
ing under the powers conferred upon it
by S. 35 of the Bengal Ferries Act 1885
have transferred the management of a
ferry called Rewa Ghat Ferry in the
district of Saran to the District Board,
The lease of the tolh of the ferry being
about to expire on the 30th November,
1924, notice was given that the tolls
would be leased by public auction on the
SOfch October, 1924. The auction was
hold -m b'uifc dite and continued on fche
;>?•<, N >vo.nhi r when the respondent was
tlu- hi«U-l hidder with a bid of Rs. .%700.
Alt', r c >n^ideration hy the Vice Chairman
an i Ojo Chairman, an order was passed
i tl.o ..9th November, settling theferrv
1926
SHEODHAR v. KAMSABOGP (Boss, J;)
with the respondent for a term of three
•years frou the Ut December, 1924, and
requiring him to take charge of the ferry
an'! mike the necessary payments.
Thereafter on tho 1st December, the
respondent took possession of the ferry
and the settlement was referred to tho
Commissioner of the Division for appro*
jal under S. 9 of the Act. But tho
Uommissionor disapproved of tho settle-
ment with the respondent and directed
that the ferry should ba settled with tho
Appellant for a term of one year. An
order was then issued by the Chairman
of the District Boird informing the res-
pondent that tho settlement with him
had been disapproved by the Commission-
er and requiring him to give up posses-
sion to the appellant. Thereafter the
respondent instituted a suit for a declara-
tion th-u the settlement of fcho ferry was
lawfully mide with him find that tho
settlement with appellant was inope-
native and ineffective against him. With
his plaint be mxde an application for an
interlocutory injunction restraining the
defendant from interfering with his pos-
session. The defendant replied to tho
application for an injunction maintaining
that the settlement made with him by
$he Commissioner was a good settlement
and that he had been put in possession
by the Chairman of the District Board.
«nd that no injunction could issue,
The learned Subordinate Judge, how-
ever, made an order in favour of tho
plaintiff holding that the plaintiff «had
taken possession of 'the ferry indue
course and that it was the duty of the
Oouift to preserve the existing state of
things pending the suit, Against that
order the present appeal has been'brought.
In order to eatitlb the plaintiffs to an inter-
jooutory inju lotion, though the Court is nob
balled upon to decide finally upon the right of
the parties, it is necessary that tha Court should
bd satisfied that there is a serious question to
ba tried at the hearing and on the facts baforo
it there is a probability that the plaintiff is en-
titled to relief, (par Cotton L. J. in Preston v.
Luck (1).
T iat is the general principle on which
the Court acts ia these matters. On the
que^iqn of title, so far as it falls to be
^in&idere^ at this stage, it is only neces-
«*ry to refpr to the order of the Cornmis-
n *n/l to. .th* relevant section of the
erries Aot. ie CJoavpissioQOr after
reciting, th.* fa.Jb;. said:
1) [1 8*] 27 Ch. D. ±97.
I do not approve the settlement with
SWA rap Singh but under 8. 9 of the Ferries AO<J
I approve the lease of the tolls to SUeodha*
Prasad Singh for a paried of one year as asked
for by him at ths highest amount bid. vft
Rs. 5,700."
Now S. 9 of tho Bengal Ferries Act
runs as follows:-—
Tho tolls of any publio ferry may, from time
to tioij K> leased by public auction 'for such
tarm a: i^ Magistrate of tha District in which
such ferry is situated, nny, with the approval of
th3 Commissioner, direct.
It would appear from the terms of this
section that in the district of Saran,
where the District Board has been subs-
tituted for the Magistrate of the District
in this matter, the tolls of a public ferry
are to be leased by public auction and
that the approval of tho Commissioner ia
limited to the term of the lea-e. The
order of the Commissioner therefore
seenH to assume a l power which is not
conferred by law, in tlftt ho disapproved
not of tho term of tho lease but of the
whole lease, and made a settlement with
one who had not beon the highest bidder
at the auction. At this stago it is un-
necessary to say more on the question of
title; but it is clear that the plaintiff has
a substantial question to raise and that
go far as can be seen at present there is
a probability that he is entitled to
relief.
On tho question of possession there is
the parwana to the plaintiff issued on the
29th November, 1924, by the District
Board reciting the settlement with him
and ordering him to take charge of ' the
ferry from the old contractor and manage
the ferry. There is a further order by
the Chairman dated the 8th Januuty,
1925, to the plaintiff informing bim that
the Commissioner had disapproved of the
settlement of the ghats with him and had
sanctioned a settlement with the old
lessee Babu Sheodhar Prasad Singh for
a year. The p;aintiff was therefore
directed to give up possession and make
over charge 4a Babu Slieodhir Prasad
Singh.
On the same day a parwana was issued
to the peon of the District Board who
reported on the 9th that he went to
deliver possession of She ferry to Babu
Sheodhar Prasad Singh and put his ser-
vants in possession and they began to
ply a boatr but two hours after the plain-
tiff's party with a large number of people
came prepared to commit* a riot and with
FAZLUR RAHMAK v. MT.KOKILA (Dae, J.)
great difficulty he persuaded them to
desist. On the 12th of January, a notice
was issued against the respondent by the
Magistrate under S. 144 of the Code of
Criminal Procedure but the order was
discharged on the 3rd of February.
The suit was instituted on the 19th
January, and the injunction was granted
on the 22nd. It therefore appears that
the plaintiff had been put in possession
of the Ghat and had beon in effective
possession from the 1st December till the
9th of January, and that his possession
was only temporarily and not apparently
effectually disturbed when the settlement
was subsequently made with the defon*
dant. In these civcumstancee it seems
to me that it was the duty of the Court
to maintain the possession of the respon-
dent by granting this injunction.
, The only question that remains is
whether it is competent to the Court to
grant an interlocutory injunction in a suit
which is a suit for a declaration only
where no permanent injunction is claim-
ed, The learned vakil for the respon-
dent, in order to escape from the diflicul-
foy which this question raises, has under*
taken to amend the plaint, praying for a
permanent injunction, and to pay the
necessary Court-fee, If this is done, there
is no legal obstacle to the injunction bo-
ing continued.
The proper order therefore to make in
this appeal is that if the plaint is amend-
ed in this manner and the necessary
Court-fee is paid by tho loth of April,
1926, the appeal will stand dismissed:
bus in default of this amendment and
payment of Court-fee being made by that
<?ate, the injunction will stand dissolved.
The application in revision is dismiss-
ed, There will be no order as to costs.
Mullick, J.— I agree, .
Revision dismiswl.
* AIR. 1 926 Pat n a 320
DAS AND Ross, JJ.
(Malik) Fazlur Rahman Ah wad and
others — Appellants.
v.
3ft. A'o£*7aand anothet — Respondents.
Appeals Nos. 192 and 301 to 328 of
1925, Decided on 8th April 1926, from
the Appellate Order of the Dist. J.,
Gay a, DM 9th May 1925.
# Ctvtl P. CM 0. 21, R. Ib—DuMe-Mder of a
decrte-ltoldcr Is not 'transferee* within & 16.
A person by bsing a decree-bolder of the decree-
holder does not become a 'tran&ier**' oi'tbe decree-
holder 'by operation of )a\>* within B. 1£,
[P390 C «
S. Dai/al for Kailashpati, Janak
Ki shore and Sarju Prasad — for Appel-
lants.
Hasan Jan and SuUcinudilm Ilwssahi
— i'or Respondents.
Dai, J. — The question involved in
these analogous appeals turns on the
construction of O. 21, B, 10 of the Code
of Civil Procedure. The faots are these.
One Fattlur Rahman instituted certain
proceedings under the provisions of S. 69 of
the Bengal Tenancy Act and obtained de-
crees as against the tenants. It appears
that tho land in respect oi' which these
decrees had been obtained passed into the
possession of Musamrnat Kokila. who
appears to have got a decree against
Fazlur Rahman in the civil Court.
Musammat Kokila now claims to, execute
the decrees obtained by Faxlur f Rahman
and she contends that her right to exe-
cute the decrees is conceded to her by
0, iil, E. J6 of the Code which runs a*
follows^: (B.1G quoted). There is a proviso'
which it is unnecessary for me to consider.
Tho learned Advocate appearing on be*
half of tho respondent concedes that there
is no transfer or assignment in writing
in tins case ; but he contends that ther^
is a transfer by operation of law. I am
wholly unable to accept this contention.
Mt. Kokila is in no sense the representa-
tatjvo in interest; of Faalur Rahman. She
claimed as against Fazlur Rahman and
obtained a decree as against Fazlur Rah-
man. It is difficult to understand how
it can be said that because she has
obtained a decree In respect of the dis-!
puted land against Fazlur Rahman, there- i
fore it must be held that there is a trans-!
fer by operation of law of the decreed
under S. f>9 which had beon obtained b>
Faxlur Rahman as against the tenants.
The decision of the lower appellate
Court is, in tny opinion, erroneous. I
would allow these appeals, sot a.side, the
orders passed by Ijhe Courts below and
dismiss the application of Mt. Kokila.
The respondents must pay the bosts of
these proceedings in all the Oourts.
There vfrill be a consolidated hearing fe^
of six gold mohurs.
Orders set
1926
KHURSAIDI BEGUM v. SECV. OP STATE (Boss, J.) Pataa 321
A. I. R. 19^6 Palna 321
DAS AND Ross, JJ.«
Khursaidi Beyum — Plaintiff,
v.
Secretary of State for India— Defen-
dant.
Tifele Suit No. 1 of 1923, Decided on
-9fch February 1926.
sfr (a) Limitation Act, S. 10 — Duty of receiving
property and holding it for another can only be
discharged by handing If. over to the person en-
titled and not by appealing to the lapse of time.
Where the duty of persons is to receive pro-
perty, and to hold it for another, and to keep it
until it is called for, they cannot discharge them-
selves from that trust by -appealing to the lapsij
of time. They can only discharge themseves by
handing over that property to somebody entitled
to it. Nor can it make any difference whether
the duty arises from contract or is connected
with some previous request, or whether it is self-
imposed and undertaken without any authority
whatever. If it bo established that the duty has
in fact- been undertaken and that property has
been received by a person assuming to act in a
fiduciary character, the same consequences miibt
in every case follow : Burdlck v. Oar rick, (1870)
5 Ch. 313 and Lyell v. Kennedy, (1880) 14 A. C.
437, Foil. [P. 324, C. 1]
(6) Civil P. C., O. 1, R. ^—Community of in-
terest Is the essence of representative suit.
Given a common interest and a common griev-
ance, a representative suit is in order if the relief
sought is in its nature bf3neficial to all, whom the
plaintiff proposes to represent. Community of
interest is the essence of a representative action,
and an order appointing a person to represent a
class does not affect one of the class who has a
distinct and independent 'right in another capa-
city : Duke of Bedford v. Ellis, (1901) A. C. 1,
Foil. [P. 324, C, 2]
(c) Mahomedan Law— Shias— Suit for decla-
ration of trust in favour of poor — All Shias are
interested — No distinction as to actual poor and
•others can be made.
In a suit for a declaration of trust in favour of
poor Shias the interests of all Shias are identical.
It may be that if there is a trust it is the poor
Shias who are the beneficiaries, but the entire
Shia community is interested to have the trust
declared even if it be a trust in favour of the
Shia poor, and it is impossible to distinguish, or
to infer a conflicting interest, between those who
are actually poor and those who are only poten-
tially so. [P. 324, C. 2]
#$ (d) Mahomedan Law — Escheat — Property
•of heirless Shia taken by acts of sovereignty—
Suit doe* not lie to recover U — But If taken under
legal title Courts have jurisdiction— Property
talcen under a decree Is not taken by act of sove-
reignlty.
. If the Secretary of State taker, property of a heir
•less Shia by an act of sovereiguty,then no suit will
lie to recover it but if on the other hand, he takes
it under the colour of a legal title, then his act
'will be within the jurisdiction of the Municipal
, Courts. Where the property comes to the Sec re-
1926 P/41 & 42
tary of SUte>y a decrea of the Court it is not
taken by an act of sovereignty, but under the
colour of a legal title. [P. 825, C. 2]
* (*) Civil P. C.t S. 92— Suit to ^tnbllsh exis-
tence of trust Itself is not within S. 92.
Section 92 regulates suits where there is a
breach of an express or constructive trust created
f jr public purpose of a charitable and religious
nature ; but a suit to establish the existence of
the trust itaelf, where the whole question involved
is whether such a trust exists or not, is not with-
"in the purview of S, 92. [P. 826, C. 1]
## (/) Escheat—In the discretion of Govern-
ment alone escheated property can be granted
back.
Property which escheates to the Crown may
in certain cases be granted to the family of or
to parsons adopted as .part of the family of the
person whose estates the same have baen, but that
is a matter which rests in the discretion of the
Government alone. [P. 330, C. 1]
(g) Trusts Act, S. 6— According to Shiah Law
property of helrless Shia is to be devoted to poor —
The dedication ls> lioircver, vague and no trust is
thus created.
Although it is clearly the intention of tho
Shia Law that the property of a heirless Shia
should be devoted to the poor and indigent, there
is some vagueness as to the parsons who are in-
tended to bo benefited. This vagueness relates
to whether the baneficiaries are to be Sayyids,
especially poor Sayyids, or whether they are to
bj the poor and indigent, whether Sayyids or not,
whether they are to be the poor of the native
town of the deceased or the poor of the place
where he resided or the poor of the place wheru
he died, or of all these places, or whether thoy
were to be poor Shias generally.
[P. 327, C. 2, P. 328, C. 2J
(h) Trusts Act, S. 10 — Secretary of State can
be trustee.
The Secretary of State is capable of being a
trustee. [P. 330, C. 1J
All Imam, Khurshaid Ilmsain, S. N.
Dose, Sheshwar Dayal, Sycd All Khan,
Sued Nooruddin, Ahmed Reza and A. H.
Fakhruddin — for Plaintiff.
P. C. Manuk, L. N. ' Singh, NoonU
Hiissain, C. M. Ayanvala bind. A. T. Sen —
for Defendant.
Ross, J. — The first plaintiff was tho
President of the Anjuman Imamia of
the town of Gaya. After his death his
widow has been substituted for him. The
second plaintiff is the moofti of the said
Anjuman. The plaintiffs sue on their
own behalf and on behalf of the Shia
community. The defendant is the Secre-
tary of State for India in Council.
The case of the plaintiffs is that one
Raja Mode Narain Singh of Tikari in the
District of Gaya had a Muhammadan
mistress named Barati Begum to whom
he granted large moveable and immo-
vable properties. Barati Begum had four
children, Mirza Himmat Bahadur, Mirsa
322 Patna
KHUHSAIDI BEGUM v. SECY. OF STATE (Boss, J.)f
1926
Ekbal Bahadur, Bismilla Begum and
Sharfunnissa Begum. She died on the
16th of February 1860, leaving her sur-
viving the first three of the aforesaid
children who belonged to the Shia sect of
Muhammadans and succeeded to her pro-
perty. Jn respect of one mahal called
Taluka Belkhara she had executed a deed
of takaimnama in favour of her children.
Mirza Ekbal Bahadur was in possession
of properties yielding an income of more
than a lakh of rupees. He married Saheb-
zadi Begum, a lady of Banares, and died
childless in 1867, his properties passing
to his widow. He had brought up as his
own son the son of his sister named Mirza
Jalaluddin Bakht Bahadur, and Saheb-
zadi Begum executed a deed of gift of all
her properties in his favour in 1872.
She died in Karbala in 1875.
In 1878 a suit was instituted by the
Secretary of State for India in Council
against Mirza Jalaluddin Bakht Bahadur
in the Oourt of the Subordinate Judge of
Gaya for the recovery of the entire estate
of Mirza Ekbal Bahadur and of Sahebzadi
Begum on the ground that Mirza Ekbal
Bahadur being the son of a Hindu Baja
oould not succeed under the Shia Law
to the estate of his mother Barati
Begum ; and that as ho died childless,
under the Shia Law his widow could not
succeed to his estate : and, therefore, the
deed of gift in favour of Mirza Jalaluddin
Bakht Bahadur was invalid. On the 7th
of May 1879 the suit was decreed for pos-
session of the immovable properties and
dismissed as regards the moveables. The
plaintiff in that'suit obtained possession
of the immovable properties. The judg-
ment in that suit is made part of the
plaint and it is pleaded that no regard
has been paid to the finding recited in
the plaint. Immediately after the deci-
sion of the case the Secretary of State
got possession over all the immovable
properties. The plaintiffs contend that
while they have DO objection to the right
of the Government to hold possession of
the estate, the escheated estate is a trust
property for the benefit of the Shia com-
munity and that the Government is bound
to apply the income to pious and religious
purposes as enjoined by the Shia Law.
Ib is alleged that under the Muhamma-
dan Law of the Shia sect no Shia dies heir-
less, for the last Imam named Hazrat
lamam Mohdi is the heir when there is no
natural heir, and that this position was
admitted by the Secretary of State for
India in the aforesaid litigation. It is
further alleged that the Anjuman Imamia
of Gaya exists from 1892 and represents
the whole Shia community in the District
and the Anjuman and the plaintiffs are
beneficiaries under that trust. It is also
stated that a memorial was submitted to
the Governor of Behar and Orissa in Coun-
cil for a grant for religious purposes out of
the income of the trust estate and that
the memorial was rejected and that at a
meeting of the Anjuman Imamia held on
the 10th of December 1922 the plaintiffs
have been authorized to institute this
suit. The cause of action is the disre-
gard of the defendant to spend the in-
come of the trust estate according to the
Shia Law and it is a recurring cause of
action. The date of the refusal of the
Government to entertain the memorial of
the Anjuman, namely, the 12th of August.
1922, is stated as the date of the cause of
asion.
The bulk of the trust estate, namely,,
the mahal Belkhara, is situated in the
District of Gaya. Tna plaintiffs pray
for a declaration that the escheated
estate described in the schedules to the
plaint is a trust property for the benefit
of the Shias in general and of the Shia
community of Gaya in particular ; for an
injunction restraining the defendant and
his Government from usuing the income
of the trust estate for any purpose other
than that enjoined by the Shia law ; for
costs and for general relief.
The defence is that the plaint is insuffi-
ciently stamped ; that the suit is barred
by limitation ; that the defendant has
been in possession of the properties in
suit as full owner for upwards of forty
years ; and that no Shia ever put forth
any claim on any ground to the same.
It is denied that the estate is a trust
estate and ,that the plaintiffs or other
Shias have any interest of any sort in the
properties in suit or have any cause of
action against the defendant. It is al-
leged that the defendant is not a trustee
and is incapable of being a trustee ; that
he did not get the properties in suit
under the Shia Law, but under.the law of
escheat and that he has been in pos-
session of the escheated estate as absolute
owner and not as trustee ; that Barati
Begum, Sharfunnissa Begum and Mirza
Ekbal Bahadur died hairless and their
properties escheated to the Grown ; that
1926
KHURSAIDI BEC^UM v.> SECY. OF STATE (Ross, J.) Patnm 828
the properties werel claimed Jo 1878 in
suits against Jalaluddin Bakht Bahadur
and Bismilla Begum and Mirza Himmat
Bahadur not on the strength of the Shia
Law but on the law of escheat and that
the title of the Crown under the law of
escheat was declared and possession was
decreed and that the Court rejected the
plea that the Imam Mehdi was the heir
and that the Mujtahids were entitled to
possession.
It is pleaded that the plaintiffs' inter-
pretation of the judgment is not correct.
It is further pleaded that the religious
and moral injunctions and directions of
the Shia Law are not binding on and en-
forceable against the defendant : that the
income of the properties cannot be spent
according to the Shia Law ; and that the
Anjuman and the plaintiffs and other
Shias are nob beneficiaries and are not
interested in the properties in suit. In a
supplementary written statement; it is
pleaded that the suit is not maintainable
without compliance with the provisions
of S. 92 of the Code of Civil Procedure
and thafe it is barred as res judicata. In
a further supplementary written state-
ment ib is pleaded that five properties
specified therein had been transferred to
other persons who were necessary parties
and that the defendant has no interest in
them and the suit is barred in respect
thereof by general and special limitation.
The following issues were framed : —
(1) Has the claim been undervalued ? Is the
Court-fee insufficient $ (2) Is the cause of action
recurrent £ If so, to what extent $ Is the suit
barred by limitation .? (8) Is the suit barred by
the principle of res judicata ? (4) Are the plain-
tiffs entitled to maintain the suit / (5) Does the
suit lie against the Secretary of State for India in
Council as agent ot the sovereign .* (6) Does the
suit infringe the provisions of 8. 92 .of the Civil
Procedure Code £ (7) Is the Imam "Mehdi the
legal heir, under' the Shia Law, of a Shia dying
without natural heirs I Was this not found in
the judgment of the 7th May 187(J annexed to
the plaint ? Was this not admitted by the plain-
tiff in the suit ? (8) If so, does the defendant
hold tha property in suit to the use of the Shia
community until the Imam Mehdi appaars ? (9)
Has the defendant obtained the said property
under the general law of escheat, frea from the
restrictions of the Shia Law, by the aforesaid
judgment of otherwise ? (10) Ig the defendant ca-
pable of being a trustee ? If not, is the suit main-
tainable against him * (11) To what relief are the
plaintiffs entitled ?
Before discussing the issues it may be
mentioned here that an order, dated the
16th of January 1924,an application under
0. 1, B. 8 for permission to sue on behalf
of the Shiaa generally who are interested
in the subject- matter of the suit and also
for notice of the institution of the suit
being given to all the persons interested
was granted and notice was duly given in
the usual way,
Issue No. 1. — This issue has been de-
cided in favour of the plaintiffs by order,
dated the 6th February 1924, which ia
to be read as part of this judgment.
Issue No. 2. — From the plaint in the
present suit it would appear that Taluka
Belkhara was the subject} of a deed of
taksimnama executed by Barati Begum.
This is stated in para. 4. In para. 18 of
the written statement, while certain of
the allegations of para. 4 of the plaint
were traversed, there was no denial of
this taksimnama : and for the purposes
of this suit the allegation in the plaint
must be accepted, although no document
has been produced and, so far as I can
discover, in the litigation of 1878, there
was no reference to any such instrument.
Barati Begum died in 1860. As no trust
was set up, time began to run from that
date ; and, as regards the estate othor
than Taluka Belkhara, which was tho
subject of the taksimnama, the title of
the Shia community, if any, became
barred long before the suits of 1878 gave
the property to the Secretary! of State.
As regards Taluka Belkhara time began
to run as to the share of Ekbal Bahadur
from the 15th of August 1867 when he
died. The property became vested in the
Secretary of State on the 7th of the May
1879.
It was stated in the argument by the
learned vakil for the defendant thafc
possession was not taken until the year
1881, but this does not appear to be
correct. On the contrary the plaintiffs
said in their present plaint that imme-
diately after the decision of the case the
decree was executed and the Secretary of
State for India in Council got possession
over all the immovable properties
claimed by him. The original record has
been sent for from the record room of
the Calcutta High Court and it appears
from the petitions of compromise filed in
the appeal from the decree of 'the Sub-
ordinate Judge, dated the 8th of June
1880, that the Secretary of State had
already executed the decree and obtained
possession. There is therefore no material
for holding that possession was not ob-
tained until more than twelve years had
324 Pallia
expired from the date of the death of
Ekbal Bahadur and as regards the inter*
eats of Himmat Bahadur and Bismilla
Begum in the taksimnama properties it
is clear that, as they were alive when
the suits of 1878 were decided, time had
not begun to run in respect of their inter-
eats when the Secretary of State entered
into possession.
With regard to the taksimnama pro-
perties, therefore, the question of limita-
tion must be decided with reference to
S. 10 of the Limitation Act. The argu-
ment of the plaintiffs is that as to this
part of the property they are protected
by S. 10 of the Limitation Aofc : (S. 23
was also referred to, but that has obvi-
ously no application.) Now by pleading
limitation the defendant admits that the
Shias once had title, but ifc has been lost
by lapse of time. The plea therefore is
in this form that fche property was trust
property but not property held in trust
for a specific purpose. In fturdick v.
Garrick (l), Giffar, L. J., said :
I do not hesitate to say that where the duty
}f persons is to receive property, and to hold it
for another, and keep it until it is called for,
they cannot discharge themselves from that trust
by appealing to the laps 3 of time. They can only
discharge themselves by handing over that pro-
perty to somebody entitled to it.
In Lyell v. Kennedy (2), Lord Mac-
naghten in adopting that dictum said :
Nor do 1 think, it can make any difference
whether the duty arises from contract or is con-
nected with some previous request or whether it
is salf-imposed and undertaken without any
authority whatever. If it bo established that
the duty has in fact been undertaken and that
property has been received by a person assuming
to act in a fiduciary character, the same conse-
quences must, I think, in every case follow.
The determination of tins question
\vill, therefore, depend upon : (l) whether
the Shia Law impressed a definite trust
upon this property : and (2) whether un-
der the judgment of 1879 the Secretary
of State took the property with notice of
that trust. The result therefore is that
with regard to the property in suit except
Taluka Belkhara the suit is barred by
limitation ; and, whether as regards
Taluka Belkhara it is also barred, will
depend upon the decision of the issues on
the merits.
Issue No. 3. — The suit is not barred by
the principle of res judicata as it is not
between the same parties as the suits of
1878.
KHURSAIDI BEGUM v. SECY; OP STATE (Boss, J.)
(1) [1870] 5 C. H. 243.
(2) [1889] 14 A, C, 437.
1926
Issue No. 4. — The plaintiffs sue on be
half of the entire Shia community. In
order to conduct the action the plaintiffs
must represent the class. They have been
permitted to sue as representing the class.
They must also give an opportunity to
the class to say whether the class wants
to be represented by them. This has
been done by the notice under 0. 1, R. 8.
But learned counsel for the defendant
contends that as representing the entire
Shia community the plaintiffs cannot be
said to represent the Shia poor in parti*
cular (who are the true cestuis que trus*
tent) and that the Shia poor have a
hostile right to the general Shia commu-
nity. It is contended that a claim on
behalf of the Shias in general cannot be
joined with a claim on behalf of the Shia
poor because their interests are neces-
sarily conflicting. The principle govern-
ing representative actions is thus stated
by Lord Macnaghten in Duke of Bedford
v. Ellin (3) ;
Given a common interest and a common
grievance, a rcpresint.itiva suit is in order if the
relief sought is in its nature beneficial to all
whom the plaintiff proposes to represent.
Now while it is true that community
of interest is the essence of a representa-
tive action, and an order appointing a
person to represent a class dcea not affect
one of the class who has a distinct and
independent right in another capacity,
[In re Lart (l) and Daniel's Chancery
Practice, Eighth Edition, p. 869] , yet it
seems to me that so far as the present
suit is concerned it is a suit for a decla-
ration of trust and in this matter the in-
terests of all Shias are identical. It may
l)e that if there is a trust it is the poor
Shias who are the beneficiaries, but fche
entire Shia community is interested to
have the trust declared even if it be a
trust in favour of the Shia poor, and in
this matter it seems to me impossible to
distinguish, or to infer a conflicting in
terest, between those who are actually
poor and those who are only potentially
so. I would, therefore, decide this issue
in favour of the plaintiffs.
Issue No. 5. — The statutory provisions
relevant to this issue are S. 79 of the
Code of Civil Procedure and S. 32 of the
Government of India Act. S. 32 pro-
vides that every person shall have the
(37 [1901] ATC. 1=1)3 L.~T. 686=70L. J. Oh.
102=17T.L.R.139.
(4) [18%] 2 Oh. 788=65 L. J. Oh. 846=75
L. T. 175=45 W. K. 27.
1926
KHURSAIDI BEGUM v. SECY. OF STATE (Boss, J.)
Patn* 325
same remedies against the Secretary of
State for India in Council as he might
have had* against the East India Com-
pany if the Government of India Act,
1858, and this Act had not been passed,
and that the property for the time being
vested in His Majesty for the purposes of
the Government of India shall be liable
to the same judgments and executions as
it would have been liable to in respect of
liabilities lawfully incurred by the East
India Company if the Government of In-
dia Act, 1858, and this Act had riot been
passed. The question of the liability of
the Secretary of State for India in Coun-
cil to an action in the Municipal Courts
was discussed in The Peninsular and
Oriental Steam Navigation Company v.
Secretary of State for India (5) where
Barnes Peacock, C. J., said :
In determining the question whether tho
East India Company would, under the circum-
stances, have b3sn liable to an action, tho
general principles applicable to sovereigns and
States and the reasoning deduced from the
maxim of the English law that the King can
do no wrong, would have no force. We concur
entirely in the opinion expressed by Chief Justice
Grey in the cas3 of Bank of Bengal v. East India
Company (6) which was cited in the argument,
that the fact of the Company's having been in-
vested with powers usually called sovereign
powers did not constitute them sovereigns.
Wo are further of opinion that the East India
Company were not sovereigns, aad, therefore,
could not claim all the exemptions of a sovereign,
and that they were not public servants of Govern-
ment, and, therefore, did not fall under the
principle of the cases with regard to the liabi-
lities of such parsons, but they were a Company
to whom sovereign powers were deJegatad, and
who traded on their own account and for their
own benefit, and were engaged in transactions
partly for the purposes of the Government and
partly on their own account, which, without
tiny delegation of sovereign rights, might ba car-
ried on by private individuals. There is a great
and clear distinction between acts done in tho
exerciso of what are usually termed sovereign
powers and acts done iu the conduct of under-
takings which might b3 carried on by private
individuals without having such powers delegated
to them : Moodaley v, East India Company and
the same v. Morton (7). But the Master of the
Bolls, afterwards Lord Kenyon, said ; I admit
that no suit will lie in this Court against a
sovereign power for anything done in that capa-
city but I do not think the East India Company
is within the rule. They have rights as a sove-
reign power, they have also dutiesiis individuals.
But where the act is done or a contract is entered
into in the exercise of powers usually called
sovereign powers, by which we mean powers
which cannot bo lawfully exercised except by
(5) [1861] 5 B.H.C.A. 1 Bourk A.O.O. 166.
(6) Bignell Rep. 120,
(7) [1785] 1 Bro. C.C. 469-23 E. R. 1245.
sovereign or private individuals delegated by a
sovereign to exercisa them, no action will lie.
The same principle was laid down in
the Raja of Tanjore's case [Secretary of
State v. Kamachee Boye Sahaba] (8),
where the question was put thus :
The next question is : What is the real charac-
ter of the act done in this case £ Was it a
seizure by arbitrary power on behalf of the Crown
of Great Britain of tho dominions and property
of a neighbouring state, an act not affecting to
justify itself on grounds of Municipal law ? Or,
was it in whole or in part a possession taken by
the Crown under colour of legal title of the pro-
perty of the late Raja of Tanjore in trust for
those who, by law, might ba entitled to it on the
death of the last possessor :
Similarly in Forest v, Secretary of
State for India (9), it was held that the
resumption was not an act of State. It
was the
resumption of land previously held from th*1
Government under a particular tenure upon the
alleged determination of the tenure. Tho posses-
sion was taken under the colour of a legal title,
that being the undoubted right of the sovereign
power to resume, and retain or assess to the
public revenue all lands within its territories
upon the determination of the tenure, under
which they may have been exceptionally held
rent free. If by means of the continuance of tho
tenure or for other cause a right bo claimed in
derogation of this title of the Government, that
claim, like any other arising between the Gov-
ernment and its subjects, would prhna facie be
cognizable by the Municipal Courts in India,
Sirdar Bhaywan Singh v. Secretary of
State for India (10) was a case where fehe
act of Government was done in ac-
cordance with the notions of the Govern-
ment of what was just and reasonable
and not according to any rules of law to
be enforced against them by their own
Courts.
These decisions make it clear that if
the Secretary of State took the property
in suit in this case by an act of sovere-
ignty, then no suit will lie ; but if, on the
other hand, he took it under the colour
of a legal title, then his acts will be
within the jurisdiction of the Courts. As
the property came to the Secretary of
State by a decree of the Court it would
seem that it was not taken by an act of
sovereignty, but under the colour of a
legal title. It was said, however, that
the property came by escheat, that is, by
the prerogative of the Crown and, there-
fore, by an act of sovereignty. This argu-
ment, however, involves the question
(8) [1859] 7 M. I. A. 476.
(9) [1872J I. A. Sup. Vol. 10 = 18 W. R. 349 -
12 B. L. R. 120 - 1 J*. R. 1872 3 Bar.
1 (P. C.),
10) [IS 74] 2 I. A. 38.
326 Patna
KHURSAIDI BEGUM v. SECY. OF STATE (Boas, J.)
4026
which arises on the merits as to the
nature of the estate taken by the Secre-
tary of State under the judgment of
1879. It was further contended on be-
half of the defendant that no suit could
have been brought against the East India
Company in respect of property taken by
escheat and reference was made to Regu-
lation 19 of 1910 which deals with the
custody and disposal of escheats. By
that Regulation a right of suit is reserved
in respect of lands and buildings of the
nature described therein and it is said
that no right of suit is reserved \rith
regard to escheats. But this merely
repeats the former argument and the
answer to this contention depends upon
the merits of the case. Reference was
also made on behalf of the defence to
S. 20 of the Government of India Act,
which provides that the revenues of India
shall bo received for and in the name of
His Majesty and shall be applied for the
purposes of the Government of India
alone, and the expression " revenues cf
India" is defined as including all move-
able and immovable properties of
British India escheating or lapsing for
want of an hoir or successor and of pro-
perty in British India devolving as bona
vacant ia for want of a rightful owner.
This argument does not advance the mat-
ter further as its validity also involves
the question of the nature of the estate
taken by the Secretary of State in the
property in suit. The answer to this
issue, therefore, depends upon the decision
on the merits of the case.
Issue No. 6. — In my opinion S. 92 of
the Civil Procedure Code is not appli-
cable to the present suit, S. 92 regulates
suits where there is a breach of an ex-
press or constructive trust created for
public purposes of a charitable and religi-
ous nature ; but here the suit is to estab-
lish the existence of the trust itself and
the whole question involved is whether
such a trust exists or not. In my opi-
nion, a suit of this nature is not within
the purview of S. 92 of the Code.
This issue is decided in favour of the
plaintiffs.
Issue Nos. 7, 8 and 9. — In dealing with
these issues it will be convenient in the
first place to ascertain what the law of
the Shias is with regard to the heirship
of the Imam. The principal modern
authorities are as follows :
In Bailie's Digest of Muhatnmadan Law
luiameea, at page 2G1, the scheme of inheritance
under the Shia law is sat forth : 'Inheritance
is founded on nusub or consanguinity and on
subub or special connexion.' One of the forms
of subub is wuln, or dominion and the last form
of wula is the wula of Imamut or headship of
the Musalman cominonity. At pago 801 the
rule is laid down that where there is no surety
for offences (that is, the second form of wula)
the Imam is the heir of a person who has no
other heirs, and this is the third kind of wula.
If then the Imam be present, the property be-
longs to him to do with it as he pleases. Aly, on
whom the peace, was accustomed in such cases
to give the property to the poor and indigent of
the deceased's city and the weak and infirm
among his neighbours gratuitously. And if the
Imam is absent, the property is to bo divided
among the poor and indigent, and not bo given
up or surrendered to any other but a righteous
Sultan or ruler, except under fear or actual
compulsion.
It may be explained here that by all
the followers of the twelve Imam's, Imam
Mehdi, their twelfth and last spiritual as
well as temporal leader, is believed to be
still living, 'but to have retired from
human observations since his last ap-
pearance on oarth (page 272, foot-note.)
The wula of the Imam or doctrine of
escheats to the public treasury is more
fully explained at pages 362 and 363,
where the authorities are cited which
prescribe the partition of the property
among the poor and indigent of the Shia
sect in the same manner as they enjoy the
fifth of the spoils taken in battle. Mr.
Shama Churun Sircar in his Tagore Law
Lectures, 1874, at page 264, discusses the
wula of Imamat and lays down, quoting
the authorities, that if the Imam be pre-
sent the property goes to him to do with
it as he pleases and that the most ap-
proved opinion is that the property thus
vested in the Imam should, while he is
absent, be distributed among the Sayyids
who are his descendants, preference
nevertheless being given to such of them
as are poor and indigent.
Several authorities are quoted, includ-
ing the SharayauMslam, to show that the
property should be distributed among the
poor and indigent. Mr. Ameer, AH in
Vol. II of his Muhammadan Law, Fourth
Edition, at plages 132 to 134 discusses the
Walaul Imam. In his view the right of
the Imam is not in the nature of an
escheat to the sovereign, but the property
goes to him as the spiritual head of the
Shia Commonwealth to be distributed
among the poor and indigent of the
locality where the intestate lived, or
1920
KHURSAIDI BEGUM v. SECY. OF STATE (Boss, J.)
Pataa 327
where ha was born and in the absence of
the Imam the property goaa to his re-
presentative, the Mujtahid, the chief ex-
pounder of the law, to be distributed by
him equitably and properly among the
poor and indigent of the place where the
intestate lived or for such charitable and
religious purposes as may seem conso-
nant to his last wishes. The right of the
Imam is not qua-sovereign, but qua-
spiritual leader, and is, therefore, subject
to the ordinary bar of the statute of
limitation. The learned author, after
quoting a Fatwa pronounced by a leading
Mujtahid of Iran, goes on to say :
In Shia countries not subject to foreign con-
trol tho Mujtahid, who ia tha chief expounder of
the law, is also frequently vested with th^ power
of th$ Kazi. Whan this i«* the cass no difficulty
occurs in the application of the principle of
Shia Liw. But in India, where the Shias
are subject to a non-Moslem power, the
question may arise, under whose direction
the distribution contemplated by tho Shia
law should take place t These questions, it seems
to me, are answered by the dictum quoted from
the Jama-ush-Shittat. The Civil Court, repre-
senting the Hakim mentioned in. the Fatwa,
would assume the charge of tho property and
make'it over to the Mujtahid, if there ba any, to
be distributed among the poor and indigent of tho
deceased's village, or native city under the Court's
own control and supervision so as to leave no
room for doubt as to its proper application. If
•there ba no Mujtahid, some Shia officer should bo
appointed for the purpose of distribution. It
must also be remembered that the law does not
necessarily oontemplats application of the pro-
ceeds in the shape of alms. If the object of the
law which 'has in. view the benefit of the poor
and the indigent, who are always in need of help,
<jan be attained by establishing an institution by
which regular assistance can be rendered to them
i would be valid.
Sir Eoland Wilson in his Anglo-
Muhammadan Law (1st Edition, page
378) deals with the difference in the Shia
law of inheritance.from the Hanifi Law by
which the property of 'a Muhammadan
dying without heira devolves upon the
Government and says that
the surplus does not return to the wife even
where there are no other heirs but 'passes by
escheat, in Shia theory, to the Imam, and accord-
to Anglo-Muhammadan law, to the British
<Governnient«
It is noteworthy, however, that in the
last edition (that is, the fifth edition) of
this work, which has been revised by Mr.
Yusuf AH, this qualification is omitted.
It is simply stated at page 451 that
there w no final escheat to a Baitul Mai.
Where a deceased parson leaves no possible heir,
his property is liquidated by the Mujtahid as
representing the Imam, the proceeds to be distri-
buted among the poor of the city. in which the
deceased was 'born (or presumably, whore that is
impracticable, where he died.)
The learned Subordinate Judge of Gaya
in his judgment in the suits of 1878 cited
numerous original authorities, Shurra-al-
Islam, Mustanid-ul-Sheea, Mansubood,
Mussalik-ul-efham and Zainul-ul-ehakam
and on a review of these authorities he
came to the conclusion that the majority
of the traditions concur and agree that
the property of a Shia should be received
by Sayyids, the poor and the indigent
especially of Shia sect.
Learned counsel for the plaintiff cited
also the following passages from texts of
authority : (l) Mustanadash Shia on
Jurisprudence by Ahmad b. Muhammad
b. Mahdi b. Abi Darr, Vol. II, Juzv. 26,
the Book of Inheritance, Chap. IV, edit-
ed in Tehran Bajab A. H. 1273 ; (2)
Sharai-uMslam, p. 267, by Abul Qasim
Najmud Din Jafar b. Muhammad b.
Yahya b. Saidal Hilli, also known as Al
Muhaqqiq (the scholar), who died in A.H.
676, A. D. 1275 ; (3) Jawahirul Kalamfi
Sharh-i-Shararul-Islam by Muhammad
Hasan b. Baquir-an-Naiafi. Book of In-
heritance, Vol. VI ; (4) Najatul Ibad,
page '404, on the heirship of the Imam
and (i) Copy of an Istifa (precept) in
connexion with the property of one who
has no heir, taken from the book entitled
Jami's Shattah by Abdul Qasim Alib
Abdul Hamid-al-Quami, (ii) Jawahirul
Kalam, Vol. VI, the Book of Inheritance
(in) Najatul Ibad, by the author of Jawa-
hirul Kalam, Edition of A, H. 1318, page
404. (iv) Ar-Rahdatul-Bahiyah by Zainucl
Din B. Ali Amili, who died A. H. 966,
A. D. 1558, and (5) MustanadaslrShia,
Vol. II. ?on the mode of dealing with
property left without heirs.
These authorities "make it clear that
the last heir of a Shia leaving no other
heirs is the Imam ; and that the Imam
being infallible could dispose of the pro*
perty as he pleased. But the practice
of the Imams had established a 'rule
which was binding upon the Mujtahide
who took the property during the absence
of the Imam Mehdi on his behalf ; and
under that practice the property was to
be distributed among the poor and indi-
gent. There is some difference of opi-
nion as to whether the beneficiaries were
to be Sayyids, especially poor Sayyids, or
whether they were to be the poor and
indigent, whether Sayyids or not, and
whether they were to be the poor of the
323 Patna
KHURSAIDI BEGUM v. SECY; OF STATE (Ross, J.)
native town of the deceased or fche poor
of fche place where he resided or fche p:>or
3f fche place where he died or of all these
place?, or whether they were fco ba poor
Shias generally. While therefore it is
clearly fcha intention of fche Shii law
bhafc the property should be devoted to
fche poor and indigent, there is somavague-
ness as to the poraons who are intended
to be benefited ; and in some of the autho-
rities the matter is left to the discretion
of the vicegerent of the Imam.
I now turn to consider the judgment of
the Subordinate Judga of Gaya in the
suits of 1878 ; and, in order to ascertain
the effect of his decision on, Issue No. 2 in
these suits, it will be convenient first to
deal with tho decision of the Judicial
Committee in Collector of Masulipatam
v. Covcly Vencati Narainappa (11). That
was a case dealing with the estate of a
Brahmin dying without heirs and the
matter which called for consideration
was the eft'ec. OL tho rrohibifcion in the
Hindu law.
If there bj no heir of a Brahmin's weilth, on
hi« demise, it must bj given to a Brahmin, other-
wi«3 the King is tainted with sin.
The Judicial Committee first of all
discussed the question as one to ba deter-
mined merely by Hindu law; and it was
held that according to Hindu Law tho
title of the King by escheat to the pro-
porfcy of a Brahmin dying without heirs
ought, as in any other case, to prevail
against any claimant who could not show
a better title, and that the only question
that arose upon the anthorifcies was whe-
ther Brahmanicil property, so taken,
was, in the hands of fche King, subject to
a trust in favour of Brahmins. Their
Lordships then proceeded fco say fchafc
they wero not satisfied that the Sudder
Court was not in error when it treated
fche appellant's claim as wholly or
merely determinate by Hindu Law.
They conceived that tho title which be
set up might rest upon grounds of general
or universal law. They pointed out that
any question touching inheritance is de-
fcerminable in a manner personal to the
last owner ; but when it is made out
clearly that by tho law applicable to the
last owner there is a total failure of
heirs, then the claim to the land caases,
they apprehend, to be subject to any such
personal law. And as all property nob
(1) [1867] 8 M. I. A. 500=2 W. B, 61=1
Suther 476=1 Sir. 820 (P. C.J,
dedicated to certain religious trusts must
hive some legal owner, and there can be,
legally speaking, no unowned proparby,
the law of escheifc intervenes and prevails
and is adopted generally in all the Courts
of fche country alike. Private ownership
nofc existing, fche estate must b3 owner as
ultimate lord.
Their Lordships further held thab fche
Sudder Courfc was in error in applying
the actual or suppose*} Hindu law (whioli
negatives the King's right to Brahmani-
cal property) in derogifcion of the general
right of the British ssvereignfcy, and they
came fco the conclusion in favour of the
general right to the Crown to take by
escheat fche land of a Hindu subject,
though a Brahmin, dying wifchoufc heirs
and they thought that- fch-e claim of fche
appellanfc fco fche zamindari in question
(subject or nofc subject, fco- a fcrusb) ougbt fco
prevail.
There are, therefore-,, three grounds for
the decision : in fche first place, supposing
fche case fco be governed by Hindu law,
then fche King must fcake as, afc least, in-
termediate bolder of the property ; in the
second place, where there is no heir under
the personal law, the personal law ceases
to govern the case and the King takes by
the general law of escheat ; and, in the
third place, the personal law cannot be
applied in derogation of fche general right
of fche British sovereignty.
Now it seems to me that the learned1
Subordinate Judge has followed closely
the line of reasoning in that case. He
first of all sets forth the Shia law on the
heirship of the Imam. During the ab-
sence of the Imam the property is to be
held by his deputy, the Mujtahid. There
is no Mujfcahid in British India with the
powers required.
"O.i the contrary, as regards this estate, In the'
absence of the Imam the most influential, honest
and faithful person is the sovereign for the timo
being, that is, the Queen-Empress. It is most
likely that she oa receipt of possassion of this
estate shall use it for good purposes in the way
that she thinks best."
This line of reasoning seems to corres-
pond with the first parfc of fche decision of
fche Privy Council. Then he goes on to
say fchab this line of reasoning is in-
applicable because fche defendants in
fchese suits were nofc entitled fco raise
objections for or on behalf of fche Imam:
or Mujfcahid and fchey, afc all events, had'
no title.- He then holds fchafc apart from
this, in this matter the plaintiff, that isr
1926
KHUBSAIDI BEGUM v. SECY. OP STATE (Ross, J.)
Patm 32?
the Secretary of State,, is not bound by
the religious books of the Shia sect.
When the defendants had no right, there
was no heir to the estate. That being so,
the sovereign for the time being is under
the general law of escheat entitled to
take possession. He then points out the
analogy between this cisa and the case of
a Brahmin dying without heirs, and as
the principle of the Hindu Law could nob
prevent the Government for the time
being from taking the estate under the
general law of escheat, in like manner
the doctrine of the Muhammadan Law
could not bar the plaintiff's claim.
11 In this age the Government should, in my
opinion, 03 hald as the last heir just in the same
way as tha Iiiim has b3en declared the last heir
in the Shurra. That this is the schema of the
judgment is apparent also from the form of the
issue frame:!. According to tha gensral law and
the law of the Shias (Kanunan 0 Sharah) who is
entitled to tike the estate of a Musalman of the
Shia S3ct who has no issue nor relation entitled
to the estate ?"
The argument of the learned counsel
for the plaintiff is that the Subordinate
Judge found title to be in the Imim. He
then looked for some one to hold the pro-
perty and that must mean soaae one to
hold it with the obligation of a Mujtahid.
The Crown was selected, because it was
honest and the Crown must therefore take
the property with the conditions of the
Shia law attached and has freedom only
\vithintheambitofShia purposes. The
estate had vested in a heir who could nofc
take possession ; he was nat present to
perform his obligations ; the deficiency
\vas to ba made up by the sovereign. The
Subordinate Judge did not hold that title
went to the Secretary of State, but he got
the estate in accordance with the prin-
ciples of the Shia law. The Secretary of
State in the plaint had bised his chim to
the property explicitly on the Shia law,
and that in two respects :
By the Imimia Ooie of Muhammaiau liw au
illegitimate child has no nusub or parentage and
13 not an heir of his mother. By this law there-
fore neither Himmat Bahadur, Ekbal Bahadur
or BUmilU Bsgum ware the heira of Barati and
as Barati Bagum left no other heirs her surviving
the propjrties possessed by her at the time of her
death passad in dafatilt'of other heirs by escheat
to the Crown (para. 8). Under the Imamia Code
of Muhammadaa Law by which the family of
Ekbal Bahadur was governed, Sihebzaii Bagum
being a childless widow was not entitled to inherit
any portion of the immovable property of her
late husband and as Ekbal Bahadur was himself
an illegitimate child and had no issue of his bady
the whole of his immovable pro-party and 12
annas of his movaabte property e?3hsated on his
death to the Crown : (para; 12).
It is clear that whatever claim the
Secretary of State may have had on prin-
ciples of general or universal law to the
property other than the Taksimnama pro-
perty, he had no such claim to the Tak-
simnama property and his claim to that
property so far as Ekbal Bahadur's share
was concerned was based wholly on the
peculiar provision of the Shia law that a
childless widow is not an heir. There is
therefore great force in the argument of
the plaintiffs that inasmuch as the Secre-
tary of State took the property, or at
leas!; the Taksimnama property, under
the peculiar provisions of the Shia law,
he should hold it under that law. But
the argument is nofc conclusive. By the
personal law governing the parties the
estate was strictly heirless (apart from
the claim of the Imam), the persons hold-
ing it had no title to it. The Crown was
therefore entitled to come in under the
general law and to hold the estate. A 3
regards the heirship of the Imam, there
was, in the words of the Privy Council,
no "person in the nature of an heir cap-
able of succeeding," and on this ground
also fche Crown was entitled fco come in,
Ifc is clear that no trust was imposed upon
the Secretary of State by fche judgment
of fche Subordinate Judge. The question
of fche heirship of fche Imam was discussed
only as a theoretical question, because it
was definitely held fchat fche defendants
in these suifcs were nofc enfcifcled fco raise
it. No trust therefore could have baon
imposed by fche judgment because there
was no one to sat up any trust.
Ifc was also^argued fchafc fche second
ground of decision in The Collector of
Masulipaicun v. Cavely Vencata Narahi-
appci (ll) cannot apply to the present
cise because in facfc there is an heir and
consequently there can be no escheat
under fche general law. But fche question
is whether there was anyone in tha
nature of an heir capable of holding fche
property ; and the answer to fche question
must b3 in fche negafcive. And fche
analogy with 8 Moore is complete because
in fche case of a Brahmin dying without
heirs fche Mitakshara repeafcedly describe*
the other Brahmins as his "heirs."
Consequently a Brahmin dying without
natural heirs is no more heirless than &
Shia,
330 Patna
MANISTY v. JAMESON (Jwala Prasad, J.)
1926
Then apart; from the judgment, does
the Secretary of State hold this property
impressed with a trust ? This raises the
question : Who is the trustee ? And who
is the cestui quo trust ? If there is sub-
stance in the plaintiffs' contention, then
the Secretary of State occupies the posi-
tion of the Mujtahid. But the Mujtahid
is not a trustee for the poor and indigent;
ho is agenfc of the Imam. If it be assum-
ed that the Imam could give directions,
and by law has given directions to his
deputy to distribute the estate which is
in tho nature of spoils, this would not
establish the relation of trustee and cestui
quo trust bjtween the deputy and the
poor. The law binding upon the deputy
would not create a trust enforceable by
the Court for the benefit of the poor : see
Kinloch v. Secretary of State for India
(12). There was no means of enforcing
the law against the Mujtahid and there
is in my opinion no ground in the Shia
law for holding that tho present claim
can bo enforced against the Secretary of
State. On these grounds therefore I
think that these issues must be decided
against the plaintiffs : (1) tho trust set
up is, on the texts, vague and not enforce-
able ; (2) no trust was imposed by the
judgment and decree of tho Subordinate
Judge awarding possession of the property
to the Secretary of State ; and (3) no
relation of trustee and cestui que trust
oxists between the parties.
Reference was made in the argument to
the practice of the Crown in England in
the matter of re-granting escheated
lands.
Property which has escheated to the Crown
may in certain cases be granted to the family of,
or to persons adopted as part of the family of, the
person whose estates tho same have been.
(Ilalsbury, Laws of England, *VoU II page 27).
This is a matter, however, which rests
in the discretion of the Government
alone.
Issue No. 10. — That the Secretary of
State is capable of being a trustee is in-
•disputable. In Secretary of State for
India v. Gum Prasad Dhur (13), Piggot,
J., said ;
It need not be discussed whether or not the
East India Company could bo a trustee. It is
certain it could be and often was.
See- also Secretary of State for India v.
lladhika Prosad Bapuli (14). This issue
. in favour of the plaintiffs.
.
(12) [1889] 7 A.O. 619=15 Ch.D. 1.
(13) [1893] 20 Cal. 51 (F.B.).
(14) A.T.E. 19'J8 Mad. 667,
Issue No. 11. — No injunction could in
any view be granted as the effect would
merely be to hold up the property with-
out imposing any duty. On the findings
on the above Issues Nos. 7 to 9 the plain-
tiffs are not entitled to any declaration
and therefore to no relief.
The suit must, therefore, be dismissed ;
but, in view of the importance of the
question that has been raised and of the
fact that the plaintiffs did not raise it for
their own benefit, I think that the costs
of both parties should come out of the
estate. Hearing-fee, Bs. 1,000 per diem,
for seven days.
Das, J. — I agree.
Suit dismissed.
* A. I. R. 1926 Patna 330
JWALA PRASAD AND BUCKNILI,, JJ.
F. H. Manisty and others — Plaintiffs —
Appellants.
v.
J. V. Jameson and anothe) — Defen-
dants— Respondents.
Appeal No. 138 of 1922, Decided on
9th December 1925, from the Original
Decree of the SulrJ., Muzafferpore, D/-
16th January 1922.
# Contract Act, 5.9. 59, GO and Gl—In the ab-
sence of any direction from debtor, creditor may
appropriate payment In chronological order of
debts— This right of creditor continues until he
has communicated tfw appropriation to the debtor*
The right to adopt tho manner of appropriation
rests directly with tho debtor. In the absence of
any direction of the debtor it is opon to his credi-
tor to appropriate tho payment towards any of
his debts, and if there is no intimation by the
debtor at the time of payment with regard to
appropriation by the creditor, then it is open to
the creditor to insist upon appropriation being
made in the chronological order in which the
debts stand. The right of the creditor to appropri*
ate the payment towards any of the debts
due to him continues up to the time that he
intimates the appropriation to the debtor, and the
creditor has a right to cancel his own appropria-
tion towards a particular debt and to appropriate
subsequently towards another debt provided he
does so before he had communicated the previous
appropriation to the debtor. [P, 333, C. 1]
B. N. Hitter— iov Appellants.
S. N. Palit — for Respondents.
Jwala Prasad, J.—The plaintiffs are
appellants. They are ; (1) Francis Henry
Manisty ; (2) James Byod Simson Hill ;
and (3) Henry Walter Dunlop Hill. The
defendants are; (l) Julian Veitch Jameson
1926
MAINSTY v. JAMESON (Jwala Prasad, J.)
Patna 331
and (2) Mrs. Georgina Gertrude Munro
Jameson. Defendant No. 2 is the wife of
Defendant 1.
The plaintiffs brought an action to en-
force a simple mortgage set forth in an
indenture (Ex. 1) dated the 15bh January
1920, and confirmed by an agreement
(Ex. 2) dated 12th March 1920. The inden-
tures were executed by both the defen-
dants in respect of a debt of Rs. 21,000
due from Mr. J. V. Jameson alone to the
plaintiffs ; and as security for repayment
of the debt Mr. Jameson mortgaged the
whole of the Jalaha Indigo concern
which belonged to him, and Mrs. Jameson
mortgaged her undivided two-sixteenths
share in the indigo concern called the
Karnowl indigo concern. The loan was to
be repaid in four instalments, namely :
(1) Rs. 3,000, on the day of handing
over the indenture ;
(2) Rs. 6,000, on the 30th June 1920.
(3) R. 6,000 on the 31st December
1920 ;
(4) Rs. 6000 on the 30th June 1921; and
with a stipulation that in caso any of
the instalments remained unpaid on the
due date the mortgagees will have a right
to take action on the indenture to recover
the whole of the balance due after giving
the said Mr. Jameson one month's notice
in writing of their intention to do so.
The mortgagor, however, had a right to
pay any instalment or any part thereof
before the date mentioned as th*b on
which it falls due. As Mrs. Jameson was
not the principal debtor it was stipulated
for her benefit that as soon a? the total
amount due under the mortgage beoima
less than R3. 12,000 and the rents due to
the Bettiah estate on account of the
leasehold properties, whether mukurrari
or otherwise, shall have been paid, the
liability of Mrs. Jameson under the in-
denture shall cease and determine and
thereafter the remaining amount un-
paid shall continue to be the first charge
on Mr. Jameson's Jalaha Indigo Concern
alone.
The first instalment of Rs. 3,000 was
paid on the day the mortgage indenture
was executed, i. e., on 15th January 1920;
the S3cond instalment of the 30th of June
1920 was not paid on the due dite. On
the 27th September 1920 Rs. 3,000 was
sent by Mr. Palmer on behalf of Mr,
Jameson to Mr. J. B. S. Hill through one
Mr, Kasturi Lai and received by Mr. Hill
on the 23th September '1920 (receipt Ex-
hibit 3). Mr. Palmer did not direct as
to whether the said sum of Rs. 3,500, was
to be credited towards the mortgage loan
or the personal loan which admittedly
Mr. Jameson owed at that time to
Mr. J. B. S. Hill. On the 8th November
Mr. Palmer sent another sum of Rs. 3,000
stating in his letter (Ex. 9) of that date
that it was paid on account of the mort-
gage on behalf of Mr. Jameson. On the
18th November M. J. B. S. Hill intima-
ted to Mr. Jameson by his letter of that
date (Ex. 4) that he had appropriated
Rs. 2,083 due to him on account of the
personal loan from Mr. Jameson out of
Rs. 3,500, and the balance together with
Rs. 3,000 was credited towards the mort-
gaged loan, thus leaving a balance of
Rs. 2,521-4 0 due in respect of the June
kist under the mortgage. He asked him
to send this sum so as to clear off the
June kist. On tha 25th November 1920
Mr. Palmer as Manager of the Jalaha
Indigo Concern wrote a letter (Ex. 12)
to Mr. J. B. S. Hill on behalf of
Mr. Jameson sending Rs. 1,515-12-6 alon^
with two statemants of account up to
27th November 1920, (l) for the perso-
nal loan ; and (2) for the mortgage (Exhi-
bits 12 and 12-B respectively) he credited
the entire sum of Rg. 6,000 aforesaid to-
wards the mortgage loan, and out of
Rs. 1,515-13-6 he credited Rs. 5U bo-
wards the mortgage and the balance of
Rs. 974-12-6 towards the personal loan
thus reducing the loan account to
Rs. 1,200 and the mortgage to Rs. 11,900.
As the mortgage loan was brought down
under R. 12,000 claimed in his letter the
release of Mrs. Jameson's undivided two-
sixteenths share in the Karnowl Indigo
Concern in accordance with the stipula-
tion in the mortgage bond, the kist due
to the Bettiah estate having been
paid in full on the 30th September 1920
on account of the leasehold properties
and mukarrari. Mr. Hill acknowledged
the letter and the sum of Rs. 1,515-12-6
on the very day he received them per
letter (Exhibit 1) and said that as he was
going that night to the mela he would
send his reply later which he did on the
9th December (Ex. 10). In this letter he
credited the aforesaid Rs. 1,515-12-6
towards the unpaid amount of June kist
referred to in his letter of the 18th
November (Ex. 4), reducing it to
Rs. 1,008-7-6 (i.e., Rs. 2,524-4-0 minus
Rs. 1,515-12-6). He insisted upon the
332 Patna
MANISTY v. JAMESON (Jwala Prasad, J.)
1926
appropriation mi do by him in his earlier
letter of the 18th November on the
ground that Mr. Jameson had promised
payment of his personal loan in June.
He also pointed out certain small
inaccuracies in the accounts given by
Mr, Palmer.
The December kist of Es. 6,000 fell due
on the 21st December and was not paid.
Mr. Hill accordingly, on the 9th January
1921 wrote a letter (Exhibit 6) to
Jameson stating that as the balance of
June kist according to his letter of the
9th December and also the December
instalment were not paid he would give
due notice that if the full amount was
not paid within a 'month he would take
action to realize the whole amount of the
mortgage under the terms of the deed.
He sont the notice that very day (Ex. 13)
which was received by Mr. Jameson on
the 14th January par acknowledgment
(Ex. 15). On the 13th February 1921
Mr. Jameson wrote to Mr. Hill refusing
to accept Mr. Hill's mode of ap-
propriation of the payments made by
him and asking him to appropriate the
same in the manner stated by Mr. Palmer
in his letter of the 25feh November.
He also asked him to release the
Karnowl Indigo Concern of his wife
from the mortgage. Mr. Hill wrote back
to him (Ex. ll) on the 19th February
refusing to accede to his request and
insisting upon his right to appropriate
Bs. 3,500 paid in September 1920 towards
his personal loan inasmuch as it was
not suggested to him that it was to be
credited to the mortgage account.
Mr. Hill brought his suit to enforce
the mortgage against both the defendants
Mr. and Mrs. Jameson, inasmuch as
according to him Rs. 1,008-7-6 was due
to him in respect of the June kist of
1920 and Bs. 12,000 for the December
kist of 1920 and June kist of '1921
making a total of Bs. 13,008-7-6 which
with interest on the date of the 'suit,
amounted to Bs. 13,265-12-5.
The defendants filed separate written
statements. The principal contention'how*
ever, on their behalf has been that the
plaintiffs ought to have credited the
entire sum of Bs. 3,500 paid on the 27th
September 1920 to the mortgage account
instead of crediting only a portion of it
namely Bs. 1,418, after paying off the
personal loan of Mr. J. B. S. Hill amount-
ng to Bs. 2,083, and that the plaintiffs'
claim should thus be reduced which
would «bring down their claim to less
than B?. 12,000 on the .8th of November
1920, the date on which another sum of
Bs. 3,000 was paid. Accordingly on
behalf of the Defendant No. 2 it was
contended that her liability under the
mortgage ceased and determined and that
the plaintiffs were not entitled to a
decree agiinst her own share in the
Karnowl Indigo concern. The other
pleas of the defendants were of minor
importance as the issues framed would
show, and the Court below ^decided those
issues against them. They do not arise
in this appeal.
The principal contentions of the defen-
dants referred to above give •rise to the
following issues : Whether the plain-
tiffs were entitled to credit Bs. 3,500
towards the loan account as 'alleged by
them. — (Issue No. 3).
Did tho Defendant No. 1 promise to
piy up the loin account in June ? If so
do33 i!; entitle the plaintiffs to credit
Bs. 3,500 to the loan account ? — (Issue
No. 4).
The Courfc balovv decided the two
issues together and held that the Defen-
dant No. 1 had promised to pay the
personal loan to the Plaintiff No. 2
along with the June instalment of 1920
but that the plaintiffs were not entitled
to credit any ^amount out of the sum of
Bs. 3,500 against tho loan 'account and
ought to have credited the same towards
the mortgage account. Accordingly the
Court balow reduced the claim of tho
plaintiffs to Bs. 11,900 on the 8th
November ^1920 as contended for by the
defendants and as this sum was under
Bs. 12,000 and the arrears of rent due to
the Bettia estate were paid up the Courfc
below released Mrs. Jameson and her
Karnowl Indigo Concern from the>
mortgage.
The plaintiffs have appealed againsb
thi;s decision. Mr. Jameson has nob
appeared in this Court, and the appeal i*
resisted only by Mrs. Jameson.
The only question before us is whether
Mr. J. B. S. Hill, one of the plaintiffs,
was entitled to appropriate Bs. 2,083 out
of B*. 3,500 paid on ^tlie 27th September
1920. towards his personal loan and then
due from Mr. Jameson. (His Lordship
then while discussing the circumstances
and probabilities in respect of the
appropriation of the amount continued.)
1926
MANISTY v. JAMESON (Jwala Praaad, J.) Patna 333
la the case of Simson v. Ingham (l)
it was laid down that the right of the
creditor . to appropriate the payment
towards any of the debts due to him
continues up to the time that he
intimates the appropriation to the debtor.
The decision goes further and holds that
ithe creditor has a right to cancel his
own appropriation towards a particular
debt and to appropriate subsequently
towards another debt provided he does so
before he had communicated the'previous
appropriation to the debtor. Referring
to the aforesaid case Sir Henry Cunning-
ham and Sir Horatio Shepherd, in their
commentary on the Indian Contract Act
under S. 60, observe :
This is contrary to the rule of civil law accor-
ding to which an appropriation, whether by
debtor or creditor is necessarily made at the time
-of payment.
(The judgment further discussing the
evidence found that the finding of the
learned Subordinate Judge as regards the
appropriation was erroneous and then
proceeded.) Suppose for a moment
that Mr. Jameson intended that the
sum of Rs. 3,500 should be appropria-
ted towards the June kist of the mort-
gage, but his intention will not be
of any avail until it was communicated
to the creditor. The principle of
appropriation of payments made by a
debtor who owes several debts, to a
creditor has been enunciated in tho case
of Cory Bros. & Co. Ltd. v. Owners of the
Turkish Steamship " Mecca " (2), where
it has been laid down that the right to
adopt the manner -of appropriation rests
directly with the debtor. In the absence
3f any direction of the debtor it is open
ko his creditor to appropriate the pay
QQQnt towards any of his debts, and
lastly, if there is no intimation by the
lebtor at the time of payment with
regard to appropriation by the creditor,
jhen it is open to the creditor to in sist
ipon appropriation being made in the
chronological order in which the debts
stand. These principles have been so
Srmly established that it is needless to
'refer to any further authority. Suffice
it to say that the principles have been
crystallized in the Indian Contract Act
in Ss. 59 to 61. The present case lies in
a nutshell. Mr. Jameson, as proprietor
(1) 2 B. and C. 65-3 D. and R. 549^-1 L. J.
(0 S.) K. B. 234^26 R. R. 273.
(2) -89 7] A. C. 286—66 L. J. P. C. 86=76 L,
T. 579-15 W. R. G67 ^8 Asp. M. C. 266.
of the Jalaha Indigo Concern owed two
debts to J. B. S. Hill (l) on account of
his loan advanced to the Jalaha factory
at a time when he, along with the other
plaintiffs and M-r. Jameson, was the
proprietor and which subsequently be-
came the sole property of Mr. Jameson ;
and (2) the mortgage debt due to Mr. J.
B. S. Hill and the other two plaintiffs in
the case, Mr. Hill acting on their behalf
and representing them throughout the
transaction. Mr. Jameson had promised
to pay off the personal loan along with
the June kist under the mortgage.
In September 1920 long after the
June kist had become due, Mr.
Jameson paid Rs. 3,500 on the 27th
September 1920 to Mr. Hill without tell-
ing him towards which of the two debts
payment was to be appropriated. In the
absence of any such direction Mr. Hill
appropriated the same towards the full
satisfaction of his personal loan and the
balance towards mortgage debt, and ho
indicated the same to Mr. Jameson on the
18th of November 1920. Mr. Jameson
subsequently asked him to credit tho
entire sum of Rs, 3,500 towards the mort-
gage loan, and not towards his personal
loan. Mr. Hill refused to do so. There-
after Mr. Jameson, on the 13th January
1921, objected to the appropriation and
asked Mr. Hill to appropriate the entire
sum of Rs. 3,500, towards the June kist
which Mr. Hill refused in the following
words :
With reference to your letter dated 13th in-
stant, I have to write to you that I am sorry. 1
cannot accept the suggestions made in your said
letter.
At the time of the payment of Rs. 8,500 in
September 1920 it was not suggested .to me that
tho payment should be first credited to the mort-
gage account B or that any specified amount
should bo credited to the mortgage account B. 1
had the right to credit to whichever account 1
liked and a*1 1 considered it proper to credit it
first to the loan account I did so and you are duly
informed about it. You are wrong in thinking
now that you have a right to ask me to credit
any portion of the sum credited to the loan ac-
count to the mortgage account.
The position taken by Mr. Hill "in this
letter is fully in consonance with the law
on the subject as stated above. There-
fore, Rs. 3,500 was properly credited to-
wards to personal loan account of Mr. J.
B. S. Hill. The result of this appro-
priation is that the mortgage debt due at
the date of the suit, or when the cause of
action arose, was not under Es. 12,000,
bub it was as claimed in the plaint, and,
334 Patna
JANKI SAHAY v. LALBESARI (Adami, J.)
192ft
therefore Mr. Jameson or Mr& Jameson
or her two-sixteenth share in the. Kar-
no wl Indigo Concern could not be
exempted from the mortgage.^ The view
taken hy the learned Subordinate Judge
is wrong, and, 'differing from him, I set
aside the decree made by him and decree
the appeal with costs.
Accordingly we decree the plaintiffs'
suit in terms of the reliefs sought for by
them against both the defendants and the
properties mortgaged in the mortgaged
indenture (Exhibit l), dated the 15th
January 1920. The plaintiffs will get an
ordinary mortgage decree with six
months' grace allowed to the defendants
to pay up the principal sum claimed with
interest at the stipulated rate, failing
which the plaintiffs will be entitled to
sell the properties mortgaged. After the
expiry of the period of grace interest will
run at the rate of 6 per cent, per annum.
The plaintiffs will also get a decree
under O. 34, K. 4, of the Code of Civil
Procedure.
Bucknill, J. — I should like to add
only a few words to tho judgment of my
learned brother. I think that the law in
this subject is clear. In the House of
Lords in tho case of Cory Brothers
and Company Ltd. v. The Owners of the
Turkish Steamship " Mecca " (2), His
Lordship Lord Macnaghten there states in
clear language that when a debtor is
making a payment to his creditor he may
appropriate the money as he pleased and
that the creditor must apply it accord-
ingly. If tho debtor does not make any
appropriation at the time when he makes
the payment the right of appropriation
devolves upon the creditor. In the old
and former case of Devaynes v. Noble (3)
(usually known as Glay.ton's case) which
was decided in 1816, it was held that the
creditor was bound to make his election
at onoe or within a reasonable time. But
Lord Macnaghten observes that it had long
been held, and is now quite settled law,
that the creditor has the right of election
up to the very last moment. It was also
stated in the same case decided in the
House of Lords, to which I have already
referred, that the appropriation of tho
money ,is governed, not by any rigid rule
of law, but by the intention of the cre-
ditor, expressed, implied or presumed and
that the same principle is no doubt appli-
DJ*!?!?L k°_ J^PPT9P?jafclP_P,.,by the debtor.
(3) [1816] 1 Mer. 585=35 E^R. 7G7. ~
Now in this appeal now before the Courfe
it is common ground that* there certainly
was no express information given by the
debtor to the creditor as to ' the appro-
priation of the sum, nor, so far as I could
see, was there any ground for suggesting
that with regard to this sum (the appro-
priation of which is now in dispute) there
had taken place anything from which the
creditor could or should have extracted
any implied intention on the part of the
debtor as to the methods of its appro-
priation. Still less was there in my view
any presumption which could- be fastened
upon the creditor that the debtor's inten-
tion was that the money should be appro-
priated to the later of the two specific*
debts, i. e., to the mortgage debt. Under
these circumstances it appears to me that
in this case, as the law stands, it is hope-
less to argue and cannot seriously be
maintained that Mr. Hill could not
have had the right of appropriating the
sum in whatever manner he might have-
thought fit.
Appeal alloived.
X A. I. R. 1926 Patna 334
ADAMI, J.
Janki Sahay and others — Defendants —
Petitioners.
v.
Lilbehari L%1 ami others — Plaintiffs —
Opposite Party.
Civil Revision No. 331 of 1925, De-
cided on 18th February 1926, from an
order of the Dist. J., Gaya, D/- 6th June
•1925.
* Civil P. £., S. 115— Valuation of suit under
S. 1 (4) (c), Court-Fees Act, found to be reasonable
by lower appellate Court — High Court will not In-
terfere—Court Fees Act, S. 7 (4) (c),
Where plaintiff valued his suit for injunction
at Ra. 150, the value of the property involved being.
Rs. 300, and lower appellate Court held that under
S. 7, sub-S. (4), cl. (c; of tho Court Pees Act the
valuation was reasonable :
Held : that the lower appallate Court had juris-
diction to decide the matter and High Court will
not interfere. [P 335 C 1}
D. N. Singh and Surjoo Prasad — for
Petitioners.
S. Dayal and Adit Narain Lal—ior
Opposite Party.
Judgment— It appears that partition
proceedings between the parties were
taken before a revenue Court, and, on the"
1926
JHALDHARI SINGH v. PEBSHAD BHABTI (Adami, J.) Patna 335
5th December 1923, the Revenue Officer
determined the share of the parties and
directed 'the Batwara to proceed. The
value of the entire property, it seems, is
about Rs. 12,000.
The opposite party was dissatisfied
with the decision of the revenue Court
as to the shares to which he was entitled
in the shamilat lands in the various
tauzis, and he instituted a suit in the
Court of the Munsif of Aurangabad, pray-
ing for a declaration that the shares in
the shamilat in the various tauzis were
equal between the various parties, and
that the order of the Partition Deputy
Collector was erroneous. He prayed that
an injunction might issue restraining the
defendants to that suit from proceeding
with the partition. He valued the suit
for purposes of Court-fee at Rs. 150. Be-
fore the Munsif exception was taken by
the present petitioners to the valuation
stated in the plaint. The learned Munsif,
after looking into the value of the tauzis
involved in the suit, came to the conclu-
sion that their value was more than Rs.
3,000 and therefore he held that he had
no jurisdiction to try the suit and re-
turned the plaint to be presented to the
Subordinate Judge. The opposite party
then appaaled to the District Judge who
held that under S. 7, sub-S. U), 01. (c) of
the Court Pees Act the suit was within
the jurisdiction of the Munsif ; for it was
open to the plaintiff to value the injunc-
tion at such value as he pleased. He held
that the valuation of Rs. 150 was a rea-
sonable valuation.
Before me it is contended that, con-
sidering the value of the properties, the
valuation of Rs. 150 was too small and was
an altogether arbitrary valuation, and
that on this ground it is open to this
Court to interfere.
The question that arises is whether this
Court can interfere in the present case.
The District Judge had jurisdiction to
decide the matter and he has found that
the valuation placed on the suit by the
plaintiff was a reasonable valuation. If
I found that the valuation was altogether
arbitrary and unreasonable, I might in-
terfere, but on the finding of the learned
Jistrict Judge that the valuation was not
unreasonable, he having considered the
matter, I cannot see that I can interfere
in the case at all. The application must be
rejected. Hearing-fee two gold mohurs.
Application rejected.
A. I. R. 1926 Patna 335
ADAMI, J.
Jhaldhari Singh — Auction- purchaser-— •
Petitioner.
v.
Pershad Bharti and others — Judgment*
debtors and decree-holder — Opposite
Party.
Civil Rsvhion No. 224 of 1925, Decid-
ed on 9th November 1925, from an order
of the 1st Munsif, Gaya, D/- 23rd April
1925.
Civil P. C., S. GS—Djsree-tolder allowed to bid
but on conditions — Ills failure to fulfil the condi-
tion* does not affect the sale In favour of highest
bidder.
At an auction silo th3 purchnssr bidding the
highest amount for the properties is entitled to
have the proparties knocked down to him at his
highest bid. The fact that the decree-holder did
not observe the conditions on which he wa&
allowed to bid at the sale could not do more than
taka away the validity of the decree-holder'B own
bid, but cannot affect the validity of the bids by
the purchaser who is an independent bidder at
the sale. [P. 836, 0. 1}
Brij Ki shove Prasad — for Petitioner.
K. P. Stikul — for Opposite Party.
Judgment. — It appears that, during
proceedings for the execution of a decree,
the five properties of the judgment-
debtors were proclaimed for sale and
valuations were fixed for eich property,
the amounts being Rs. 1,050, Es. 454,
Es. 588, Kg. 1,805 and Es. 650. The pro-
clamation was duly served and the sale
was fixed for the 21st April 1925. The
decree-holder was given leave to bid at
the sale, but the condition on which he
was allowed to bid was that he was to
bid up to the sumg fixed by the Court.
That order is dated the 22nd April 1925.
Bidding commenced and the decree-holder
bid Es. 175 for the first property put up
for sale.
The present petitioner was present at
the sale and bid against the decree-holder.
His bid was Es. 200 and was the highest.
Similarly in the case of the four other
properties the decree-holder bid Es. 75,
Es. 90, Es. 150 and Es. 135 respectively
for the properties, whereas the present*
petitioner bid against him Es. 85, ES. 100,
Es. 175 and Es. 150 and his bid in each
case was the highest. The result was
that when the bid-sheet was put up to the
Munsif, he, finding that the decree-holder
had not obeyed the order that he was to
bid up to the amounts fixed by Court,
386 PatiM
E. I. BY. Co. v, KISHUN OHAND (Boss, J.)
1926
declared that there had been a default
and dismissed the execution dase.
Against this, order of dismissal the
petitioner contends that as there was an
auction sale and he bid dlie highest
amount for each of the properties he was
entitled to have these properties knocked
down to him at his highest bid. The fact
that the decree-holder did not observe
the condition on which he was allowed to
bid at the sale could not, to my mind, do
more than take away the validity of the
decree-holder's own bid, but I cannot see
how ifc can affect the validity of the bids
by the petitioner who was an indepen-
dent bidder at the sale. It is doubtful
whether the Munsif had any power to
compel the decree-holder to bid the full
amounts shown under the valuation in
the sale proclamation. In the case of
ttadri Sahu v. Pandit Peare Lai Misra
(1), Mullick, J,, hold that there was no
provision of law compelling a decree-
holder to bid up to any sum which may
be fixed by the Court.
"The valuation in the sale proclamation is in-
touch (1 primarily for the protection of the judg-
ment-holder and for giving information to tho
bidders at the auction sale."
The learned Judge held that
if in a sale properly published and conducted
the highest bid, whether of the decree-holder or
any other person, is some figure below the figure
given in the sale proclamation it is not com-
l>etent to the Court to compel tho decree-holder to
bid higher than that highest bid.
In the present case we are concerned
with the bid of an outside bidder. The
sale was properly conducted and the
petitioner was entitled to have the pro"
perty knocked clown to him as he made
the highest bid. The fact that the decree-
holder did not fulfil the condition imposed
upon him did not invalidate the sale so
far as the present petitioner is concerned.
The order of the lower Court must be
sot aside and the application must be
allowed. The petitioner's bid for each of
the properties must be accepted. Hear-
ing fee : 2 gold mohurs.
Order set aside.
(I) A. 1. B." 1926 P»tuti 140.
* A. I. R. 1926 Patna 336
DAS AND Ross, JJ.
East Indian Railway Company Ltd. —
Appellant.
v.
Kishun 'Chand Kasarwani — Respon-
dent.
Appeal No. 638 of 1923, Decided on
27th October 1925, from a decision of the
Sub-J.,Ranehi, D/- 9th April 1923.
* Bailways Act (9 of 1890), S. 72 (2) (a)— Per-
son fending and person delivering goods to
railway need not be same.
The person sending and the person delivering
the goods to the Railway Administration need
not be necessarily the same, and so execution of
risk-note by the person delivering the goods ia
sufficient to bind the sender by the contract.
[P 337 C IJ
N. C. Sin/la—for Appellant.
Baikunika Natli Mittei — for Respon-
dent.
Ross, J.— This is an appeal by the
East India Hailway : Company against a
decision of the Subordinate Judge of
Ranchi affirming a decision of the Munsif
in a suit brought by the plaintiff -res-
pondent for damages for the loss of one
bale of cotton piece-goods. It appears
that two bales of cloth were despatched
from Bombay to Daltonganj on the East
Indian Railway and only one bale was
delivered. The goods were despatched
under risk note in Form B.
The learned Subordinate Judge held
that as the risk note was executed by one
Narsing, who was not the sender of the
goods nor an authorized agent of the
sender, the risk note was not an effec-
tive contract.
He was further of opinion that as the
Railway Company defendant had not
pleaded loss, it was not necessary for the
plaintiff to show that the non-delivery
was duo to wilful negligence on the part
of the Company's servants.
In my opinion the decision of the
learned Subordinate Judge is wrong on
both points. It was found as a fact by
the Munsif that the goods were delivered
to the Railway Administration by
Narsing, who signed the risk note.
This finding has not been reversed by
the Subordinate Judge, and it must be
taken that the risk note was executed by
the person delivering the goods to the
Railway Administration. This comes
within the language of S 72, 01. (2) (a)
1926
KAMJHARI KOEK v. KASHI KATH (Kulwant Sahay, J.) Patna 337
and, in my opinion, the learned Sub-
ordinate. Judge was wrong in construing
that secbi-on as meaning that the person
sending and the person delivering the
goods are necessarily the same. If
Narsing delivered the goods on behalf of
the sender to the Bail way Administration
then he was the agent for executing the
risk note under which the goods were
despatched. In this view of the case it
is unnecessary to deal with the further
argument advanced on behalf of the
appellant that bhe plaintiff had ratified
the act of Narsing by taking delivery of
one bale of goods under this risk note.
With regard to the second point, it is
clear that this is a case of loss. The
plaintiff in his plaint alleged that only
one bale was delivered and that there
was shortage. The Railway Company in
their defence pleaded that there was
no wilful negligence by reason of which
the Company was liable for any loss
sustained by the plaintiff. The case was
clearly a case of loss on the pleadings and
in view of the terms of risk note in Form
B it was for the plainbiff to prove that
the loss of one complete package was due
to negligence on the part of tho Com-
pany's servants. No such proof was
offered and the plaintiff's claim must
therefore fail.
The appeal is allowed and tho suit of
the plainbiff is dismissed with costs in
bobh bhe Courts below, but in the circum-
stances of the case there will be no
costs of the appeal in this Court,
Das, J. — I agree.
Appeal allowed.
* A, 1. R. 1926 Patna 337
MULLICK AND KULWANT SAHAY, JJ.
Ramjhari Koer — Plaintiff — Appellant.
v.
Kashi Nath Sahai and others — Defen-
dants— Respondents.
Appeal No. 398 of 1923, Decided on
llth March 1926, from the appellate
decree of the Sub-J., Saran, D/- 18th
January 1923.
* (a)CMl P. C., 0. 34, R. I— Suit by prior mort-
gagee without joining puisne mortgagee — Puisne
mortgagee Is not bound either by decree In such
suit or sale In execution— Purchaser being In
1926 P/43 &<44
possession for more than 20 years does not affect
rights of puisne mortgagee.
A second mortgagee who has not been made
a party to the suit of a prior mortgagee is entitled
to redeem the prior mortgage and is not bound
either by fthe decree 'in the suit by the prior
mortgagee or by the sale held in execution there-
of, The fact that the purchaser in execution of
the decree of the prior mortgage has been in pos-
session for» more than 20 years does not affect the
rights of the second mortgagee to redeem the
first mortgage. [P, 338, C. 2]
#(6) Limitation Act, Arts. 132 and 148— Suit
for redemption of prior mortgage by second mort-
gagee is not governed by Art. 132 but by Art. 148.
Tha second mortgagee's right of redemption
cannot be considered to be a right to enforce pay-
ment of money charged upon immovable
property, The second mortgagee in a suit for
redemption does not seek to recover tho money
due to him. upon his second mortgage and so
Art. 132 does not apply, but under Art. 148 he
has GO years period. 14 C. W. N. 439 ; A. 1. A'.
1925 Mad. 150 ; A. I. R. 1925 Mail. 7G, not Foil :
2 L. L. J. 419 ; A. I. It. 1923 AH. 271 ; and
32 Ca//891, Foil. [P. 339, C. 1]
Jayaswal, 71 N. Mi tier and Sunder
Dal — for Appellant.
P. D ai/al for Jadubans Sahay — for
Respondents.
Kulwant Sahay, J.— This appeal
arises out of a suit for redemption of a
mortgage which has been dismissed by
tho .learned Subordinate Judge on the:
ground of limitation.
In Mouza Sarai Srikant Touzi No. 10752
a fivo annas four pics share belonged to
Lala Fatah Bahadur and Lala Lai
Bahadur. On the llth December 1886
they executed a zarpeshgi in respect of
a four annas share to the plaintiff's
mother and the Defendants Nos. 11 to 13.
On the 28th March 1892 they mortgaged a
six pies share to tho Defendant No. 5 and
it seems to have 'been the case of both
parties that this six pies was out of the
four annas given in the zarpeshgi. On
the 16th February 1893 they executed
a second mortgage to the plaintiff's
mother and the Defendants Nos. 11 to 13
in respect of the four annas share which
had already been given in zarpeshgi in
the year 1886 and which included the
six pies already mortgaged to Defendant
No. 5. It appears that the remaining
one anna four pies out of five annas
four pies has passed te Defendants
Nos. 8 to 10. Defendant No. 5 insti-
tuted a suit to enforce his mortgage
which was Suit Mo. 50 of 1894.
In this suit the subsequent mortgagees
were not ^made parties. A decree was
obtained 'and the mortgaged property
RAMJIIARI KOER v, KASHI NATH (Kulwant Sahay, J.) 1926
338 Patna
viz., six pies share was sold on the
26th October 1895 and purchased by tho
Defendants Nos. 1 to 3 in the farzi uame
of the Defendant No. 4. Subsequently
tho second mortgagees, namely, the
plaintiffs mother and the Defendants
Nos. 11 to 13. instituted a suit to enforce
their mortgage of the 10th February
1893. In this suit neither the first
mortgagee nor the purchasers in execu-
tion of his decree were made parties. A
<lecree was obtained on the 26th February
1896 and in execution of the decree the
four annas share was sold on the 8th
January 1897 and purchased by the
decree-holders themselves. The plain-
tiff's mother 'being dead, the plaintiff
now claims the four annas share as her
heiress on the allegation that by a
private partition she has been allotted
the entire four annas share and the
DefendantsNos.il to 13 have no in-
terest therein.
The present suit for redemption was
instituted on tho 17th January 1919.
The contesting defendants, namely,
Defendants Nos. 1 to 3 pleaded inter alia
that the suit was barred by limitation,
they having been in possession for more
than 20 yoars and the claim of the
plaintiff to enforce her second mortgage
having been barred by lapse of time.
The learned Munsif hold that the suit
was governed by Art. 148 of the Schedule
to the Indian Limitation Act ; and that
the plaintiff had, therefore, 60 years to
bring the suit from the date when the
right to redeem accrued to her. He
further held that as tho plaintiff's pre-
decessors'in- interest were not made
parties in tho suit of the first mortgagee,
the plaintiff had still tho right to
redeem. He accordingly made a decree
for redemption in favour of the plaintiff.
On appeal the learned Subordinate
Judge set aside the decree of the Munsif
on the ground that although the plaintiff
had got the right of redemption as her
predecessors-hrinterest were not made
parties to the suit of the prior mortgagee,
but her right was barred by limitation
as, in his opinion, the article applicable
to the present suit was not Act. 148, but
Art. 132 of the Indian Limitation Act,
and he relied upon the decision of the
Calcutta High Court in the case of
Nidliiram Bandopadliya v. Sarbessar
Bisicas (l). He accordingly dismissed
the suit on the ground of limitation.
Against this decision of the Subordi-
nate Judge the plaintiff has come up in
second appeal to this Court, and the only
question for consideration in this second
appeal is as to what is the period of
limitation for the present suit.
It is clear that a second mortgagee who
has not been made a party to the suit
of a prior mortgagee is entitled to
redeem the prior mortgage and is not
bound either by the decree in the suit
of the prior mortgagee or by the sale
held in execution thereof. It has been
contended on behalf of the respondents
that after the sale in execution of the
decree of the prior mortgagee, the mort-
gage was extinguished and the purchasers
remained in possession not as representa-
tives of the prior mortgagee but as repre-
sentatives of the mortgagor ; and that,
therefore, Art. 148 has no application
inasmuch as it provides for a suit against
a mortgagee to redeem or to recover pos-
session of the mortgaged property.
In my opinion this contention is not
sound. So far as tho second mortgagee
is concerned, he is not bound by the dec*
roe or the^sale in enforcement of the prior
mortgage. His position as a second mort-
gagee reamains unaffected by the decree
and the sale. Ho was a necessary party
in the suit brought by the prior mort-
gagee and a decree obtained in his absence
on the basis of the prior mortgage did
not affect his right to redeem the prior
mortgage. The fact that the purchaser
in execution of the decree of the prior
mortgage has been in possession for more
th at 20 years does not, in my opinion,
affect the rights of the second mortgagee
to redeem the first mortgage.
The question, however, remains as to
whether Art. 132 or Art. 148 of the Indian
Limitation Act applies to the present case.
In my opinion Art. 132 has no application
to the present suit. In the case of Nidhi-
ram Bandhopadhya v. Sarbessar Biswas
(l) mentioned above the reasoning adopted
was that the second mortgagee by his pur-
chase at the sale in satisfaction of his mort-
gage-debt cannot acquire any right of
redemption which he had not as mortgagee,
With very great respect to the learn-
ed Judges, I am unable to follow this
reasoning. The right to redeem the
prior mortgage was vested in the second
(1) [1910] 14 C. W. N. 43U= 5 I, C. 877.
1926
BAMJHARt KoEft v. KASHi NATH (Kulwanfe Sahay (J.) Patna 339
Mortgagee by virtue of his being a second
mortgagee. This righl was not acquired
by him oy his purchase at the sale in
satisfaction of his mortgage-debt. The
learned Judges observed that
'the omission of tile prior mortgagee to include
the second mortgagee in his suit has been held
by this Court not to deprive the second mortgagee
bf his right to redeem the prior mortgage, but it
cannot ba held that this interpretation of the
law, vfhfch is intended merely to save his right
as second mortgagee gives him any additional
right, or extends the period during which, under
the law, he can sue to enforce his rights. The
right to redeem was held not to be lost. It was not
held, and, in our opinion, it was not intended to be
held, thai a fresh period to enforce his right to
redeem under his mortgage was given to him
from the date of the purchase. We hold that
Arts. 134 and 148 of Sch. II of the Indian Limi-
tation Act have no application in this case. The
Article that applies is Art. 132 of that Schedule
under which limitation begins to run from the
date when the mortgage-debt became due.
I regret I am unable to agree with this
reasoning. Once it is conceded that
the second mortgagee had still the
right to redeem and was not affected
by the sale in execution of the prior
mortgage, it must necessarily follow that
whatever right the second mortgagee had
before the sale in execution of the decree
on the prior mortgage remained intact.
Under Art. 148 the second mortgagee
had 60 years to redeem the first mortgage
and this right was consequently not affec-
ted by the sale in execution of the decree
upon the prior mortgage. Ariticle 132
provides for enforcement of payment of
money charged upon immovable pro-
perty. The second mortgagee's right of
redemption cannot, in my opinion be
considered to be a right to enforce pay-
ment of money charged upon immoveable
property. The second mortgagee in a suit-
for redemption does not seek to recover the
money due to him upon his second mort-
gage. This Article has, therefore, no apt
plication to a suit for redemption brought
by the second mortgagee.
I am, therefore, unable to accept the
view taken in the case of Nidhiram
Bandliopadi/a v. Sarbessar Biswas (l).
This c^se was followed in two cases in the
Madras High Court in Appayya v. Yen-
kataramanayya (2) and Lakshmanan
Chettiarv. Sella Muthu N dicker (3) and
the reasoning adopted in these cases is
similar to the reasoning adopted by the
learned Judges in Nidhi Barn's case
(2) A. I. R. 1925 Mad. 150.
(3) A. I. K. 1925 Mad. 76.
(l). The Lahore High Couat has, how
ever, differed from the view taken in
Nidhi Ram's case (l) in Basanta v. In-
dur Singh (4). That Art. 148 of the
Schedule to the Limitation Aot applies
to the present case is supported b y the
view taken by the Allahabad High Court
in Priya Lai v. Bhora Champa Ram (5)
and by the Calcutta Hight Court in Har
Per sad Lai v. Dalmardan Situjh (6).
I would, therefore' hold that the pres-
ent suit was nob barred by limitation
and that the plaintiff was entitled to a
decree for redemption.
The question remains what should be
the form of the decree. The learned
Munnif has ordered that the plaintiff will
be entitled to redeem on payment of
Kg. 50 together with interest thereon at
the rate of 1 2 per cent, per annum from the
date of sale that is, 26th October, 1895
to the Defendants Nos. 1-3 . This sum
of Rs. 50 represents the price of the pro-
perty fetched at the sale in execution of
the decree upon the first mortgage. This
is not a principle upon which re-
demption should be allowed. The puisne
mortgagee is held to be entitled to redeem
the prior mortgage on the hypothesis
that so far as he is concerned the mort-
gage has not been extinguished and is
still in existence. Pie must, therefore,
pay to the prior mortgagee the entire
amount due upon the prior mortgage on
an account being taken less the sum of
Us. 50 being the purchase money at the
first sale already paid to him. Upon such
payment being made the plaintiff will
acquire the right of the prior mortgagee
because what he redeems is not the pre-
mises but the prior 'encumbrance and he
is entitled not to a conveyance of the
premises, but to an assignment of the
security.
This would necessitate a remand for
the taking of the account and also
directions declaring the rights of the
parties to redeem a each other
and relating to other m tters which
would create complications. The parties
have, however, come to terms and desire
that a decree be made in the following
terms that the plaintiff's right to redeem
be declared, that it be declared that she
will be entitled to redeem on payment to
~W) [1916] 2 P. L. J. 419.
(5) A. I. R. 1923 All. 271.
(6) [1905] 32 Gal. 891-1 C. L. J. 371= 90
W. N. 728.
310 Patna MIDNAPORE ZAMINDARI Co. v. MUKTAKESHI (Ross, J.)
fcho Defendants Nos. 1-3 of a sum of Rs.
100 only within three months from this
date, that on her failure to do so, the
suit will stand dismissed with costs.
Each party is to bear its own costs
throughout in the event of payment be-
ing made by plaintiff within the three
months. It is represented that the
plaintiff has deposited in the trial Court
a sum of monoy in accordance with the
decree of that Court. If so, and if there
bo no other objection to her doing so
she will ba entitled to take the sum
back, from the Court.
The appeal be decreed by consent on
the above terms. The decrees of the
Courts will bo set aside and the suit
decreed as directed above,
1926
Muliick, J.
-I agree,
Decree set aside.
A, I. R. 1926 Patna 340
ROSS AND KUhWANT SAIIAY, JJ.
Midnapore Zamlndari Co. Ltd. — Ap-
pellants.
v.
Muktakeshi Patrani — Respondent.
Appeal No. 209 of 1923, Decided on
30th April 1926, from the appellate
decree of the Dist. J., Manbhum, D/-
4th November 1922.
(a) Deed — Construction — Intention may be
elucidated by conduct.
The intention of tho parties must be collected
from tho language of the instrument and may be
elucidated by the conduct thoy have pursued :
Chapman v. 'Bluck (1838) 4 IHn<j. N. C. 187, Foil.
[P. 343, C. 1]
(b) Practice — Inconsistent pleat — Plaintiff
resisting a rafanama (settlement) In a previous
suit, but falling can claim under tha rafanama In
a subsequent suit.
Where the plaintiff, who in tho earlier litiga-
tion had been resisting a rafanama (settlement)
as defendant, pleaded that a certain village was
a ghatwali village and there had been disputes
and the Government had intervened and a rafa-
nama had been drawn up to settle the disputes,
and claimed such rights as tho rafanama gave
not because it represented his real rights, but
because ho could not get anything more.
Held : that there was nothing contrary to
natural justice in plaintiff's accepting this
course : 10 IV. R. 1 (P. C.): 27 C. L. J. 535; 1
7va;i.464, Disl. [P. 343, C. 2. P. 344, G. 1]
(c) Limitation Act, Art, 132 Expl.— Mallkana.
A suit to recover malikana, though coupled
with an ancillary relief of declaration of right
to receive malikana, is governed by Art. 132.
[f , 344, G. 1]
(d) Limitation Act, Art. 132 Expl— Malikana.
The explanation to Art. 132 does not merely
refer to malikana as contemplated by the
Bengal Regulations, but it also covers malikana
claimable by a sardar ghatwal under a settle-
ment between the Ghatwals and zamindars.
A share of basbu rent payable to taraf
sardar is malikana where the land is not
settled with the taraf sardar but direct with
the village sardar. [P. 344, C. 2]
P.O. Manuk and S. N. Palit— for
Appellants.
A. B. Mukherjee and B. B. Mukherjee
— for Eespondent.
Ross, J. — The plaintiff brought this
suit to recover Es. 613-12-5 gands on
account of malikana from 1317 to 1327
for village Bhalubasa by sale of the
village. The Subordinate Judge decreed
the suit with certain deductions from
the claim, and the District Judge modi-
fied the decree in favour of the plaintiff,
with the result that the entire claim
has been allowed except the claim for
interest. The defendant company
appeals.
The plaintiff is tho widow of the
sardar ghatwal of Taraf Tinsaya in
Barabhum, one of the constituent
villages of which is mauza Bhalubasa.
Between 1881 and 1883 a survey of the
ghatwalis of Barabhum was made in
which Bhalubasa and other villages
were entered as ghatwali villages. The
entries were disputed by tho zamindar
of Barabhum and his ijaradar, Messrs
Watson and Co., tho predecessors of the
defendant company, who instituted Suit
No. 174 of 1884 for a declaration that
Bhalubasa was a mal and not<a ghatwali
village. The sardar ghatwal and the
village ghatwal, whose name was
Gopal Singh, were defendants. The
suit was decreed ex-parte'on the 15th
of January 1885 ; but, subsequently, on
the application of the manager of the
encumbered estates under whose
management the estate of the sardar
ghatwal of Taraf Tinsaya was, the ex-
parte decree was set aside as against
the sardar ghatwal ; and, when the
case came on for re-hearing, the plain-
tiff did not prosecute it further, but
undertook to abide by the settlement
which had in the meantime been made
in 1884. It may be mentioned, however,
that as the decree against the village
sardar had not been set aside, Messrs.
"Watson and Company took possession of
the village.
1926
MIDNAPORE ZAMINDARI Co. v. MUKTAKESHI (Eoss, J.) Patna 341
The settlement just referred to is
known as the ghatwali rafanama and is
a general compromise of the whole
question of " the lands recently surveyed
as ghatwali of Barabhum, " and was
embodied in an instrument executed on
the 6th of March 1884 by the Govern-
ment, the sardar ghatwals and the
village ghatwals of the one part and the
zamindar of Barabhum and Messrs.
Watson and Company of the other part.
It is on the construction of this agree-
ment that the decision of ;the present
appeal principally turns.
In order to understand the effect of
the clauses which are the subject of
particular controversy in this case it is
necessary to look at the scheme cf
the rafanama as a whole. It is expressed
to be executed with a view to settle the
disputes that had arisen in respect of
title to and area of mal and ghatwali
lands during the thakbast and survey of
ghatwali lands in pargana Barabhum,
It was agreed in the first place that
the document known as the Isimnavisi
of 1833 should be assumed to be accu-
rate and that the ghatwali lands should
be demarcated in accordance with the
columns showing the quantity of ghat-
wali lands in each village. This was
subject to the proviso that, where tho
ghatwali lands wore not entire villages
but had boon demarcated more or less
according to the isirnnavisi, tho demarca-
tion should hold good in respect of
cultivated land but not in respect of
jungle or waste. A rule for calculating
the areas is then laid down in order
that effect may be given to the isim-
navisi. The rafanama then proceeds to
require Messrs. Watson and Company to
measure at once the entire area demar-
cated as ghatwali in the recent survey
except entire villages entered in the
isimnavisi. When measurement of a
village or group of villages is completed,
the Superintendent of Surveys is to
select the* ghatwali area. This must evi-
dently refer to the isimnavisi ghatwali
lands which were not entire villages.
The next matter dealt with is jungle ;
and it is provided that no absolute
right over the jungles or waste land
shall be annexed to the possession of
ghatwali lands ( this expression appears
to be used loosely and not in the
restricted sense of isimnavisi ghatwali
lands ) but the ghatwal is given cer-
tain rights of pasturage and fuel etc.
subject to certain rules to be framed.
Jungles on the lands not included in
the isimnavisi are to be managed by
Messrs. Watson and Company and one
half of the net profits are to bo divided
among the sardar ghatwals, sadial;? and
village sardars in the manner and in the
proportions therein laid down. Clause
(12) deals with tho abadi lands in
excess of what is shown in the aforesaid
isimnavisi of which the ghatwals are in
possession at present. It is provided
that this cultivated area is to be settled
with the ghatwals on certain terms.
These terms are that the excess area
shall be measured by Messrs. Watson
and Company and the rents payable by
tho actual cultivators shall bo fixed on
the scale therein laid down. The sardar
ghatwals are to bo admitted fco take
settlement of each village at a rent not
exceeding 50 per cent, of tho total rent
payable by tho cultivating raiyats, this
proportion being fixed in perpetuity.
But it is stipulated that if tho rate of
rent or the total rent payable is raised
or reduced, tho rent payable by the
ghatwal would vary accordingly. There
were certain restrictions on alienation.
Each village was to bo treated as a
separate taluk, and separate pattas and
kabuliyats embodying these terms
were to bo exchanged for each village.
In villages where there was no sadial,
tho village sardar was entitled to settle-
ment from the sardar ghatwal of all mal
lands in tho village at a certain rate*
and, where there was a sadial as well
as a village sardar, tho sadial was first
to get the settlement at a particular
rate and then he was to settle with
the village sardar at a particular
rato. Tho sardar ghatwals were
to be designated as bhumijani
talukdars, the sadials as sadiali taluk-
dars, and the sardars as bhumijanidar
talukdars. Clause (13) provides that the
isimnavisi lands should be wholly sepa-
rate from the mal lands dealt with in
clause (12). The title to the latter
will not be affected by the dismissal of
a ghatwal from his office. Clause (14)
provides for hastbud to be made of the
bastu rent according to the local custom
in the course of the settlement, of which
50 per cent, is to go to the ghatwals to
be divided among them in a specfied
proportion. Clause (17) provides that
312 Patn* MINDAPORE ZAMINDARI Co. v. MUKTAKESHI (Boss, J.j
1926'
the village sardar or sadial might take
settlement direct from the zamindar or
Messrs. Watson and Company, and, in
that case, a malikana of 12H per cent,
would be paid to the sardar ghatwal
or the sadial. finally it was agreed that
the jama fixed under the settlement
should remain unchanged for ten years.
The contention on behalf of the appel-
lant company is that as Bhalubasa was
admittedly jungle in 1884, the only
right under this agreement which the
taraf sardar got over Bhalubasa was a
right to a share in the not profit of the
jungle under Clause (10), but no
claim under Cl. (10) has been made
in the present case. The present claim
is made under Cls. (14) and (17) for five
annas oub of every rupoo of the bastu
rent and 12^ per cent, of the agricultural
rent as malikana ; but these clauses have
no application. Cl. (12) and, conse-
quently, Cl. (17), which must be read
along with it, apply to the cultivated
area then hold by the ghatwals in excess
of the area shown in the isimnavisi ;
while as to Cl. (14) there was no bastu
and consequently no bastu rent for
Bhalubasa was in contemplation of the
parties in 188-1. The village has been
reclaimed since 1892 ; and the fact that
it is now a cultivated area with home*
steads will not entitle the plaintiff to
the homestead rent and the malikana
which the rafanama provides for in the
case of land then under cultivation.
The contention on behalf of the res-
pondent on the other hand is that the
rafanama in Cl. 12 makes provision not
only for the settlement of rent of the
land then under cultivation, but for the
settlement of the entire mal villages with
the ghatwal at a rate fixed in perpetuity
and that the clause is not to be read as
if it were confined only to the land under
cultivation in 1884. Learned counsel
for the appellant, however, lays stress
on the words "at present" in Cl. (12).
Now it is clear that the meaning of
Cl. (12) is at least this : that where there
was cultivated land in a mal village then
held by a ghatwal, the ghatwal was
declared to be entitled to a settlement
of the village on payment of 50 per cent,
of the rent payable by the raiyats. The
area in cultivation, therefore, was im-
material. It might be the whole village
or it might be part of the village. But
where there was cultivated land in a
mal village held by the ghatwal, the
ghatwal was entitled to settlement of
the village as a bhumijani talukdlar. The
rent would naturally expand as more
and more lands were brought under
cultivation. Is it then proper to con-
sture this agreement as if it meant that
where a village was jungle in 1884, the
ghatwal in possession was not to be
entitled to settlement when the village
became cultivated, but was simply to
lose even his jungle rights with the dis-
appearance of the jungle itself ? This
seems a very forced construction. It
appears to me that the real meaning of
the agreement is to provide (a) for jungle,
and (b) for cultivated land. When a
jungle village is reclaimed, it ceases to
be jungle and would therefore come
under the provisions relating to cul-
tivated land. The only difficulty in the
way of this construction is the words "at
present" in Cl. (12). But in my view
these words do not relate to the word
"cultivated," but to the words "held by
the ghatwals." The jungle village was
also held by the ghatwals then ; and, to
say that, because it was not cultivated
in 1884, therefore the provisions of the
rafanama for cultivated lands held by the
ghatwals are not to apply to jungle land
which has been reclaimed seems to me
inconsistent with the tenor of the whole
document. It admittedly would leave
a great gap in the completeness of the
settlement ; and it is unnecessary to
suppose that any such gap was intended
to be loft or was even left by oversight.
The instrument lays down the rights in
the jungle and in cultivated land ; and
the fact that Bhalubasa has passed from
the one category to the other is no reason
for excluding it from the terms of the
rafanama.
The Courts below in their judgments-
on this part of the case relied on the
actings of the parties. Learned counsel
contended on the authority of The
North Eastern Bailway Company v. Lord
Hastings (l) that the words of an instru-
ment must be construed according to
their natural meaning ; and, as the pre-
sent instrument is plain, no evidence of
the actings of the parties is admissible.
The controversy that had arisen over the
interpretation of the document is suffi-
cient to show that ifc is not plain or
(I) "[1900] ~A~.~CT 260=69 " £TT ChT 516=82
L. T. 429=16 T. L. B. 325.
1926 MIDNAPORE ZAMINDARI Co. v. MUKTAKESHJ (Boss, J.) Patna 343
unambiguous in its terms. And this
seems to me to be very plainly a case in
which the words of Park, J,, in Chapman
v. Bluck (2) are applicable :
The intention of the parties must be collected
from the language of the instrument and may be
Elucidated by the conduct they have pursued.
quoted in Watcham v. The East Africa
Protectorate (3). I think therefore that
evidence of the actings of the parties was
admissible in this case. This consists of
Exhibit 6 and Exhibit 3. Exhibit 6 was
a kabuliyat executed on the 13th'of July
1886 by Messrs. Watson and Go. in res-
pect of Taraf Tinsaya in favour of the
manager of the encumbered estates. The
kabuliyat contains the following, among
other, terms :
During the term of the lease we shall have the
right to make fresh settlement, measurement and
assessment of rate of rent with all kinds of
raivatsand tenants of the lands included in this
ijara, in respect of the lands in their possession
as well as to make nayabadi settlement in respect
of patit lands Besides the fixed rent
out of the amount of bastukar which is realized
from the household lands according to the long-
standing practice of the pargana, we shall pay
separately the five annas share wnich is due to
the sardar ghatwal of Taraf Tinsaya according to
para. 14 ot the rafanama dated the 6th of March
1884, regarding mal ghatvvali of parg.ma Bara-
bhum As regards tho jungles in the
lands included in the ijara, we shall proceed to
act according to para 10 of the said rafanama.
This kabuliyat covers 28 villages includ-
ing Bhalubasa and all ifcs terms appar-
ently apply indiscriminately to all.
There is nothing to suggest the construc-
tion of the rafanama now contended tor
by the appellant. Exhibit 3 is a peti-
tion dated 21st April 1898 for execution
of a decree against tho present plaintiff
by which Messrs. Watson* and Company,
the decree-holders, prayed for the sale
of fifteen villages including Bhalubasa
with this note :
According to the rafanama dated the 6th of
March 1884 the rent for the judgment-debtors'
hhumijani taluqdari right in these mauzas has not
as yet been assessed. It will be assessed without
delay.
This was in 1898, after the reclamation
had begun. Learned counsel contends
that if the right was nob there, the use
of these words will not confer it.
But the question for decision is whether
the right is there or not, and the use of
these words is certainly an indication
that in the contemplati on of the parties
(2) [1838] 4 Bing. N. C. 187=5 Scott. 513—1
Arn. 15=7 L. J. C. P. 100=2 Jur. 206.
(3) [1919] A. C. 533=120 L. T. 258=87 L. J,
P. C. 150=34 T. L. R. 481.
it was. I therefore think that both on
the construction of the instrument and
on the evidence of the actings of the
parties, the Courts below were right in
holding that the plaintiff was entitled
to malikana and to a share of the bastu
rent of Bhalubasa.
It was next contended on behalf of the
appellant that the plaintiff was estopped
from bringing this suit on the basis of
the rafanama because in two previous
suits— in Suit No. 539 of 1891, she herself
is defendant, and, in Suit No. 484 of
1899 — she, through her tenant Bahadur
Singh as defendant, had repudiated tho
rafanama as having been obtained by
coercion and undue influence. The plea
was accepted and it is contended that
unless the plaintiff restores to the defen-
dant the villages Jagudih and Erka,
which were the subject-matter of these
suits, she is not entitled to sue on tho
rafanma which she then successfully
repudiated. Reference was made to the
decisions in Sreemuthoo Raghunadha,
Perya Oodya Taver v. Kattama Nauchear
(4), Giris Chandro Bit v. Bepin Behary
(5), and Bhola Sinyk v. Biibu (6).
But the facts of these cases were differ-
ent from the facts of the present case.
In the first case referred to, the plain-
tiff had in an earlier litigation dis-
claimed title under a certain instrument
as a Will and in a later suit the • same
plaintiff set up the instrument as a
valid Will and Testament. The Judicial
Committee held that this could not be
done. In the second case the defen-
dants set up a lease in an earlier litigation
as a bar to the plaintiffs' claim for pos-
session and succeeded ; an<? in a second
suit by the same plaintiffs they con-
tended that the lease had terminated
before the first suit was instituted. It
was held that this plea was not open.
In the third case it was held that the
plaintiffs could not rely upon a Will when
they had in a previous litigation ob-
tained a declaration of its invalidity
against the same defendants. In the
present case the plaintiff, who in the
earlier litigation had been resisting the
rafanama as defendant, now pleads that
this village is a ghatwali village and
(4) [1866] 11 M. I. A. 50=10 W. R, 1=2 Sa/
212 (P. C.),
(5) [1918] 27 C. L. J. 535=44 I. C. 159.
(6) [1920] 1 Lab. 464=59 I. C. 503=2 L. L.- J.
431.
Patna
MIDNAPOBE ZAMINDARI Co. v. MUKTAKESHI (Ross, J.)
1926
there had been disputes and the Govern-
ment had intervened and a rafanama
had boon drawn up to settle the disputes
and she therefore claims such rights as
the rafanama gives her, not because it
represents her real rights, but because
she cannot get anything more. I can
soo no prejudice to the defendant in her
adopting this position and nothing con-
trary to natural justice. Moreover, as
the learned District Judge has pointed
out by two judgments (Ex. 11 in Suit No.
83 of *1903 and Exhibit 12 in Suit No.
4fJ of 1901) the rafanama had been
allirinod. If there is an estoppel (and I do
not think there is) there is also an estop-
pel against the estoppel and the matter
is sot at large. In my opinion, this
argument fails.
It was then contended that the claim
is barred by limitation. The Courts
below have hold that tho case is governed
by Article 132 of tho Limitation Act.
Learned counsel referred to certain
decisions, vitf. Ckhagan Lai v. Bapubhai
(7), Eaoji v. Bala (8), and Bhimabai v.
Swamirao ((J), in support of his argument
that as tho plaintiff could no longer claim
a declaration of her right to receive
malikana, her right to recover tho mali-
kana itsolf was barred. Now, although
[she has in tho present suit, in her amon-
'dod plaint claimed a declaration, this is
merely ancillary to her claim for mali-
kana and the plain terms of Article 132
entitle her to enforce payment for 12
years from tho d.ite when the money
sued for bncamo duo ; and in this view,
sho is within time as was held in
Uiirniiuii Beyiwi v. llirdaij Narain (10).
Tho learned counsel also cited Gopinath
Chobey v. Bhw/wat Per shad (ll) to show
that if tho suit was for tho purpose of
establishing a periodically recurring
right, Article 131 would apply and the
period must bo reckoned from the time
when tho plaintiff was first refused the
enjoyment of tho right ; and argued that
the suit of 1(J01 was notice to her of an
adverse title. Tho finding of fact of the
Court below, however, is that there was
no instance of the malikana having been
claimed and refused in the past, and I
fail to .see how tho suit, No. 158 of 1901,
" (7) [1880] 5 Bom. 68 (69).
(8) [1801] 15 Born. 135.
(9) [1921] 45 Bom. 638=60 I. C. 892=23
Bom. L. R. 100.
(10) [1880] 5 Gal. 921=6 G. L. R. 133.
(11) [1884] 10 Cal. 697.
which was brought against the defendant),
by Gopal Singh for a declaration that he
held a jamai right under the " present
plaintiff (who was a pro forma defendant)
can affect the plaintiff with notice that
tho defendant would refuse to give her
malikana under the rafanama.
It was next contended that the mali-
kana referred to in the explanation to
Article 132 is malikana as contemplated
by the Bengal Regulations and that the
malikana in this suit does not fall with-
in the explanation. Reference was made
to an observation in Mullick Abdool
Guffoor v. Mulaka (12), where Garth,
G. J., said that a malikana right is tho
right to receive from the Government a
sum of money, etc. But his Lordship
was thoro dealing with the malikana
which was in question in that case.
That happened to be malikana under
the Bengal Regulations ; but I can see
no reason for restricting tihe application
of tho word as used in the explanation
to Article 132 in this way. Tho allow-
ance claimed in the present case is
malikana and it falls within tho language
of the article.
Then it was argued that even if the
12 1A per cent of the agricultural rent is
mulikana, tho ^ annas in the rupee of
bastu rent is not malikana, and is not so
described in tho instrument. But in my
opinion, both claims stand on the same
footing. Tho land is nob settled with
tho taraf sardar, but direct with tho
villago sardar or, in this caso, with the
defendant company which stands in the
shoes of the villago sardar by reason of
their having taken possession of his in-
terest in execution of tho decree of 1884
after tho rafanama had boon entered
into. Tho taraf sardar is given this
share of tho bastu rent in lieu of the
profits arising from the homestead
land and it stands on precisely the same
footing as the 12^ per cent, of the agri-
cultural rent.
The last point trtken was that the
learned District Judge has erred in not
deducting from, the rental 6 annas in the
rupee deducted by tho Subordinate Judge
as a deduction made by the defendant
company in favour of its lessee Sham
Dhal who got the land reclaimed. Ten-
ants on reclaiming land are given 6 annas
out of 16 annas of the land free from
rent ; and thisjs the deduction to whioh
(12) "
1926-MiDNAPORE ZAMINDARI Co. v. MUKTAKESHI (Kulwant Sahay, J.) Patna 345
fche Subordinate Judge refers. But to
deduct another 6 annas from the rent of
the remaining 10 annas is to make the
deduction twice over ; and the learned
District Judge was right in disallowing
this double deduction.
The appeal must be dismissed with
costs.
Kulwant Sahay, J.— I agree. I only
wish to say a few words as regards the
interpretation of the rafanama of 1884.
The circumstances under which the rafa-
nama was executed have to be 'borne in
mind. In the Ghatwali Survey af Bara-
bhum held in 1881-83 certain areas were
shown as included within 'the Ghatwali
which tho zemindar claimed to be Mai
lands. A suit was instituted by the
ijaradar of the zainindar for declaration
that Bhalubasa, the village in dispute in
tho present case, was & mal and not a
ghat wall village. The rafanama was
executed during tho pendency of this suit.
It dealt with not only the village Bhalu-
basa, but with tho entire dispute between
the parties in relation to all lands claimed
by the zainindar as mal and by the ghat-
wal as ghat wali. It was agreed to by
the parties concerned that tho ghatwali
title of the gliafcwal will be limited to
the area shown as such in the issum-
navisi of 1833 and the rest of tho area in
the possession of the ghatwal was de-
clared to be tho mal land1 of the zamin-
dar. On reading tho rafanama as a
whole it seems to me that the intention
of the parties was that although tho title
of tho zatnindar to tho excess area was
declared yet the possession of the ghat-
wal was retained and limitations to the
rights of the parties were prescribed. 01.
10 dealt with jungles and Gl. 12 with
cultivated land. These are the two im-
portant clauses upon the true construc-
tion whereof this appeal depends. It
seems to me that in 01. 10 a distinction
was drawn between the jungle or waste
land and the jungle on the land. The
clause opens with the words that :
110 absolute rights over jungle or waste land
shall be annexed to tho possession of ghatwali
land.
This seem to imply that some limited
rights were conferred upon the Ghatwal
over such lands. Provision is then made
as regards the management of the jungle
on the excess area, and the profits arising
therefrom were to be divided between
the zamindar and the ghatwal in certain
proportions. 01. 12 then prescribed the
rights of the parties over the lands of
the excess area which were not waste or
covered with jungle but were then in the
possession of the ghatwal. This clause
jo my mind referred not only to tho area
which was then actually under cultivation
as contended for by the learned counsel
for appellant, but referred to all lands
which were then cultivated or might bo
brought under cultivation thereafter.
This construction finds support from the
opening words of 01. 10. The ghatwal
was not to have an absolute right, but a
limited right, as sot out in 01. 12 and
some of the subsequent clauses. The
words " now held by tho Ghatwals" in
Gl. 12 to my mind are not restricted to
the area which was then under actual
cultivation, but they refer to the lands
then held in possession by the ghatwals.
This clause dealt with all lands in the
excess area which were cultivable or
might become cultivable. 01. 10 dealt
with jungle and waste lands and
GL 12 with arable lands and these two
clauses covered the entire area in excess
of the real ghatwali land then in posses-
sion of the ghatwal. Tho real intention
of tho parties seems to be that tho entire
excoss area declared to be rnal, was to
continue in possession of tho ghatwals on
payment of rent to the zamindar and
their status was recognized as tenure-
holders, thoir rights over jungle and
wasio lands and cultivable lands being
separately defined, the object being that
whereas before the rafanama the xamin-
dar used to got nothing for the oxcess
area, by tho • rafanama he got a propor-
tion of tho income by way of rent and
certain rights over the jungles. The
construction placed on the rafanama
by the Courts bolow seems to be cor-
rect.
Appeal dismissed.
346 Patna
FAGU y. CHOTELAL (Macpherson, J.)
1926
A. I. R. 1926 Patna 346
MACPHERSON, J.
Fayu Tanti — Petitioner,
v.
Chotelal Tanti and others — Opposite
parties.
Criminal Revision No. 317 of 1925,
Decided on 24th August 1925, against
the order of the S. J., Monghyr, D/- 27th
April 1925.
Penal Code, S. 494— Remarriage during lifethn6
of first husband — Custom as to, must be proved —
Hindu Law— Marriage.
Sagal in the form of remarriage of widows is
the normal condition in all except the five or six
highest castes of Hindus in Bihar But a custom
of sayat, while the first husband is still alive is,
even assuming the custom to he a valid defence
under S. 494, something which would require
strict proof in respect of the particular caste in
the particular area, and in respect of the condi-
tions in which the custom operates. 19 Cal.
C47, DM. [P. 346, C. 2]
Mihir Kumar Mukharji for Fazale
Ali — for Petitioner.
Neyamatullah — for Opposite parties.
Macpherson, J. — The petitioner in
this case asks that a further inquiry
should bo ordered into a complaint under
Ss. 194 and 498 of the Indian Penal Code
against his wife Badia, Chotelal, a man to
whom she has admittedly been given in
H(i(/ai, and others, which he made on the
16th March before the Sub-Divisional
Magistrate, Monghyr, and which was
dismissed by the Magistrate, an applica-
tion for further inquiry into the com-
plaint being also dismissed by the Ses-
sions Judge.
It is admitted that Badia was married
to the petitioner some six years ago. In
the middle of February 1925 the peti-
tioner applied to the District Magistrate
under S. 552 of the Code of Criminal
Procedure for the restoration of his wife
to him from the custody of Chotelal.
The police inquired into the matter and
reported that " her father made sagai of
Badia with Chotelal " because petitioner
had not taken care of her for six years.
The police also reported that her father
had stated that there is a custom in the
Tanti caste, to which they belong, that if
a husband does not take care of his wife,
she is given in sagai to another person,
The Magistrate, on receiving the peti-
tioner's complaint, sent for that police
report, and on a consideration of it dis-
missed the complaint. The Sessions
Judge declined to interfere on the ground
that he was not prepared to hold that
the Sub-divisional Magistrate had exer-
cised his discretion wrongly.
In my opinion a further inquiry must
be ordered. In the first place it is clear
that there is nothing except the state-
ment of the father of Badia to show that
there is in the Tanti caste a custom of
sagai of the nature alleged. It is of
course well known that sagai in the form
of remarriage of widows is the normal
condition in all except the five or six
highest castes of Hindus in Bihar which,
as the Census figures show, have the
highest proportion of widows, and a few
aspiring sub-castes. But a custom of
sagai, while the first husband is still
alive, is, even assuming the custom to be
a valid defence under S. 494, something
which would require strict proof in res-
pect of the particular caste in the parti-
cular area, and in respect of the condi"
tions in which the custom operates. No
doubt in the case of Junki v. Queen-
Empress (l) the High Court upheld such
a custom as an answer to a charge under
S. 494 : but it is clear that in that case
it was proved that the first husband had
relinquished the accused and that the
custom of the caste sanctioned the
marriage during the lifetime of the
husband of the relinquished wife. The
actions of the petitioner would go to
show that he had not, at least willingly,
relinquished his wife. Again it is re-
markable that in the police report, or
even in Mr. Neyamatullah's argument
for the opposite party, there is no men-
tion of a caste panohayat sanctioning
the marriage of Badia and Chotelal :
ordinarily the operation of such a custom
would be contingent on the sanction of a
caste panchayat.
Accordingly it is clear that it cannot
be said on the present materials that no
offence has been committed under S. 494
or S. 498. It is therefore directed that
further enquiry be made into this case
by the Sub-Divisional Magistrate or any
other Magistrate of the First Class to
whom he may make it over for disposal.
Revision allowed.
(1) [189*] 19 Cal, 627.
i926
FARZAND ALT v. KING-EMPEROR (Bucknill, J.)
Patna 347
A. I. R. 1926 Patn* 347
BUCKNILL, J.
Farzand All — Petitioner,
v.
King- Emperor — Opposite Party.
Criminal Revision No. 233 of 1926,
Decided on 6th May 1926, against the
decision of the S. J., Purnea, D/- 25th
February 1926.
Crimiml P. C., S. 537— Cheating— Omission
to give exact date— Month given — Irregularity Is
curable.
Whera a charge of cheating gives the month
in which tha offenca was committed, but the
exact date is not given, ths irregularity is
curable. [P 347 0 2]
(6) Criminal P. C. (amended 1923), S. 234—
Cheating tw3 pjrson* within one month — Joint
trial Is not Illegal.
Where the accused was tried jointly at one
trial frvr cheating two persons within the space
of one month ;
Held : that one trial for the two offences was
not illegal; 40 Cal. 846, Considered as no longer
good law. [P 348 0 2]
S. M. Gupta for Manohar Lai — for
Petitioner.
H. L. Nand Keolyar--tor the Crown.
Judgment, — This was an application
in criminal revisional jurisdiction. The
applicant was charged with offences
punishable under the provisions of S. 409,
(criminal breach of trust by a public
servant) and S. 420 (cheating and
dishonestly inducing delivery of pro-
perty) of the Indian Penal Code. He
was tried before a First Class Magistrate
of Kishunganj. He was convicted under
both the sections. He was sentenced
under S. 409 to two months' rigorous
imprisonment and a fine of Rs. 25 and,
in default of payment thereof, to 15 days'
further rigorous imprisonment. Under
S. 420 he was sentenced to one month's
rigorous imprisonment and a fine of
Bs. 25, and similarly, in default of pay-
ment thereof, to 15 days' further rigo-
rous imprisonment. The applicant ap-
pealed to the Sessions Judge of Purnea
who set aside the conviction and sen-
tence under S. 409, but upheld the
conviction and sentence under S. 420.
The applicant has now come up in
revision to this Court.
The only point which the learned
counsel has put forward is with regard
to the form of charge. The charge
reads —
That you in the month of September deceit'
fully induced Mejaj Ali and Mehtar Ali to pay
to you Be. 1 each and Bhattri Das to pay ta
you 4 annas in excess of the legitimate chauki-
dari tax due for 1332 Fs., and thereby committed
an offence punishable under S. 420 of the Indian
Penal Code.
The charge is certainly not a model
one ; in the first place it would have
been more proper to have put the exact
dates upon which the offences were al-
leged to have been committed. But I
do not think that it is possible for me to
set aside the conviction on the ground
that no closer date than the month of
September is given in the charge, unless
it was clearly shown that the omission
to give the exact date has materially
prejudiced the applicant at his trial.
No such proof is forthcoming and no
allegation even is made to that effect.
The next point which is put forward
is that three distinct offences have been
included in this one charge and that
they all ought to be tried separately and
that tHese three offences should have
formed the subject of separate trials
which should have been tried separately.
I have commented upon the somewhat
slipshod manner in which the charge was
drawn up ; but in view of S. 234 of the
Criminal P. C., I cannot see how it can
seriously be suggested that the inclusion
of these three offences in one charge can
be regarded as illegal. Under S. 232 of
the Criminal P. C. it is true that for
every distinct offence of which any
person is accused there shall be a
separate charge, and that every such
charge shall be tried separately ; but the
section goes on to make certain excep-
tions, the first of which is the exception
mentioned in S. 231. Now, S. 234, sub-
S. (1) reads--(S. 234 (l) quoted.)
In the present charge it is obvious
that here we have three offences of fche
same kind alleged to have been com-
mitted not only within one year but
within one month. The learned counsel
has referred to a case, Asgar Ali Biswas
v. Emperor (l), in which a Bench of the
Calcutta High Court held that where a
charge, under S. 409 of the Indian
Penal Code, of criminal breach of trustt
alleged two separate offences — one in
respect of a sum of 4 annas 6 pies col-
lected from A between certain dates in
one year and a sum of 6 annas collected
827.
348 Patna
HAMIU & Co. v. SUBESH CHANDRA
1926
from B between other dates in the same
year — such a charge was had for misjoin-
der, and a trial held on such a double
charge was illegal. It appears from the
report that no one appeared on behalf
of the Crown at the hearing of the ap-
plication. It neems to have been argued
on behalf of the applicant that the two
acts of misappropriation were distinct,
that there were two distinct offences,
and that under S. 233 of the Code they
could not he included in one charge.
The case of Subrahmania Ayyar v.
King- Emperor (2) was referred to as an
authority for that proposition. But in
that case the appellant was tried on an
indictment in which he was charged
with no less than 41 acts extending over
a period of three years. The charge was
patently illegal and was so held to be by
their Lordships of the Privy Council.
I may mention that in the first count of
that indictment there were no less than
four persons in respect of whom Sub-
rahmania Ayyar was alleged to have
committed criminal breach of trust and
that in that count, also, no less than
eight specific acts extending over a period
from 1896 to 1898 were mentioned. I
think it is obvious that auch a count was
hopelessly illegal ; but I cannot see any
whore in that cage any ground for think-
ing that it was an authority which affec-
ted the case which was tried in the Cal-
cutta High Court to which I have
already referred. In the Calcutta High
Court no reference seems to have been
made to S. 234, of the Criminal P. C.,
and Harrington and Coxe, JJ., seem to
have thought that joinder of these two
offences against different persons in one
charge was an illegality. The law on
that particular point was altered by an
amendment an 1923 by the insertion of
the words. *
whether in respect of the same person or not.
It does not seem to have been sug-
gested to their Lordships that the
offences were of the same kind. I am
inclined to think, with great deference,
that, at any rate, the alteration of the
law renders the decision in Asgar All
Biswas v. Emperor (l) one which would
not be followed by this Court. And,
even, judging from the report, it seems
that the law upon the position was not
fully placed before their Lordships and no
('2) [1902] 25 Mad. 61=28 I. A. 257=11
M. L. J. 233=8 Bar. 160 (P. C.).
appearance was entered in the applica-
tion on behalf of the Crown.
I, therefore, am of opinion that in this
case the charge as framed (although open
to some objection) is not illegal. Had
it been shown to me that the form of
the charge had embarrassed or adversely
affected the applicant in connexion with
his trial, I should have had no hesita-
tion in setting the conviction aside ; but
no such proof has been brought before me
and I can see no ground for thinking that
the charge is intrinsically illegal..
Then, as to the question of sentence:
it is suggested that the sentence is too
severe. With the Sessions Judge, how-
ever, I am inclined to agree that, taking
the circumstances into consideration,
applicant has been somewhat leniently
dealt with. He succeeded in his appeal
in avoiding the longer sentence of two
months to which by the trial Court he
had been sentenced ; but I do not think
that, in view of the fact that he was a
public servant and that he was extorting
money in his position as auch, it can be
said that the sentence which has been
passed upon him is in any way too
severe.
The application is therefore rejected.
Application rejected.
# A. I. R. 1926 Patna 348
BUCKNILL, J.
P. D. Hamir & Co. — Petitioners.
v.
Suresh Chandra Sarkar — Opposite
Party.
Criminal Eevision No. 205 of 1926,
Decided on 3rd May 1926, from an order
of the Addl. Dist. Mag., Dhanbad, D/-
23rd Feburary 1926.
# (a) Criminal P. C., S. 147— Right of personal
casement as well as public right oj way can be
claimed together,
If one could prove that a road was a public
road either by, showing that it had been dedi-
cated to the public or that from time immemo-
rial it had been freely used by the public, no
question of easement in favour of a private in-
dividual would arise. But, on the other hand,
although it might seem not to be possible to
put forward such proofs as would show that the
road was really a public road, it might still be
possible to prove that a private individual had
acquired an easement and, therefore, there is
nothing to prevent a claim of this double nature
being made. [P 350, C 2.]
HAMIR & Co. V.:SURESH CHANDRA (Bucknill, J.)
1926
(b) Criminal P.O., S. 147— Reasonable grounds
that bona fide claim of right exists are suffi-
cient to pa$s an order under the section.
The provisions of S. 147 are of an emergency
nature and are conducted more or less summar-
rily. If the Magistrate, as the result of hearing
the evidence, thinks that reasonable grounds
have baen shown to him that a bona fide claim
of right exists, then he is justified in passing
such order as he may think fit. It is not ex-
pected that he should usurp the functions of the
civil Court or that the enquiry under S. 147
should be a formal trial of the matter in issue.
The actual rights of the parties must await de-
termination in a civil suit.
The words " such right exists " must be under-
stood to mean '* such right as is'claimed."
[P. 351, C. 1]
(c) Criminal P. C., /S. Ill— Specific Instances
of user within 3 months is not necessary — General
user is sufficient.
No specific instance of user need be proved
within three months. Continuous general user
up to tho date of obstruction is sufficient.
[P. 351, C. 1]
Hasan Imam and 'S. C. Mazumdar —
for Petitioners.
P. K. Sen, B. N. Mittra and R. N.
Moitra — for Opposite Party.
Judgment. — This was an application
in criminal revisional jurisdiction. It
was made in connexion with an order
passed by the Deputy Magistrate of
Dhanbad on the 22nd of January last
under the provisions of S. 147 of the Cri-
minal P. 0. By this order the Magis-
trate directed that the applicants hero
should not take exclusive posse3sion of a
certain road until they have obtained an
order of a competent Court adjudging
them to be entitled to such exclusive
possession.
An application was made by the peti-
tioners to the Additional District Magis-
trate of Dhanbad asking for a reference
to this Court and a recommendation that
the Deputy Magistrate's order should be
set'aside ; but the Addifcional'District Ma-
gistrate on the 23rd of February last re-
jected this petition. The matter has now
come before me in revision.
The area in which the dispute about
the right of way arose is one in which
there seem to be situated collieries and
brick-kilns. The petitioners, who are
three in number, constitute a firm called
P. D. Hamir and Co., and the opposite
party is the Manager of the Pandebera
Colliery. The petitioners are said to be
fthe owners of the Colliery known as 'the
Durgapur Colliery which lies north of the
Pandebara Colliery managed by the res-
Patna 349
pondent. On the eastern side of the ap-
plicant's property there is a road or track
leading up to a District Board road which
runs along the northern portion of the
applicant's land. From the south-eastern
angle of the applicant's property the
cart-track turns to the west and runs
towards a brick-kiln where bricks are
either made or stored by the applicants.
It is said that there is a continuation of
the road on the applicant's property from
the south-eastern angle on to the land of
the Pandebera Colliery.
Put shortly, the dispute was, as between
the applicants and respondent ; that the
applicants claimed that they had an ex-
clusive right on this road which lay on
their property in Durgapur Mouza whilst
the respondent claims that his colliery
had rights of way over the road. Accord-
ing to the respondent's story ifc had, for a
very long time, bean the practice of his
colliery to send carts with goods to and
from Pandebera leaving or joining the
applicant's road at the south-east corner
of the applicants' property ; but that
recently they have been stopped.
The proceedings were started by an ap-
plication made on 5th -of March 1925 to
the Magistrate by the respondent asking
for proceedings to be taken under the
provisions of Ss. 107, 144, and 147 of the
Criminal P. C. This petition averred that
tho road used for coming and • going from
and to Jharia and Pandebera passed
through Durgapur and that P. D. Hamir
and Co., were, without any right what-
soever, forcibly preventing any cart going
along the road and were blocking the
passage of the public. That when the
petitioner went to forbid them blocking
the road the opposite party was ready fco
make a breach of the peace. The peti-
tioner complained that if the roads are
obstructed the work of the Pandebera
Colliery as well as the communication of
the public and other people of the mouza
by cart or otherwise would be stopped.
The petitioner also alleged that the road
has thus been in use for a long time.
Apparently the senior Deputy Magistrate
held a local enquiry and finding that
there was no chance of an amicable set-
tlement; commenced proceedings under
S. 147.
Written statemente of course were
filed. The respondent here in his written
statement put forward what might be
read as a kind of double claim ; the first
350 Patna
HAMIR & Co. v. SUBESH CHANDRA (BucknilJ, J.)
1926
being based on a statement that his Col-
liery had been using the road over 20
years without any dispute or objection.
By this the respondent, I imagine, con-
templated a claim in the nature of an
easement. But the respondent also al-
leged that from time immemorial the
road had been a public road. I need
hardly point out that • these two claims
are really of somewhat different cha-
racter and are capable of proof in differ-
ent ways. If a personal easement in
favour of the respondent was proved, the
property in the road, subject to this ease-
ment, might still remain exclusively
vested in the applicants. 'If on the other
hand it was proved that the road was a
public road, then the applicants would
have no exclusive right over it at all.
The applicants' written statement de-
nied that there was any likelihood of any
breach of the peace and maintained that
they had exclusive rights over the road
and that neither the respondent nor any-
one else had any Tight to drive carts
over the track. They denied that the
respondent had obtained any right of
casement or that it was a public road/;
find, further, that either the respondent
or any member of the public had used the
road within 3 months prior to the insti-
tution of the proceedings.
The Magistrate heard a considerable
amount of evidence on both sides. He
found that the track had been for a long
time in existence and had constantly been
used by many persons. He was impressed
by the fact that there was in existence a
clear beaten track extending from the end
of the road at the south-eastern corner
of the applicant's property down south-
wards towards the Pandebera Colliery.
Although he does not think that any
part of the road is a pucca road, he came
to the conclusion that the respondent
had made out a sufficient case to justify
him in passing an order under S. 147.
There is a good deal of dispute as to
whether there was any other method of
getting from the Pandebera Colliery to
the District Board road in the north than
by the way mentioned ; the Magistrate
does not think that there was another
road ; even if there was.it is quite obvi-
ous that the track which the respondent
says has been in use is a very short-cut
and saves a circuitous and long detour.
The Magistrate accordingly passed the
order to which I have referred above.
Now the first point which the counsel
for the applicants has made is that S. 147
is not appropriate for dealing with ob-
struction on a public road. He suggests
that action under S. 133 of the Criminal
P. C., is the appropriate remedy. Ib is
quite true that in the petition the res-
pondent has referred to the road being
obstructed and in the map which has
been used it seems that at the extreme
northern corner of the road some brick
cooly huts are being made. The claim,
however, was not for the removal of any
physical obstruction (if it actually ex-
isted) but to prevent the applicants from
stopping the carts of the respondent by
turning them back. I think that, al-
though the language in which the com-
plaint was couched might not have been
very lucid, the real nature of the com-
plaint was as I have indicated.
The next point which was put forward
was that the respondent could not claim
both a personal easement as well as a
public right of way as the two claims
are inconsistent. I think it is possible
that they might be inconsistent, but at
the same time either one or the other
might be capable of proof. If one could
prove that the road was a public road
either by, for example, showing that it
had been dedicated to the public or that
from time immemorial it had been freely
used by the public, no doubt, no question
of easement in favour of the respondent
would arise. But, on the other hand, al-
though it might seem not to be possible to
put forward such proofs as would show
that the road was really a public road,
it might still be possible to prove that
the respondent had acquired an easement,
I do not think, therefore, that there is
anything to prevent a claim of this
double nature being made.
Third point which was argued on be-
half of the applicants was that no right
of easement has been proved and no proof
had been adduced that the road was a
public one. The argument is based upon
the wording of sub-S. (2) of S. 147 which
reads : "If it appears to such Magistrate
that such right exists he may make an
order prohibiting any interference with
the exercise of such right." It is con-
tended that in proceedings under S. 147
full proof must be given that a right ex-
ists ; and in this case, for instance that
it ought either to have been proved that
the respondent had a right of easementor
W26
RUKMIN DAS v. DEVA SINGH
Patna 351
that it was a public road. I do not think
that that is necessary. The actual rights
of the parties must await determination
in a civil suit. The provisions of S. 147
are of an emergency nature and are con-
ducted more or less summarily. If the
Magistrate, as the result of hearing the
evidence, thinks that reasonable grounds
have been shown to him that abona'fide
olaim of right exists, then I think he is
justified in passing such order as he may
think fit. It is not expected that he
should usurp the functions of the civil
Court or that the enquiry under S. 147
should be a formal trial of the matter
in issue. I have • looked through
the evidence and I am satisfied that
there is sufficient evidence to justify
an order being made under the provisions
of this section. In the case of Peary
Mohan v. Hari Chandra (l), it was laid
down by a Bench of the Calcutta High
Court that the words "such right exists'1
must be understood to mean "such right
as is claimed." I think this construction
is also one of commonsense.
The fourth point put before me on be-
half of the applicants was that there was
no evidence to show that there was any
user of the road within three months
prior to the date of the proceedings. It
may be that there was no specific in-
stance of user proved within that period ;
but, as pointed out by the learned advo-
cate who appeared for the respondent,
bhere was a great deal of evidence of
sontinuous general user up to the date
when tha ;. respondents' carts were
stopped.
I do not, therefore, think that there is
any cogency in the last argument. Under
these circumstances, in my opinion, there
is no ground for interference with the
order which has been made by the Magis-
trate and I must reject this application.
Application rejected.
(1) [1919] iaS C. W. N. 956=49 I. C. J
* A. I. R. 1926 Patna 351
JWALA PRASAD AND BUCKNILL, JJ.
Mahanth Eukmin Das — Plaintiff —
Appellant.
v.
Deva Singh and others — Defendants —
Respondents.
Appeal No. 666 cf 1923, Decided on
31st March 1926, from the appellate
decree of the Addl. Dist. J., Patna, D/-
9th April 1923.
# Suits Valuation Act\ (5 of 1887), S. 11— If
proper valuation would have brought the appeal to
High Court directly as first appeal and under-
valuation brought It to High Court on second
appeal, such undervaluation affects the merits of
the appeal.
Where, if the appeal were properly valued, the
lower appellate Court would have no jurisdiction
to enter tain the appeal or dispose of it on its
merits and the appeal then would have come
directly to the High Court where it could have
been heard and disposed of by a Bench consist-
ting of. two Judges, as a first appeal N the under-
valuation must be deemed to have affected the
disposal of the appeal on its merits, A. J. R.
1926 Mad. 6 (F. 7A), Dlss. from ; A. I. Jl 1923
Patna 581 Dlst.\ 5 P. L. J. 897 Appr. [P 353 C 1]
P. CltManuk, S. Dayal and N. C.
Sinha — for Appellant.
Alt Imam and S. N. Bose — for Res-
pondents.
Judgment. — Mr. Manuk on behalf of
the appellant, contends that the decree
made by the Court below must be set
aside upon the sole ground that the ap-
peal filed by the defendants in that
Court was wholly incompetent. The
ground for this contention urged is that
the value of the subject-matter of the
suit was over Bs. 5,000 hence the appeal
from the Subordinate Judge who tried
the case lay directly to the High Court
and not to the District Judge,
The plaintiff, who is the appellant
before us valued the suit for the purpose
of jurisdiction at Rs. 2,550. The defen-
dants in their written statement stated
that the properties in the suit were
under-valued and the Court-fee paid was
insufficient. Upon this plea the Subordi-
nate Judge raised an issue as to the
sufficiency of valuation and the Court-fee
paid by the plaintiff, that is, issue
No. 1. At the hearing this issue was
not pressed, and the Court held '" the
Courfc-fee paid according to law is all
right." The suit was decreed.
The defendants appealed to the Dis-
trict Judge and valued their memo-
352 Patna
BUKMIN DAS v. DEVA SINGH
1926
randum of appeal according to the valua-
tion thereof mentioned by the plaintiff
in his plaint, and they paid the same
amount of Court-fee as was paid by the
plaintiff on his plaint. The plaintiff
who was respondent before the learned
District Judge, did not object to the
valuation of the appeal or the jurisdfc*
tion of the District Judge to entertain
the appeal. The District Judge set
aside the decree of the Subordinate
Judge and dismissed the plaintiff '5 suit.
The plaintiff has come to this Court.
In this Oourt the Stamp Reporter dis-
covered that the subject'matter of the
litigation was undervalued and, accord-
ing to him, the proper valuation should
have been over Rs. 8,000. The plaintiff
made up the deficiency in the Court fee
paid by him on the plaint and on the
memorandum of appeal in this Court.
Yesterday, defendants-respondents ob-
jected to the valuation , of the Stamp
Reporter and the question came before
us under Ss. 10 to 12 'of the Court-fees
Act and wo by our order passed yesterday
uphold the valuation fixed by the Stamp
Reporter and directed the defendants
respondents to make up the deficiency, or
else the matter would bo dealt with
under Ss. 10 to 12 of the Court-fees
Act.
It is now contended on behalf of the
appellant that the value of the subject-
matter of the litigation having been now
finally settled to be over Rs. 5,000, the
Oourt below had no jurisdiction to enter-
tain the appeal filed by the defendants.
In support of this contention 'two rulings
of this Court have been cifced :
Mohirii Mohun Missir v. Go ur Chandra
Rai (l) and an unroported decision in
the case of Sah Radha Krishna v. Babu
Mahadeo Lall Geonka (2). The defen-
dants, on the other hand, rely upon the
decision of this Court in Kesho Prasad
Singh v. hakim Rai (3) and two decisions
one a full Bench decision of uhe Madras
High Court in Kdn Achan v. Cheriya
Parvathi Nethiar and others (4) and the
other in Vattekatte Veetil Chorotto
Amma's daughter Ammalu Animal v. K
A. Krishna Nair (5).
11)11920] 5 Pat. 1,757397^56 I. 0. 762"=! Pat.
L. T. 890.
(2) Sacoud Appeal No. 1204 of 1922 decided
22nd June 1925.
(3) A. I. R. 1923 Pat. 581
(4) A. I. R. 1924 Mai 6. (P. B.).
(5) [1921] 62 I. 0. 715.
The Suits Valnation Act (Act VII of
1887) has laid down the rules as to how
a case of this kind should be dealt with.
S. 11, 01. 1 says.—
An objectio n that by reason of the over-valua-
tion or under-val nation of a suit or appeal, a
Court of first instance or lower appellate Court
which had no jurisdiction with respect to the
suit or appeal exercised jurisdiction with respect
thereto, shall not be entertained by an appellate
Court unless (a) the objection was taken in the
Court of first instance 4at or before ,the hearing
at which issues were framed and recorded, or in
the lower appellate Court in the memorandum of
appeal to that Court or
(b) the appellate Court is satisfied for reasons
to bj recorded by it in writing, that this suit or
appeal was over-valued or under-valued, and, that
the over-valuation or under-val uation thereof
has prejudicially affected the disposal of the suit
or appeal on its merits.
Clause (2) says :
If the objection was taken in the manner men-
tioned in Clause (a) of sub-Section (1), but the
appellate Court is not satisfied as to both the
matters mentioned in Clause (b) of that sub-
Saction, and has before it the materials neces-
sary for the determination of the other
grounds of appeal to itself, 'it shall dispose
of the appeal as if there had been no defect of
jurisdiction in the Court of the first instance or
lowor appallate Court.
In this case an objection was taken as
to the valuation by the defendants them-
selves in their written statement in the
Court of first instance. Therefore,
01. (a) of sub-S. (l) applies to this
case. It is now concluded by the deci-
sion of this Court that the suit as well as
the appeal in the Court below were
under-valued and that the proper value
was such as took the matter out of the
jurisdiction of the lower appellate Court*
Therefore, the first part of Clause (b) is
also satisfied. In accordance with this
section it is not enough to set aside the
decree of the Court below unless under
the second part of Clause (b) the under-
valuation prejudicially affected the dis-
posal of the suit or the appeal on its
merits. There is no question as to the
valuation not having affected the disposal
of the suit by the Court of first
instance on account of its valuation where
the suit was tried by the Subordinate
Judge of Patna, who had local jurisdic-
tion over the subject-matter in suit and
his pecuniary jurisdiction was unlimited.
Therefore, it did not matter whether the
value of the suit was mentioned in the
plaint to be Bs. 2,550 or over Bs. 5,000
or Bs. 10,000. The Subordinate Judge in
question would in any case have tried
the suit. Therefore, the under-valuation
1926
BAIJNATH v. FIEM NAND KAM DAS
Patna 853
did not affect; the disposal of the suit on
its merits in the trial Court.
The matter is, however, different so far
as the lower appellate Court is concerned.
If the appeal were properly valued, then
the lower appellate Court would have no
jurisdiction to entertain the appeal or
dispose of it on its merits. The appeal
then would have come directly to the
High Court where it could have been
heard and disposed of by a Bench consist-
ing of two Judges. No doubt, it has
ultimately come to a Bench of this Court
consisting of two Judges, but it has come
as a second appeal ; and the power of the
Court is limited to points of law only.
In other words, the Court cannot enter
into the merits of the case, whereas, if it
had come as a first appeal, it would have
entered into the merits of the case.
Therefore, literally speaking, the disposal
of the appeal on its merits has been
affected on account of the under- valua-
tion. The view taken by the Madras
High Court does not commend itself to
us, and with great respect to the decision
of that Court which is a decision of a
Full Bench, we do not find ourselves in
agreement with the view of that Court.
We think that the decision is not in
accordance with the true interpretation
of S. 11 of the Suits Valuation Act. It
does not seem to have taken into con-
sideration the import and effect of the
words in that section : " the disposal of
the suit or appeal on its merits." The
decision of this Court in Maharaja Baha-
dur Kesho Prasad Singh v. Lakhu Rai (3)
is fully in accordance with the provisions
in the section ; but it is a decision with
respect to the circumstances and facts
which were before the Court in that case.
The Court, however, ultimately found it
equitable to enter into the merits of the
case and to treat the second appeal as a
first appeal. The other two cases of this
Court, particularly the unreported case,
are on ail fours with the present case.
We think the order which will meet
with the requirements of the section and
the ends of justice should be to treat this
second appeal as a first appeal, ignoring
the judgment of the Court below and
allowing the parties to go into the merits
of the case, tbat^is, into the evidence, etc.,
just as in a first appeal. The appellant
has consented to supply typed copies of
the evidence for the use of the Court and
also for the use of the respondents.
1926 P/45 & 46
According to the order which has just
been passed it would seem that the appel-
lant here becomes the respondent and the
respondents become the appellants. The
memorandum of apoeal, which was filed
in the Court below by the defendants,
will be treated as the grounds of appeal to
this Court. It will be open to the appel-
lants to add to the grounds already men-
tioned in the memorandum of appeal in
the Court below. The question of cost
of the paper-book will depend upon the
result of the final hearing of the case.
Mr, N. C. Sinha, on behalf of the appellant,
says that he would print paper-books of
the oral and documentary evidence ; for he
considers that it would be less costly and
convenient than to get the paper-books
typed. He must do so in consultation
with the Deputy Eegistrar of the Court.
Order accordingly.
A. I. R. 1926 Patna 353
DAS AND ADAMI, JJ.
Baijnath Prasad Singh and another —
Plaintiffs — Appellants,
v.
The Firm of Nand Bam Das and ano-
£7i<?r— Defendants— Respondents.
Appeal No. 30 of 1923, Decided on 10th
April 1926, from the original decree of
the Sub-J., Saran, D/- 28th November
1922.
(a) Contract Act, 8. IB— Payment of purchase
money does not determine passing of title-— Court
will construe contract according to intention of
parties as to when property Is to pass.
If the parties express in terms their intention
as to when property is to pass, the Court will
construe the contract according to such intention.
The payment of the purchase money is not the
criterion or deciding the question whether title
in the property sold passes. [P. 854, 0. 2]
(6) Contract Act, 8. 78— He who enables third
person to occasion loss must suffer It—Principle*
explained — Equity,
Wherever one of two innocent .persons must
suffer by the acts of a third person, he who has
enabled such third person to occasion the loss
must sustain it : Commonwealth Trust Ltd. v.
Akotey (1926) App. Cos. 72, Poll.
To permit goods to go into the possession of
another, with all the insignia of possession thereof
and of apparent title, and to leave it open to go
behind that possession so given and accompanied,
and upset a purchase of the goods made for full
value and in good faith, would briag confusion
into mercantile transactions, and wfgild be incon-
sistent with law and with the principles so
85i Patna
BAIJNATH v. FIRM NAND BAM DAS (Das, J.)
1926
frequently affirmed ; Uckbarrow v. Mawn (1787)
2 Term Rep. 68, VolL [P 856 C 1, 2]
(c) Contract Act, S. 103— Steam launch— Certi-
ficate of survey Is not a document of title.
A certificate of survey of a sbeam launch is not
a document of title aud is not for the protection
of intending purchasers but for the protection of
the passengers aud orew. [P 355 C 2]
N. C. Sinha, N. C. Ghosh and Bhu-
vaneshwar Prasad — for Appellants.
B. N. Mitter—tm Respondents.
Das, J.— On the llth September 1919,
the plaintiffs sold a steam launch which
belonged to them to Nripendra Nath
Mazumdar for Bs. 13,250. Bs. 2,000 was
paid in cash and Nripendra Nath agreed
to pay the balance in three instalments,
that is to say, Bs. 3,000 on the 1st Oc-
tober 1919, Bs. 4,000 on the 2nd Nov-
ember 1919, and Bs. 4.250 on the 3rd De-
cember 1919. From the very beginning
there was default on the part of Nripen-
dra Nath and it appears that Bs. 5,550
has in all been paid 'by him towards the
instalments. On the 22nd June 1920,
Nripendra Nath sold tke steam launch
to the firm of Nand Bam Das Mathura
Das and the suit oub of which the appeal
arises was instituted by the plaintiffs as
against Nripendra and the firm of Nand
Ram Das Mathura Das to recover the sum
of Bs. 6,589-8-0, from them or from either
of them, or in the alternative for an order
that the steam launch ba made over to the
plaintiffs.
The learned Subordinate Judge has
given the plaintiffs a decree as against
Nripendra, but has dismissed the suit as
against the firm of Nand Bim DAS
Mathura Das. The plaintiffs being ag-
grieved by the decision of the learned
Subordinate Judge have appealed to this
Court. It was contended on behalf of
the appallants th\b by virbua of this
special contract between the parties, the
property in the steam launch remained in
the plaintiffs, and that accordingly the
plaintiffs are entitled to proceed as against
the steam launch since they have not
received the price of the steam launch
from Nripendra.
The learned Subordinate Judge thought
that the property in the steam launah
pissed to Nripendra and that Nripendra
was entitled to sell the steam launch to
the firm of Nand Bam Das Mathura Das.
I am unable to agree with the decision of
the learned Subordinate Judge on this
point, It ia sufficient to refer to the
letter whioh embodies the contract, bet-
ween the plaintiffs and Nripendra. That
letter written by Nripendra to the plain-
tiffs runs as follows :
To Baijnath Prasad Singh, Zamindar, Sonepur.
Dear Sir,
The stsamer * Midnapur ' belonging to you, I
undertake to purchase for the sum of Rs. 13,250
(thirteen thousand two hundred and fifty) ; this
is the price settled, and I take delivery of the
said steamer on the llth September 1919. Out
of the said consideration money I pay Bs. 2,000
(two thousand) at once and the balance I agree to
pay by following instalments : Rs. 3,000 (three
thousand) to be paid in October 1919. Rs. 4,000
(four thousand) in November -1919, and Rs. 4,250
(four thousand two hundred and fifty) in Decem-
ber 1919. In oasa I fail to carry out the terms
above referred to, you will be entitled to recover
the whole amount with interest to be calculated
at uine per cent, per annum. That I agree to
hold myself responsible to you for the sole custody
of the said steamer. Until the entire consider-
ation money is paid I shall be responsible for any
loss or damage done to the said steamer. That
unless and until the whole amount of the price
settled for the purchase of the steamer is paid,
tha owaershfp of the said steamer will rest in you
and you will b3 eatitlod to gat 'back the steamer
itsolf or the money from ma as desired by
you.
I am entirely responsible fof taking the steamer
safely to Calcutta, and expenses iu so doing is en-
tirely mine.
Now it is quite true that the payment
of the purohasa money is not the criterion
for deciding the question whether title in
the property passes, and I entirely agree
that if we did nob find a olear intention
expressed in the letter to the effect that
the property in the steamer would nob
pass to Nripendra until tha payment of
the full consideration money, I would be
inclined to agree with the learned Sub-
ordinate Judge that the property in the
steamer had as a matter of fact passed to
Mripandra. Bub it is well settled bhab if
bhe parties express in terms their inten-
tion as to when property is to pass, the
Gourb will construe the contract accord-
ing to such intention, and in this case,
there is no doubt at all as to what the
parties intended. They agreed that the
ownership of the steamer would remain
in the plaintiffs until the payment of the
full consideration money by Nripendra
to the plaintiffs. I hold therefore that
the property in the steamer remained in
the plaintiffs.
But my conclusion on this point does
nob decide the case. Nripendra has, as a
matter of fact, sold the steam launch to
the firm of Nand Bam Das Mathura Das,
and the question ia, whether the plaintiffs
are entitled to a decree as against Nand
BAIJNATH v. FIRM NAND BAM DAS (Das, J.) Patna
1926
Bam Das Mathura Das. There is some
evidence that Gokul Das of the firm of
Nand Bam DAS Mafchura Das was told
that the sfceam launch wa^ the property
of the plaintiffs, but I am not disposed to
place any reliance on that evidence. The
faots are that, after the sale of the steam
launch to Nripendra, Nripendra wa?
allowed to carry the steam launch to
Calcutta. There is conclusive -.evidence
in the record that the plaintiffs engaged a
man in Calcutta to look affcer their in-
terest and that man duly informed the
plaintiffs that Nripendra was about to
dispose of the steam launch to Gokul Das
of the firm of Nand Bam Das Mathura
Da,s. Haji Ahmad Ali, who was engaged
by the plaintiffs to look after their inter-
ests in Calcutta in the matter of the
steam launch, admits that he wrote a
letter to Baijnath Babu informing him
that one Gokul Das had come to purchase
the steamer. Apart from that, there is
a letter from Nripendra himself to the
plaintiffs in which he 'definitely asserts
that he was trying to dispose of the steam
launch.
I have no doubt whatever, upon the
evidence, that the plaintiffs acquiesced in
the position which was taken up by Nri-
pendra, namely, that he would sell the
steam launch and pay the plaintiffs the
balance of the money due to them out of
the sale proceeds. That this was the de-
finite position taken up by Nirpendra is
perfectly clear from the letter dated the
4th December 1919, and this was ac-
quiesced in by the plaintiffs. *
Now upon the facts the case clearly
conies within the well-known statement
of Ashhurst, JM in Lickbarrow v. Mason
(1
That, wherever one of two innooent parsons
must auffar by the aots of a third, he who has en-
abled suoh third person to occasion the loss mast
sustain it.
This principle is founded on the rule of
estoppel and, as was pointed out by the
House of Lords in Commonwealth Trust
Limited v. Akotey (2).
to permit goods to go into the possession of an-
other, with all the insignia of possession thereof
and of apparent title, and to leave it open to go
behind that possession so given and accompanied,
and upset a purchase of 'the goods made for full
value and in good faith, would bring .confusion
into mercantile transactions, and would be incon-
sistent with law and with the principles so fre-
(1) [1787] 2 T. B. 63=1 H. Bl. 357=6 East
21=1 B. B. 495.
ft) [1925] A. C. 72.
355
quentiy affirmed, following Lickbarrow v.
(1).
It was contended by Mr. Naresh
Chandra Sinha that the purchase by the
firm of Nand Ram Das Mathura Das was
not in good faith, and reliance is placed
upon the fact that the certificate of sur-
vey exhibited in the steam launch showed
that the owners of the steam launch were
the plaintiffs and not Nripendra. It is
quite true that a certificate of survey has
to be affixed and kept affixed, so long as it
remains in force, on the steam vessel in
use in some conspicuous part of the steam
vessel where it may easily be read by all
persons on board the same.
But the evidence is conclusive that the
steam launch was not in use : see the
evidence of Idu Mian examined on behalf
of the plaintiffs. He says : " Defendant
No. 1 did not ply this steamer for fares,"
and he adds in cross-examination, " the
steamer never plied in Calcutta so long
as I was there." That being the position,
there is no reason to take the view that
the certificate of survey must have been
affixed on some conspicuous part of the
steam vessel. Apart from that, the
certificate of survey is not a document of
title. A certificate of survey is not for
the protection of intending purchasers
but for the protection of the passengers
and crew, and I do not -think that it can
be fairly argued that because there was a
certificate of survey in the 'steam launch
showing that the plaintiffs were the
owners of the launch, there -was an obli-
gation on Gokul Das to require the pro-
duction of that certificate and to act upon
that certificate.
In my opinion, the firm of Nand Bam
Das Mathura Das were bona fide pur-
chasers for value and the plaintiffs cannot
proceed as against them.
The appeal fails and must be dismissed
with costs.
Adami, J.— I agree.
Appeal dismissed.
356 Patna
KAMLA PRASAD v. MURLI MANOHAR (Das, J.)
1926
A. I. R. 1926 Patna 356
DAS AND POSTER, JJ.
Kamla Prasad and another — Appel-
lants.
v.
Murli Manohar — Respondent.
Appeals Nos. 251 and 264 of 1924.
Decided on 3rd Maroh 1926, from the
original deoreea of the Dist. J., Muzaffer-
pur, D/- 10th September 1924.
(a) Succession, Act (1925), 8. 124— Rule In
8. 124 1$ rule of law and not construction —
Devise to A and in case A dies B to become heir—
A surviving the testAtor— B cannot take under the
Will
TUB rale enunciated in 8. 124 is a rule o^
law and not; a rule of construction.
The right of administration follows* the right
to the property.
By his will the tastator devised his estate to
his widow and his two daughters-in-law and then
provided as follows ; "In oasa the said three
Musammats die, M sou of R my brother's son
shall b3 the heir and possessor of thd properties."
All tho three ladies survived the testator.
Held: that 8. 124 would operate so as to bar
the right of M to take under the Will.
[P. 356, 0. 2]
(6) Probate and Administration Act (5 of 1881)
8. 17 — Applicant challenging validity of Che will
— Administration cannot be granted.
Whoro the position taken up by the applicant
was that the Will was a forgery and that the
ladies through whom he claimed were in posses-
sion not by virtu 3 of the Will but adversely to
the whole estate, and had acquired a title to the
estate by adverse possession.
Held; that the applicant was incapable to act
in the discharge of his duties as administrator,
[P, 957 0. 1J
(c) Probate and Administration Act (5 of 1881),
S. '21— Will— Court's duty— Will must be estab-
lislwd although administration Is complete.
The delay in the application should put the
Court on an enquiry as to whether there is any-
thing to be administered, but that applies to a case
where the application is for Letters o! Adminis-
tration, no* for Letters of Administration with the
Will annexed. It is of paramount necessity that
the Will should be established and the establish-
ment of the Will is one of the functions of the
Probate Court, and the Probate Court cannot
decline to exercise that function because the ad*
ministration is complete. [P. 857, C. 2J
(d) Probate and Administration Act (5 of
1881), 8. 86— Appeal— High Court will not inter-
fere with the discretion of the lower Court.
High Court will not interfere with the discre-
tion exercised by the lower Court unless it is
satisfied that that discretion was unreasonably
exercised. [P. 857, C, 2]
(«) Probate and Administration Act, 8. 14—
Orant of administration-— Scope.
A grant of administration does not decide any
question of title. It merely 'decides the right to
administer. [P. 35$, O/l]
N. C. Sinha T. N. Sahai, Nava-
dwipa Chandra Ghash, 0. 0. Das and C.S.
Bauer ji — for Appellants.
Kurshaid Eussain and Bhagwan Pra-
sad— for Bespondent.
Das, J. — The question as to the genu-
ineness of the Will was in oontroversy
in the Court below, but is no longer in
debate before us. The only question i
whether Murli Manohar is entitled to a
grant of Letters of Administration with
the Will annexed. It is well-settled
that the right of administration follows
the right to the property. Murli
Manohar claims that in the events
which have happened he is now solely
entitled to tho estate of the deceased.
By his Will the testator devised his
estate to his widow and his two daugh-
ters-in-law and then provided as follows:
In case the said three Musammats die, Murli
Manohar, son of Kara Charan Lai, my brother's
son, shall be the heir and possessor of the pro-
perties.
It is contended on behalf of the appel-
lants that S. 124 of the Indian Succes-
sion Act is directly applicable and that
the bequest in favour of Murli Manohar
cannot take effect as the uncertain event
specified in the Will did not happen
before the period when the "fund" be-
queathed was payable or distributable.
Now, the "fund" in this case, the estate
of the testator, was distributable on his
death and it is not disputed that all the
three ladies survived him. The rule
enunciated in S. 124 or the Succession:
Act is a rule of law and not a rule of
construction and although it is not
necessary for us to decide the point, ifc
would appear that S. 124 operates so as
to bar the right of Murli Manohar to
take under the Will.
But my opinion on this point does pofc
decide this case. The estate has never
been administered in due course of law
and it is necessary that the validity of
the Will should be established and the
estate administered. Murli Manohar is
not a stranger. He is the nephew of the
testator and in the words of S. 21 of the
Probate and administration Act
would be entitled to the administration .of
the estate of the deceased if he had died intestate.
The ladies are dead and there is no
other applicant for Letters of Adminis-
tration. In these circumstances S. 21
of the Probate end Administration Act
would seem to apply. That seotion pro-
vides as follows :
1926
KAMLA PRASAD v. MUBLI MANOHAR (Das* J.)
Patna 357
When there is no executor and no residuary
legatee or representative of a residuary legatee,
or he declines or is incapable to act or cannot be
found, the person or peraona who would be enti-
tled to the administration of the estate of the
deceased if he had died intestate or any other
legatee having a beneficial interest, or a creditor,
may be admitted to prove the Will, and Letters
of 'Administration may ba granted to him or
them accordingly.
It is contended by Mr. Naresh Chandra
Sinha that his client Kamla Prasad is at
least the sister's son of the last surviving
widow and is in the position of the re-
presentative of the residuary legatee and
so S. 21 will not operate in favour of
Murli Manohar. There are two answers
to this argument : first the ladies were
not residuary legatees but universal
legatees, and the representative of a
universal legatee is not entitled to a
grant of Letters of Administration; and,
secondly, Kamla Prasad is not only not
an applicant for a grant of letters of
Administration, but has put it out of his
power to make such an application. The
position taken up by Kamla Prasad in his
petition of objection is that the Will is a
forgery and that the ladies were in pos-
session not by virtue of the Will but
adversely to the whole estate and had
acquired a title to the estate by adverse
possession. That being so, we must as-
sume that he is incapable to act in the
discharge of his duties as administrator
even if the term "residuary legatee" in
S. 21 includes universal legatee. In my
opinion S. 21 of the Probote and Ad-
ministration Act is clearly applicable
and Murli Manohar is entitled to the
grant.
It was then contended that Murli
Manohar did not base his claim on the
terms of S. 21 of the Probate and Ad-
ministration Act. It is quite true that
Murli Manohar claimed under the
Will and so far as I can see his claim
under the Will cannot be sustained. But
the Will has to be established and the
estate has to be administered, and we
should not deprive Murli Manohar of his
right to administer the estate if he is
otherwise entitled to the grant under
S. 21 of the Probate and Administration
Act.
Two other points were argued before
us. First, that there is nothing what-
ever to administer and that the Court
below should on this ground have refu-
nd the application of Murli Manohar ;
and, secondly, that the grant of Letters
of Administration was in the discretion
of the learned Judge and that he should
not have exercised his discretion in
favour of Murli Manohar. The first
point raises a question which was not
raised in the petition of objection or in
the arguments in the Court below.
Cases have been cited to us to show that
the delay in the application should put
the Court on an enquiry as 'to whether
there is anything to be administered
and the decision of the Calcutta High
Court in Dalit Chandra Chowdhury v.
Baikuntha Nath Chowdhury (1) was re"
ferred to. That was a case where the
application was for Letters of Adminis-
tration, not for letters of administration,
with the Will annexed, The distinction
is important and should not be over-,
looked. It is of paramount necessity
that the Will should be established, and
the establishment of the Will is one of
the functions of the Probate Court, and
the Probate Court cannot decline to
exercise that function because the ad-
ministration is complete. In this case
the widows were in possession for many
years without applying for letters of ad-
mistration. It is the case of Kamla
Prasad that the Will is a forgery ; that
the widows acquired a title by adverse
possession and that he, as the heir of
the last surviving widow, is entitled to
the whole estate. If we refuse to enter-
tain the application, then the Will is put
out of the way and there is nothing in
the world to prevent Kamla Prasad
from claiming a title to the property
adversely to the estate of the testator
In my opinion the argument is an im-
possible one and should not find favour
in this Court,
The last contention is that the learned
Judge in the Court below should not
have exercised his discretion in favour
of the applicant for Letters of Adminis-
tration. This is a matter not for us but
for the Court below and this Court will
not interfere with the discretion exer-
cised by the learned Judge unless it is
satisfied that that discretion was unrea-
sonably exercised. I am not prepared to
say that that discretion was unreason-
ably exercised. On the contrary, having
regard to the facts and circumstances of
the case I am clearly of opinion that the
discretion -was properly exercised. The
(1) [1910] U O.W.N. 403=5 1,0. 896,
358 Patna BAJA MADCU SUDAN v. PANU PABHI (Macpherson, J.)
1926
appeal fails and mast be dismissed with
costs.
- The appellant in F. A. Mo. 261 of 1924
is the brother of Murli Manohar and he
is anxious that nothing should be deci-
ded in these proceedings to affect his
title to the estate. A grant of adminis-
tration does not decide any question of
title. It merely decides the right to
administer. There is no substance in
this appeal which must be dismissed
with costs. Hearing-fee, five gold
mohurs in each case.
Foster, J.— I agree.
Appeal dismissed.
A. I. R. 1926 Patna 358
MAGPHBBSON, J.
Raja Madhu Sudan Dev and others —
Accused — Petitioners.
Panu Parhi — Complainant — Opposite
Party.
Criminal Case No. 61 of 1925, Decided
on 10th September 1925.
Criminal P. C.t S. 192 (1)— Sub-divisional
Magistrate transferring a case before Issue of
summons — Transferee Magistrate can Issue sum-
mons and perform all requisites to decide Uie
case. If transfer Is by High Court's direction It
makes no difference.
If the Sub-divisional Magistrate, acting under
8. 192 (1), transfers a case of which he has taken
cognizance before issue of summons, the Magis-
trate who receives the case on transfer has power
to do all that is requisite to try and decide the
case, including power to issue summons on the
accused. He has .the same power where the
High Court directs transfer of the case from the
file of the Sub-divisional Magistrate and the case
is transferred to his file in accordance vvtth that
direction. [P. 859. 0 2]
Manohar LaZZ— for Petitioner.
G. P. Das— for Opposite Party.
Macphcrson, J.— This rule was ori-
ginally granted to consider whether the
case pending against the petitioners in
the Court of Mr. M. N. Bose, Deputy
Magistrate of Cuttack, should be not
transferred to another,, Court for trial
substantially on the ground that the
Magistrate had on 21st May altered, to
the prejudice of the petitioners, charges
which he had framed against them on
the preceding day. When the rule was
being heard by Bucknill, J., Sir Ali
Imam for the petitioners took a fresh
ground that the trying Magistrate had no
jurisdiction to try the case and the learn-
ed Judge referred the case to L Division
Bench, by which the rule was extended
to cover both grounds. Mr. Sfanohar
Lai, on behalf of the petitioners, has
pressed botfr grounds.
The first ground cannot prevail. From
the report of the Magistrate on the
matter the reason for the alteration is
manifest. When the charges as origin-
ally framed were read over to the accused
on the 20th May, the pleader for the
prosecution pointed to illustration (d) to
S. 383 of the Indian Penal Code and
submitted that it would be more ap-
propijiate to charge Petitioner No, 1 with
the substantive offence punishable under
S. 384 and Petitioner No. 2 with abet-
ment of that offence. Just then the
Magistrate was called away to other
duties and he accordingly adjourned the
case to the following day, at the same
time informing the pleader for the prose-
cution that his contention would be
considered fchen. On taking up the case
on the following day the Magistrate
having considered the law and the evi-
dence on the record, acceded to the con-
tention of the pleader for the prosecu-
tion. Any submissions against the al~
terafcion in the charge which the
defence cared to make would have hadi
patient hearing and consideration bub
none were forthcoming. It is clear that
the Magistrate acted correctly and that
the accused have no grievance whatever.
The plea that the Magistrate has no
jurisdiction to try the case is supported
in the following manner. The Sub-
Divisional Magistrate in whose Court the
complaint against the petitioners was
preferred, after making an inquiry under
S. 202, dismissed the complaint under
S. 203 of the Code of Criminal Proce-
dure. Upon application made to him
the Sessions Judge directed "a further
inquiry into the complaint which has
been dismissed." The complainant then
moved the Circuit Court for a transfer of
the case from the file of the Sub-divisional
Magistrate and Boss, J., passed the
following order :
In my opinion there ought to be a transfer
of this case. The Magistrate held a local in-
quiry and disbelieved the complaint and further
enquiry was ordered by the learned Sessions
Judge, but he did not direct the transfer of the
case to another Magistrate, This application ha&
1926
BASUDEV BHAGAT v. SHEIKH KADIR
Patna 359
now been made. I think it is expedient for 'the
eods of justice that, as the Magistrate has held
an inquiry and expressed a decided opinion on
the merit a of the case, the oase should be trans-
ferred to some other Magistrate.
I therefore direct that the further enquiry
be held by a competent Magistrate other than
Mr. Misra to whom the learned District Magis-
trate may make over the case.
The District Magistrate thereupon
made over the case to Babu M. N. Bose
for disposal. That Magistrate examined
the witnesses of the complainant whom
the Sub-Divisional Magistrate had failed
to examine and, finding that a prima facie
case had been made out, issued summons
upon the petitioners under various sec-
tions of the Penal Code, heard the
evidence adduced by the prosecution and
thereupon, as has been said, framed
charges on the 20th May and amended
them on the next day.
The contention is not very clear but is
substantially as follows. Babu M. N.
Bose had no power to issue summons
against the accused or to try them. The
case was indeed made over to him by the
District Magistrate for disposal but the
order of the District Magistrate was, it'is
urgei, illegal, since all that Boss, J.
directed to be transferred was the inquiry
under S. 202, so that until the report
of that inquiry had been made to the
District Magistrate, and the latter had
passed orders upon it, the accused could
not be placed on their trial at all;still less
by Babu M.N. Bose who could not in any
case issue summons under S. 204, as he
has not been empowered under S. 190
(2) to take cognizance of an offence upon
receiving a complaint of facts constitu-
ting such offence.
In my opinion the submission is un-
founded. Admittedly cognizance was
taken of the complaint by the Sub-
divisional Magistrate and he examined
the complainant. It was no doubt open
to him under S. 202 (l) to direct an
inquiry by a Subordinate Magistrate but
he did not so. The transfer of the case
under orders of the High Court does not
amount to a direction under S. 202 (l).
On the contrary it contemplates a
transfer to an officer competent to try
the whole case as it stood before
the Subdivisionai Officer dismissed the
complaint with the order for further
inquiry made by the Sessions Judge
superadded. No doubt it is implied that
the Magistrate to whom the oase is
transferred will hold an inquiry under
S. 202 (1) but he will do so as the Magis-
trate seised of the case and not in a
subordinate capacity wifch the obligation
to report to another Magistrate. In fact
the order contemplates complete deter-
mination of the case by the Magistrate
to whom it is transferred, either by
dismissal, if in bis'judgment there is, after
further inquiry, no sufficient ground for
proceeding, or by issue of summons, if in
his opinion there is sufficient ground for
pr oceeding.
The District Magistrate is brought in
merely so that he may exercise his dis-
cretion in the distribution of the work of
his district by nominating the particular
Magistrate, The case is nob transferred
to his file nor is he placed in the same
position as the Sub-Divisional Magis-
trate would, it is suggested, have occu-
pied if the latter had under S. 202 (l)
directed an inquiry by a Magistrate
subordinate to him. If the Sub-divisionah
Magistrate acting under S. 192 (l) trans-
fers a case of which he has taken
cognizance before issue of summons (the
provisos to S. 200 show that he may do
so) the Magistrate who receives the case
on transfer has power to do all that is
requisite to try and decide the oase, in-
cluding power to issue summons on the
accused. He has the same power where
the High Court directs transfer of the
case from the file of the Subdivisionai
Magistrate and the case is transferred to
his file in accordance with that direc-
tion.
Upon this view this application is
without merit and the rule must be dis-
charged. The oase has already been,
pending more than seventeen months and
it should be disposed of with all reasona-
ble expedition.
Rule discharged.
A. I. R. 1926 Patna 359
DAS AND FOSTER, JJ.
Basudeo Bhagat and others — Plaintiffs
— Appellants.
v.
Sheikh Kadir and others — Defendants—
Respondents.
Appeal No. 165 of 1922, Decided on
21st January 1926, from the original de-
cree of the Bub-J., Dumka, D/- 17th De-
cember 1921.
360 Patna
BASUDEO BHAGAT v. SHEIKH KADIR (Das, J.)
1926
(a) Santhal Parganat Regulation (3 of 1872
amended In 1908), 8. 6— Regulation does not res-
trict Court1 s power under 5. 34, Civil P. C.
The San thai Parganas Regulation applies only
to the interest to be dec read under the bond and
does not limit the powers of a Court under S. 34,
Civil P, 0., to award interest on the decretal
amount until realisation; A. I. R, 1922 Patna
450, Foil [P 361 C 2]
(b) Santhal Parganas Regulation (3 of 1872),
S. 6— Whether contracts of novation are nullified
Is undecided.
The question is undecided whether by 8. 6 so
larga an inroad on the law of contract has been
made in the Sa,nthal Parganas as to nullify bona
fide contracts of novation, where the claim or
debt at the time of the novation is an adjusted
amount comprising principal and interest.
[P 362 C 1]
S. M. Das and Sant Prasad — for Ap-
pellants.
Kkurshaid Husnain, Gholam Muham-
mad and S. N. Boy — for Respondents.
Das, J. — The suit out of which this
appeal has arisen was instituted by the
appellants for recovery of RS. 5,364-3-9
on the foot of a mortgage bond executed
by the respondents. The learned Subordi-
nate Judge has given a decree for Rs.
1,530 as against some of the respondents
and the plaintiffs appeal to this Court.
It is not disputed 'that transactions
have been going on between the parties
since 1289. On the 3rd Sawan 1310,
accounts were adjusted between the par-
ties, and it is the plaintiffs' case that Rs.
2,755 was found due to them on the
taking of the accounts, On that day two
mortgage bonds were executed by Sheikh
Nagu, Sheikh Kadir (Defendant l) and
Sheikh Magru (Defendant 2) in favour of
the plaintiffs, one for Rs. 2,755, the
other for Rs. 995. Sheikh Nagu is now
dead, and is represented in this suit by
Sheikh Abdul (Defendant 3), Mussammat
Jumagan, (Defendant 4) and Mussammat
Ankhar (Defendant 5). The plaintiffs'
case is that the bond for Rs. 2,755 was
executed to secure the sum of money
found due to the plaintiffs on the taking
of the accounts and that the bond for Rs.
995 was executed to secure an advance
made on that day to the executants.
"Thereafter transactions went on between
the parties. Another adjustment of ac-
count book place on the 27th Assar, 1314,
and on that adjustment Rs. 3,582 was
found due to the plaintiffs. Defendants
1, 2 and 3 executed a mortgage bond on
:that day in favour of the plaintiffs to
-secure the sum of money found due by
them to the plaintiffs, and it i? this last
mentioned mortgage bond which is tba
subject-matter of the present suit. I may
mention that the plaintiffs' oase in regard
to the bond for Rs. 995 is that it has been
satisfied by payments from time to time
made by the defendants.
The parties live in the Santhal Parganas
and are governed by the special law in
force in that pargana as contained in
Regulation 3 of 1872, Regulation 5 of
1893 and Regulation 3 of 1908. S. 6 of
Regulation 3 of 1872 as amended by the
later Regulations is as follows : —
All Courts having jurisdiction in the Santhal
Parganas shall obsarve the following relating to
usury, namely —
(a) interest on any debt or liability for a period
exceeding one year shall not ba decreed at a
higher rate than two per cent, par mensem, not-
withstanding any agreement to the contrary, and
no compound interest airsiug from any inter-
mediate adjustment of account shall be de-
creed.
(b) tho total interest decreed ou any loan or
debt shall never exceed one-fourth of tl:^ principal
sum, if the pariod ba not more than one year, and
shall not in any other case exceed the principal
of the original debt or loan.
Explanation. — Tha expression ' intermediate
adjustment of account ' in Clause (a) of this sec-
tion means any adjustment of account which is
not final, and includes the renewal of an existing
claim by bond, decree or otherwise when, without
the passing of fresh consideration, the original
claim is iucroased by such renewal.
As may be anticipated, the defendants
rest their defence on the terms of the
Regulation and they claim that the ac-
counts should be re-opened with a view to
disallow the plaintiffs compound interest
arising from any intermediate adjustment
of accounts and they contend that the
total interest to be decreed to the plain-
tiffs should nob exceed the principal sum
actually advanced to them. They admit
that Rs. 2,753 was found due to the
plaintiffs on the 3rd Sawan, 1310, but
they allege that the sum included inter-
est on which the plaintiffs are not entitled
to claim further interest, notwithstanding
the terms of the bond. In regard to the
bond for Rs. 995, their case is that that
sum represented, not a cash advance made
on the 3rd Sawan, 1310, but irrecoverable
interest, that is to say, interest found due
to the plaintiffs on the 3rd Sawan, 1310,
in excess of the principal of the original
debt or loan. They say that towards the
debt due by them, they have paid to the
plaintiffs the sum of Rs. 1,285, and they
profess their willingness to pay the plain-
tiffs what ia found due to them on the
examination of the accounts and in con-
1926
BASUDEO BHAGAT v. SHEIKH KADIB (Das, J.)
Patna 361
fprmity with the special law of the Santhal
Parganas.
The problem in this suit is to as*
certain the actual cash advances made
by the plaintiffs to the defendants.
By the terms of the Regulation we are
bound to ignore all intermediate adjust-
ment of accounts, and we have to be on
our guard to see that the plaintiffs do
not get compound interest by having
recourse to the simple device of procuring
mortgage bonds from the defendants. The
simple issue, therefore is : What were the
actual advances made by the plaintiffs
to the defendants ? I may say that the
plaintiffs accept the case of the defend-
ants that they paid Bs. 1,288 to them.
They maintain, however, that; they appro-
priated this sum (which was paid by
instalments and on different dates) to-
wards the mortgage bond for Es. 995
executed by the defendants on 3rd Sawan,
1310. It will be remembered that,
according to the plaintiff's case, there
was a cash advance in respect of this
bond ; whereas, according to the defen-
dants' case Bs. 995 mentioned in the bond
as having been advanced to the defen-
dants, represented irrecoverable interest.
Having regard to the questions in-
volved in the case, the learned Subordi-
nate Judge appointed a commissioner to
examine the accounts and to make a
report to the Court. The Commissioner
made a careful investigation and reported
as follows :
First, on the 3rd Sawan 1310, the sum of
Bs. 2,755 was due to the plaintiffs as principal
and that sum (to seoure which the mortgage
bond of 3rd Sawan 1310, was executed) did not
include interest or compound interest.
Second, R$, 995 which is the subject-matter of
the other bond executed on 3rd Sawan 1310, re-
presented an actual advance made by the plain-
tiffs to the defendants and that the bond was
satisfied by the payment of Ra. 1,285 by the defen-
dants between 3rd Kartic 1314 and 27th Asin
1314.
Third, Rs. 5,036 was due to the plaintiffs for
principal and simple interest on the date of the
institution of the suit.
When the case came before the learned
Subordinate Judge, neither party called
the Commissioner to show that his report
was in any way incorrect* The learned
Subordinate Judge however speculated to
An extent which is not permissible in a
judicial officer and came to the conclusion
that the sum of Bs. 1,530 only was due
to the plaintiffs. (His Lordship here criti-
cised the method followed by the learned
Subordinate Judge and concluded). In my
opinion, the plaintiffs are entitled to a
mortgage decree for Bs. 4,976.
The next question is whether we
should allow the plaintiffs interest on
the decree under S. 34 of the Oode of Civil
Procedure. In Hari Prasad Sinha v.
Sourendra Mohan Sinha (l) the learned
Chief Justice of this Court thought that
there was much to be said for the argu-
ment that the Santal Parganas Begula-
tion applies only to the interest to be
decreed under the bond and does not
limit the powers of a Court under S. 34
of the Code of Civil Procedure to award
interest on the decretal amount until
realization ; but he felt bound to follow
an earlier decision of this Court which
had decided that interest under the Code
should not be awarded upon the decretal
amount in so far as it includes interest
on the principal debt or loan, but only
upon the amount of the principal debt
itself. The case of Hari Prasad Sinha
v. Sourendra Mohan Sinha (l) went up
to the Privy Council, and it is clear from
the decision of their Lordships [Sour en-
dra Mohan Sinha v. Hari Prasad Sinha
(2)] that the question rests on the discre-
tion of the Court, and not (aa I read the
judgment) on the Santhal Parganas Regu-
lations, In my opinion, the plaintiffs
are entitled to interest at 6 per cent,
on the decretal amonnt from the date
thereof until realization.
The last question is whether the plain-
tiffs are entitled to a decree as against
Defendants 4 and 5. They are not par-
ties to the bond of 27th Assar, 1314 ; but
Sheikh Nagu (whom they, alon^ with
Defendant 3, represent) was a party to
the bond of 3rd Sawan 1310. The solu-
tion of the question depends on whether
the liabilitv under the bond of the 3rd
Sawan 1310, was extinguished by the
execution of the bond of the 27th Assar
1314. There is no indication in the
latter bond that liability under the
former bond came to an end. That being
so, the plaintiffs are clearly entitled to a
decree as against Defendants 4 and 5, but
it is clear that their liability must be
limited to the assets- of Sheik Nagu in
their hands.
I would allow the appeal, set aside the
judgment and decree passed by 4h& Court
below and give the plaintiffs the usual
mortgage decree for Its. 4»976 aa against
(1) A, I. B. 1922 Patna 460.
(2) A, L H. 1925 P. 0. 280,
362 Patna
ILTAF KHAN v, EMPEROR (Boss, J.)
192S
all the defendants (the decree against
Defendants 4 and 5 being limited to the
assets of Sheikh Nagu in their hands)
with costs throughout and interest at
6 per cent, on the decree from the date
hereof until realization. Period of
redemption six months.
Foster, J. — I agree in the order to be
passed, but I wish to make a remark or
two on one point. It is not the plain-
tiffs' case, nor is it our finding, that the
first mortgage bond of 1903 was rescinded
by the second mortgage bond of 1907.
Atter studying the terms of S. 6 of Regu-
lation III of 1872 I think it quite possi-
ble that the question may arise whether
by that provision of law so large an
inroad on the law of contract has been
made in the Santal Parganas as to nullify
bona fide contracts of novation, where
the claim or debt at the time of the
novation is an adjusted amount compris-
ing principal and interest : and some
fresh consideration, for instance, the
rescision of the previous bond or forbear-
ance to sue, has passed from the mort-
gagee to his debtor. So far as I am a^are
the matter has not been decided in any
case ; and I wish to reserve an open mind
on the subject.
Appeal allowed.
X * A. I. R. 1926 Patna 362
Boss AND FOSTER, JJ.
Iltaf Khan — Accused — Appellant.
v.
Emperot — Opposite Party.
Death Reference No. 22 of 1925, Cri-
minal Appeal No. 198 of 1925, Decided
on 21st December 1925, from a decision
of the Judl. Oomr., Ghota Nagpur, D/-
18th November 1925.
# * Criminal P. C., S. 162 — Important
statement made at trial was not made at the
Investigation— Contradiction can be proved.
To construe 8. 162 as meaning that while any
part of the statement of a witness to the police
may be used to contradict him, yet if the contra-
diction consists in this that a statement made
at the trial was not made in any part of the
statement to the police, such a contradiction can-
not be proved, seems to be an artificial cons-
truction and cannot be adopted. A. L B. 1926
Patna 20 Dissented. [P 868 C 1]
Athar Hussain — for Appellant.
L. N. Sink a — for the Grown.
Rots, J.— Iltaf Khan and Shamauddin
Khan have been sentenced to death by
the Judicial Commissioner of Chota
Nagpur on conviction of a charge of mur-
dering Bam Sawarath Dubey on the*
2nd of May 1925 at Ghandarpura. The
sentence hae been submitted to this
Court for confirmation and the prisoners
have appealed against their conviction.
The Judicial Commissioner was assisted
at the trial by four assessors all of whom-
held that the accused were guilty..
Besides the two appellants, a third'
person, Ali Karim was also put on his
trial, and two of the assessors were of
the opinion that he was guilty also, bub
he has been acquitted. (His Lordship
here gave the prosecution story and
after discussing the evidence proceeded).
There remain four witnesses, Jogeswar
Dusadh, Mahabir Dhobi, Munshi and
Bhajan, and their evidence is directed to
prove the fact that the accused were
seen running away shortly after the
murder, Jogeswar is the brother-in-
law of Munshi and Mahabir is a neigh-
bour. They are both residents of Kamafc
and their evidence in Court is that on
the evening of the day of occurrence,,
about 2 gharis before sunset they saw
the two accused passing through the-
village and thereafter they did not see
them at their home. The weak point,
about their evidence is that they did not
make any such statement to the Police.
Before the Sub- Inspector all that was
said was that the accused had been found
absent from the village after the occur-
rence. Jogeswar Dusadh admitted that-
he did not mention to the Sub-Inspector
his having seen the accused in the lane,
but Mahabir Dubey maintained that he
did make that statement. The Sub-In-
spector says that he examined these wit-
nesses on the 9th and that they stated
only that the accused were absent from
the village from the day of occurrence and
they did not, so far as he remembered,
say that they had seen the accused fleeing
on the date of the murder.
On 'this evidence a question of law
arises in the view of the learned Judicial
Commissioner. Plainly there is a very
important discrepancy between the evi-
dence of these witnesses in Court and
their statements to the Police, and if
their statements to the Police were in
the form deposed to by the Sub-In-
spector, the statements made subsequently
at the trial cannot safely be acted upon.
The learned Judge, however, consider-
ing himself bound by the decision
of this Court in Badri Choudhury y.
1926
DHUPLAL v. BHEKHA MAHTO (Adami, J.)
Patna 363
Emperor (l) held that such use of the
notes of the witnesses" statements in
Police diaries was not warranted by law
and apparently rejected the Police state-
ment, and, in consequence, believed the
evidence at the trial. Now so far as
Jogeawar is concerned, no question ari-
ses. He admitted that he did not make
the statement to the Police that he had
seen the accused that evening. Mahabir
Dubey maintained that he did and the
Sub-Inspector contradicted him. Why
should this not be evidence? Apparently
the learned Judicial Commissioner is re-
ferring to the observation by one of the
learned Judges who decided that case (an
observation which on the facts found
must be regarded as obiter, because on
the facts no question of the construction
of 8. 162 of the Criminal P. C. arose)
that only a part of the recorded state-
ment can be used and that
it is not permissible to use the recorded state-
ment as a whole to show that the witness did
aot say something to the Investigating Officer.
To construe S. 162 of the Criminal
P. C. as meaning that while any part of
the statement of a witness to the Police
may be used to contradict him, yet if
the contradiction consists in this that a
statement made at the trial was not
made in any part of fcho statement to
the Police, such a contradiction cannot
be proved, seems to be an artificial con-
struction. I am unable to adopt it,
and with respect, I must dissent from
that view. I can find nothing in the
language of S. 162 which would lead to
such a conclusion. I would, therefore,
hold that the evidence of the Sub-Inspec-
tor with regard to these witnesses is
relevant and on the strength of that
evidence I would discard their evidence
in Court.
There remains, therefore, only the evi-
dence of Munshi and Bhajan. (His
Lordship then criticised the evidence of
these two witnesses and held that
they were unreliable). I fail, there-
fore, to find the evidence which
can be safely acted upon to show
even that these two persons were seen in
the neighbourhood of the place of occur-
rence shortly after the murder. (His Lord-
ship then discussed the .question whether
there was jnotive and found that there
was none).
U>A.I.R.1926 Patna. 20=901.0. 874=6
P. L. T, 630.
On the whole, therefore, I feel convin-
ced that in this case the evidence falls,
far short of proof to justify the convic-
tion of the appellants. I would, there-
fore, allow the appeal and set aside the
conviction and sentence and direct that
the appellants be acquitted and set at
liberty.
Foster, J.— I agree,
Conviction set aside.
A. I. R. 1926 Pallia 363
DAS AND ADAMI, JJ.
DhuplalSahu— Defendant— Appellant,
v.
Bhekha Mahto— Plaintiff— Respondent.
Appeal No. 669 of 1923, Decided on
14th May 1926, from the appellate decree
of Sub-J.,Palamau, D/- 17th May 1923.
Chota Nagpur Tenancy Act (Amended 1920),
S. 139 A— Suit for declaration as occupancy
tenant and for possession Is barred.
A suit based on the allegation that the plain-
tifi had an occupancy right in the land but had
been dispossessed by the defendant, whom the
landlord set up as a tenant in order to get rid of
the plaintiff, is clearly barred by the provisions
of S. 139 A, and the case is not excluded from the
operation of S. 189 A by the mere fact that a
declaration as to his occupancy status was
asked for in the suit. [P. 364, C. lj
D. P. Sinha — for Appellant.
Jadubans Sahay — for Respondent.
Adami, J.— In the suit giving rise to
this second appeal the plaintiff sought to
recover possession of a certain holding on
the ground that he has been dispossessed
by the defendant who had been put in
possession of the holding by the landlord.
He also asked for a declaration that he
had right of occupancy in the holding.
In the trial Court the question was con-
sidered whether under the provisions of
S. 139 A the suit could lie in a civil
Court. The Munsif decided that it could,
because it was not merely a suit under
S. 139, sub-S. 5, but was a suit for a
declaration of the plaintiff's title as an
occupancy raiyat. Therefore the Munsif
held that the suit would lie in the civil
Court, it not being a suit exclusively of
the nature mentioned in sub-S. 5 of
S. 139 and therefore 8. 139 A would not
apply. In the appellate Court this
question does not seem to have been
raised. Before us the question was
raised again and it was contended that
no suit would lie in the civil Court.
364 Patn* DANGAL BAM v. JAIMANGAL (Dawson-Miller, 0. J.)
1926
Section 139 A was added to the Ghota
Sfagpur Tenancy Act in 1920 and was
extended to the District o! Palamau in
which the land in dispute lies, in 1920.
Therefore it was in force at the fcime the
present suit was instituted. Under that
section the civil Courts are precluded
from entertaining any suit
concerning any matter in respect of which an
application is cognizable by the Deputy Com-
missioner under S. 139.
Under 8. 139, sub-S. 5, as it stood at
the time of the institution of the suit, it
was provided that all applications to
recover the occupancy or possession of
any land from which a tenant has been
unlawfully ejected by the landlord or
any person claiming under or through
the landlord would only be brought
before the Court of the Deputy Commis-
sioner. Therefore it would seem that
the present suit which was based on the
allegation that the plaintiff had an
occupancy right in the land but had been
dispossessed by the defendant, whom the
landlord set up as a tenant in order to
get rid of the plaintiff, would seem
to be clearly barred by the provisions of
S. 139 A.
It is argued, however, that, since
in the plaint a declaration was asked
of the plaintiff's title as an occupancy
raiyab, the suit was not merely a suit of
the nature mentioned in S. 139, sub-S. 5,
but involved a question of title, so the
provisions of S. 139 A would not apply.
As a matter of fact tho point whether
the plaintiff had an occupancy right or
not in this land was merely a point in
the evidence. It was not necessary
really to ask for that relief ; for in order
to recover possession the plaintiff would
have to show that he was an occupancy
raiyat. In my opinion the case is not
excluded from the operation of 8. 139 A
by the mere fact that the declaration
was asked for.
I would hold that this suit was in fact
barred under the provisions of S. 139 A,
and S. 139, sub-S. 5, of the Chota Nagpur
Tenancy Act and that the plaint should
have been filed in the Court of the
Deputy Commissioner. I would there'
fore allow the appeal with coats, and
dismiss the plaintiff's suit with costs in
all the Courts.
Da«, J.— I agree.
Appeal allowed,
* A. I. R 1926 Patna 364
DAWSON-MlLLER, 0. J., AND POSTER, J.
Dangal Ram — Defendant — Appellant,
v.
Jaimangal Saran and another — Plain-
tiffs— Respondents.
Appeal No. 1212 of 1923, Decided on
6th May 1926, from the appellate decree
of Addl. Sub-J., Shahabad, D/- 11-9-1923.
# (a) Hindu Law— -Family settlement— Property
not partltionable' without Inconvenience — One
party should take compensation from the other
for his share— Legal necessity need not be proved.
Where the transaction was really one in the
nature of a family arrangement and both the
brothers were entitled to a half share in the
house and for that purpose to have it partitioned
by metes and bounds, but the house could not
be partitioned in equal shares without a great
inconvenience :
Held, that the only other course to adopt was
that one party should take compensation for his
share from the other and that it is not neces-
sary, in order to support a transaction of that
sort, to show that there was any actual legal
necessity for such a course, but that it must be
made out by the party challenging the trans-
action that the course adopted was so detri-
mental to the interests of those who are interes-
ted as minors that it would be inequitable to
allow the transactions to stand. [P. 366, C. 1]
(b) Hindu Law — Family settlement Is method
of enjoying ancestral property by parties— Bind-
ing nature— Doctrine of legal benefit applies (Per
Foster, J.).
A family settlement is inter alia an arrange-
ment by which the method of enjoying the
ancestral property comes to be settled between
the parties and to family arrangments great
importance is attached by the Courts, In the
absence of proof of mistake, inequality of posi-
tion, undue influence, coercion, or like ground, a
partition or family arrangement made in settle-
ment of the disputed or doubtful claim is a valid
and binding arrangement which the parties
^thereto cannot deny, ignore or resile from ; and
this principle is applicable where some of the
members of the family are minors, or where the
settlement has been effected by a qualified owner
whose acts in thia respect will bind the rever
sioner : 34 C. L. J. 323 and 23*0. W. N. 118, Foil.
The doctrine of legal benefit is applicable,
though at the same time the Court should not
be disposed to scan with too much nicety the
quantum of consideration in case of family
settlement Tho legal justification of the trans-
action should be tested on much wider grounds
in the cases where there is a family arrangement
in existence. [p. 867, C. 1, 2]
D, N. Verma — for Appellant.
B. N. Mitter — for Respondents.
Dawson Miller, C. J.— Thia is an
appeal on behalf of the Defendant No. 5
from a decree of the Additional Subordi-
nate Judge of Shahabad reversing a
decision of the Munsif of. Arrah. The
suit was instituted on behalf of two
brothers, the sons of Kishun Ohand, who
1926 DANGAL RAM v. JAIMANGAL (Dawson-Miller, 0. J.)
are minors, in order to recover back from
the defendant Haricharan, their father's
brother, and from the present appellant,
their share in a house situated in Arrah
town. It appears that Hiricharan, the
Defendant No. 1. and Kishun Chand, his
brother, the Defendant No. a, were at
one time joint in estate, but the only
joint property which they held was the
house in question in Arrah town which
had previously belonged to their father.
The evidence shows, and it is not dispu-
ted, that these two brothers were by no
means on friendly terms. They had
separated in estate, but the house had
not been divided by metes and bounds.
The younger brother Kishun Chand and
four sons who were also living with him
in the same house. Kishun Chand and
his brother being upon the terms which
I have described, difficulties arose both
as to the payment of rent and as to the
payment of the municipal taxes and as
to the carrying out of repairs to the
house, the result being that the property
was likely to depreciate in value owing
to dilapidation without any repairs being
carried out, and there was a further source
of danger that in the strained relationship
which existed between these two brothers
no rent at all might be paid and the house
might be sold up under arent decree.
In these circumstances it was obvi-
ously necessary that some sort of arrange-
ment should be made so that each
brother should have a separate portion
of the house divided by metes and bounds
for which he alone would be responsible.
When I say each brother, I include with
Kishun Chand his sons, because Hari-
charan was entitled to one-half and
Kishun Chand and his sons were entitled
to the other. Now it so happened that
the house, which apparently was not a
very large one, was practically incapable
of division into two equal parts aod the
question which then arose was what sort
of arrangement should be come to.
There can be no doubt that if it were a
question of partition by metes and
bounds, and if it was found that the pro-
perty was of such a nature that it oould
not be conveniently partitioned into
equal shares, then the. proper course
would be that one party or the other
should in lieu of his half share receive
compensation from ihe other co-sharer.
Now that is in effect what actually
happened in this case.
Patna 365
The younger brother, Kishun Chand,
in lieu of his moiety of the house, took
from Haricharan a sum of Ea. 1,000 in
satisfaction of his share and gave up the
entire house to Haricharan. It is nofc
contended that the sum of Bs. 1,000 was
not adequate for the half interest in the
house. There is no dispute about that.
When Harioharan got possession, he,
according to his case, although there is
no direct finding upon this matter, effec-
ted some improvements in the house
thereby increasing its value. He also
sold to the Defendant No. 5, the present
appellant, certain rooms in the house
and so matters continued for some time
until the present suit was instituted on
the 29th February 1922 by Jaimangal
and Ajodhya Prasad, the two minor sons
of Kishun Ohand, claiming to recover
back their one-fifth share in the house on
the ground that the transfer by their
father to Haricharan was not for their
benefit and was not justified by any legal
necessity and was not in fact binding
upon them.
The learned Munaif before whom the
case came for trial considered that the
arrangement which is now in question in
the suit had been brought about with
the help of the punches and might be
looked upon as a partition between the
two brothers. He also found that it
was not practicable to partition the
house as there was not room for two
exit doors, one for each party. I(j was
also stated in the evidence, according to
the Munsif, that the transaction was one
which arose out of a desire for partition.
The actual transfer by Kishun Chand to
Harioharan was made by a sale-deed, but
the learned Munsif considered that this
was in fact tantamount to a partition.
He found also that the transaction was
for the benefit of both parties concerned
including the plaintiffs and he dis-
missed the plaintiffs' suit.
On appeal the learned Subordinate
Judge, although he does not question
the facts found by the Munsif in so far
as they were pure findings of fact and
not inferences, dealt with the question
purely from one point of view, namely,,
whether in fact Kishun Chand, the
father of the plaintiffs, acting on their
behalf in the transaction which I have
mentioned, had done something which
was really for the benefit of the plain*
366 Patn*
DANGAL BAM v. JAIMANGAL (Poster, J.)
1926
tiffs, then minors, and the conclusions
he oame to was that Kishun Chand had
not done the best he could have done in
the circumstances and, therefore, he
thought that he had not acted like a
prudent guardian in selling away this
house, which was the only ancestral pro-
perty remaining in the family, merely in
order to avoid family quarrels.
Now, perhaps, I ought to point out that
the learned Subordinate Judge appears to
accept the view presented by certain of
the witnesses that without disposing of
the property there did not appear to be
any way of escape from the daily quarrels
that took placo between the brothers,
and in order to put an end to what was
an intolerable state of affairs involving
almost certain deterioration to the pro-
perty, it was agreed that the older
brother should purchase the house paying
adequate remuneration to the others for
their share. With great respect to the
learned Subordinate Judge it appears to
me that he entirely failed to take into
consideration the fact, which to my mind
was the essential element in this case,
namely, that this is not an ordinary
oase of transfer of property by the karta
of the family involving the interest of
the minors who, not being of age, were
unable to give their consent. Had that
been so and had the transferee failed to
show that there was either any justify-
ing necessity of the sale or any benefit to
the estate then no doubt the minors
might have had the sale set aside but
that was not really the transaction in
this oase. The transaction was really one
in the nature of a family arrangement,
and further it was one certainly in the
nature of a partition. Both these
brothers were entitled to a half share in
the house and for that purpose to have it
partitioned by metes and bounds ; but it
having been found that, in the circum-
stances, the house could not be parti-
tioned in equalshares without a great deal
of inconvenience, the only other course
to adopt was that one party should take
compensation for his share from the
other. In such circumstances it seems to
me that it is not necessary, in order to
support a transaction of that sort, to
show th»t there was any actual legal
necessity for such a course. On the
other hand, it seems to me that it must
be made out that the course adopted was
so detrimental to the interests of those
who are interested as minors .that it
would be inequitable to allow the trans-
actions to stand. Undoubtedly to my
mind a partition in the circumstances
was the proper thing. If that partition
could not be effected in the ordinary way
by dividing up the house by metes and
bounds then the only other course . to
adopt was that which was in fact taken
on the advise of the punches. For these
reasons, although the learned Subordi-
nate Judge has arrived at a conclusion
that it is not sufficiently proved that the
course adopted was the best in the inter-
ests of the minors, still I think that the
transaction in the particular circum-
stances of the case, is unassailable and
the decision must be set aside and the
decree of the Munsif restored. The ap-
pellants are entitled to their costs here
and in the lower appellate Court.
Foster, J. — I agree. It appears to
me also that the legal justification of the
sale made by the plaintiffs- respondents'
father Kishun Ohand has been measured
by too narrow a standard. The actual
conclusion of the learned Subordinate
Judge in the Court of appeal has been
that the transaction was not for the
benefit of tho minors, nor was it a pru-
dent measure. Judged by itself, this
would at first sight appear to be a final
finding of fact although, even so, the
judgment would be open to the criticism
that after quoting the case of Hanooman
Persaud Pandey v. Baboo Moonraj Roon*
weree (l) it would have been a more
satisfactory discussion of the case if the
Court had contemplated the question
where there were damages to be averted
by the sale.
However, as I have said, it appears to
me that the case can and should^ be dis-
cussed on a much wider legal ground. We
can take it that the sale of the moiety
of the house, made by the Defendants
Nos. 2 and 3, Kishun Chand and his elder
son Nathuni Lai, was for a fair price.
There is no doubt of this and it has not
been disputed. We know that the price
was settled by the punches appointed to
settle the dispute between the parties in
this matter. We also know that there
were constant quarrels, and that those
quarrels were such as would necessarily
arise between two people who were not
disposed to take the same view as to their
(1) [1856] 6 M. I. A. 393=18 W. B.
Suther 29=1 Bar. 552 (P, G.).
1926
MAKHRU DUSADH v. KING-EMPBROR (Boss, J.)
Patna 367
•enjoyment of a common property. The
two brothers were certainly beset with
•difficulties as to tliemode of enjoyment
of their patrimony. They had already
separated, but the house was still un-
divided. They each had a right to parti-
tion arising out of their legal status.
Had they gone to Court, what would have
happened ? There is no doubt that their
right of partition would have been de-
clared ; bub it appears to me extremely
likely that the provisions of Act IV of
1893 would have been invoked. In S. 2
powers are given to a Court to order
sale instead of division in partition suits
where the nature of the property to which
the suit relates makes the division un-
reasonable or inconvenient ; and in S. 3
facilities are given to a share-holder in the
property to acquire the property at a valu-*
ation by way of sale. The order so made
will have under S. 8 the force of a decree.
It may be noted that this method of
dealing with the property is treated as a
substitute for partition "whenever a
decree for partition might have been
made, it appears to the Court . . .'-'
So perhaps the procedure may not
amount precisely to a partition. In view
of the facts proved in this particular case,
the transaction may be regarded as a
family settlement. A family settlement is
(inter alia) an arrangement by which the
method of enjoying the ancestral property
comes to be settled between the parties.
We know that to family arrangements
great importance is attached by the Courts.
Now reverting to the findings of fact,
I have already mentioned that the price
was a fair one ; and I also mentioned
that though in the plaint there is a
suggestion of a fraudulent and collusive
transaction, yet in the judgments show-
ing upon what lines the contest between
the parties proceeded there is no sugges-
tion of fraud or coercion or misrepresen-
tation or undue influence or mutual
mistake. If, therefore, the transaction
was a partition or a family arrangement
(whichever we may choose to call it),
then it would seem that the case of
Kuswn Kumari Dasi v. Dasarathi
Sinha (2) will be applicable. The rule
there is very clearly stated, that in the
absence of proof of mistake, inequality of
position, undue influence, coercion, or
like ground, a partition or family ar-
r%ngement made in settlement of the
(2) [1921] 34 0. L. J. 323=67 L C. 210.
disputed or doubtful claim is a valid and
binding arrangement which the parties
thereto cannot deny, ignore or resile
from ; and this principle is applicable
where some of the members of the family
are minors, or where the settlement has
been effected by a qualified owner whose
acfcs in this respect will bind the rever
sioner.
The question might arise whether the
equities of parties in case of a family
settlement are identical with the equities
in a question of legal necessity, having
regard tq the elaborate discussion of the
legal weight of a family settlement in
the judgment of Kermatulla Meah v,
Keamatutta Meah (3). In that judgment
it is suggested that the doctrine of legal
benefit is applicable, though it is at the
same time stated that the Court should
not be disposed to scan with too much
nicety the quantum of consideration,
What appears to me, however, to be quite
clear is the point with which I began,
namely, that what my Lord has called
the legal justification of the transaction
should be tested on much wider grounds
in the cases where there is a family
arrangement in existence. If the learned
Subordinate Judge had taken into his view
the fact that there was a partition and
a family arrangement, there can be little
doubt that his judgment would have been
more complete and more correct.
There is only one point to add. Ife ap-
pears to me that as this family arrange-
ment has been acted upon by the defen-
dant Haricharan's act in improving the
house, and by the sale to the present ap-
pellant Dangal Bam, the Court should be
inclined not to upset the existing ar-
rangement, especially as there is really
no case made out sufficient to raise the
apprehension that the respondents have
been unfairly treated.
Appeal allowed.
(3) [1918] 28 C. W. N, 118=49 I. 0. 886.
A. I. R. 1926 Patna 367
BOSS AND KULWANT SAHAY, JJ.
Makhru Dusadh — Accused — Appel-
lant.
v.
King-Emperor— Opposite Party.
Criminal Appeal No. 21 of 1926, De-
cided on 8th March 1926, from a deci-
sion of the Asst. S. J., Purnea, D/- 23rd
March 1925.
368 Patna
AMBIKA SINGH v. KING-EMPEROR
1926
Penal Code, 8s. 380 and 457 — Separate 'sen-
tences under both are bad— Penal Code, 8. 71.
Separate sentences cannot be passed under
S. 457 and 8. 380 cf the Indian Penal Code for
housebreaklng followed immediately by theft :
2 W. R. (Or.) 63 ; 8 W. R. (Cr.) 31 ; 6 W. R. (Or,)
49 ; 6 W. B. (Cr.) 92 and 5 W. R. (Cr.) 49 ; Poll.
[P. 868, C. 1]
W. H. Akbari—tor the Crown.
Ross.J. — The appellant broke into a
house at night and stole a box and was
caught in the act. He has been con-
victed under Ss. 457 and 380 of the
Indian Penal Code and has been sen-
tenced to consecutive term of three
years' rigorous imprisonment under each
of these sections. It has been repeatedly
held that separate sentences cannot be
passed under 8. 457 and S. 380 of the
Indian Penal Code : see Queen v. Tonao-
Jcoch (l), Queen v. Sahrae (2), Jogeen v.
Nolo (3), Mussahur Dusadh In re (4) and
Queen v. Chytun Boura (5), where their
Lordships observed *
The point has been frequently ruled. A
prisoner convicted of house-breaking followed
Immediately by theft would be punished under
8. 457 of the Indian Penal Code only,
The result is that the sentence of three
years' rigorous imprisonment passed under
S. 380 must be set aside. The sentence
under S. 457, Penal Code, will stand.
Kulwant Sahay, J.— 1 agree.
Appeal allowed.
(1) [1865] 2 W. R. Or. 63.
(2) [1867] 8 W. R. Cr. 31.
(8) [1866] 6 W. R. Cr. 49.
(4) [1866] G W. R. Cr. 92.
(5) [1866J 5 W. R. Cr. 49.
A. I. R.I 926 Patna 368
Boss AND KULWANT SAHAY, JJ.
Ambika Singh — Accused — Applicant.
v.
King-Emperoi — Opposite Party.
Criminal Bevision No. 526 of 1925,
Decided on 27th January 1926, Ifrom an
order of the 1st Mag., Patna, D/- 29th
October 1925.
Criminal P. C., S. 195— Magistrate dismissing
a false complaint cannot proceed against com-
plainant under S. 211, Penal Code.
Where a false complaint is lodged and dismis-
sed, the Magistrate dismissing the complaint is
not com pa tent to proceed against the complainant
under 8. 311, Penal Code. He should make a
complaint under 8. 190, Criminal P. 0..
•[P. 868, C. 2]
S. M. Nairn — for Petitioner.
JET, L. Nandkeolyar — for the Chrown.
Kulwant Sahay, J. — The petitioner
lodged a first information before the
police at Ghosi on the 12th of July* 1925,
charging certain persons with an offence
under S, 302 of the Indian Penal Code.
Before the police submitted a report, the
petitioner filed a petition before the Sub-
divisional Magistrate of Jehanabad on the
17th of July 1925, praying fora local en-
quiry into the case by the Sub- divisional
Officer. The Sub-divisional Magistrate
treated this application as a complaint
and proceeded to examine the petitioner
on oath. In the meantime the police
submitted a final report stating that the
case was a false one and prayed for the
prosecution of the petitioner under S. 211
of the Indian Penal Code. On the 13th
of August 1925, the Sub-divisional Magis-
trate, on receipt of the police report,
summoned the petitioner under S. 182
of the Indian Penal Code and treated the
complaint of the petitioner as a counter-
case which he proposed to take up after
the disposal of the case under S. 182. On
the 24th of August, 1925, the petitioner
prayed that he should be given an oppor-
tunity of proving his case before he was
tried for an offence under S. 182 ; but the
learned Sub divisional Magistrate rejec-
ted the application, and also dismissed
the petition of complaint under S. 203
of the Code of Criminal Procedure. On
the 21st of September, 1925, the learned
Sub-divisional Magistrate converted the
trial of the petitioner under S. 182 into
an enquiry before commitment for an
offence under S, 211 read with S. 302 of
the Indian Penal Code, and he has com-
mitted the petitioner to the Sessions
Court for trial.
It is clear that the proceedings in this
case have been without jurisdiction. The
Sub-divisional Magistrate could not him-
self enquire into the case under S. 211
read with S. 302, Indian Penal Code,
The proper procedure to adopt was to make
a complaint under S. 195 of the Code of
Criminal Procedure. The provisions ot
S. 195 not having been complied with, the
order of commitment is clearly without
jurisdiction and must be set aside and
the commitment quashed.
Rots, J.-— I agree.
Order set aside.
1926
KAMAKHYA v. JAWAHIR KHAN (Dawson-Miller, C. J.) Patna 369
A. I. R 1926 Patam 369
DAWSON- MILLER, 0. J. AND
MULLICK, J.
Kamakhya Narain Singh — Plaintiff —
Appellant.
v.
Jawahir Kham, and others — Defendants
— Respondents.
First Appeal No. 163 of 1922, Decided
on llth March 1926, from the decision
of the Addl. Sub.-J., Hazaribagh, D/-
18th April 1922.
(a) Chota Nagpur Tenancy Act, 8s. 258 and 84
(3)— Record of Rights recording a tenure to be non-
resumable-^SuU So declare that tenure Is rfes un-
able Is not barred,
Section 258 does not bar a suit for declaring that
a particular tenure recorded to be non-resumable
in the Raoord of Rights is resumable ; S. 84 (8)
creates a statutory presumption in favour of
the correctness of the finally published record,
but implies the right to bring a suit averring
the contrary. [P 374 0 21
(b) Chota Nagpur Tenancy Act (6 of 1908) 8. 83
— Scope.
Any order passed under B. 83 relates to the
draft record only. [P 374 G 2]
(c) La*d tenure — Jagir — Ramgarh Raj — Main-
tenance grants and jagirs are returnable on
failure of llnval male descendants — Jagodih
tenure is such jaglr tenure under Ramgarh and
Is likewise resumable.
Maintenance grants in Ramgarh and Ghota
Nagpur, like jagirs, are resumable on failure of
the lineal male descendants of the granlee.
The holders of the Jagodih tenure have the
status of dependent talukdars holding under the
Bamgarh Raj and are to be considered as lease-
holders only within S. 7 of Regulation 8 of 1793.
The tenure is a jagir tenure held under the Ram-
garh Estate and is resumable on failure of the
lineal male descendants of the grantee and it is
not a shamilat or shiktni tenure in the sense in
which those terms are used by the Revenue Officer
in the Record of Rights published in 1914.
[P 372 0 2, P 373 G 1, P 374 0 2]
(d) Evidence Act, S. W(2—£amlndar and ten-
ant— Record of Rights recording tenants as owners
of non-resumable tenure — Burden Is on zamlndar
to prove that the tenure Is resumable,
Where the defendants, the tenure holders, are
recorded in the Record of Rights as holding land
within the ambit of the zunindari of the plain-
tiff and that he was paying revenue for the same,
the onus of showing the nature of their title is
upon the tenure holders and upon a failure to
show that they had had a tenancy therein the
plaintiff is entitled to resume. But if it is re-
corded that the defendants were owners of a non-
resumable tenure the onus is shifted upon the
plaintiff to rebut the presumption created by the
Record of Rights. [P 375 C 2, P 376 C 1]
L. P. Pugh, 8. S. Ahmad and S. M.
Mulltck — for Appellant.
8. H. Imam, C. S. Bannerji and S. N.
Palit — for Respondents.
1926 P/47 & 48
Dawson-Miller, C. J.— The plaintiff, a
minor, is the proprietor of the Bamgarh
Baj suing through the manager of his
estate which is under the management of
the Court of Wards. He instituted the
suit out of which this appeal arises claim-
ing a declaration that the tenure ordinari-
ly called Jagodih Lat consisting at present
of 41 villages is an ordinary jagir within
his zamindari and is resumable on failure
of the direct male line of the grantee
and that the entries in the Record of
Bights, finally published in 1914, describ-
ing it as a shamilat or shikmi taluk and
non-resumable are incorrect. The de~
fendants are the present holders of the
tenure and others claiming through them.
The villages comprised in Jagodih Lat
form part of Pargana Chai, and this,
together with many other Parganas, was
settled with the plaintiff's ancestor,
Baja Maninath Singh of Bamgarh, by
the Permanent Settlement, and it can
no longer be disputed that Jagodih is
comprised within the plaintiff's zamin-
dari.
It is the plaintiff's case that under the
Moghul Emperors and for some centuries
before the British acquired the Diwani
of Bengal, Bihar and Orissa in 1765, the
Bajas of Bamgarh were the paramount
chiefs of a large tract of hilly country
north of Hazaribagh including Bamgarh,
Chai and Champa and many other par*
ganas a number of which were held under
them by petty chiefs under service
tenures, or jagirs, granted originally for
life, but which subsequently, by custom
became descendible in the direct male
line of the grantee, being defeasible on
failure of his lineal male descendants
and that Jagodih was a tenure of this
nature. He further relies upon the
Permanent Settlement made by the East
India Company with his ancestor, Baja,
Maninath Singh, and the effect of the
Settlement Regulations. In addition he
contends that the question now agitated
was decided in a suit between the an-
cestors of the parties in 1793 and cannot
again be re-opened.
The defendants, on the other hand,
contend that the Jagodih Chiefs were
independent talukdars paying not rent
to the Bamgarh Baja as their overlord,
but revenue through him to the Moghul
Emperor, and that had they been so
minded, they could have obtained a Set-
tlement direct from the East India Com-
370 Palna KAMAKHYA v» JAWAHIR KHAN (Dawson-Miller, G. J.)
pany under the provisions of the Settle-
ment Begulations and in particular Be*
guiation VIII of 1793, but that, notwith-
standing this omission, and the faot that
Jagodih was comprised in the Settlement
with the plaintiff's ancestor as part of
the Bamgarh Kaj, they ought not to be
treated as lease-holders holding under9
the B&ja of Bamgarh, hut as talukdars
still paying their revenue through him,
and that their estate is not resumable
by the Bamgarh Baja in any event.
They further contend that the villages,
in question were their ancestral nankar
villages, that is revenue free, in which
they hold absolute proprietary rights.
During the recent Survey and Settle-
ment operations in the Hazaribagh Dis-
trict, the Settlement Officer directed the
Jagodih tenure to be recorded in the
khewats as a sharnilat taluk held under
the Bamgarh Raj and as non-resumable,
and it was so recorded in the Becord of
Bights finally published in 1914, The
plaintiff accordingly instituted the pres-
ent suit in 1920, before the Additional
Subordinate Judge of Hazaribagh claim-
ing the declaration already mentioned.
The learned Judge dismissed the'suii
and the plaintiff has preferred this
appeal.
Two main questions arise for con-
sideration. The first concerns the rela-
tionship existing between the Bamgarh
Baja and the holder of Jagodih before
the Permanent Settlement ; and the
second is what effect, if any, the Perma-
nent Settlement had upon the relationship
previously existing between tbe parties.
The plaintiff's case is that for many
years before the Permanent Settlement,
the Bamgarh Bajas were in possession of
Jagodih and the obher parganas of Chai
and Champa, but from time to time
granted jagirs of these parganas, or of
oertain villages therein, to the Chai
Chiefs whom they had reduced to sub-
jection, and oertain documents purport-
ing to show such grants have been ten-
dered in evidence. These documents are
challenged by the defendants either as
spurious or inadmissible.
It is hardly surprising that after a
lapse of about a century and a half direct
and conclusive documentary evidence of
the grants under whioh the defendants'
ancestors held should be difficult to
obtain, and it has been necessary to in-
vestigate a number of official reports and
1926
records of contemporary transactions in
order to ascertain the relationship exist-
ing between the Bamgarh Bajas and those
who held interests under them in their
zamindari. (The judgment then set out the
history of Bamgarh, Jagohih and other
Chai Parganas from '1585 and continued).
From 1764 onwards the Settlement of
Jagodih and the other Chai Parganas
was always made with the Bajas of Bam-
garh although the Chai Chiefs made
efforts to have their independence re-
cognized. The first document produced
in support of this part of the case is
Ex, 23 a Settlement of Jagodih and other
Paraganas with 'Baja Mukund Singh for
the year 1878 F. (1771 A. D.) at a jama
of Bs. 9,001 after deducting nankar inam.
The next (Ex. 24) is a Settlement with
Baj* Mukund Singh for three years, 1179
to 1181 F. (1772-1774 A. D.) at a jama
of Bs. 21,000. The next Settlement was
for five years 1181 to 1185 F. with Baja
Tej Singh at a consolidated jama of
Bs. 30,000 ; and finally we have the
Decennial Settlement with Baja Mani-
nath for the years 1197 to 1206 F. at an
annual jama of Bs. 40,001 reduced by
deduction of sayer and expenses to a net
annual jama of Bs. 28,100. This was
further reduced by an order of the Board
of Bevenue in 1792 by certain allow-
ances for excise, markets, etc., to Bupees
26,587. This Settlement includes, inter
alia, Pargana Chai which embraces
Jagodih, Bampur, Paroria, Danarh and
Itkhori. The settlement which was
afterwards made permanent provides :
" You shall not without the order of the
Hazur resume Devotar, Brammbotar
Mahotar Aimas, Madatmash of pirs and
faqirs, orchard land, lakhraj, tanks and
istamrari villages without obtaining
order from the Hazur, nor are you to
make fresh Settlement of the same
unless you get a sanad from the Hazur
to do so. You shall raise in time usual
earthwork within your boundary limits.
In case of negligence on your part you
shall be liable for the loss accruing
therefrom ; you shall guard and watch
over the highways within your bound-
aries carefully so as to enable travellers
and passers-by to journey over them
peacefully and safely. You will not
harbour thieves and robbers within your
jurisdiction. If peradventure anybody's
property be stolen or robbed, you will
conformably with criminal regulations
1926
JiAMAKHYA v. JAWAHIR KHAN (DawsorrMiller, 0. J.) Pfttaa 371
search for and produce the thieves and robbers
with the property.
From.this it will be seen that the
grantee became responsible to Govern*
ment for keeping the peace within the
zamindari, a task previously carried out
with the assistance of the jagirdars hold-
ing under the Raj whose sanads generally
provide that they should maintain a
certain number of armed men.
It appears from the documentary evi-
dence in the case and from Mr.Sif ton's Set-
tlement Report (pages' 86 and 87) that the
question of resuming the jagirs was raised
at the time of the Decennial Settlement.
Mr. Leslie, the Collector, complained to
thQ Board that the value of the Ram-
garh Estate was greatly reduced by the
alienation of most of 'the lands in jagir
and recommended resumption on the
death of the existing incumbent on the
ground that the services for which the
jagira were assigned were no longer re-
required. At the same time he pointed out
that the custom of the devolution of the
jagirs from father to son had become so
established that he feared any sudden in-
novation would be attended with bad
consequences. I have already referred
.to this letter of July 1788 in which he
included Lai Khan of Jagodih as one of
jagirdars of Ramgarh. In the later cor-
respondence in 41792, after referring to
.the kamil jama, Mr. Leslie states that it
had been thought expedient to require
the jagirdars to pay a certain annual re-
yenue in lieu of maintaining the people
specified in their sanad, a measure which
caused considerable discontent at first
and the proportion of the kamil jama
which they should pay was not finally
determined until the time of Mr. Dallas
who fixed it at 6 annas in the rupee on
•the kamil jama.
This measure, howevei*3 had nofc
proved satisfactory as this rate of
payment although easy in some cases
was intolerable in others and the zamin-
dar had been obliged to grant reductions
in his Mufassil Settlement to several
people whose revenue was excessive. He
further states that the jagirdars had in
many oases fallen into arrears, as their
lands had not been cultivated, and they
had taken up the position that they were
independent of the zamindar and could
not be dispossessed. He makes certain
suggestions for alleviating the situation,
.and, in the event of the Board not ap-
proving his proposals, he asks for a de-
termination on the point whether the
zamindar has the right to resume the
jagir incase the jagirdar falls into arrears
and secondly, whether on the death of
the jagirdar his heirs have the right to
get possession on the same terms, or
whether the zamindar may resume the
land and increase the rent or levy a fine
for renewal. The Board replied that
they conceived it optional with the za-
mindar to resume such of these tenures
as they might think proper either upon
the death of the present incumbent or
upon their being unable to discharge the
revenue assessed on their lands and, after
resumption fix such assessment as they
might think proper under the general
regulations. From that time onwards
the jagirs in Ramgirh ha?e come to be
regarded as resumable, but by the custom
in the family established and supported
by legal decision the zamindar cannot
resume except upon failure of the lineal
male line of the grantee.
I may now turn to the documents
relied on by the plaintiff as showing that
the Jagodih Rajas held their lands under
a jagir tenure from Ramgarh. The plain-
tiffs' case is that the Ramgarh Rajas were
the paramount chiefs of that part of the
country for centuries before the advent
of • British rule. He further contends
that although Ramgarh may have lost its
dominion over Jagodih from time to time
during the disturbed period iu the first
half of the eighteenth century, neverthe-
less from 1763 onwards they were always
masters of the country, and in fact from
about that time they retained possession,
and by way of maintenance, and in re-
turn for certain services, the nature of
which is nob very clear but probably in-
cluded the maintenance of certain armed
men, they made grants of a 'few villages
in their Parganas to the Ghai Chiefs in-
cluding Jagodih. (The judgment then
discussed the several documents relevant
to the case and while dealing with the
suit of 1793 continued). It was contended
on behalf of the respondents that the siiit
of 1793 did not include a claim for the
proprietary interest in the villages of
which the plaintiffs in that suit were
already in possession, but I think it must
be taken on a perusal of the record of
the suit that the Jagodih 'Rajas were
claiming proprietary rights over the
whole of their Parganas of which accord-
372 Palna KAMAKHYA v. JAWAHIR KHAN (Dawson -Miller, C. Jj 1926
ing to their case they had been deprived.
They state in their plaint : "Raja Mani-
nath Singh of Ramgarh 'is in possession
of the milkiat and ,malguzari Bs. 6,501
besides the zirats which is our own jama
of five mahals." They were claiming
apparently the whole of that which was
lost which was their milkiat right ;
and had they proved that they were
entitled as proprietors, even to the
villages which they still held' and not
as jagirdars I think that they would have
been entitled to a declaration as to that
part of the property. Evidence was
called on both sides as to the terms on
which they held these villages. It was
their case that the rent was collected
during the time of Mr. Dallas under
some sort of parwana granted by him and
that they were' paying as proprietors, but
a body of evidence was called on behalf
of the Raja of Raragarh including that of
Daryao Singh the sazawal sent by Mr.
Dallas to collect the rent, to show that}
he collected the rent from them as jagir-
dars in the same 'way as 'he collected it
from the other jagirdars and credited it
to the revenue payable by Ramgarh.
There seems to have been no object in
calling this evidence unless it were to
prove that the Jagodih Rajas were hold-
ing those villages as jagirdars and not as
proprietors. The Court seems to have
accepted the evidence for the defendant
on this question a nd dismissed the whole
claim on the ground that the plaintiffs
had been out of possession of the pro-
prietary right from before 1765. I con-
sider, therefore, that the present respon-
dents are precluded by that decision from
re-opening the question of their proprie-
tary interest.
I hold further thas on the evidence be-
fore us it is amply proved that the Rvja
of Jagodih held the villages at that time
in his possession under a baiswan or jagir
grant from Ramgarh. These villages,
then numbering 21 reduced to 15 after
the rent suit of 1786, are the nucleus of
the present 41 villages of the tenure.
The bond of 1784 the genuineness of
which is corroborated by the compromise
in the rent suit of 1786 admits that they
were jagir villages and the amalnama
issued by Raja Maninath Singh in 1784
(Ex. 14) is further oorroboration of the
jagir grant. The Court in the suit in
1793 seems to have taken the same view.
Moreover, it is significant that as late as
1848 Raja Shibraj Khan, the descendant
of L»l Khan and ancestor of tha present
respondents, in his patition to 'Govern-
ment giving the history of taluka Jagodih
states :
The slid Raja Makund Singh through his high
handed ness brought tha zimindari in his posses-
sion and occupation, but left out saveral villages
out of the aforesaid mahal for the maintenance
of the dependants of the ancestors of youc 'pati-
lioner the Raja.
Maintenanca grants in Rimgirh and
Chota Nagpur like jagirs are resumable
on failure of the lineal railo des3endants
of the grantee. In fact it would appear
that at all events up -to recent times no
grants were ever mide in Ramgarh of a
larger interest than a tenure descendible
in the m\le line. Woodroffe, J., in Bam
Narain Singh v. Chota Nagpur Sinking
Association (1), when discussing the
nature of mokarrari istamrari leases
which were first granted in Ramgarh in
about the year 1864 states :
Bafore that date there had baen no absolute
transfers in fUmgarh. the nearest approach to
such transfers bjing jagirs cbs vendible in the
male line.
If my decision on the above points is
accepted it is unnesessary fco consider the
effect, if any, of the Settlement Regula-
tions upon the status of the Jagodih
Rajas, but in case the present suit may
go to a higher tribunal I propose to
state my conclusions upon this question,
The entry in the Record of Rights to
the effect that the tenure is not resum-
able by the Raja of Ramgarh in any
event can only ba justified on the as*
sumption that the tenure holders have an
absolute proprietary interest in the land
and are not lease holders. It is the
respondents' case that at the time of
the Permanent Settlement they were in
the position of independent talukdars
and, although they have lost their rights
with regard to the other villages in the
taluk, they at all events retain the right
of independent talukdars with regard to
the villages which they still possessed at
the time of the Settlement. This argu*
ment is bisedupon the assumption that
the suit of 1793 did not include those
villages. Under the provisions of Re-
gulation VIII of 1793, as already statedr
it is provided by 01. (4) that the Settle-
ment, under certain restrictions and
exceptions therein specified, shall be con-
cluded with the actual proprietors of
the soil of whatever denomination whe-
(1) [1916 J 43 Oal. 332=36 I. 0. 321.
1926 KAMAKHYA v. JAWAHIR KHAN (Dawson-Miller, C, JJ Patna 373
ther zamindars, talukdars or chaudharies.
The talukdars to be considered the
actual proprietors of the land composing
their taluks are set out in S. 5 and are
to be regarded as independent talukdars
entitled to a separate settlement with
Government. The distinguishing feature
of this class is, as I read the section,
that they have either acquired their
land from the zamindar or other
actual proprietor by sale or gift making
over to them the proprietary rights, or
have received from Government grants
of a similar nature directing them to
pay their revenue through some other
zamindar and not direct to Government.
The respondents rely upon the third
clause of S. 5 and say that they are
talukdars whose taluks were formed
before the zamindar or other actual pro-
prietor of land to whom they now pay
their revenue or his ancestors suc-
ceeded to the zamindari and they further
point to S. 6 which provides that pro-
prietors of taluks, who now pay the
public revenue assessed upon their lands
through a zemindar or other actual pro-
prietor of land, and whose tible-deeds
contain a clause stipulating that their
revenue is to be paid through him, shall
continue to pay their revenue through
such zamindar or other actual 'proprietor
•of land as heretofore. Assuming that
for certain short periods under the
Mughal Emperors and before the acquisi-
tion of the Diwani they had Settlement
of their taluks and were paying revenue
direct to the treasury or through some
renter such as Kamdar Khan or some
other zamindar they lost all rights in
their zamindari before 1765 when Raja
Makund Singh finally drove them out ;
and the Settlement made by the British
Government took notice only of those
rights which still subsisted on the 12th
August 1765. From that date onwards
they cannot be said to come under the
provisions of 01. (6) as they can produce
no title-deeds containing a clause
stipulating that their revenue is to be
pa^d through Bamgarh or any other pro-
prietor after that date. Had they wished
to assert such a right after the property
was settled with Bamgarh, they should
have brought a suit to establish such
right under the provisions of Gl. (12) of
Regulation VIII. I am assuming, of
course, that the villages comprised in
their tenures were not included in the
suit of 1793. Questions having arisen as
to the time within which such a suit
could be brought;, it was provided by
Begulation I of 1801, S. 14, (after recit-
ing the necessity of fixing a period for
the institution of such suits) as follows :
It is hereby required all that talukdars who,
as the proprietors of the lands composing their
taluks, may consider themselves entitled under
S. 5, Begulation VIII, 1798, or any other part of
that regulation to be separated from the zamin-
dars to which their taluks are attached, shall
prefer a written application to the Collector of
the zillah in which their taluks may he situated,
for the soparation^t hereof, within one year from the
date of this Regulation, under penalty of forfeit-
ing all title to separation under Begulation VIII,
1793, if they shall omit to apply as directed
within the prescribed period, at the expiration of
which the portion of the section above mentioned
shall be considered extinct with regard to all
taluks for which no claim to separation may
have been then preferred ; and such taluks shall
thereafter be considered as dependent taluks, not
entitled to be separated from the zamindaris to
which they may be attached, though in othei
respects the rights of the talukdars are not meant
to be in any degree affected by the Begulation.
The effect of this section appears to
me to be that the holders of the Jagodih
tenure are reduced to the status of
dependent talukdars holding under the
Bamgarh Baj and are to be considered
as lease-holders only, within the mean-
ing of S. 7 of Begulation VIII of 1793.
It is true that their rights in other res-
pects are not affected, but they cannot be
both dependent and independent. If
dependent they are mere lease holders
under tho Bamgarh Baj a and cannot
have a greater interest than that of other
lease holders holding under that Baj at
the time of the Permanent Settlement.
The highest form of tenure known in
Bamgarh at that time was a jagir resu tri-
able on the death of the male heirs of
the body of the grantee. The grantee in
this case was Lai Khan.
With respect to the Settlement Officer,
Mr. S if ton, who decided this question
for the purposes of the Becord of Bights,
I think his conclusion was based upon
very inadequate materials. He says :
After reading the evidence produced I am
satisfied that these tenures are not of the same
origin as the jagirs founded by the Padma Baja
and his predecessors. They have hitherto been
regarded and treated as shikmi or shamilat
taluks and they probably existed as independent
properties before the Bamgarh Baj was ' estab-
lished, and I can find nothing in their recent
history to change the status of the holders of
these taluks. As they were not originated by
the Ramgarh Baj I find them to be not resum-
able by the zamindar. They will be noted in
the khewat as not liable to resumption .
374 Pains
KAMAKHYA v. JAWAHIB KHAN (Dawsoir Miller C. J.)
1926
In his Settlement Report, at page 26,
he says :
Jagodih, Kampur, Paroria, Jtkhori and Barsote
are sbamilat-taluks, the owners of which have
always claimed that they are nqfc tenure-holders
of the Ramgarh Raj and that a separate revenue
ought to have been assessed on their estates. I
have not been able to find out any definite his-
tory of the taluks, but the fact of their appear-
ing with separately assessed revenue at the time
when even the Chota Nagpur Raj was paying its
revenue through the R imgarh Raj suggests the
possibility of these shikmi talukdars h iving baen
also in reality independent as they claim.
If by this he means that they were
separately assessed by Government as
independent taluks after 1765 there is
no evidence to support him. If he
means that they were independent at
some period or other before that date,
then this ignores the fact that in 1765,
when the British took over the admin-
istration of the country, their indepen-
dence had vanished and the Ramgarh
Kaj was by conquest the proprietor.
Moreover it would appear that Mr.
Sif ton had not the advantage we now
possess of having before him the old
documents showing baiswan grants or
the other documentary evidence adduced
in this suit which is confirmatory of
those grants.
A further point was raised on behalf of
the respondents that the present suit
was barred by the provisions of 8. 258 of
the Chota Nagpur Tenancy Acb which
applies to land settlements in Ramgarh.
The section provides, that, save as ex-
pressly provided in the Act;, no suit shall
be entertained in any Court to vary,
modify or set aside, either directly, or in-
directly any order or decree of
any Deputy Commissioner or Re-
venue Officer in any suit or pro-
ceedings under (inter alia) S. 89
except on the ground of fraud or want
of jurisdiction. It is contended that
the order passed by the Revenue Officer,
which resulted in . the final publication
of the Record of Rights, was an order
passed under S, 89 and cannot now be
questioned. The latter section gives the
Revenue Officer power on application, or
of his own motion, within 12 months
from the making of an> order or decision
under Ss. 83, 85 or 86 to revise the
same, whether made by himself or by
any other Revenue Officer. It is con-
tended that the order passed by Mr.
Sifton was an order revising the previous
order made by his subordinatf under
S. 83 which prescribes the procedure for
considering objections to the > entries
made in the draft record. An objection
to the entries in the draft record with
regard to Jagodih was heard and decided
in favour of the present respondents, and
Mr. Sifton whose intention appears to
have been to reserve this question for
himself afterwards decided it in the
same manner. When applied to sub-
sequently, he stated that the order made
by him was not and did not purport to be
taken under S. 89, and added that his
order would not be any bar to any sub"
sequent civil suit to determine the
status of the tenure. However that may
be, it seems clear that any order passed
under 3. 83 relates to the draft record
only. The draft has now served its pur-
pose and final publication has taken
place, and the present suit is not one
seeking in any way to interfere with the
draft record which is merely a prelim-
inary publication. With regard to the
Record of Rights finally published,
8. 84, 01. (8) provides :
every entry in a Record of Rights so published
shall be evidence of the matter referred to in any
such entry, and shall ba presumed to be correct
until it is proved by evidence to be incorrectT
This provision is similar to that in
S. 108-B (3) of the Bengal Tenancy Act
which creates a statutory presumption'
in favour of the correctness of the finally
published record but implies the right to
bring a suit averring the contrary. In
my opinion the present suit is not barred
by S. 258 of the Chofca Nagpur Tenancy
Act.
What the exact significance of the
terms shamilat and shikmi may be it i&
not necessary to enquire — authorities-
differ as to their meaning but, in my
opinion, the appellant is entitled to a
declaration that Jagodih Lat consisting
of the villages named in Schedule E of
the plaint is a jagir tenure held under
the Ramgarh Estate and is resumable on
failure of the lineal male descendants of
Raja Lai Khan, and that it is not &
shamilat or shikmi tenure in the sense
in which those terms are used by the
Revenue Officer in the Record of Rights
published in 1914.
A point was raised by Mr. Bannerji
who appeared on behalf of the Respondent
No. 24, Maharaj Bahadur Singh, who has
acquired some interest by purchase in
Mouza Petula one of the villages named
in Schedule E of the plaint a? appertain*
1926
KAMAKHYA v. JAWAHIR KHAN (Mtilliok, J.)
Patna 537
ing to Jagodih Lat. He contends that
Mduza Pejiula appertains to taluk Bampur
and not to Jagodih and that he has
been unnecessarily made a party to the
suit. There was no evidence one way or
the other to show whether the village
claimed by this respondent is the same
Petula as that mentioned in the docu-
ments in this case or whether it has
subsequently been transferred to Rampur.
This question cannot be determined in
the present suit and must be left open.
The decree of the Additional Sub-
ordinate Judge is set aside with costs
against the defendants who appeared at
the trial, and in lieu thereof a decree
will be passed granting the declaration
above mentioned. The appeal is allowed
with costs against the respondents who
have appeared other than the Respondent
No. 24 who will bear his own costs.
Mullick, J.— (After setting out facts
as stated in the judgment of the Chief
Justice his lordship continued.) In para.
21 of his plaint the plaintiff states that
the cause of action arose in 1914 when
the Record of Rights was finally pub-
lished^ and in para. 22 he prays for the
following reliefs :
(1) It may ba declared that the tenure ordi-
narily called ' Jagodih Lat ' consisting of villages
in Schedule ' E ' hereto annexed is not * shamilat '
for ' shikmi ' taluk of the Ramgarh Estate, nor
is it " non-resumable M as recorded in the
khewats.
(2) It may be further declared that it is an
ordinary jagir under the Raj and is resumable by
it on failure of the direct male line of the grantee
and under certain other circumstances, and the
entries in the khewats 4re incorrect.
A joint written statement was filed by
Defendant No. 3 Rai Debend* a Chandra
Ghose Bahadur, and by No. 5 Lokendra
Nath Mukherji, No. 6 Odhindra Nath
Mukherji, No. 7 Harindra Nath Mukherji,
No. 8 Digendra Nath Mukherji and No. 9
Parendra Nath Mukherji jointly. They
contended that taluk Jagodih was a
shikmi taluk at the time of Decennial
Settlement paying revenue through the
Maharaja of Ramgarh, that it was not,
and never had been, a tenure appertaining
to the Ramgarh Estate and that the
Settlement Entry was correct.
Defendants Nos. 11 and 13 Jhagru
Sahu and Bhagwan Das took the same
grounds as the above defendants but
further pleaded that the Mouzas Debo
and Petula were originally included in
taluk Jagodih and that by arrangement
the proprietor of taluk Rampur they
were exchanged for Mouzas Pado, Ingani*
and Phuledaria of that taluk. They also
.claimed that they had purchased pro-
prietary rights in villages Padaria,
Kakraula and Machola and have pur*
chased, the jagir, khorposh and khairafc
rights in several villages in the Jagodih
Estate and also a mokarrari interest in
Mouza Bhagar.
Defendant No. 24 Maharaj Bahadur
Singh claimed to have purchased Mouza
Petula and other mouzas in execution of
a decree obtained by Damri Sowdagar
against Kuar Deo Narain Sahi. He
contended that this mouza was in taluk
Rampur and that he had been unneces-
sarily impleaded in the present suit.
Defendant No. 22 Ramkumar Lai
Bhagat stated that in 1878 his brother
purchased Mouza Debo in execution of a-
decree obtained against Kuar Deo Narain
Sahi, and that the mouza was included
in Mouza Rampur and that he had been
unnecessarily made a party in the suit.
Defendant No. 3 having died during
the pendency of the suit his son, the
Defendant No. 3 (a) now represents his
interest. It appears that by purchase
he has acquired the interest of some of
the Mukherji defendants. This defendant
and Defendant No. 24 are the only, con*
testing defendants appearing in the pre-
sent appeal.
The following facts are either admitted
or established beyond doubt :
(1) That the 41 mouzas in suit are
situated upon the site of Pargana Chai,
Champa and Barsote as existing at the
time of the Decennial Settlement.
(2) That the site was settled at the
time of the Decennial Settlement as part
of the zemindari of Ramgarh.
(3) That they were recorded in 1914
by the Settlement Officer as laying within
that zemindari.
(4) That the zemindari bears No. 28 on
the revenue roll of the District of Hazari-
bagh which was constituted in or about
1831.
(5) That the defendants do not claim
that the lands were ever revenue free.
On the contrary their case is that they
were assessed to revenue which was paid
for convenience through the Maharaja of
Ramgarh.
Now as it was admitted before the
Settlement Officer that the defendants
were holding land within the ambit of
the zemindari of the plaintiff and that
376 Patna
KXMAKECYA V. JAWAHCR K3AX (Mullick, J.)
he was paying revenue for the same, the
onus of showing the nature of their title
was upon the defendants and upon a failure
to show that they had had a tenancy
therein, the plaintiff was entitled to
resume. But the Settlement Qfficer
having held that the defendants were
owners of a non-resumable tenure the
onus is shifted upon the plaintiff, and
the question is whether he has given
sufficient evidence to rebut the presump-
tion created by the Record of Rights.
It is necessary to bear this in mind in
examining the evidence adduced by the
plaintiff.
On the llth September 1792 Raja
Shiva Nath Sahi of Rain pur, Raja Bed
Khan of Jagodih and Raja Bahadur Sahi
of Itkhori in Pargana Ghai, Balaghat,
laid a suit before the Diwani Adaiat at
Ohata in Zilla Ramgarh against Raja
Maninath Singh, zemindar of Zilla
Ramgarh, valued at Rs. -6,501 alleging
fchat he had misappropriated the income
of their villages in Pargana Ghai. The
prayer was made' in the following
words :
The usual practice as regards one-fourth of
our villages has been contravened, we are, how-
ever, ready to pay the rent. Raja Maninath
Singh of Ramgarh is in possession of the milkiat
and malguzari Rs. 6,501 besides the zairats,
which is our old jama of 5 mahals. It is, there-
fore, prayed that the said person may be sum-
moned and justice done so that our milkiat and
malguzari right may be restored to us.
The plea of the defendants was that
the plaintiffs were jagirdars and that the
jagirdars have been paying rent year by
year.
The number of mouzas in suit was 40}^
and the valuation represented one year's
rental.
Its was decided by Mr. Hunter, the
District Judge) in a judgment delivered
on the 17th December 1793 that inasmuch
as the cause of action had arisen previous
to the 19th August 1765 the suit was
barred under the provisions of the Code
of 1793, and also that inasmuch as the
cause of action had accrued 12 years
prior to the institution of the suit it was
also barred under the same Regulations.
There was an appeal to the Provincial
Court of Appeal at Azimabad (Patna)
which was dismissed on the 29th August
1794. There was then a second appeal
by the plaintiffs to the Sadar Diwani
Adaiat wttSoh also was dismissed on the
18th November 1795. The material por-
1926
tion of the judgment of the* Court run
as follows : •
The appellants admit that they were dis-
possessed of the zemindari claimed by them
previously to the Company's accession to the
Diwani, and that it is established in evidence of
the witnesses that they have never been restored
to the possession of it since that period, that it
does not appear that they subsequently preferred
any claims to the property in any Court of
competent jurisdiction within the period limited
by the Regulations nor have appellants assigned
any satisfactory reasons for having neglected to
prefer their claims. The Court, therefore, con-
sidering the admission of appellants' claims
precluded in the first instance by 8. 14 of the
Regulation of 1793 which is extended to the Sadar
Diwani Adaiat by S. 7 of Regulation VIII of 1793
they resolve and decree that the decree passed
in this case ou the 29th August 1794 by the Pro-
vincial Court of appeal for the Division of Patna
affirmed and that the appeal be according dis-
missed.
In this suit a large number of the docu-
ments were filed by both parties and
witnesses were also examined. The con*
tents of the documents were embodied
in the judgment of the Court in full and
are, therefore, admissible in evidence
without the production of the originals.
(His Lordship 'here examined the seve-
ral documents Bled in this suit.) Judg-
ment was givren by the trial Court on
the 17th December 1793, by the Provin-
cial Court of appeal oa the 29th August
1794 and by the Sadar Diwani Adaiat on
the 8th November 1795. It appears that
in 1800 a further attempt was made by
Baja Petambar Sahi, Ram pur Balaghat,
for recovery of proprietary right to 4
mahals withiu the Pargana Chai. That
suit was dismiseed by Lieut. Col. Freyer
on the 18th June 1800 who found in his
jungment that as Mr. Hunter had dismis-
sed the plaintiff's claim to 5 of the
mahals in the earlier suit on the ground
that the plaintiff had been out of posses*
sion since 1764, this suit also was liable
to dismissal on the same ground.
For the next 40 years we do not hear
anything more about the Chiefs of the
Pargana Chai, but on the 22nd November
1839 Mr. Ouselay, the Agent to the Go-
vernor General, wrote to Lieut. Thomas
Simpson, the Personal Assistant to the
Governor-General's Agent, asking him to
submit a statement of estates, jagirs and
their malguzars and he enclosed in his
letter a form Ex. 11 (a) to be filled up.
In reply a mulki form was filed by Bed
Khan on the 17th August 1842 contain-
ing a statement of "goahwara villages" in
his possession appertaining to matytl
1926
KAMAKHYA v. JAWAHIR KHAN (Mullick, J.)
Patna 377
Jagodih, the " remarks " column of which
contains a history of the Jagodih Chiefs.
It is theie stated that only 21 mauzas
were left as nankar to Bed Khan, ances-
tor of Raja Lai Khan and 39-1/2 mauzas
to Raja Shib Nath Sahi grandfather of
Baja Gauhar Sahai after Makund Singh
nad treacherously captured their country:
that after Mr. Oamah invaded Ramgarh,
Lai Khan and Shib Nath Singh helped tc
win over Tej Singh to Mr. Camao's side
and Tej Singh was recognised as the pro-
prietor of Ramgarh and that Tej Singh
acted perfidiously in not causing Lai
Khan's nankar villages to he separated
from Ramgarh ; that after the death of
Tej Singh Mr. Gamao's intention to re-
cognise the Jagodih Chief's right to sepa-
ration was not carried out owing to the
opposition of Raja Preshnath Singh. Bed
Khan further asserted that no rent was
realised for his nankar villages from the
time of Nawab Kasim Ali but that Maha-
raja Maninath Singh upon his accession
claimed a one-fourth share, and as he
threatened a suit an ekrarnama was
executed by him on the 17th November
1795 under which he accepted 6 mouzas
of Jagodih as security for rent of the
nankar villages leaving the remaining 15
mouzas in the possession of Bed Khan.
On the 27th August 1842 Sidhnath Singh,
the son of Maninabh Singh, filed an ob-
jection against Bed Khan's mulki form
asserting that Bed Khan was his jagirdar
and had no proprietary interest in mouza
Jagodih. He also objected that he could
not file his own form till Bed Khan had
filed a revised form. The order of the
Collector upon this objection was that
the Maharaja of Ramgarh was at liberty
to state in his mulki form the right
which he considered the Chiefs of Jago-
dih and Rampur to possess and to make
such entries in his own form as he
thought proper.
On the 21st January 1848 'Raja Sheo-
raj Khan filed a statement in the office
of the Agent to the Governor 'General in
answer to a request for information as to
particulars of the title under which he
held and stated that he was holding
taluk Jagodih Pargana Chai as zemindar
and proprietor by virtue of a mainte-
nance grant given by Raja Makund Singh
and that he was holding 15 of the 21
villages covered by the grant in accord-
ance with the terms of an okrarnama
Executed hy the Raja. Maninath Singh.
In 1859 a Survey was undertaken of
the Ramgarh District and in consequence
of an order made by the Suprintendent of
of Survey the proprietor Maharaja of
Ramgarh filed a statement containing
certain particulars of the villages held
by him. In this statement he declares
that 16 mouzas in taluk Jagodih were
held as jagirs for good will and service
by Kaja Sheoraj Khan and Raja Bed
Khan.
Seventeen years later the local autho-
rities did not accept this view and on
the 3rd April 1876 a report was submit-
ted by Mr. Robinson, the Commissioner
of the Ohota Nagpcr Division, to the
Assistant 'Secretary to the Government
of Bengnl on the land tenures of Hazari-
bagh in which the following account
aq pears :
Shamilat or ahikmi taluka. In para. 5 I have
mentioned that Pargana Chai was composed of
five petty Rajas. These Rajas were semi-inde-
pendent only paying tribute to Raja Lai Khan
and when merged into Ramgarh continuing to
pay tribute to the Ramgarh Raja. When the
country was taken by the English and its Set-
tlement was being made these Rajas endeavoured
to get Settlements made with them direct but
their efforts failed and thongh they were main-
tained each in his Raj they were directed to pry
tbeir tribute which was then covered into a fixed
rental to the Raja of Ramgarh. The Rajas .of
Rampur, Jegodih, Paroria and Itkhori accepted
these terms and have been made-shikmi taluk-
da rs. The Raja Pittij, who was risident of Gaya,
refused to agree and made over his taluk to the
Raja of Kandi, into whose estate this taluk has
merged and the title has been lost. , Similarly
the Raja of Parsote succeeded in saving his estate
from being merged into that of Ramgarh and the
estate was made shamilat taluk as also was Par-
gana Kodarma but the circumstances relating to
. this last and its severance from the Ramgarh
Estate, etc., are related in a separate Chapter.
There is a legend that there were two more such
shikmi taluks viz., Tiliyaa and^Gola bnt they
have long been extinct and have merged into the
Ramgarh Estate.
It is contended by the appellant that
this report was the basis of the statement
made by Mr, Hunter (afterwaeds Sir Wii-
liam Hunter) in his Statiscal Account of
Hazaribagh and Mr. Lister in his Gazet-
teer for the Hazaribagh District and
Mr. Sifton in his Settlement Report of
the District regarding the status of the
Ghai Chiefs and that Mr. Robinson was
completely in error in regarding the
Chief of Jagodih as a proprietor, his pro-
per status being that of the tenure -hold-
er governed by the ordinary rule as to
resumption applicable to jagirs in the
Ramgarh Estate.
378 Patna
KAMAKHYA v. JAWAMR KHAN (Mnllick, J.)
1926
In addition to these documents there
is a set of awarzas prepared in the office
of the Raja of Ramgarh ranging from
1774 to 1900 (Ex. 15 series toEz. 21).
The earliest Ex, 15 (r) which is dated
1782 shows that Raja Lai Khan held a
jagirdari tenure of 21 mouzahs. The
income from each mouza purports to he
shown against it the total being Rs.
2.480. The rok hakmi or the landlord's
demand is shown at 6-annasin the rupee,
that is, Rs. 9,30 and a collection of
Rg. 517 is shown^ as- having been made
through Daryao "Singh. This document
is obviously intended to relate to the
period when Mr. Dallas gave orders that
the jagirdars should pay 6 annas in the
rupee on their kamil jama. A similar
document of 1785 shows the landlord's
rent at RB. 649-4-0 and obviously
relates to the period after the jagir-
dars had executed the kabuliyat or
bond of 1784 by the pen of Suraer
Singh on the 7th Kartik Sudi
Sambat 1841. In the awarza (Ex. 15) (t)
for the year 1786 the rent is calculated
at 4 annas in the rupee and is shown as
Rs. 656-8-0. It relates to the period
after the compromise when six of the
mouzas were assigned to the landlord as
security for rent. The landlord's rent,
after making allowance for the depre-
ciation in the currency, is^ entered as
Rs. 640 and accords with the figure
shown in the compromise petition filed
by Maninath Singh in the Collector's
Court printed at p. 75 of the paper-book.
Owing to exchange of villages the
gross income of 21 villages is shown
as Rs. 2,602 in 1786, but after the com-
promise the income of the 15 villages
remaining in the jagirdar's possession
is shown in the awarza of 1788 -(Ex. 15
(g) as Rs. 1,982 and it remains at this
figure till 1863. In the awarza for 1774
(Ex. 15 (a) ) the income is shown as
Rs. 1,899 and so also in 1770, 1777 and
1778, In the awarzas for 1774, 1776
and 1777 five villages of Pargana Champa
appear, but these go out in the awarza
for 1780 which relates to Dalla's time
aud the number of villages increases
from 16 to 21, and the total income to
Rs, 2,622.
The learned Subordinate Judge has
declined to place any reliance upon these
papers on the ground that they are ex
parte and prepared in the zemindar's
sherista, and, that the defendant|i can-
not be bound by them. That is perfectly
true* It ia also true that many of the
entries in these documents are not now
intelligible. Nevertheless so far as they
go, I think they are good corroborative
evidence of the title set up by the plain-
tiff. They show that since 1774 the
plaintiff has always asserted that the
Chief of Jagodih was his jagirdar.
Papers which are nearly 150 years old
ought not to be regarded in a hypercri-
tical spirit and it is our duty, unless
there is clear evidence of forgery, to see
whether they cannot be reconciled with
the other old documents in the case.
In my opinion they cannot support the
case of the plaintiff.
The same observations apply generally
to the other documents produced by the
plaintiff except where there is clear evi-
dence that they are not genuine. I do
not think we are justified in rejecting
them on the ground that copies were
admitted in the 'suit of 1792 without
sufficient proof of the loss of the 'origi-
nals or that the persons executing or
writing them on behalf of the respective
parties have not been shown to have
possessed the authority to do so. The
kabuliyat or bond of 1784 was exe-
cuted by Somer Singh on behalf of the
jagirdars of Jagodih, but if he signed in
the jagirdar's presence and the signature
was what is known in the vernacular as
"bakalam" i. e., by the hand of some
one else, the question of authority
arises.
The evidence of the plaintiff, there-
fore, leads to the following conclusions.
The country of the 'Chief of Jagodih
lying within Pargana Chai was brought
under the dominion of Hemant Singh,
thaRaja'of Ramgarh in 1640. It id
possible, as has been found by the Sub-
ordinate Judge, that the Jagodih family
is older than the Ramgarh family and
that the Chief of Jagodih was the most
powerful of the minor local Chiefs in
that part of the country, who all owned
allegiance to Ramgarh. Hemut Singn
made an assessment of the annual pro*
duce of the villages lying within the
Jagodih Chief's territory and prepared
the kamil jama upon which the perma-
nent Settlement was eventually made.
The authority of Ramgarh was fre-
quently disputed ; bnt in 1764 Madam
Singh finally reduced it. From that
time the Chief of Jagodih lost all his vii-
1926
KAMAKHYA v. JAWAHIB KHAN (Mulliok, J.)
Patna 379
lages except 21 which were situated in
the neighbourhood of his home and were
granted to him by the Chief of Bamgarh
on condition of service.
It is now urged on behalf of the ap-
pellants that these N21 villages were an-
cient nankar villages ; i. e., villages given
in lieu of the allowance given by the
Moghuls to zemindars for collecting the
revenue. But in support of this there
is no evidence beyond the assertions
made by the Chiefs of Jagodih from time
to time. There is evidence that in 1728,
1731, 1732 and 1733 the Chief of Jago-
dih executed kabuliyats in favour of
some representative of the Moghul Em-
peror. I doubt the genuineness of these
kabuliyabs but even if it be admitted
that at that time the Chief of Jagodih
was paying revenue direct to the Mogh-
uls, it seems clear that by 1764 his
Stafce had been completely conquered and
absorbed by Ramgarh.
This evidence shows that for some-
time the Jagodih Chiefs held the 21 mou-
zas as tenure-holders entitled to hold
the lands free of rent for the services
required of them. Ifc is presumed that
as their territory lay on both sides of
the Grand Trunk Road those services
consisted of policing the road and of
otherwise assisting the proprietor when
necessary. In 1772 and 1773 rent ap-
pears to have been realized from them,
because after the advent of the Bast
India Company it was no longer neces-
sary for the zemindar of Ramgarh, as
was observed by Mr. Leslie, to keep a
rabble army of retainers. In 1776 the
rent was definitely commuted to
Rs. 656-12-0 and six villages were as-
sighed as security for the same. In my
opinion this evidence is sufficient to rebut
the entry that the villages in suit are
held under a shikmi taluki. A judicial
finding though not res judicata was
entered to this effect in 1905 in a suit
in which the proprietor of Ramgarh
sued Hiram Khan, the Chief of Jagodih,
for the rent of the years 1958 to 1961
Samba t describing him as mashruti (con-
ditional) jagirdar and obtained a decree
against him.
I propose next to consider the evi-
dence upon which the respondent claims
that the Settlement Offioers's entry that
Jagodih was a shikmi taluk is correct.
Hiram Ehan in his mortgage in favour
6f Rai D. C. Ghose described the mort-
gaged property as revenue free nankar
dehat. In his written statement in this
suit the claim to a lakheraj right is
withdrawn and it is pleaded that the
mortgagor is a talukdar within the*
meaning of 3. 6 of Regulation 8 of 1793;
In argument before the learned Subordi-
nate Judge that case was changed, and
it was suggested that the mortgagor
should have been held to be an actual
proprietor under S. 5 of the Regulation.
It is now urged that Tej Singh's letter
of 1772 to Capt. Camao at Patna shows
that the Chiet of Jagodih was paying
revenue to the East India Company
through the Maharajah of Rimgarh.
The letter certainly does contain a
promise to take revenue from Jagodih
but the promise was never carried out.
Next it is said that in 1777 Paresh-
nath acknowledged the existence of some
nankar villages and, therefore, he had a
proprietary right when he issued a par-
wana on Patlu-paon not to realise rent
from the nankar villages granted to
Raja Lai Khan. I have shown that the
letter does not contain any such admis-
sion. On the contrary it was Paresh-
nath who objected to Tej Singh's pro-
mise being carried out and insisted that
Lai Khan was a jagirdar. The Awara-
zas of 1774, 1776, 1777, 1778, 4780 and
1782 refer to the 21 villages held by
Lai Khan as jagir and are inconsistent
with any admission that he was holding
nankar land as a shikmi or independent
talukdar.
It is said that in the ekrarnama deli-
vered by Maninath in 1784 Maninath
declares that the said Rajas have set
apart one-fourth their villages on ac-
count of Government revenue. The
word " malguzari " may mean both rent
and revenue and before the Permanent
Settlement rent in the English sense
was unknown. It was not inaccurate to
say that a tenure-holder was paying
revenue to his landlord. That Lai Khan
was a jagirdar in Maninafch's opinion is
clear from his written statement at
p. 50 of the paper-book which was filed
in the suit of 1792. Mr. Oamac in 1780
no doubt wished a separate engagement
to ba taken from Lai Khan and so did
Mr. Chapman but that wish kwas never
carried out. The payments made in
1782 to Daryao Singh do not show that
they wer,e made in his capacity as an
380 Patna
KAMAKHYA v. JAWAHIR KHAN (Mullick, J.)
1926
independent taluqdar or other actual
proprietor.
It is next pointed out that in his ap-
peal petition to the Sadar Diwani Ada-
lat (p. 87 of the paper-book) Bed Khan
asserted that the suit of 1792 was for
406-1/2 villages besides nankar villages
the jama of which in rupees was 6,501.
In 1848 Shiv Raj Khan in the declara-
tion of heirship (p. -120 of the paper-
book) asserted that he held 15 villages
revenue free. In the mulki forms filed
in 184Ii assertions of the same kind were
made. These assertions do not carry
the case very far.
With regard to the Acts of Govern-
ment, we find that Ramgarh was settled
for one year in 1771, for three years,
from 1772 to 1774 and for 5 years from
1775 to 1780. The first of these docu-
ments makes an allowance of Bs. 500 on
account of inam nankar. The other two
do not. These documents do not in any
way show that there were any nankar
villages in the possession of Lai Khan.
It is possible that in the time of the
Moghuls 'before the accession of the
East India Company to the Diwani some
nankar allowance used to be granted to
the Chief of Jagodih, but there is no
evidence that after 1765 they were al-
lowed any nankar or to retain any lands
in lieu thereof on the footing of any pro-
prietary right. The evidence on the
contrary shows that after 1764 Makund
Singh deprived them of all their lands
of the 21 mouzas which he assigned to
them for their maintenance.
It is contended that though the Chai
Chiefs lost their proprietary right to
406-1/2 mouzas they retained it in that
small fragment comprised in the
60-1/2 mouzas which were the subject
of the suit of 1792 and that they were
at the time of the Permanent-Settlement
actual proprietors in respect of that
fragment. Apart from the effect of tne
Permanent Settlement on the status of
actual proprietors who did not make a
separate engagement with the Govern-
ment, to which subject I will presently
refer, it seems to me clear that at no
time after 1764 was the Chief of Jagodih
holding any land in proprietary right.
The entry, therefore, that he was a
shikmi talukdar in the sense of a depen-
dent talukdar paying revenue through
another seems to me be supported by no
evidence at all.
It is clear that the Settlement Officer
was using the term " shikmi " or " sha-
milat " talukdar as meaning a depen-
dent proprietor who was entitled to
separation as an actual proprietor and
who was paying revenue through an-
other. The term has been used to indi-
cate any tenure-holder who dates back
to the Permanent Settlement by
Mr. Field in his Introduction to the
Bengal Regulations and by the High
Court in Calcutta and by their Lord-
ships of the Privy Council in various
decisions " shikam "; is the Persian for
belly and shikmi taluk means literally
a taluk within the belly of another or
dependent upon another, and " shamilat"
means joint or co-ordinate ; and the
ordinary meaning of the term " shikmi "
talukdar is a talukdar who may or may
not be an actual proprietor. At the
time of the Permanent Settlement the
East India Company found in this Pro-
vince many classes of persons who all
claimed to be the owners of the soil.
Some were ancient Chiefs and Rajas,
others belonged to great land-holding
families which had come into existence
during the Muhammadan Government ;
others were officers in the employ of the
Moghuls ; others again were farmers who
had in course of timo begun to claim a
prescriptive right to the office. Some
were called zemindars and others were
called talukdars or Chaudhurys.
The talukdars were divided again into
two classes, namely, independent or
Huzuri talukdars who paid their revenue
direct to Government, or shikmi or maz-
kuri or dependent talukdars. These again
were divided into two classes, namely,
those who were actual proprietors of the
soil and paid their revenue through
another proprietor and those who were
not actual proprietors. S. 5 of Regulation
8 of 1793 empowered the East India
Company to treat as actual proprietors
the shikmi and dependent talukdars enu-
merated in the section. A talukdar in
whose taluk the proprietor, through
whom he was paying revenue had no
proprietary interest, was entitled to
separate himself unless he was under
S. 6 debarred from so doing by his title
deeds. The need of the East India
Company for money was great and as
there was no time to make a detailed
KAMAKHYA v. JAWAHIR KHAN (Mulliok, J.) Patna 381
1926
inquiry, they decided to treat as the
actual owner of the soil the person with
engagement for the revenue.
The result was that all those taluk-
dars who were actual proprietors, but
who failed to separate themselves ceased
to ba proprietors and became tenure-
holders or tenants in the English sense.
They fall into the category provided by
S. 7 which runs as follows :
Talukdars whose taluks are held under writ-
ings or aanads from zemindars, or other actual
proprietors of lands, which do not expressly
transfer the proparty in the soil, but only enti-
tle the talukdar to possession so long as he
continues to discharge the rent, or perform the
conditions stipulated therein, are considered as
lease-holders only.
In S. 8 special provision is made for
jungleburi taluks which although to all
intents and purposes proprietary estates,
are classed as lease-holders. The Regu-
lation makes a sharp distinction between
revenue and rent although the contrary
has been sometimes said. In the opini-
on of the framers of the Code revenue
was that which was payable to Govern-
ment by the zemindar, independent
talukdar or other actual proprietor who
took Settlement for the zemindari. All
others persons holding mal lands in the.
estate were subordinate in status and
were liable to pay rent unless exempted
by the terms of the engagement or by
special contract with the zemindar. It
was the duty of the zemindar or inde-
pendent talukdar engaging with Govern-
ment to take in his turn the necessary
engagements from the talukdars depen-
dent upon him. The Muhammadan
Government had recognized no rights
of property in the soil in any one ex-
cept Government and every person
holding any interest therein had been
liable to pay revenue to the Grown, and
although there is some evidence that
rent in the English sense of payment for
the use and occupation of a land to a
private proprietor otiner than the King
had been known in Hindu times, the
Muhammadan Government declined to
subscribe to any such economic theory.
The result was that the Collector of the
revenue was at most entitled to a fee in
addition to the revenue demandable from
the raiyat. But the East India Com-
pany bringing with them a wholly
different conception of the ownership of
land decided to establish a middle class
in whom would be vested a right in the
soil, and they carried out this intention
by enacting that the zemindar was
entitled to contract for rent from his
tenants without any reference to the
revenue payable by him to Government.
The rents, for some years were regulated
by custom but though an attempt was
made to protect the raiyat against com*
petition rents by the Legislature the
growth of population which followed
upon a period of settled Government
created such a sudden and urgent demand
for land that the attempt met with
signal failure.
Next in order to put a stop to the
entertainment of applications for separa-
tion long after Regulation VIII was
enacted and to protect the rights of pur-
chasers of estates sold for default of
revenue, Regulation I of 1801 directed
that a dependent talukdar entitled to
separation who failed to make his appli-
cation within one year, was to be
debarred from making any application to
separate but that in other respects his
rights would not be affected by the
Regulation. This proviso, in my opinion,
merely saves such rights as a dependent
talukdar may claim as a tenant. It is a
contradiction in terms to say that a
dependent talukdar who had lost the
right to separate himself could continue
to remain an actual proprietor co-ordi-
nate in status with the zemindar who
had engaged for the revenue. The rights
that were reserved to him were rights in
regard to succession, transfer and the
like. It may be conceded that if a
dependent talukdar had been an actual
proprietor he would become a tenant
liable to be resumed for escheat but on
no other ground ; but if he was not
formerly an actual proprietor his status
would be governed by contract or
custom.
A reference to the resumption Regula-
tions in respect of lakheraj lands which
were passed in the same year leads to
the same conclusion also.
The effect of Regulation XIX of 1793
and Regulation II of 1819 was that
resumed lands less than 100 bighas in
area were annexed to the tenure of the
dependent talukdar if any in whose, taluk
they were situated. Jn other words the
relationship of landlord and tenant was
established by law between thp talukdar
and the holder of the lands. There is,
therefore, nothing startling in the view
382 Pataa
KAMAKHVA v. JAWAHCR KHAN (Mullick, J.)
1926
that all dependent talukdars became after
1801 the tenants of the proprietor of the
estate.
In the lower Court a case seems to
have been made that the talukdar of
Jagodih was in effect a lakherajdar at
the time of the Decennial Settlement ;
but that case has been abandoned before
us and now upon the facts it is not
arguable. The case now argued is that
he was in possession of nankar lands as a
part of his ancient zemindari and that
at the time of the Permanent Settlement
they were assessed to revenue in con-
formity with the Regulations and that
by arrangement the revenue was com-
puted at the income of 6 mouzas which
were assigned as security to the pro-
prietor who undertook the duty of pay-
ing it to Government. Such a case is
intelligible ; but, in my opinion the
answer to it is that it is not supported by
the facts. It is difficult to see why the
proprietor of Ramgarh should have under-
taken the position of a mere post office
(or the transmission of the revenue and
what remedy he had against the talukdar
in case of default. Under the Regula-
tions his estate was liable to be sold for
the talukdar's default unless he chose to
pay the arrear himself. In my opinion
the consideration for the grant of the
21 villages was that the Chief of Jagodih
accepted the status of a tenure-holder
and he was confirmed in that position by
the Permanent Settlement and he has
continued to occupy it ever since.
The next question is whether the
Settlement Officer's entry that the tenure
is not resumable is correct.
On this part of the case the plaintiff
puts his argument as follows : He says
that although it was open to the pro-
prietor of the Ramgarh Estate to create
a tenure that would pass an absolute
estate of inheritance he has in fact never
done so at any time and that even an
istimrari mokarrari tenure which for a
long period was considered to be such an
estate has now been held to be an estate
resumable on failure of male heirs in the
direct line of the grantee and that a
jagir is the highest form of tenure known
in the estate and that it has been held
in repeated judicial decisions and though
originally a' tenure for Ufa it has by
custom become an estate in tail male :
Ram Narain Singh v. Chota Nagpur
Banking Association (l), Pratap Udainath
Sahi Deo v. Ganesh Narain Sahi(%)t
Srinath Boy v. Pratap Udai Nath Sahai
Deo (3) and S if ton's Settlement Report,
page 89. A jagir which was originally a
life- grant, has by custom acquired im-
munity from resumption except on failure
of male heirs in the direct line of the
grantee- and as there is no tenure within
the estate with privileges higher than
this, the plaintiff is willing that the
taluk in suit should be recorded as re-
sumable like other jagirs. In about 1777
Mr. Heatley reported that the income cf
Ramgarh Estate was Rs. 1,53,000 ; but
it was found that the proprietor was
seldom able to pay a revenue of
Rs. 30,000 because he had alienated large
tracts of country as jagirs. In 1788
Mr. Leslie reported that these jagirs
should be resumed by the proprietor on
the death of the holder at the time but
no orders were passed by the Board of
Revenue and the evidence is that by
custom the jagirs have in fact become
hereditary and that sometimes a succes-
sion fee is exacted. It is true that since
1764 there is no evidence that any. ser-
vices have been actually performed by
the talukdars ; but in my opinion, the
evidence shows that the condition of the
grant was service. The situation of the
taluk in the neighbourhood of the Grand
Trunk Road and the unsettled condition
of the times which compelled the
Ramgarh Chief to retain armed forces
and the admission of the talukdar him-
self in 1784 show that the grant m(.st
have been conditional upon service and
that it was a jagir in the true sense.
As there is ' no question of the land
being lakheraj and as the land is included
within the ambit of the plaintiff's estate,
the burden of proving the incidents of
the tenure before the Settlement Officer
rested upon the talukdar. The sole
ground upon which the Settlement Officer
appears to have arrived at his conclusion
was that Jagodih was entitled to be
separated from the Ramgarh Estate in
1793 as an independent taluk and that
the Chief had continued to pay Govern-
ment revenue since the Permanent
Settlement through the proprietors of
Ramgarh. In my opinion there was no
reliable evidence for such a conclusion.
There is no evidence that Jagodih ever
paid any revenue through Ramgarh
(2) [1921] P. H. C. 0. 869=70 I. 0. 232. """"
*3) A. L Br 1923 P, C, 217.
1926
KAMAKHYA v. JAWAHIR KHAN (Mulliok, J.)
Patna 383
before 1793 or that he was entitled at
that time to be classed a? an actual pro-
prietor. -In my opinion, therefore, the
entry that the taluk is not resamable is
inoorreot and the plaintiff U entitled to
have it declared that the taluk is resu-
mable upon failure of male heirs in the
male line. The question may be asked
"whoae heirs?" The answer, I think, is
that the taluk is resumabie upon the
failure of male heirs in the direct line of
the original grantee L*l Khan.
It remains next to consider whether
the contention of the respondents that
3. 258 of the Ghota Nagpur Tenancy
Act is a bar to the suit.
Now S. 83 of the Chota Nagpur Ten-
ancy Act, 1908 (Bengal Act VI of 1908)
enacts as follows :
(1) When a draft Record of Rights has been
prepared under this Chapter, the Revenue Officer
shall publish tin draft in the presosibed manner
and for the prescribed period, and shall receive
and consider any objections which may be made
to any entry therein, or to any omission there-
from, during the period of publication. (2)
When such objections have been considered and
disposed of in ths prescribed manner, the Rev-
enue Officer shall finally frame the record,
and shall causa it to ba finally published in the
presoribad manner, and tha publication shall ba
conclusive evidence that the record has been
duly made under this Chapter.
When the draft record of Mouzas Parq
and Jagodih was prepared and published,
an objection was made by the Maharaja
of Ramgarh on the 10th February 1913
that it might be recorded that the shikmi
taluk was held in jagirdari right in lieu
of service and that the word "resumabie"
might be entered in Ool. 5 of khewat
No. 2. On the 13th August 1913
Mr N. N. Ghosh recorded an order
declaring that the entry was correct and
declining to make any alteration. The
matter then appears to have been taken
by the proprietor of Ramgarh to the
Settlement Officer Mr. Sifton, who on
the 1st February 1914 recorded the
following order :
Order in case under 3. 89 of the Chota Nagpur
Tenancy Act.
I have heard pleaders and counsel upon the
Question of the nature of the terms of B impur,
Jagodih, Itkhori and Paroria and Barsote. I
reserve my ooders until I should have had an
opportunity of studying the papar-books of two
proceedings in the High Court on the relevancy
and meaning of which the parties were at vari-
ance. It is not necessary for me at this stage to
write a detailed judgment as the parties will
havd an opportunity after final publication of
proceeding in * formal suit. After reading the
evidence produced, I am satisfied that thesa
tenures are not of the same origin as the jagirs
founded by the Padma Raja and his predecessor.
They have hitherto been regarded and treated as
shikmi or shamilat taluks and they probably
existed as independent properties before the
Bamgarh Raj was established, and I can find
nothing in their recent history to change the
status of the holders of these taluks. As they
were not originated by the Ramgarh Raj I find
them to be not resumabie by the zamindar.
Thay will ba noted ia the khewat as not liable
to resumption.
On the 24th March 1914 the' Settle-
ment Offiaer made the following supple*
mentary order :
A petition has been filed by the Manager of
the Court of Wards on behalf of the Ramgarh
Raj enquiring under what section my order of
1st February 1914 was passed and whether it
was a revisional order under B. 80, Chota Nagpur
Tenancy Act in regard to the tenures*, Jagodih,
Ram pur, Itkhori, Paroria, and Barsote. The
order was not an order of revision. There had
been no objection under 8. 83 in reference to any
of the tenures except Jagodih, and the order of
the Assistant Settlement Officer who tried the
case of the resumability of Jagodih held it to
be non-resumable. The question of the nature
of these tenures had been reserved by me for
a full hearing when notices for orders were sent
by the attestation officers. My proceedings were
not and did not purport to be taken under S. 89,
Chota Nagpur Tenancy Act, and hence my order
will not ba any bar to a subsequent civil suit to
determine the status of these tenures.
It is, however, oonteaded by the res-
pondents that although the Settle-
ment Offioer did not think that his order
was an order under S. 89 it was in faot
such an order, and that under S. 258 no
suit oan lie so as to affect thai order.
S. 258 of the Chota Nagpur Tenancy Act
runs as follows :
Save as expressly provided in this Act, no
suit shall bo entertained in any Court to vary,
modify or set aside, either directly or indirectly,
any decision, order or decree of any Deputy Com-
missioner or Revenue Officer in any suit, ap-
plication or proceeding under 8. 29, S. 32, S, 35,
S. 42, B. 46, sub-8. (4), S. 49, S. 50, S. 54, S. 61 ,
S. 63, S. 65, S. 73, S. 74 A, 8.75, 8. 85, 8. 86,
S. 87, S. 89, 8. 90, or S. 91 (proviso) or under
Chs. XIII, XIV, XV, XVI, or'XVIII, except on
the ground of fraud or want of jurisdiction and
every such decision, order or decree shall have
the force and effect of a decree of a civil Court,
in a suit between the parties and, subject to
the provisions of this Act relating to appeal
shall be final.
Now, was the Settlement Officer acting
under S. 89 of the Act on the 1st Feb-
ruary 1914 ? In my opinion he was not.
In the first place, he did not revise any
decision made under S. 83 ; but even if
it were held that he did revise the entry
in the draft record and that he passed
an order within the meaning of 8. 89,
then the plaintiff's reply is that he is not
384 Patna
B. N. W. EY. v. TUPAN DAS
1926
seeking bo vary, modify or set aside,
either direotly or indirectly, that deci-
sion. He is not concerned any longer
iwith any entry in the draft record. The
final record, having been published, he
is bringing the present suit for a declara-
tion that the final record is incorrect
and this he is entitled to do under the
general law. He might have proceeded
under S. 87 of the Act for the correction
of the entry, but he has chosen nob to
do so. He has an alternative remedy
and S. 258 of the Act is no bar to
the suit.
It was also argued that the learned
Subordinate Judge was right in finding
the issue of limitation against the plain-
tiff. *
It is contended that as the talukdar
first made his «laim to proprietary rights
in 1792 and repeated it in 1842 and 1843
the present suit is barred by the rule of
6 years' limitation under Art. 120 of the
Limitation Act. The answer to this is
that it was not necessary for the plain-
tiff to take notice of every challenge, and
that a new cause of action arose when
an authoritative record of the title of
the talukdar was made in the survey and
settlement proceedings.
The learned Subordinate Judge also
finds that on the death of the original
grantee the possession of his successor
became adverse if the tenure was a life
jagir. In my opinion there is no evi-
dence of any adverse possession. The
tenancy was continued by the consent of
both parties, and as the evidence shows
that the jagirdar was let into possession
by the proprietor it is not open to him
to plead adverse possession during the
continuance of the tenancy, In my opin-
ion the learned Subordinate Judge's
findings on the issue on limitation can-
not be sustained,
There is one other question which re-
quires consideration and that is the
effect of the decision of the Sadar Diwani
Adalat in 1795 in the appeal against
Mr. Hunter's judgment of the 17th De-
cember 1793.
In my opinion that decision operates
as res judioata. Although the case of
the plaintiffs in that suit was that they
were in possession of their nankar vil-
lages, and although they did not pray for
the recovery of those villages the point
directly and substantially in issue was
whether the plaintiffs had a zamindari
or milkiat right in the 406 ^ villages in
Pargana Chai. If they had succeeded in
proving their milkiat right to those vil-
lages, their title to the alleged nankar
villages which were in their possession
would have also been established without*
a further suit. Indeed it was contended
by the plaintiffs in their appeal that the
fact that they were in possession of the
nankar lands was proof of their ancient
proprietary title. In my opinion the
rale of constructive res judicata applies
here and it must be assumed that the
question of the title of the plaintiffs to
the nankar lands was also decided against
them. If that view is correct, then the
Jagodih Chiefs lost the right to claim
in any subsequent proceeding proprietary
rights to any of the 21 mouzas claimed
by them a? nankar. It follows then that
they cannot now be heard to urge that
proprietary right to the 41 villages now
in suit.
The decision of this appeal does not
depend on oral evidence. It depends
upon the construction of and weight to
be attached to documentary evidence
and on matters of record in respect of
which we are in as, good a position to
pronounce a decision as the learned Sub-
ordinate Judge.
' In my opinion, after giving due weight
to the learned Judge's appreciation of
the evidence in the case, his decision
cannot be supported and the appeal must
the decreed with costs.
As First Appeals Nos. 163, 169 and 230
of 1922 were heard together, the judg-
ment in each appeal will be governed by
the material portions the judgments
in the other two.
Appeal decreed,
# A. I. R.1926 Patna 384
ROSS AND KULWANT SAHAY, JJ.
Bengal and North-Western RailwaV
Company — Defendants — Appellants,
v.
Tupan Das — Plaintiff — Respondent.
Appeal No. 1299 ot 1922, Decided on
10th March 1926, from the appellate
decree of the Dist. J., Purnea, D/- 17th
July 1922.
(a) Railways Act, 8. 76— ' Deteroriation '
must be taken in ordinary sense-~ Abstraction of
goods from parcel ts deterioration.
" Deterioration " is not a wo*d of art and it
must be taken in its ordinary sense. Where
1926
KESHABJI v. SHASI BHUSAN
Patna 335
•parcel is impaired in value by the abstraction of
the articles contained in it, there is deterioration
of tha pir?3l. [P 385 C 1]
$ (6) Railways Act, S. 75— No Indian authority
exists for the proposition that If goods are ab"
stracted by company's servants S, 75 does no*
apply— English rulings are Inapplicable.
There ia no Indian authority for the proposi-
tion that S. 75 does not protect the Company
where the articles are abstracted by the servants
of the Company, and English authorities are not
applicable as there is no such provision in the
Indian Act as there is in the English Act.
[P 385 C 2]
Hawaii Jan — for Appellants.
LJ. j(v. Jka — for Respondents.
Ross, J. — This appeal must be
allowed. The plaintiff-respondent sent
a parcel for transmission from Hyderabad
Sindh to Kafcihar on the railway of the
defendant; company. The parcel arrived
at Katihar ; but when it was opened it
was found that some of the contents had
been abstracted. These were articles of
silk and other things falling within the
second schedule to the Indian Railways
Act. The present action was brought for
the recovery of the value of these arti-
cles. The defence was that the company
was protected by S. 75 of the Indian
Railways Act inasmuch as the parcel sent
by the plaintiff contained articles men-
tioned in the second schedule but no
declaration of their value was made. The
finding of the Munsif was that the
articles in question were abstracted
while the parcel was in ohe custody of
the defendant company's servants. A
decree has been passed in favour of the
plaintiff by both the Courts below and
the defendant company has appealed,
The learned advocate for the respon-
dent contends that the case does not fall
within the terms of S. 75, because there
has been neither loss, destruction nor
deterioration of the parcel ; and secondly
that inasmuch as the goods were lost by
theft of the company's servants they are
not entitled to the protection of this
section. Now " deteroriation " is not a
word of art and it must be taken in its
ordinary sense. In the Oxford Dic-
tionary one of the meanings given to the
word4' deteriorate " is " to become lower
or impaired in quality or value." The
parcel was impaired in value by the
abstraction of these articles and conse-
quently there was deterioration of
the parcel. I think, therefore, that the
case falls Within the language of S. 75.
As to the argument that 8. 75 does not
1926 P/49 & 50
protect the company because the articles
were abstracted by the servants of the
company, the learned advocate was com-
pelled to admit that he had no Indian
authority for this proposition. He relied
upon certain decisions of the English
Courts, but these proceeded on the ex-
press provision of S. 8 of 11 Geo, IV
and 1 Will. IV, Chap 68 (Carrier's Act
1830) where a proviso is enacted exemp-
ting from the liability for loss of or in-
jury to the articles therein referred to
imposed by the first section of that Act.
The proviso is that
nothing is this Act shall be deemed to protect
any mail contractor, <*tage coach proprietor or
other common carrier for hire from liability to
answer for loss or injury to any goods or articles
whatsoever arising from felonious acts of any
coachman, guard, book keeper, porter, or other
servant in his or their employ etc.
There is no such proviso in the Indian
Act and, therefore, the English decisions
have no application. It was also pointed
out by the learned advocate for the ap-
pellant company that there is no evidence
that the theft was committed by any
of the company's servants and this argu-
ment was not met by the learned advo-
cate for the respondent.
In my opinion, therefore, this case is
covered by S. 75 of the Indian Bailways
Act and the appeal must be decreed
with costs and the suit dismissed with
costs throughout. The cross.- objection is
dismissed.
Kulwant Sahay, J. — I agree.
Appeal alloived.
A. I. R. 1926 Patna 385
DAWSON-MILLEE, C. J., AND
MULLIOK, J.
Keshbji Pitambei — Plaintiff — Appel-
lant.
v.
Shashi Bhusan Bauer ji and another —
Defendants — Respondents.
First Appeal No. 150 of 1922,- Decided
on 15th March 1926, from a decree of
the Addl. Sub-J., Dhanbad, D/- 13th
February 1922.
(a) Evidence Act, 8. 36—Thakbast map and
Revenue survey map — The latter ts more accurate
and should be relied upon to determine • boun-
daries. . ,
Although the Thakbast map is a part of tlje
thak survey, it is not meant to be and is not in
38G Patna
KESHABJI v. SHASHI BHUSAN (Dawson-Miller, C. J.) 1926
fact a scientifically prepared plan, but merely a
rough sketch, or at most, an unscientifically
prepared plan showing the number and approxi-
mate position of the tbak marks or dhuis for the
guidance of the revenue surveyor who followed
after, and who, having picked up and veri6ed the
thak marks indicated roughly in the Thakbast
map prepared the revenue map by accurate ob-
servations made by expert surveyors with scien-
tific instruments. Where it appears that he had
the Thakbast map before him when he made his
survey and prepared the revenue map then the
revenue map must be accepted as shewing the
result of the thak survey even more accurately
thin the Thakbast which was not intended to be
scientifically accurate.
The signature of the Revenue Surveyor on a
thak map means merely thai, he has satisfied
himself that the boundary accepted and intended
by the demarcation staff had been correctly
picked up on the ground and correctly surveyed
on the revenue survey rnap.
[P. 388, C. 1, 2, P. 389, C 2]
Per Multtck, J.— The words "as par thak"
mean as per thak pillars. A.LR. 1924 Patna. 402
Hel. on. [P. 392, C. 1]
(b) Adverse Possession — Trespasser can ac-
quire right only In land encraached upon.
A trespasser cannot acquire by prescription
title to anything more th tu the precise area en-
croached upon. [P. 391, 0. 1]
S Hassan Imam, .Sf. Mahdi Jmam^
N. N. Sen, S. M. Mullick and >>'. C. Ma-
zumdar — for Appellant.
S. Sultan Ahmad, B. C. De and A. K.
Boj/ — for Respondents.
Dawson-Miller, C. J.— The dispute
in this case is between the holders of the
mineral rights in two adjacent villages
in the Jharia coal fields each of the par-
ties holding under grants derived from
the Raja of Jharia who is the proprietor
of both villages.
The plaintiff, Keshabji Pitamber, has
a lease of the mining rights in mouza
Kujaman whilst the principal defendant,
who may be referred to as the defendant
has a lease of the mining rights in mouza
Ghanuadi. The northern boundary of
Ghanuadi is the southern boundary of
Kujaman and the main question for deci-
sion in this appeal is whether the boun-
dary between these two villages must be
determined for the purpose of this suit
as that shown in the revenue survey map
or as that shown by the thakbast survey
which immediately preceded it, assuming
that there is a difference between the
two. A further question arises whether
the defendant, assuming him to be wrong
on the first point has acquired by adverse
possession a prescriptive right to the
minerals in a portion of the land com-
prised within Kujaman, and which is
enclosed within a yellow line upon map
No. 3 prepared by a Commissioner in
this case.
The learned Additional Subordinate
Judge Dhanbad before whom the case
came for trial found that the plaintiff
had failed to prove that the disputed
land was included in the boundaries of
his grant, and further that the plaintiff,
or his predecessors, were never in posses-
session of the disputed land and that the
defendant had acquired title by adverse
possession for a period of over 12 years.
From this decision the plaintiff has ap-
pealed.
The first question depends partly upon
the interpretation of the documents of
title of the respective parties and partly
upon whether the boundaries therein
described correspond with the boun-
daries shown in the revenue survey map.
It appears that at some time before
1893 Shyama Charan Haider and others
held a mukurrari patta of Mouza Ghanu-
adi from the Raja of Jharia. The docu-
ment has not been produced. In 1893
the Haiders transferred by a dar-mukar-
rari patta the whole of their interest in
the surface and under-ground rights of
Mouza Ghanuadi, excepting only the
surface rights in certain paddy lands, to
Mr. Aratoon Misrop Thaddeus. The
southern boundary of the land demised
by this dar-mukarrari deed is stated to
be the border of the highway (Saran) of
Mouza Durgapur as per thak. Durgapur
lies immediataly to the westward of
Kujaman and its northern boundary is a
part of the southern boundary of
Ghanuadi. In 1896 the Eaja of Jharia
sued the Haiders and Mr. Thaddeus for a
declaration that they had no right to the
minerals in mouza Ghanuadi, and fur-
ther that they had no right to the sur-
face land in that mouza. The southern
boundary of the land comprised in that
suit is described in the plaint as the
border of the limits of Mouza Durgapur,
Kujaman and Tisra as in the thak. In
1898 Mr. Thaddeus who had received
from the other defendants in that suit
their rights in Mouza Ghanuadi, what-
ever they might be, and who was there-
fore the only defendant materially inte-
rested in the suit, arrived at a compro-
mise with the Raja of Jharia and accep-
ted from him a fresh lease under a per-
manent mukarrari patta, of the mineral
rights in that Mouza, agreeing to pay
him an annual rental of Bs. 1,200 and .a
1926
KESHABJI v SHASHI BHUSAN (Dawson-Miller, 0. J.) Patoa 387
premium of Rs. 2,000, and in the event
of the railway freights being reduced by
the East Indian Railway Company, or a
new railway being made in the Jharia
pergana by the Bengal Nagpur Railway
Company, then in lieu of the rent of
Rs. 1,200 the lessee was to pay royalty of
2 annas per ton on the coal despatched
with a minimum of Rs. 1,200 per annum.
In that lease the southern border of the
land demised is stated to be the border of
the limits of Mouza Durgapur, Kujaman
and Tiara as per Thak. This deed was
executed on the 22nd January 1898 and
on the 24th of the same month the suit
instituted in 1896 was withdrawn with
permission to bring a fresh suit against
the defendants other than Thaddeus. It
will be seen from these transactions that
Thaddeus recognized the rights of the
Raja of Jharia in 1898 to grant a lease of
the mineral rights in Mouza Ghanuadi,
and the withdrawal of the suit two days
later was merely a part of the same
transaction. On the 25th April 1904
Thaddeus sold his interest in mouza
Ghanuadi to the defendant and Tara
Prasanna Mukerjee for a sum of Rs. 5000.
The land, the subject of that sale, is said
to be bounded on the south by the border
of the limits of Mouza Tisra, Kujaman,
Durgapur and Fatepur, and on the 16th
December 1917 T. P. Mukerji transferred
his share to the defendant who thereby
acquired the whole of the interest conve-
yed to Thaddeus by the Raja of Jharia
in 1898. The southern boundary of the
land in the deed of 1917 is given as the
border of the limits of mouzas Tisra,
Kujaman, Durgapur and Fatepur as per
thak.
The plaintiff's title to the Kujaman
begins with two deeds executed 'on the
15th June and the 2nd July 1900 res-
pectively by the Raja of Jharia in favour
of Jugal Kishore Lai Singh Deo the
zamindar of Kashipur. It appears that
shortly before that date 592 bighas of
land in the northern 'part of Kujaman
had come into the direct possession of
the Raja by surrender from the previous
tenants By the deed of the 15th June
1900, 400 bighas of this were granted to
the zamindar of Kashipur, under a per-
manent mukarrari patta. This, how-
ever, did not extend as far as the borders
of Ghanuadi. By the instrument of the
2nd July 1900 the 'remaining 192 bighas,
th.6 northern border of which was the
border between Kujaman and Ghanuadi
were also leased to the zamindar of
Kashipur. The settlement was of the
under-ground rights in 192 bighas, more
or less, lying within the boundaries as
per map mentioned in % schedule Kha.
In schedule Kha the northern boundary
is given as the border of the limits of
Mouza Ghanuadi as per thak and a map
was annexed to the deed. On the 5th
September 1914 the plaintiff acquired
from the zamindar of Kashipur the
mineral rights in 92 bighas of this land
for a term of 30 years. The land demi-
sed is delineated in the plan annexed to
the lease and is said to be bounded on
the north by Mouza Ghanuadi.
It will be seen from the various docu-
ments of title to which I have referred
that the defendant's title originates with
a lease granted by tne Raja of Jharia to
Thaddeus in 1898 and the sothern boun-
dary of his land was the limit of, inter
alia, Kujaman as per thak. The plain-
tiff's title originates with the grant of
the 2nd July 1900 made by the Raja
of Jharia to the zamindar of Kashipur in
which the northern boundary is the
limit of Mouza Ghanuadi as per thak. It
must be taken, therefore, the boundary
between these two estates is the boundary
shown by the thak survey.
In 1916 disputes arose between the
• plaintiff and the defendant as to posses-
sion of a portion of the land near the
junction of their two estates. The
defendant claimed as being within
Ghanuadi the greater part of the land,
both surface and subsoil, which the
plaintiff claimed to have been leased to
him. Proceedings under B. 145 of the
Criminal Procedure Code were instituted
by the defendant and the Magistrate
decided, after a remand by the High
Court, that the plaintiff was in posses-
sion of the underground rights in the
land enclosed within the green line
shown on the commissioner's map except
the portion therein enclosed in yellow
and this he attached under 8. 146 of
the Code. The present suit relates only
to the yellow portion.
The plaintiff's case is that the revenue
survey correctly shows the boundary
between Ghanuadi and Kujaman accord-
ing to the thak survey and therefore it
is unnecessary to have the thakbast map
relaid on the spot to ascertain the boun-
dary between the two mouzas. He %o-
388 Patna
KBSHABJI v. SHASHI BHUSAN (Dawson Miller, C. J.)
1926
cordingly aaked that the commissioner
should ascertain the common boundary
between the mouzas as shown in the
revenue survey map, and show thereon
the land claimed by the plaintiff includ-
ing the disputed land. This he has done
and from this it appears that the land in
dispute, that is the yellow portion falls
within mouza Kujaman according to the
revenue survey map. It follows there-
fore that if the revenue survey map cor-
rectly represents the thak survey the
disputed land falls within the leasehold
land of the plaintiff and outside that of
the defendant.
The defendant, however contends that
as his title .was of earlier date than that
of the plaintiff, the plaintiff could not
acquire anything already demised to the
defendant or his predecessor, and there-
fore the' boundary must be taken as the
boundary shown in the defendant's title
deeds, that is the dividing line between
Ghanuadi and Kunjaman as shown by
the thak survey. The first grant of the
mineral rights which the defendant can
rely upon must be the mukarrari patta
of 1898 granted by the Baja of Jharia
to Thaddeus, for Thaddeus acquired no
mineral rights from the Haldars, who,
although they held a Mukarrari are not
shown to have acquired any mineral
rights therein but surface rights only.
The lease of 1898 was a grant of mouza
Ghanuadi including minerals. It con-
tains no map or plan but the southern
boundary therein given, as already men-
tioned, is the limit of mouza Durgapur,
Kujaman and Tisra as per thak. It is
necessary therefore to ascertain what
this means. The defendant contends
that in order to ascertain the demarca-
tion made by the thak survey between
these two mouzas the thakbast map
alone should be regarded but as the thak-
bast map has not been relaid the plain-
tiff has failed to establish his case.
The plaintiff replies to this that al-
though the tbakbas map was a part of
the thak survey it was not meant to be,
and was not in fact, a scientifically pre-
pared plan, but merely a rough sketch,
or, at most, an unscientifically prepared
plan showing the number and approxi-
mate-position of the thak marks or dhuis
for*ttie guidance of the revenue surveyor
who followed after, and who, having
picked trp and verified the thak marks
indicated roughly in the th*kbast map,
prepared the revenue survey map by
accurate observations made by expert
surveyors with scientific instruments,
and if it appears that he had the thak*
bast map before him when he made his
survey and prepared the revenue map,
then the revenue map must be accepted
as shewing the result of the thak survey
even more accurately than the thakbast
map which was not intended to be scien-
tifically accurate.
On referring to Captain Hirst's " Notes
on the old Eevenue Surveys of Bengal,
Bihar, Orisga and Assam " published in
1912 we find ample support of the plain-
tiff's contention. Captain B. C. Hirst
was Director of Surveys in Bengal and
Assam. He gives a graphic account of
how the thak survey was conducted by
the settlement officer and his staff,
generally about a year before the scienti-
fic work of the revenue survey was about
to commence. The Settlement Officer 's
duty was first to settle all boundary dis-
putes on the spot, and then to demarcate
on the ground the actual boundaries of
villages and estates. This was done by
placing thak marks or dhuis (generally
large mud pillars about five feet high
although they might assume other formsj.
at the principal bends in the village
and at all trijunction points. These-
marks were shewn in the thak map.
That map was prepared by an amin>
but as Captain Hirst points out the
thak map was seldom really accurate
and frequently it was not even intended
to be so. On this subject he says
(page 10) there are three main kinds of
thak maps to be considered.
(a) Eye sketches, in which no actual
measurements were made.
(b) Maps in which rough magnetic
bearings were used and rough linear
measurements made.
(c) Maps made from careful magnetic
bearings and careful linear measurement.
He points out that in the earlier maps
and in some of the late maps, no angular
measurements were used, and that when
regular measurements were made they
were generally made with prismatic
compasses or ordinary compasses, and
adds that where magnetic compasses
were used it was intended that the bear-
ings should be observed and recorded in
the field book or some other part of the
records which the thak surveyor would
hand over to? frhe revenue surveyor. , L&
1926
KESHABJI v. SHASHI BHUSAN (Dawson- Miller, C. J.)
Pataa 389
some cases the bearings were recorded to
guide the . revenue surveyor, whilst the
map to him was little more than a guide
to the actual number of thak survey
marks put down on the ground and
later be skys.
We may pass over the question of accuracy of
maps of both classss (a) and (b) with the remark
that they were not intended to be more than a
rough guide to the revenue surveyor and that, as
such, they served their purpose usually, but not
always.
In fact the field books and other re-
cords prepared by the thak surveyor
were generally a more accurate indica-
tion of the thak survey than the maps
themselves. The third class of maps
were more accurate and more reliable
and were of a somewhat later date. It
was the duty of the revenue snrveyor
to map accurately the village boundaries
demarcated on the ground, and to find
these boundaries by using the thak maps
and other information collected by the
demarcation officer. If the thak maps
are found to have been initialled by the
revenue surveyor, this is, according
to Captain Hirst, evidence that their
boundaries agree with those picked up
by the revenue survey. " It may be " he
says
that this signing of thak maps has led to much
of the misunderstanding that exists as to the
accuracy of these maps, and it will be well there-
fore to record here exactly what the revenue
surveyor's signature implies : it does not mean
that if the thak map is reduced to the same scale
as^the revenue survey map then the two bound-
aries will necessarily agree, but rather that the
revenue surveyor has satisfied himself that the
boundary accepted and intended by the demarca-
tion staff has been correctly picked up on the
ground and correctly surveyed on the revenue
map,
He then refers to Thuillier's Manual
of Surveying published in 1875 and
quotes the following passage.
The Assistant surveyor cin compare his ex-
terior boundary and rectifiy any errors that he
may chance to perceive between the marks on the
ground and the thakbast sketch map,
and deduces from this that it is clear
that the comparison was one of the
boundaries as demarcated rather than of
boundaries as shown in the thakbast
maps.
The remarks of Captain Hirst were
considered and approved of by a Divi-
sion Bench «of this Court in the case
of Shaski Bhusan Banerji v. Bam-
/« AgarwoMa (l). In that case the pre-
sent defendant, was the plaintiff and it
(1) "A. IB. 1924 Pat. 402.
was held that the words as per thak
meant "as per thak demarcation" ant)
not " as per thak map " and that the
signature of the revenue surveyor on a
thak map means merely that he has
satisfied .himself that the boundary
accepted and intended by the demarca-
tion staff had been correctly picked up
on the ground and correctly surveyed on
the revenue survey map. I see no reason
to differ from the conclusion arrived at in
that case. In the present case the thak'
bast survey map of mouza Kujaman
showing the thak demarcation between
the Kujaman and Ghanuadi was put in
evidence by the defendant and it appear?
from that document that it was initial-
led by the revenue surveyor. It may be
assumed therefore that the revenue
survey accurately represents the demar-
cation of^he boundary between these two
meuzas arrived at by the thak survey.
It was contended that as the may
attached to the lease of the 2nd July
1900 had not been put in evidence by
the plaintiff it is impossibly to say what
the northern limit of the land settled
with him was. This map was tendered
somewhat late in the case and the learn-
ed Judge rejected it. It appeared to us
on appeal that it ought to be admitted
and sufficient reason had been shown for
its late production. We accordingly
admitted it. The northern limit shown
on that map is obviously meant to show
the demarcation line between the two
villages appearing on the revenue survey
map. Whether as a scientific map it is
in all particulars accurate is, to my mind
a matter of no importance. The northern
boundary is stated in the body of the
lease as the border of the limit of Mouza
Ghanuadi as in the thak and the picto-
rial representation of that limit in the
plan was clearly meant to represent the
revenue survey. I consider therefore
that the northern limit of the land
demised to the plaintiff, which is also
the southern limit of the land demised to
the defendant, is the boundary between
the two mouzas as shown in the revenue
survey map, and as demarcated on the
commissioner's plan, and the disputed
land falls within the limits of the plain-
tiff's case.
The next question is whether the
defendant has acquired by adverse posses-
sion the mineral rights in the disputed
lands. I have already stated that
390 Patna
KESHABTI v. SHASHI BHUSAK (Mullick, J.)
1926
Thaddeus the predecessor of the defen-
dant acquired no mineral rights from the
Haldars under his dar-mukarrari grant
of 1893. Whatever rights he uiay have
been asserting in pursuance of that lease
he gave up in 1898 when he accepted
from the Raja of Jharia a fresh lease of
mouza Ghanuadi. The question there"
fore is whether since 1898 an adverse
title has heen acquired by the defendant
over the minerals in the disputed land.
In 1900 the Raja of Jharia transferred to
Jugal Kishore the predecessor of the
plaintiff the under-ground rights in the
northern portion of the mouza Kujamau.
Up to that time there could have been
no ouster of the Raja of Jharia as the
lease to Thaddeus was only two years
earlier. In 1904 Thaddeus parted with
his whole interest to the defendant and
Tara Prasanna Mukerji and gave up
whatever possession he may have had
over the disputed land. Up to that time
he had acquired no title by adverse
possession and what he transferred to the
defendant arid Tara Prasamia Mukerji
was Mouza Ghanuadi only.
It seems to me therefore unneces-
sary to consider the evidence as
to any acts of ownership over the
the minerals in uaouza Kujarnan on the
part of Thaddeus between 1898 and 1904
for his successors cannot tack on to their
own possession the adverse possession of
their predecessor who had withdrawn
from the field. He had nothing to con-
vey in Mouza Kujaman and in fact con-
veyed nothing. There is some evidence
to the effect that the defendant bas exer-
oised some acts of ownership over the
surface of the disputed land but the
defendant himself in his evidence says
that he has not done any colliery work
in the plot shown in the commissioner's
map as belonging to the plaintiff. There
is therefore no evidence upon which we
can hold that the defendant has acquired
by adverse possession against the plain-
tiff or his predecessors any right to the
minerals in Mouza Kujaman. In my
opinion the appeal should be allowed
with costs here and in the Court below
as against the Defendant No. 1 who
alone contested the suit. The decree of
the Subordinate Judge will be set aside
and in lieu thereof it will be decreed and
declared that the mineral rights in the
land in suit appertain to the leasehold
Dtoperty of the plaintiff and that he is
entitled to hold and possess the same and
that the said defendant has no right to
the minerals or any portion thereof
within the said land and that he be res*
trained by injunction from disturbing the
plaintiff's possession.
Mullick, J.— (After stating facts the
judgment proceeded). The first point to be
considered is whether the defendant baa
acquired any interest to the surface or
the under-ground of the land in suit by
adverse possession. This question only
arises on the assumption that the land
in suit falls outside the boundary of
Ghanuadi.
The case of adverse possession is put
thus. Thaddeus was in possession of the
land in suit till 1904 when he transfer-
red his rights to the Defendant No, 1
and Tara Prasanna Mukerji. Now, was
Thaddeus in possession of the land ?
First iefc us consider the surface. As to
this the result of the Jharia Raja's suit
in 189fi was to establish the mukararri
right of the Haldars and in the absence
of an express transfer of the minerals the
mukarrari right must be held to extend
only fco the surface. Thaddeus was a
dar-rnukarraridar and the most he could
have acquired by prescription against the
proprietor was a dar-mukarrari right to
the surface of the land in suit. But he
sold the land in 1904 and unless the
Defendant No. 1 can tack his own posses-
sion, if any, to that of Thaddeus he can-
not claim a dar-mukarrari right by
prescription. Now Thaddeus sold to the
defendant and his predecessor Mouza
Ghanuadi. It follows that he sold the
area demarcated at the revenue survey as
comprising Ghanuadi. It is clear from
the definition of the term "mouza" in the
Land Registration Act that the legisla-
ture does not recognize any other mean-
ing than "an area surveyed as a mouza
in a Revenue survey." That being so,
the Defendant No. 1 acquired neither
title nor possession to the land in suit
from Thaddeus and he cannot add his
possession to his own. It is not suggest-
ed that he has acquired title by posses-
sion since 1904 independently of Thad-
deus and otherwise than as his represen-
tative,
But there are other difficulties in
defendant's way. What is the evidence
of adverse possession he bad adduced ?
Thaddeus has been examined. He says
he took possession according to his lease
1926
KESHABJI v. SHASHC BHUTAN (Mullick, J.)
Patna 391
from the Haldars. That lease describes
the southern boundary of Ghanuadi as
a road, ' which the defendant has en-
deavoured to identify as the present
District Board road but in my opinion
the evidence of such identification is in-
conclusive.
Thaddeus does nob say what portions
of the surface in question he occupied
and the omission is sought to be supple-
mented by the witnesses Ram Bauri,
Ghamroo Beldar and Defendant No. 1
himself. Ghamroo Beldar says Thaddeus
was in possession of the paddy land north
of the road but this cannot be true
because the paddy lands were not leased
to Thaddeus at all. He also says that
Thaddeus and after him the Defendant
No. 1 took fish from the big tank on the
land. No particulars are given and I
think it would be most unsafe, in my
opinion, to deprive a landlord of his title
on evidence of this kind, Sharma
Charan Haldar, who has been called by
the defendant, contradicts both Chamroo
Beldar and Defendant No. 1 as to the
paddy lands and the fish arid says that he
and not Thaddeus was in possession and
that he sold these to Defendant No. 1,
presumably, after the Defendant No. 1
and Mukberji had purchased Ghanuadi
from Thaddeus. The Defendant No. 1
also deposes to Thaddeus's possession of
the paddy lands to the north and east of
the tank, but these have not been identi-
fied as falling within the property in
suit.
The result, therefore, is that it has not
been shown that Thadddues was in pos-
session of the surface of the land in suit
before 1904.
As regards the subsoil, the evidence
of Bam Bauri is that Thaddeus cut an
incline on the site of the present District
Board road which was constructed in or
about 1913. Chamroo Beldar says that
Thaddeus sank 7 or 8 pits or inclines
and dug a quarry 40 or 50 feet deep and
that he extracted about 100 tons of coal.
The exact spots where these works were
carried out is not made clear and the
evidence is useless for the purpose of
founding a case of title to the under-
ground by adverse possession. A tres-
passer oannot acquire by prescription
title to anything more than the pre-
cise area encroached upon. The defen-
dant No. 1 supports Chamroo and adds
that Thaddeus extracted stone from lands
to the west of the tank and that he
also has done so. He also states that
Thaddeus made some experimental
shafts and inclines but he does not
identify the sites of these works. His
evidence as to the- stone quarries and
Earn Bauri's evidence as to the incline
on the site of the District Board road
does show some possession within the
disputed area but it is wholly insufficient
in continuity, extent and publicity to
justify a claim to the minerals.
With regard to the subsoil rights
also, the objection arises that the defen-
dant is not the representative of Thad-
deus. The transfer of 1904 conveyed
the under-ground rights to mouza Ghan-
uadi but not to the lands in suit which
do not lie within that Mouza.
A point was next taken by the learned
counsel for the respondents that 0. 2
B. 2 of the Gode of Civil Procedure is a
bar to the suit. It was contended that
in 1896 the proprietor of Jharia should
have sued to eject Thaddeus from the
surface and subsoil of not only Ghan-
uadi but also the land now in suit as
Thaddeus was then in possession of it. As
I have found that he was not in posses-
sion of the land in suit the contention
must fail. The plaint in that suit is not
before us and we do not know what was
the cause of action pleaded and < it has
not been shown that the claim to the
land now in suit was covered by the
cause of action in that suit.
We now come to the main point in the
case, namely, whether the plaintiff is
entitled to a decree on his title deed,
I think the answer must be in the affir-
mative. It is true that the plan attached
to the plaintiff's lease has not been relaid
on the ground and that without a
remand it will not be possible to lay down
the northern boundary of the place upon
the commissioner's map ; but there are
materials which are sufficient to indicate
that the land in suit oannot lie within
the defendant's mouza Ghanuadi but
that they must lie within the plaintiff's
mouza Kujaman. The plaintiff's title
deed describes the northern boundary of
his land as mouza Ghanuadi and unless
a prior title was created in the defen-
dant the plaintiff is entitled to the
common boundary between Kujaman and
Ghanuadi according to Revenue Survey
392 Pataa
MT. AKMOLE KUAB v. KAMLA DUTT (Das, J.)
1926
map which has been plotted on the com*
missioner's map. Bat the title deed of
the plaintiff's lessor (Ex. 5 (a) Jugal
Kishore Deo, gives a slightly different
northern boundary, namely, ' Border of
the limit of Mouza Ghanuadi as per
thak " and the plaintiff is limited to
this boundary line, Fortunately the
defendant's title deeds (Exs. 0. and B)
and Thaddeus's title deed (Ex. E) all
agree with the plaintiff's lessor's title
deed and show that the northern boun-
dary of plaintiff's lessor's land is the
boundary of Mouza Ghanuadi as per
thak and that it is identical with the
northern boundary of the defendant's
land which is mouza Kujaman as per thak.
It remains therefore, to ascertain what
the words " as per thak " mean. Now on
this point I agree with the decision of a
Division Bench of this Court in Shashi
Bhushan Banerji v. Ramjas Agarwal (l)
where the words " as per thak " have
been held to mean as per thak pillars.
It is contended on behalf of the respon-
dent that " as per thak " means as per
thakbast map. But some difference must
ba made between the words " as per
thak " and as per thakbast map " and
it has not been shown that the reasoning
of the learned Judges of the Division
Bench is wrong. That being so, we have
to ascertain where the thak pillars are.
One way of doing so would be by relay-
ing the thakbast map of Kujaman which
in this case appears to contain sufficient
details to enable the boundary to be laid
down ; but the thakbast map has not
been plotted and the question is whether
the revenue survey line may be taken as
accurately showing the position of
the thak pillars. In the present case
the revenue survey map shows that it
was compared by the revenue surveyor
with the thakbast map but it is certain
that the revenue survey line correctly
represents the line of the thak pillars.
In these circumstances, the omission to
plot the thakbast map is of no conse-
quence, for we have a demarcation accord-
ing to the more scientific map prepared
in the revenue survey and I am satisfied
that a remand is not necessary. The
northern boundary of Kujaman and the
southern boundary of Ghanuadi as
" per thak " are represented by the
revenue survey line so that the land
in suit must fall within the plaintiff's
title deed.
The appeal, therefore, will succeed,
the suit will be decreed and the plaintiff
will get his costs in both this Court and
the lower Court.
Appeal allowed.
A. I. R. 1926 Patna 392
ADAMI AND DAS, JJ.
Mt. Anmole Ewer— Plaintiff — Appel-
lant.
v.
Kamla Dutt Misir and another — Defen-
dants— Respondents.
Appeal No. 65 of 1923, Decided on
13th May 1926, from the Original decree
of Sub-J., Gaya, D/- 22nd March 1923.
Hindu Law — Succession — Daughters amongst
themselves take by survivorship— Agreement to
relinquish survivorship right is valid.
Agreement between two daughters, under
whioh each gave up the right to succeed, to the
properties held by the other, by survivorship,
is valid and cannot be ignored at least by
parties to it. 11 M. I. A. 487 (P. C.). and 2 I. A.
113, (P.O.) Ref. [P. 392, C. 2]
T. N. Sahai, B. Dayal and Aditya
Narain Sinha — for Appellant.
S. M. Mullick — for Respondents.
Das, J. — One Ambikadeo Missir who
died in 1905 left a widow and two daugh-
ters, Anmole Kuer and Puna Kuer. An-
mole Kuer is the plaintiff. The defendants
are the sons of Puna Kuer who died some
time in 1921. The widow of Ambikadeo
died in 1911 and upon her death Anmole
Kuer and Puna Kuer succeeded to the
properties left by Ambikadeo. On the
7th July 1912 they .entered into a trans-
action wnich is the subject matter of the
dispute befor,g us. They appear to have
partitioned the entire property left by
Ambikadeo between them and each
relinquished in favour of the other the
right to claim the properties by survivor-
ship from the other. ^ Under the Hindu
Law on the death of 'one of the daughters]
the other daughter would be entitled to
take the properties by survivorship to
the exclusion of the sons of the deceased
daughter. By the agreement between
the parties each gave up the right to
suQceed to th? properties held by the
other by survivorship. This arrange-
ment was effected on the 7th July 1912.
Puna Kuer died in 1921 and upon her
death the plaintiff claimed to take the
properties which were allotted to Puna :
Kuer by survivorship to the exclusion of
her sons who have been cited as defen*
1926
BALGOBIND v. KING-BMPEBOB (Macpherson, J.)
Patna 393
dants in this' action. The defendants rely
upon the deed of relinquishment exe-
cuted by Anmole Kuer and contend that
the plaintiff by virtue of that deed has
lost her right to take the properties
belonging to Puna Kuer by > survivorship.
The learned Subordinate Judge has given
effect; to the defence and has dismissed
the plaintiff's suit.
In my opinion the decision of the
learned Subordinate Judge is right and
must be affirmed. The decision in no way
touches the interest of the sons of the
plaintiff. It may be open to them to
contend that they are nob bound by the
deed of relinquishment executed by their
mother in favour of Puna Kuer on the
7th July 1912 ; but the plaintiff as a
party to the transaction is clearly bound
by the terms thereof. If it could be
established that Anmole Kuer and Puna
Kuer took definite-shares in the properties
left by their father, it might be contend-
ed that the plaintiff could not alienate
the chance of succeeding to the properties
which Puna Kuer inherited 'from her
father ; but it is too late to contend that
Hindu daughters succeeding to their
father take estates in severalty. It has
been held by the Judicial Committee that
the estate of two widows who take their
husband's property by inheritance is one
estate and it was pointed out that "the
right of survivorship is so strong that the
survivor takes the whole property, to the
exclusion even of daughters of the
deceased widow". Bhugioandeen Doobey
v. Myna Baee (l). The case of
daughters taking by inheritance stands
on the same footing. This was esta-
blished in the case of Aumirtolal Bose
v. Rajoneekant Mitter (2). The case not
being one .of inheritance the question as
to the relinquishment of the chance of
successsion does not arise. Anmole
Kuer and Puna Kuer took a joint estate
as between them and it was competent to
Anmole Kuer to give up her right to
survivorship to the properties on the
death of Puna Kuer. This proposition
has been established in cases far too
numerous to mention.
I must dismiss this appeal with costs.
Ada mi; J. — I agree.
Appeal dismissed.
(1) [1886-67] 11 M. I. A. 487=9 W. R. ^3=2
Suther. 124=2 Bar. 327 (P. C.).
,(2) [1874] 2 L A. 113=28 W. B. 214=15
' B.L.B. 10=3 Suther 94=3 Bar. 430 (P. C.)
A. I. R. 1926 Patna 393
MACPHERSON, J.
Balgobind Tkakur and others — Accused
— Petitioners.
v.
King Emperor — Opposite Party.
Criminal Revision No. 208 of 1926,
Decided on 13th April 1926, from an
order of the S.J., Darbhanga, D/- 15th
March 1926.
(a) Criminal P. C., Ss. 530 <and 439— Magis-
trate convicting accused for lesser offence within
his jurisdiction— Facts also constituting grave
offence not within his jurisdiction — Proceedings
are not void — High Court will not interfere unless
prejudice Is caused.
When a Magistrate convicts the accused of an
offence triable by htm though the facts disclosed
also constitute a graver offence, not triable by
him, his proceedings are not void under the
provisions of S. 530. (A. I. R, 1926 Pat. 36 Foil.
4 Bom. L, R. 2671; 10 C. 85 ; 13 B. 692, 24 M,
675 Appr,) High Court will not interfere,
when no objection was taken either before the
Magistrate or in the Court of appeal to the
jurisdiction of the . trial Court and the accused
are not prejudiced. [P 894 G 1]
(&) Criminal P. C., S. 342— Technical failure
to comply Is not fatal unless prejudice Is caused.
Where the accused is not prejudiced, a techni-
cal failure to comply strictly with the provisions
of S. 342 is not fatal. .1 L R. 1925 Patna 414,
Poll. [P 394 C 2]
S. P. Vcrma and L. K. Jha — for Peti-
tioners.
Fazle Ali — for Opposite Party.
Judgment. — This rule has been issued
for the consideration of the conviction of
the 14 petitioners, of whom 9 are
residents of Pardri and the others of
Sahir. All the petitioners have been
convicted under S. 147, also under S. 379
Nos. 1 and 10 under S, 324, and No. 6
under S. 325. Those who have been
convicted under S. 147 only have been
sentenced to fine while the others have
been sentenced to terms of imprisonment
except Petitioner No. 6 convicted under
Ss. 147, 326 and 379, who has been sen-
tenced to imprisonment and fine. The
trying Magistrate exercised second-class
powers and the appeal from his decision
was dismissed by the District Magistrate
of Darbhanga.
The prosecution case which has been
found to be true was as follows : Gyring
to a quarrel 'between the complainant
and the second petitioner Banke Thakur
the latter led a mob of 250 men includ-
ing the other petitioners to loot the
house of the complainant and to assault
394 Patna
BALGOBIND v. KING-EMPEROR (Macpherson, J.)
1926
him. In the course of that occurrence
hurt was caused to the complainant hy
the 1st petitioner, Balgobind, by means
of a ganrasa and to Gopi Sahu by Bachha
Jha, petitioner No. 10, with a spear while
Surjanarain Thakur broke the arm of the
complainant with his lathi. The peti-
tioners who have been convicted of theft
carried away the property of the com-
plainant.
In support of the rule Mr. S. P. Varma
raises five points which I discuss
seriatim. First, he claimed 'a remand/
inasmuch as the case for the prosecutiou
showed offences under S. 148 and S. 395
of the Indian Penal Code which are not
triable by a Magistrate of the second-
Glass. Having regard to the common
object set out in the charge of rioting
which was to loot the house and property
of the complainant and to assault 'him
and to the fact that Balgobind and
Bachha Jha carried and used weapons
for cutting, I do not thrnk that this
assertion can he gainsaid and therefore
the second class magistrate was in error
in trying the case. But that fact is not
sufficient to establish the claim for a re-
trial. In the first place no objection was
taken either before the Magistrate or in
the Court of appeal to the jurisdiction of
the trial Court and certainly the Magis-
trate himself was under the bona fide
belief that he had jurisdiction. Again
it is impossible to say that there has
been prejudice to the petitioners. I do
not consider that prejudice can be
inferred by reason of illustration (f) to
S. 403 of the Code of Criminal Proce-
dure. It may indeed be open in law to
the Crown to have the petitioners subse-
quently charged with and tried for
graver offences on the same facts, but in
the circumstance of the case such a
course is highly improbable and in any
event the sentences inflicted in the
present case would be taken into con-
sideration by the Court in awarding
punishment in further proceedings.
Finally it is now settled law that the
proceedings of the Magistrate in a case
like the present are not void under the
provisions of S. 530 of the Code of
Criminal Procedure. Reference may be
made in this connexion to King-Emperor
v. Ragya Bhagwanta (l) ; Empress v.
Paramananda (2) ; Queen Empress v.
~ (1) [1902] 4 Bom. L. R7267;
(2) [18841 10 Cal. 86=18 0. L. R 375.
Gundara (3) King-Emperor v. Ayyan (4) ;
Barhamdeo v. King-Emperor (5) and
there are numerous unreported cases to
the same effect. This plea therefore
cannot prevail.
It is next argued that there ought not
to have been a conviction because there
are inherent improbabilities in the pro-
secution story. All that is advanced in
Support of this plea is that three persons
who are alleged to have taken a promi-
nent part in the occurrence have been
acquitted. But these persons who are
alleged to be short-sighted, have appa-
rently been acquitted from excess of
caution and such an acquittal does not
cast material doubt upon the conviction
of the petitioners against whom there is
abundant evidence which has been
believed by the Courts.
Again it has been faintly urged that
the conviction is bad under S. 342
because the Petitioner No. 5 was not exa-
mined until after the defence had addu-
ced their evidence. It is clear that this
petitioner lias not been prejudiced and in
view of the decision of this Court on the
point in the case of Mohiuddin v. King-
Emperor (6) the contention cannot pre-
vail. Moreover in the prasent case there
was the good reason for the failure to exa-
mine this accused that at the time when
the examination of the accused took
place he was not present in Court « and
was then represented by a mukhtar,
his personal attendance having been dis-
pensed with.
The fourth plea is that the trial was
bad because two important witnesses
were not examined by the prosecution.
They were Harnarain and Subnarain,
two sons of Kunji, the latter a boy of
14. The latter is supposed to have made,
some days after the occurrence, a state-
ment subversive of the prosecution case.
But that statement (which moreover
should not have been admitted in evi-
dence) was made under very suspicious
circumstances. Kunji is the step-brother
of Bachha Jha, Petitioner No. 10, and it >
seems clear that the statement was
made under the influence of the latter.
In any case there was no paucity of evi-
dence of persons who were present at
the occurrence. Of the seven persons
(8) [1889] 13 Bom. 502.
Mad. 675.
. 1926 Patna 36.
. 1995 Patna 414.
(4) [1901] 24
(5) A. I. R. 1
(6) A. I R. 19
1926
E. I. BY Co. v. CHINMAY CHARAN (Das.J.)
Patna 395
who are alleged to have been injured, all
except Harnarain, were put in the wit*
ness- box on behalf of the prosecution.
Not only is the absence of these two wit*
nesses reasonably explained but in the
face of abundant testimony of eyewit-
nesses adduced by the prosecution any
unfavourable inference, which might in
law arise for failure to examine them,
vanishes.
Finally, it is contended that the ap-
pellate Court has not adequately discus-
sed the evidence against individual
accused. In my opinion the contention
has no force. Even the passage read out
by learned counsel shows the District
Magistrate directed his mind to the case
of each individual accused and merely
forbore to write down the grounds for
his conclusions because they coincided
with the reasons set out adequately by
the trial Court.
In this view the application is with-
out merits. It is accordinly rejected-
The petitioners who are on bail must
surrender forthwith to u*lergo the urr
expired portions of their sentences.
Application rejected.
A. I. R. 1926 Patna 395
DAS AND ADAMI, JJ.
East Indian Railway Company and
another — Defendants — Appellants.
v.
Chinmay Charan Sanyal — Plaintiff —
Respondent.
Appeals Nos. 764 and 977 of 1923,
Decided on 6th May 1926, from the ap-
pellate decrees of the L>ist.-J., Dar-
bhanga, D/- 4th November 1923.
Railways Act, S. 80 — A Railway accepting goods
and sending to B Railway— Invoice not sent by A
to B for over six months — Goods not identified
and hence not delivered — Both railways are res-
ponsible for deterioration.
Goods were booked on A Railway to be sent to
a station on B Railway. , Goods were despatched
but the invoice relating thereto was not sent to
B Railway for over six months. As the goods
were lying, they deteriorated and the consignee
sued for damages. B Railway too did not take care
to ascertain whose goods thay were.
Held : that both Rhllwajs are liable. [P 397 C 1]
N. C. Sinha, N. C. Ghose, B. B. Ghosh
and Sivanarain Bose — for Appellants.
S. M. Mullick and S. K. Mitra—tor
Respondent.
Das, J. — This appeal arises out of a
suit instituted by Chinmay Charan
Sanyal for recovery of Bs. 826-6 as
against the Bengal and North -Western
Railway Company and the East Indian
Railway Company. The material facts
are these :
Messrs. A. Q. Ansari & Co. despatched
one wagon of unslaked lime weighing
517 maunds 10 seers from Dehrron-Sone
to Samastipur, per the East Indian
Railway Company. The consignment
was to Messrs. Ansari & Co. as con-
signees. The plaintiff became the holder
of the railway receipt in due course and
claimed the consignment from the
Bengal and North- Western Railway Com-
pany.
The findings of fact are that the con-
signment actually reached Samastipur
about the end of July 1921, and that the
Bengal and North- Western Railway
Company offered to deliver the goods to
the plaintiff on the 2nd February 1922.
The plaintiff refused to take delivery of
the goods on the ground that they had
deteriorated in value and were perfectly
useless to him. On these facts he claimed
a decree as against both the Railway
Companies.
The learned Mumif took the view that
no responsibility attached to the East
Indian Railway Company, but he thought
that there was gross negligence on the
part of the Bengal and North-Western
Railway Company, and, on this ground,
he gave a decree for the amount claimed
as against the Bengal and North-Western
Railway Company and dismissed the
suit as against the East Indian Railway
Company.
The Bengal and North-Western Rail-
way Comnany appealed, and it appears
that the plaintiff did not appeal against
that portion of the judgment of the
Court of first instance by which the suit
was dismissed as against the East Indian
Railway Company.
The learned District Judge heard the
appeal of the Bengal and North- Western
Railway Company, and while agreeing
with the view of the Court of first in-
stance, that that Company was liable to
make good the loss sustained by the
plaintiff, he thought that the East Indian
Railway Company was equally liable to
the plaintiff. In the result he has passed
a decree as against both the Railway
Companies, and we have - two appeals
396 Patna
. before us, one by the East Indian Hall-
way Company and tbe other by the
Bengal and North-Western Railway
Company.
I will first consider the appeal of the
East Indian Railway Company. There
can be no doubt whatever that the deci-
sion of the learned District Judge is
right and must be affirmed.
There was evidence before the Court
upon which the Courts below came to
the conclusion that there was an express
contract that the goods were to be sent
via Benares Cantonment, but the East
Indian Railway Company did not send
the invoice along with the goods to the
railway authority at Samastipur. The
result was that, although the goods ar-
rived about the end of July 1921, the
goods could not be identified as belonging
to the plaintiff till the 2nd February
1922. The East Indian Railway Com-
pany relies on the contract contained in
the risk note. The learned District
Judge has pointed out that as the goods
were diverted from the agreed route, the
case was taken out of the special con-
tract contained in the risk note. The
learned District Judge also took the view
that there was gross negligence on the
part of the East Indian Railway Com-
pany in so far as they did not send the
invoice to the Bengal and North- Western
Railway Company. It is not necessary
for me to express any final opinion on
the first point decided by the learned
District Judge, because I am clearly of
opinion that the plaintiff has satisfac-
torily established that there was negli-
gence on the part of the East Indian
Railway Company.
It was then contended that the first
Court having dismissed the suit as
against the East Indian Railway Com-
pany, an,d the plaintiff not having ap-
pealed against that portion of the decree,
it was not competent to the lower ap-
pellate Court to pass a decree against
the East Indian Railway Company.
Bud all the parties were before the
Court, and it is obvious that complete
justice could not be done between the
parties except by adjudicating on the
rights of.all the parties that were before
the Court.
It is pointed put before us that if the
East Indian Railway Company is really
guilty of negligence, then the Bengal and
North- Western Railway Company would
E. I. Ry. Co. v, CHINMAY CHABAN (Das, J.)
1926
be entitled to contribution from the
East Indian Railway Company and that
that right should not be prejudiced by
the fact that the plaintiff was satisfied
with the decree as against the Bengal
and North- Western Railway Company
and did not think it worth his while to
appeal against that part of the decree
which dismissed the suit as against the
East Indian Railway Company. There
was complete jurisdiction in the lower
appellate Court to pass the decree
which it did against the East Indian
Railway Company. The only question
is whether the jurisdiction was properly
exercised. I am of opinion that it was,
and I must dismiss the appeal of the
East Indian Railway Company with costs.
I will now deal with the appeal of the
Bengal and North-Western Railway Com-
pany.
It is contended that the negligence
was of the East Indian Railway Company
and that the suit as against the Bengal
and North-Western Railway Company
must fail, because the cause of action
in the plaint .is not based on tort. It
is quite true that there is no privity of
contract between the plaintiff and the
Bengal and North-Western Railway
Company, but it is not disputed that an
action in tort is maintainable against
the Bengal and North- Western Railway
Company, provided a case to that effect
is made in the plaint.
Now all that is necessary for the
plaintiff to allege in the plaint is that
there was some duty upon the Bengal
and North-Western Railway Company
to deliver the goods to him and that
there was a breach of duty on their
part. Now all these allegations are to
be found in the plaint. The plaint al-
leges that the goods were consigned to
Samastipur and that, therefore, we must
take it that there is an allegation that •
the Bengal and North -Western Railway
Company in this matter were acting as
the agent of the East Indian Railway
Company. Then there is the fifth
paragraph of the plaint which alleges
as follows :
That thereafter this plaintiff sent his men
several times to the delivering station for taking
delivery of the consignment of unslaked lime but
no delivery was given to this plaintiff's men by
the defendant Railway Companies.
There is a clear allegation of a breach
of duty on the part of the Bengal and
North-Western Railway Company entitl-
1926
BIHABI LAL v. TANUK LAL (Das, J.)
Patna 397
ing the plaintiff to damages if the
allegations made by him were made good,
It was then contended that on the
merits a decree should not have been
passed against the Bengal and' Norbh-
Western Railway Company, The argu-
ment is to the effect that it was impossi-
ble fov them to identify the goods in the
absence of the invoice ; but, as the agent
of the Bast Indian Eailway Company, it
was clearly its duty to make enquiries
from the East Indian Kailway Company
to ascertain the real facts in connexion
with this particular consignment, It is
true that it gave some evidence to show
that inquiries were made by it, but with
reference to this the learned District
Jadge says as follows :
They should, therefore, have taken prompt
steps to ascertain from the possible sources to
which consignment the goods related. The evi-
dence, however, shows that they took no steps
till September. They must have" known by this
time that goods are such as were liable to deterio-
ration during the monsoon period. Even then
there is no evidence to show the nature of the
enquiry, as the documents are not before the
Court and the defendants did not make any case
that tney were entitled to give secondary evi-
dence. The evidence of enquiry said to have
been made also show that it was of the most
perfunctory character.
In my opinion, the learned District
Judge was right in passing decree as
against both the Kailway Companies and
jthe appeal of the Bengal and North-
Western Baiiway Company muat be dis-
missed with costs : five gold mohurs in
each case.
Adami, J. — I agree.
Appeal dismissed.
A. I. R. 1926 Patna 397
DAS AND ADAMI, JJ.
Bihari Lai Hitter — Appellant,
v.
Tanuk Lai Mander and others — Res-
pondents.
Appeals Nos. 107 to 111 of 1925, Deci-
ded on 2nd November 1925, from the
appellate order of the Sub-J., Bhagalpur,
D/- 20th Maroh 1925.
(a) Civil P. CM 8. 47— Order on question of
notice under 0. 21, JR. 22, is one in execution.
The orders upon the question whether notices
under 0. 21 B, 22, were or were not served- must
be regarded as orders under S. 47, and second
appeal lies. [P 397, C 2]
(6) Limitation Act, S. IQ—Mere carelessness or
negligence does not substantiate a finding of
fraud.
There is all the difference in the world between
a failure to serve the notices and a deliberate
contrivance on the part of » party to suppress the
notices. The one is due to negligence, careless-
ness or various other circumstances ; the other is
the result of a deliberate contrivance on the part
of a party for his own advantage. Mere negli-
gence or carelessness ou the part of the process-
server or the identifier is insufficient as a basis for
a finding of fraud. [P 898, 0 1,2}
(c) Limitation Act. Arts 181 and 166— Scope.
Application to set aside execution sale on the
ground of want of notice under 0. 21, R. 22, i»
governed by three years' rule of limitation under
Art. 181. [P 398, C 2]
<S. C, Hajumdar — for Appellant.
Navadwip Chandra Ghose — for Res-
pondents,
Das, J. — These appeals are directed
against the order of the learned Addi-
tional Subordinate Judge of Bhagulpur,
dated the 20th March 1925 by which he
confirmed the orders of the learned Mun-
sif setting aside certain sales both under
0. 21, E. 22, and under 0. 21, R. 90
of the Code. So far as the applications
can be read as applications under the
provision of 0. 21, R. 90, no appeal lies to
this Court ; but then the applications
were made both under S. 47 and under
O. 21, R. 90 of the Code. It was conten-
ded that notices under O. 21, R.'22, were
not served in the cases and that accor-
dingly the sales ought to be set aside
under the provision of S. 47 of the Code.
The orders upon the question whether
notices under O. 21, R. 22 were or were
not served must be regarded as orders
under S. 47 of the Code and second ap-
peal lies to this Court. I will therefore
only consider the question whether the
petitioners are right in saying that
notices under 0, 21, R. 22 were not served
and whether their application was not
barred by limitation. So far as the first
question is concerned, it is the concur-
rent finding of both the Courts that notices
tinder 0. 21, R. 22, were not served and
this is a finding of fact which is binding
on us in second appeal. We must accor-
dingly hold that notices under 0. 21, R. 22
were not served in these oases.
But then a very important question
arises. In one of these oases, Miscella-
neous Case No. 146 of 1924 which is the
subject-matter of Miscellaneous Appeal
No. 108 of 1925, the property was sold
so far baok as the 18th of July 1918 and
the application was made beyond three
398 Patna
BIHABI LAL v. TANUK LAL (Das, J.)
1926
years from the date of the sale. It" may
be mentioned that although the property
was sold on the 18th July 1918, delivery
of possession was not taken until the
30th July 1921 and it may he conceded
that the application for setting aside the
sale was made within 3 years from 30-7-21.
The main ground upon which the Court
of first instance decided the issue of
limitation in favour of the petitioners
was that they were kept from the know-
ledge of the right to apply for setting
aside the sale under the provision of
O. 21, K. 22 by means of fraud. It is
material therefore to consider whether
the actual findings at which the learned
Munsiff has arrived are findings from
which an inference of fraud can be raised,
I have scrutinized the judgment of the
learned Munsif with great care and in my
opinion there is no legal finding of fraud
in his judgment. For instance, in dealing
wifeh the question whether the process
was served the learned Munsif says as
follows :
In none of these cases it appears from the
reports that the process-server made a bona fide
substantial effort or proper enquiries to find out
when and where the judgment-debtor was likely
to be found in order to justify their hanging up
of the process to his door to constitute legal
service.
And then he says :
That baing so, and there being oral evidence of
the petitioner and his Witnesses Nos. 2, 3, and 4
that to their knowledge never had any process-
server served the notices on the judgment-debtor
such as are contemplated by the provision of
O. 21, R. 22 or R. 66 and the reports indicating
clearly that the judgment-debtor was undoubt-
edly never met by them without any real or
oven pjrfunctory effort ta find him out, the
natural inference of suppression of the processes
Appears to be made out in favour of the appli-
cant in all these cases including. Case No, 149,
I am unable to agree with the learned
Munsiff on the point. There is all the
difference in the world between a failure
to serve the 'notices and a deliberate
contrivance on the part of a party to
suppress the notices. The one is due to
negligence, carelessness or various other
circumstances ; the other is the result, as
I have said of a deliberate contrivance on
the part of a party for his own advantage.
In dealing with these oases, I have
noticed the case with which the Subordi-
nate Courts arrive at findings of fraud
without considering for a moment how
serious these findings may be for the
parties concerned. *
All that the judgment of the learned
.Munsif establishes is that there wa«
negligence or carelessness on the part of
the process-server or the identifier. This
in my opinion is insufficient as .a basis
for a finding of fraud. The learned Sub*
ordinate Judge 'on appeal has not gone
beyond the findings of the learned Mun-
sif. In my opinion, therefore, fraud has
not been established in these cases. That
being so, so far as Miscellaneous Case
No. 146 of 1924 is concerned it is clearly
barred by limitation. Mr. Naresh Chan-
dra Sinha arguing on behalf of the
respondents contends that the right to
apply accrued not on the 18th July 1918
when the sale took place but on the 30th
July 1921 when the delivery of posses-
sion was taken by the decree-holder. I
am unable to agree with this contention.
The application is in substance an appli-
cation for setting aside the sale and it is
the sale which is the subject-matter of
the application and therefore the right
to apply clearly accrued to the peti-
tioners on the 18th July 1918. It may be
that the petitioners have a grievance
against the order for possession ; for as
Mr. N. C. Sinha points out that the sale
being a nullity it was not necessary for
them to apply for setting aside that
which has no substance in the eye of law.
That may be so, and it may be that
Mr. N. C. Sinha's client may still bring
a suit for recovery of possession of the
property within twelve years from the
date of delivery of possession, but the
application for setting aside the sale
must be governed by the three years
rule and it must fail as, in my opinion,
fraud has not been established by the
petitioners. I would accordingly allow
M. A. 108 of 1925 and dismiss Miscel-
laneous Case No. 146 of 1924 with costs
in all the Courts.
So far as the other appeals are con-
cerned, it is not disputed that the appli-
cation for setting aside the sale were
made within three years from the date of
the sales. That being so, clearly the
point of limitation must be decided in
favour of the respondents and as the
findings of fact at which the lower appel-
late Court has arrived are findings which
are binding on us in second appeal, on
the question whether notice tinder 0. 21,
B. 22 were in fact served on the respon-
dents, we must dismiss those appeals
with costs in all the Courts.
Aaami, J. — I agree.
Appeals dismissed*
1926
JODHI SINGH v. CHHOTU MAHTO (Foster, J.)
Palnm 399
A. I. R. 1926 Patna 399
FOSTER, J.
Jodhi Singh and another — Petitioners.
Mahto and others — Opposite
Party.
Civil Revisions Nos. 454 and 460 of
1925, Decided on 5th March 1926, from
an order of the Small Cause Court J.,
Bihar, D/- 20th August 1925.
Contract Act, S. 68— Debt by guardian for
necessaries — Decree for, Is executable against
minor's property.
A decree for a re-payment of a loan taken by
natural guardian of a minor during his minority,
for purposes which can be considered to be
necessary within the meaning of 8. 68, can be
enforced against his property : 2 P. L. T. 35, Dlst.
[P. 399, C. 2]
Sambhu Saran — for Petitioners.
B. P. Verma — for Opposite Party.
Judgment. — The first point taken by
the petitioners is that they being minors
cannot be made parties liable under a
decree for re-payment of a loan taken by
their natural guardian during their minor-
ity. The learned vakil calls attention
to the case of Kashi Prasad Singh v.
Akleshwari Prasad Narain Singh (1).
That case can be at once distinguished.
It was found to be not a suit for the
price of necessaries. Now, here, accor-
ding to the petition before me, the plaint
alleges that the natural guardian was
short of money to meet the household
expenses of the family, and she borrowed
Bs. 85 from the plaintiffs which is the
subject-matter of Suit No. 19 of 1925,
and she also borrowed Bs. 60 to defray
the expenses in the roksati ceremony of
her daughter which forms the subject-
matter of Suit No. 18 of 1925 ; and the
plaintiffs' case was that as both the loans
were for family necessity, and as the
Defendants Nos. 2 and 3 (the present
petitioners) were benefit d thereby, they
were liable for the debts. As a matter
of fact the plaint did not fairly express
the position of the minor defendants in
the last sentence.
The minor defendants cannot be person-
ally liable ; they cannot be arrested and
dealt with in any of the usual methods
adopted when a debt is being exacted
from ordinary debtors. The only excep-
tion to the general rule protecting minors
(1) [1920] 2 P. L, T. 36=68 I. C, 22,
from decrees for debts and execution
thereof is to be found in Hindu Law and
in the general law, that where the ex-
penses have been incurred by the natural
guardian on behalf of the minor, and
where that expenditure is necessary in
the sense that it is an expenditure which
would have to be met by persons in the
social position of these minors, the ex-
penditure shall in such circumstances be
considered to be for necessaries : provided
of course, that the guardian was obliged
by justifying circumstances to Borrow
money. The case of Kashi Prasad Singh
(1) is quite different. There was no
mention of any supply of necessaries.
Here the claim is obviously based pri-
marily on an advance of money for
certain necessary purposes; and secondly,
upon the hand-note, which is produced
in support of the claim. Oases which
are brought solely upon hand-notes, and
not under the r ules of Hindu law or the
rules contained in such sections as 68
and 247 of the Contract Act, will exclude
the special liability imposed by these
provisions of Hindu Law and the Law of
Contract. But here it has been found
definitely in the judgment that the
minors were supplied with money which
was needed for purposes which can be
considered to be necessary within the
meaning of S. 68 of the Contract Act.
The defendants cannot certainly be made
judgment -debtors in the unrestricted
sense, but their property will be liable
under tho special provisions which I have
referred to.
There is another aspect of the matter.
The guardian would certainly have to
pay the dues under the hand-note and
would certainly be entitled to be reim-
bursed out of the family property ; so
this form of decree saves a multiplicity
of suits. The next point taken is that
the application of the Usurious Loans
Act to this case was inadequate and that
the interest should have been reduoed
still more. That is obviously not a
matter for a Court acting uuder 8. 25 of
the Provincial Small Cause Courts Act.
I am, therefore, satisfied that there is
nothing in this case which the applicants
have shown to be not in accordance with
law. The petitions are dismissed with
costs, hearing fee one gold mohur.
Petitions dismissedt
*00 Patna
BENGALI GOPE v. KIKG-EMPEROR
1926
A. I. R. 1926 Patna 400
BOSS AND KULWANT SAHAY, JJ.
Bengali Gope— Accused— Petitioner.
v.
King-Emperor — Opposite Party.
Criminal Revision No. 480 of 1925,
Decided on 27th January 1926, frocn an
order pf the 1st 01. Ma','., Patna, Dl- llth
May 1925.
Criminal P. C., S. 190 and S, 37 and Sch. 4—
Cognizance of offence beyond power* specified
In Sch. 4 and S. 37 fs without jurisdiction and
conviction. may not be invalid but complainant
cannot be prosecuted for false com nlalnt — Crimi-
nal P.C, S. 529 (*.)
A Magistrate of tho 2nd Class cannot take
cognizance of a complaint that certain persons
were guilty of murder. Where therefore he does
entertain such a complaint and finding it to be
false takes action under S. 190, though defect in
conviction could be cured by S. 529, complainant
cannot be prosecuted for false complaint. The
powers of 9* 2nd class Magistrate can be ex-
tended only to the extent specified in S. 37 and
Sch. 4 which provisions are to be read with
8. 190 in such cases. [P 400, C 2]
G- P. Das — for Petitioner.
Asst. Govt. Advocate — for the Crown.
Ross, J. — The petitioner has been
committed to the Court of Sessions for
trial on a charge of having presented a
false complaint before the Sub-Deputy
Magistrate of Dinapur. The offence
alleged in the complaint was the offence
of murder.
The contention on behalf of the peti-
tioner is that the Sub- Deputy Magistrate
who exercised 2nd Class powers only,
had no authority to take cognizance of
the complaint ; and that ail tue proceed-
ings before him were without jurisdic-
tion.
It appears that by an order of the
District Magistrate of Patna the Sub-
Deputy Magistrate of Dinapur is autho-
rized to entertain complaints during the
absence of the Sub-divisional Magistrate.
The power to make such an order is
conferred by S. 190, 01. (2), and is
exercisable with regard to cases which
the Subordinate Magistrate is competent
to try or commit for trial. S. 37 and
the fourth schedule of the Code, which
also deal with this matter, must be read
with S. 190 ; and there is nothing in
these provisions to extend the powers
which the District Magistrate can confer.
As the complaint made to the •Sub-
Deputy Magistrate was a complaint that
certain persons were guilty of murder,
he was not competent to take cognizance
of it ; and the proper procedure for him
to adopt was that laid down in S. 201
which requires him to return the com-
plaint for presentation to the proper
Court with an endorsement to that effect.
Instead of doing that he sent the com-
plaint to the police for enquiry and, on
their reporting the case to be false, he
dismissed the complaint under S. 203
without ever having examined the com-
plainant on oath, and then himself com-
plained against him. The orders were
throughout irregular and without juris-
diction. Nor are they protected by
S. 529 (e). That section saves proceed-
ings before a Magistrate taken on a com-
plaint of which cognizance is taken with-
out authority ; but this will not have
the effect of making the complainant
liable for prosecution for a false com-
plaint by reason of the Magistrate's
paving taken cognizance of it, without
power to do so.
In my opinion these proceedings were
void ab initio ; and there is no basis in
law for the present prosecution. I would
therefore quash the commitment under
S. 213 of the Code and direct that the
petitioner be discharged,
Kulwant Sahay, J.— I agree.
Commitment quashed.
1926
EAMISHWAR v. MAHABIR (Dawson-Miller, C. J.) Palna 40i
A. I. R. 1926 Patn* 401
DAWSON-MILLEU, C. J., AND
FOSTER, J.
Kumar Ramishwar Narain Singh
Defendant — Appellant.
v.
Mahabir Prasad and others— Plaintiffs
— Bespondents.
Letters Patent Appeal No. 69 of 1925,
Decided on 27th May 1926, from a de-
cree of Kulwant Sahay, J., D/-*29th April
1925.
(a) Limitation Act, Arts. 95 and 12— Suit to
set aside sale under Chota Nagpur Tenancy Act
on the ground of fraud Is governed by Art. 95 —
S. 231, Chota Nagpur Tenancy Act, does not ap-
ply—Chota Nagpur Tenancy Act, S. 231.
A salt for possession of land and the right to
ask for a declaration that a sale under the
Chota Nagpur Tenancy Act has b^eu fraudu-
lently continued is clearlj not a suit under the
Ghota Nagpur Tenancy Act, It is governed by
Limitation Act, Art 95. It is true that the Act
in some cases takes away the right to sue for
setting aside a sale, but it nowhere grants that
right although to borne extent kit limits it.
(b) Civil P. C., S. 100 — Question of law de-
pending on question of fact not raised in lower
Court was not alloived.
A point of law which depended to some extent
upon qusstion of Uct which might have been
raised in first appellate Court 'but was not
raisad, was not allowed to bo raised in second
appeal. [P 402,0 2]
(c) Limitation Act, Sch. 12.
The mora general article must bo governed by
tb^t which is more specific. [P 403 C 1]
B. C. De-tor Appellant.
S. N. Roy and S. Sakai — for Respon-
dents.
Dawson-Miller, C J, — In this case
the plaintiffs were the khastkars of a
holding in mauza Manjura consisting of
8*43 acres. They were in default in the
payment of their rent, a rent suit was
brought against them and a decree was
passed in favour of the present defen-
dant. The decretal amount was, in round
figures, Ks. 52. Before the sale which
took place under the provisions of the
Chota Nagpur Tenancy Act the plaintiffs
appear to have paid into Court at differ-
ent times certain sums on account of the
decretal amount and at the date of the
sale of the property in execution of the
decree, which was on the 3rd December
1917, there was still a balance of Bs.
11-5-0 due, On the 29th December
1917, that; is, within a mouth of the date
1926 P/S1
of the sale, the plaintiffs sent this sum
to the defendant's mukhtar as payment
of the balance due under the decree.
Under the provisions of S. 212 of the
Chota Nagpur Tenancy Act the judg-
ment* deb tor in such cases or .anyone
who claims under a title acquired before
the sale may within a period of 30 days
from the date of the said apply to have it
set aside on depositing in Court 5 per
cent, of the purchase price together with
the amount specified in the proclamation
of sale as that for the recovery of which
the sale was ordered less any amount
which may from the date of the procla-
mation have been received by the decree-
holder. The plaintiffs did not comply
strictly with the provisions of that sec-
tion because they did not deposit the
money in Court. They did, however,
pay the money to the decree-holder who
was himself the purchaser of the property
at the auction sale, Therefore the defen-
dant was the only person interested in
tha sale apart from the plaintiffs them-
selves at that time. The plaintiffs in
such circumstances might reasonably ex-
pect that they would get back their pro-
perty for they had paid the small balance
that was due within a month of the date
of the sale. So far, however, froai get-
ting their property back the defendant
who was their landlord and decree-
holder in the rent suit actually applied
for confirmation of Hie sale and tha sale
was accordingly confirmed
Whether the defendant remained in
possession of the holding, or for how
long, if at all, he remained in possession
is not very clear from the facts disclosed
in the case , but we are told that the
landlord has since that date and some
time apparently before the suit was
brought settled the land with other ten-
ants, but whether those other tenants
have actually got possession or whether
the plaintiffs are still in possession again
we do not know. They asked in the
present suit that it may be held that the
defendant got the sale fraudulently con-
firmed and that the order confirming the
sale should be set aside, and they further
asked that if in the opinion of the Court
the plaintiffs are considered out of
the possession of the disputed land then
khas possession may be awarded to
them.
Two points arose for consideration in
the trial Court, first, whether the ciroum-
402 Patnm
KUMAR RAMISHWAR v. MAHABIR (Dawson- Miller, 0. Jj 1926
stances which I have detailed amounted
to a fraud on the part of the landlord
against his tenants and if so, whether the
sale should he set aside, that is to say,
-whether the title to the land should be
restored to the plaintiffs ; and, secondly,
whether even if the plaintiffs were in
law or equity entitled to get hack pos-
session of the land, they were not barred
by limitation having brought their action
more than one year after the date of the
-sale.
The learned Munsif before whom the
case came for trial arrived at the conclu-
sion that there was undoubtedly fraud on
the part of the defendant and he con-
sidered that the defandant was wrong
.and fraudulent in getting the sale con-
firmed in spite of the fact that full pay
•ment of the sums due to him had been
made within one month of the sale. He
^considered, however, that the suit was
barred by limitation although he does
not specify under which article of the
Limitation Act, or whether under any
^provision of the Ghota Nagpur Tenancy
Act, the suit was barred,
The matter went on appeal to the Sub-
ordinate Judge, the plaintiffs contending
in that appeal that the suit was not
barred by limitation. The finding of fact
that the defendant had got the sale
fraudulently confirmed was not disputed,
that finding being apparently accepted by
the defendant on appeal. In the result
the learned Subordinate Judge came to
the conclusion that neither S. 231 of
the Chota Nagpur Tenancy Act nor Art.
12 of the Limitation Act applied to the
case, but that Art. 95 of the Limitation
Act was the article applicable. That
Article provides for a suit to 'set aside a
decree obtained by fraud, or for other re-
lief on the ground of fraud, the period of
limitation being three years from the
date when the fraud becomes known to
the party wronged. From that decision
there was a second appeal to this Court
which came for hearing before Mr, Justice
Kulwant Sahay. He agreed with the
finding of the lower appellate Couft that
the case was governed by Art. 95 of the
Indian Limitation Act and not by Art.
12 or by 8. 231, of the Chota Nagpur
Tenancy Act.
A further point was urged before him,
namely, that under the Chota Nagpur
Tenancy Act no provision is actually
.made for having a sale confirmed and
therefore the sale was complete on the
3rd December and required no confirma-
tion, and that any fraud which may have
been perpetrated by the defendant was
not a fraud bringing about the sale and
that the sale as such was free from fraud,
the fraud alleged having occurred subse
quently. This point, if it could be es-
tablished, and if the defendant could
satisfy the Court that the fraud perpe-
trated by him was something altogether
apart from the sale, was a point which
he could have taken in first appeal when
the plaintiffs appealed from the decision
of the Munsif on the ground of limita-
tion, for it is obvious that although he
might not have been able to support the
Munsif's decision on the ground of limi-
tation still he could have supported it
upon this ground of fraud by urging
before the Subordinate Judge that al-
though the Munsif may have been wrong
in the view he took still his decision was
right because there was in fact no fraud
connected with the sale. The point, how-
ever, was not taken and it appears quite
cleary from the decision of the Subordi-
nate Judge that the findings of fact in
the Court below were not challenged by
the defendant and the only question de-
bated in the appeal was whether the suit
as held by the trial Court was barred by
limitation. Mr. Justice Kulwant Sahay
accordingly refused to entertain the point
in second appeal and, in my opinion, he
was perfectly justified in doing so. The
point is not one entirely in bar of the suit.
It is undoubtedly a point of law but
it is a point that depends to some
extent upon questions of fact and it is
certainly a point which was open to the
defendant in the first appellate Court. If
he did not choose to raise such a point
when he might have, I do not think it
can be said that he is of right entitled to
raise such a point in second appeal.
Moreover, looked at from an equitable
point of view it seems to me quite clear
in this case that the defendant having
accepted the balance of the decretal
amount due to him impliedly undertook
to re-transfer the property to the plain-
tiffs or at all events not to go on with
the sale and have it confirmed as in fact
he did. That he practised a fraud I do
not think oan be disputed, and therefore
I am certainly not prepared to interfere
with the decision come to by the learned
Judge of this Court.
1926
MADHAB v LALL SINGH (Adami, J.)
Patna 403
With Regard to the second point here
again I think that the decision of Mr.
Justice -Kulwant Sahay should be
affirmed. S. 231 of the Chota Nagpur
Tenancy Act places a limitation period of
one year upon all suits and applications
instituted or made under this Act for
which no period of limitation is provided
elsewhere in the Act, It is, to my mind,
quite clear that a suit of the present
nature is not a suit under 'the Chota
Nagpur Tenancy Act. The right to sue
?or the possession of land and the right to
isk for a declaration that a sale has been
fraudulently confirmed is clearly not a
rait under the Ghota Nagpur Tenancy
Act. It is true that the Act in some
saaes takes away the right to sue for
jetting aside a sale but it nowhere grants
fchat right although to some extent it
limits it. Then with regard to the Limi-
tation Act, Art. 12, under which one
year's limitation is prescribed, is with re-
gard to cases of a sale in execution of a
decree of the civil Court, and if the
matter stood there, there is no doubt
that it might apply to the present case ;
but Art. 95 seems to be a more specific
article in so far as sales are concerned.
That article applies to suits to set aside
a decree obtained by fraud or for other
relief on the ground of fraud. If the
sale therefore which it is sought to have
set aside is obtained on the ground of
fraud then I think that the more specific
Art. 95 ought to 'be applied and that the
more general article must be governed
by that which is more specific. It is
upon this ground that Mr. Justice
Kulwant Sahay dismissed that part of
the appeal and, in my opinion, he was
quite right.
This appeal will be dismissed with costs.
Foster, J.— I agree.
Appeal dismissed.
A. I. R 1926 Patna 403
DAS AND ADAMI, JJ.
Madhab Poddar— Defendant— Appel-
lant.
v.
Lall Singh Bhumij — Plaintiff— Res-
pondent.
Appeal No. 426 of 1923, Decided on
2nd June 1926, from the appellate decree
of the Dist., J., Manbhum, D/- 8th
February 1928.
Chhota Nagpur Tenancy Act, S. 1394— Suit
/or ejectment of under-tenant by his immediate
landlord Is barred as application lies under S. 46.
to Deputy Commissioner.
Under S. 46 an application for the ejectment
of an under-tenant was cognizable by the Deputy
Commissioner; and under Cl. (8) of S. 139, as it
stood before the amendment of 1920, and as it
still stands, an application under 8. 46 is an
application cognizable by the Deputy Commis-
sioner. Thus it seems clear that under the
terms of S. 139A no suit could be brought m
the civil Court for the ejectment of an under-
tenant by his immediate landlord: [P. 40i C« 11
S. C. Mazumdar — for Appellant.
A. K. Ray and SasKt S. Pd. Singh-
tor Kespondent.
Adami, J.— -The plaintiff in this suit
sought to eject the defendant from the
lands asserting that he was an occupancy
raiyat and the defendant was an under*
raiyat under him. The defendant set up
a claim of occupancy-right on the basis
of two leases, each of a permanent nature*
granted by the father of the plaintiff and
the mother of the plaintiff, respectively,
in the years 1301 and 1304.
The Munsif decreed the suit in part,
but on appeal to the District Judge the
appeal was dismissed.
A point was taken before the lower
appellate Court that no suit was main-
tamable, having in view the provisions of
S. 139, 01. (4) of the Chhota Nagpur
Tenancy Act. The learned District Judge
found that Cl. (4) of S, 139 only bars
suits which are under the Act and that
there was no section in the Act providing
for the ejectment of an under-tenant.
The Courts have found that the defendant
was merely an under-tenant.
Before us the only point taken is that
the suit was in fact not maintainable by
the civil Court ; it should have been in-
stituted in the Court of the Deputy
Commissioner. It is true that there is
no specific section in the Chhota Nagpur
Tenancy Act providing for the ejectment
of an under-tenant, though there are
provisions for the ejectment of occupancy
raiyats and non-occupancy raiyats.
There is, however, a provision, namely,
S. 46, sub-8. (4), which allows a tenant to
approach the Deputy Commissioner with
an application to eject an under-tenant
at any time within three years after the
expiration of the period for which the
raiyat has transferred his right in the
holding or any portion thereof. The
section allows the Deputy Commissioner,
in his discretion, on the application of a
401 Patna MD. HABIBUR RAHMAN v. QASIM HUSSAIN (Kulwant Sahay, J.) 1926
raiyat, to put the raiyat into possession
of such holding or a portion thereof in
fche prescribed manner. It was open,
therefore, to the plaintiff in this case to
have applied to the Deputy Com-
missioner to take action under S, 46
sub-S. (1). At the time the suit was
instituted S. 139 had not been amended
by S. 38 of the Acfc of llhO. That S. 38
only came into force in 1924, and 01. (4)
of S. Ib9, at the time that tho suit was
brought, referred only to suits under the
Act to eject a tenant from agricultural
land; there was no mention in that clause
of applications.
The Court below, however, has failed
to notice S. 139A which was introduced
into the Act by the Amending Act of
1920 and came into force before the suit
was instituted. Under S. 139A no
Court may entertain a suit concerning a
matter in respect of which an applica-
tion is cognizable by a Deputy Commis-
sioner under S. 139. Now S. 46 gives
the Deputy Commissioner jurisdiction to
deal with an application for ejectment of
an under-tenant. This has been held by
Teunon, J., in tho case of Bholanath
Mandal v. Chhota Qunaram Mighi (l).
At the time we en that judgment was
passed the Act of 1908 had not been
amended by the Act of 1920, so that the
provisions of S. 139 A could not be taken
into consideration by Teunon, J.; and
those provisions altogether alter the
position. It was however decided in
that case that S. 46, sub-S. (4), covers the
case of the ejectment of an under-tenant
Dy a tenant.
Under S. 46, then, an application for
ihe ejectment of an under-tenant was
cognizable by the Deputy Commissioner;
*nd under 01. (8) of S. 139, as it stood
before the amendment, and as it still
stands, an application under S. 46 is an
application cognizable by the Deputy
Commissioner. Thus it seems clear that
under the terms of S. 139A, no suit
could be brought in the civil Court for
the ejectment of an under-tenant by his
immediate landlord. In this view, then,
this appeal must succeed and the decree
of the lower Courts must be set aside
with, costs in all the Courts.
Das J. — I agree.
Appeal allowed
"as i.~a 40?,
# A. I. R. 1926 Patita 404
Boss AND KULWANT SAHA,Y, JJ.
Muhammad Habibur Rahman and
another — Petitioners — Appellants,
v.
Qasim Hussain and others — Opposite
Party — Kespondents.
Appeal No. 211 of 1925, Decided on
19th March 1926, from the original
order of the SulrJ., Patna, D/- 23rd
June 1925.
& (a) Mahomedan Law — Dower — Transfer of
Property Act, S. 100.
Decree for dower debt does not creata a charge
on the husband's property in the hands of his
heirs. [P. 40G, C. 2]
$ (6) Transfer of Property Act, S. 5%—Maho-
medan Law — Dower.
Suit by widow to set aside alienation by hus-
band of his property made with a view to defeat;
plaintiff's claim for dower is a suit as contem-
plated by S. 53. [P. 407, C. 1)
Hasan Imam, Hasan Jan and Ahmad
Raza — for Appellants.
K. Husnain, Janak Rishore, Baghu-
nandan Prasad, Ali Khan and S. M.
Wasi — for Bespondents.
Kulwant Sahay, J.— This is an
appeal against an order of the Subor-
dinate Judge of Patna, dated the 23rd
June 1925, rejecting the claim of the
appellants under O. 21, E. 58, Civil
P. C. and allowing an amendment of the
application for execution of the decree.
In order to understand the nature of the
objection and the points raised in appeal
it is necessary to set out the facts briefly;
they are given in my judgment dated the
22nd January 1925, but in order to
make this judgment self -contained, I
state the facts again.
One Khajeh Azhar Hussain died on
tho 10th of June 1916 leaving a widow,
Mt. Izatunnisa Begum and a sister
Mt. Ahmadi Begum. According to the
Mahomedan Law governing the parties,
the sister, Mt. Ahmadi Begum, was the
sole heir of Khajeh Azhar Husain.
Before his death, Khajeh Azhar Husain
executed two waqfnamas dated the llth
of June 1915 and 6th of December 1915,
and a hiba-bil-ewaz dated the 27th of
November 1915. By these three deeds
the whole of the immovable properties
owned by Khajeh Azhar Husain were
alienated. On the 14th of June 1916
the widow Mt, Azatunnissa instituted
1926 MD. HABIBUR RAHMAN v. QASIM HCISSAIN (Kulwanfc Sahay, J.) Pataa 405.
* suit for recovery of her dower debt
amounting fco Rs. 40,015. In that suit
the parties impleaded as defendants were
Mt. Ahtnadi Begum, Mirza Mehdi All
Khan, son of Ahmadi Begum, Mt. Asghari
Khanam alias Nanhu who was described
as the concubine of Khajeh Azhar
Husain, and Mt. Ahmadi alias Bibi
Begum, the daughter of Mt. Asghari
Khanam alias Nanhu : they were the
Defendants 1 to 4 respectively. Defen-
dants 5 to 10 were the other creditors
of Azhar Husain. It was alleged in tho
plaint that the two waqfnamas and the
Wba-bil-ewaz executed by Azhar Husain
before his death were illegal, void and in-
operative in law a3 against the plaintiff,
and the Defendants Nos. 5 to 10 ; that
they could not be bound by such frau-
dulent deeds adviaedly executed ; that
the said deeds had been brought; into
existence simply with a view to evade
payment of the dower debt of the plain-
tiff and the debts due to the other cre-
ditors ; and that the plaintiff was fully
competent to get the said three fraudu-
lent d^eds declared void and inoperative
by Court and to cause ' the dower debt
due to her to be recovered by the sale
of the immovable properties left by her
husband and entered therein, that the
said deeds had never been acted upon
and enforced and thafo the Defendant
No. 4 had never Ifcen and was not in
possession and occupation on the basis
of tho said deeds, and that the said deeds
were altogether inoperative and fit to
be cancelled. The prayers in the
plaint run thus :
(1) The Court .may be pleased to pass a decree
for the recovery of Rs. 40,000 and one gold
mohur worth Hs 15 in all of the dower debt of
Rs. 40,015 in favour of the plaintiff against the
principal defendants,
(2) The properties detailed in Schedules Nos. 1
and 2 to the plaint which are in possession
of the principal defendants may be declared to
be the heritage of the late Khajeh Azhar Hu-
sain and the plaintiff be empowered to recover
her decree therefrom.
(3) The costs in Court with interest thereon
may be awarded to the plaintiff against the
liable defendants.
(4) An order for attachment before judgment
may be mado till the disposal of this suit under
O. 39, R. 5, Civil P. C., against the properties
detailed below.
(5) Such other relfefs as the plaintiff be
•deemed entitled to in the opinion of the Court
may be decreed.
This suit was decreed by the learned
Subordinate Judge on the 31st of Janu-
ary 1918. On the 13th o? April 1918,
a mortgage was executed by Ahmadi
Begum and by the widow Izatunnisa in
favour of the appellant Habibur Rahman
in respect of two properties out of the
estate left by Khajeh Azhar Husain and
of the decree dated 31st of January 1918.
On the 1st of May 1918, another mort-
gage was executed by the said two
ladies in favour of 'one Wajihunissa mort-
gaging the two properties and the decree,
which had already been mortgaged on
the 13th of April 1918 and some other
properties. On the 23rd of July 1922,
Mt. Ahmadi Begum and Izatunnisa
Begum again niDrtgaged tho said two
properties and the decree and some other
properties to one Kuar Singh. On the
8th of July 1923, Mt. Ahmadi Begum sold
two properties to Habibur Rahman and
Mt. Khatoon Jannat for a sum of
Rs. 38,000 out of which Rs. 17,281 wa*
applied towards payment of three mort-
gages mentioned above.
Izatunniaa died on the 7th of Septem-
ber 1923, Before her death she had,
attempted to execute her dower decree,
and on the 25th of July 1918 she took
out execution of the decree in Execution
Oaso No. 148 of 1918 and a sum
of Rs. 1,000 was realized by sale
of certain movoable properties. Tho
second application for execution
was made by a Izatunissa ;on tho
31st of January 1921 in Execution
Case No. 47 of 1921. A house belonging
to her husband's estate was attached ;
but the execution case was dismissed
for default on the 17th of March 1921.
The third execution was taken out after
the death of Izatunnisa by her heirs who
are the Respondents Nos. 1 to 3 in the
present case. The execution case was,
however, struck off for default pn tho
18th December 1923 as the heirs! failpd
to produce a succession certificate. On
the 20th of January 1924 the heirs of Iza-
tunnisa made an assignment of a por-
tion of the decree to three persons,
Dargo Singh, Bansi Pande, and Bhawani
Mohan, and the present execution peti-
tion was filed on the 26th of January
1921 by the heirs of Izatiannisa and the
assignees from the said heirs. In the
application for execution, several proper-
ties were sought to bo attached and sold,
and the properties now in dispute which
were purchased by Habibur Rahman and
Khatoon Janat on the 8th of July 1923^
were Lots Nos. 1 and 2 in the execution
406 Palna MD. HABIBUB &AHMAN v. QABIM HUSSAIN (Knlwant Sahay, J.) 1926
petition. On the 26th of February 1924
the decree-holders, viz., the heirs and as-
signees filed a petition saying that Habi-
bur Bahman and Khatoon Jannat were
farzidars for Ahmadi Begum and that
Ahmadi Begum was really in possession
of the properties, and that the said pro-
perties were liable to attachment and
sale. The properties purchased by Habi-
bur Bahman and Khatoon Jannat were
attached on the 16th of May 1924, and
on the 28th of May 1924, Habibur Bah-
man and Khatoon Jannat preferred a
claim as regards the tvso properties pur-
chased by them under the provisions of
O. 21, B, 58, Civil P.O.
The learned Subordinate Judge rejec-
ted the claim by his order dated the 18th
of September 1924. He was of opinion
that the decree in the dower suit creat-
ed a charge upon the properties purcha-
sed by the claimants and that the claim
case was not maintainable. Against the
order of the Subordinate Judge the claim-
ants came up to this Court in revision, and
on the 22nd of January 1925 it Was held
by this Court that the decree-holders hav-
ing taken out execution of the decree as a
money decree, and having asked for at-
tachment of the properties as in execu-
tion of a money decree, and there being
nothing in the execution petition to show
that the decree-holders claimed a charge
upon the properties, the learned Subor-
dinate Judge was wrong in going into that
question and in rejecting the claim of the
claimants without an investigation of
their claim as required by law. The case
was, therefore, remanded to Jhim fur fan
investigation of the claim. When the mat-
ter went before the learned Subordinate
Judge, the decree-holders admitted that
the claimants were really in possession
in» their own rights and not as benami-
dars for the judgment-debtor Ahmadi
Begum ; but they said that the decree
created a charge and that the claim case
was not maintainable* They asked for
amendment of their application for exe-
cution by stating that the decree was a
decree creating a charge and they prayed
for the addition of the names of the claim-
ants Habibur Bahman and Khatoon
Jannat as representatives of the judgment-
debtor, and they applied that the prayer
for attachment of the properties may be
deleted. This amendment was opposed
by the claimants, but the learned Sub-
ordinate Judge having relied upon his
previous decision that the decree created
a charge allowed the amendment, the
effect whereof was that Habibur 'Bah man
and Khatoon Jannat were added in the
application for execution as representa-
tives of the judgment debtor and the deu
cree was sought to be executed as a de-
cree creating a charge upon the proper-
ties sought to be sold. Against this order
of the learned Subordinate Jugde the
claimants have come up in appeal to this
Court.
The principal point argued on be-
half of the appellants was that the de-
cree in the dower suit did not create a
charge upon the properties as held by
the learned Subordinate Judge. In my
opinion this contention is sound and
ought to prevail. It is conceded on behalf
of the decree-holders that a dower debt
does not under the Muhammadan Law
create a charge upon the properties of the
husband. Having regard to the authori-
ties, this position could not be challenged.
I need only rdfer to the decision of the
Privy Council in Mt. Hamira Bibi v.
M t. Zubaida Bibi (1) where their Lord-
ships observed that dower ranks as a debt
and that the wife is entitled, along with
other creditors to have it satisfied on the
death of her husband out of his estate ;
her right is, however no greater than
that of any other unsecured creditor.
Ametr Ammal v. Sfrilaraba'ian j(2) is to
the same effect. The learned Subordi-
nate Judge also conceded that the dower
debt did not by itself create a charge
upon the properties of the, husband : he
was, however, of opinion that the decree
in the dower suit had the off act of creat-
ing a charge. In order to see whether
a charge was created by the decree, it is
necessary to examine the nature of the
suit in which that decree* was passed. As
I have said, the principal claim in suit of
Izatunnissa was a claim for recovery of
her dower amounting to Bs. 40,015 ; but
having regard to the alienations said to
have been made by her husband, kshe
made a prayer in the plaint to the
effect that it might be decided by
the Court that the properties set out
in the schedule attached to the plaint
were really in possession of the prin-
cipal defendants and that those proper-
ties formed the heritage of the late Kha-
li) [1916] 38 All. 581=86 I. 0. 87=43 I. A.
294 (P. C.).
(2) [1902] 25 Mad. 658.
1926 MD. HABIBUR RAHMAN v. QASIM HUSSAIN (Kulwanfc Sahay, J.) Patna 40?
jeh Azhar Husain, and that the plaintiff
was entitled to recover her debt from
those properties. The suit was really a
suit as contemplated by S. 53 of the
Transfer of Property Act. The alle-
gations in the plaint were that the trans-
fers alleged to have been made under the
two waqfnamas and the Hiba-bil-ewaz
were really transfers with intent to
defeat or delay the creditors of the trans-
ferrer, and that such transfers were void
and could not affect the creditors who
were entitled to realize their debts by
sale of those properties. The other cre-
ditors of Azhar Husain were also made
parties and in paragraphs 21 and 22 of the
plaint a clear allegation was made
which would bring the case within the
purview of S. 53 of the Transfer of Pro-
perty Act. The real object of the suit
was to have a declaration from Court
that the properties covered by the waqf-
nama and the Hiba-bil-ewaz were still
the properties forming the estate of the
plaintiff's husband and that they were
available to her for realization of her
dower debt. The decree made in that
suit had the effect of declaring thai; tho
transfers evidenced by the waqfnamas
and the Hiba-bil-ewaz were fraudulent
transfers made with intent to defeat
the claims of creditors. No charge was
'Created by the decree in favour of the
plaintiff upon the properties set out in
•the schedules to the plaint in that suit.
The learned Subordinate Judge has re-
ferred to Issue No. 3 raised in the dower
auit which ran thus : —
Whether the dower debt, if any, can be realized
from the properties mentioned in the plaint.
This issue was answered in the affir-
mative, and the learned Subordinate
Judge says that this had the effect of
creating a eharge. In my opinion the
learned Subordinate Juege has taken an
erroneous view of the decision of the
Issue No. 3 in the dower suit. Having
regard to the pleadings of the parties, it
is clear that all that was intended was
to hold that the properties covered by
the waqfnamas and the Hiba-bil-ewaz
were still available to the plaintiff and
the other creditors as forming part of the
estate of Azhar Hugain. I am, there-
fore, of opinion that no charge was creat-
ed by the decree under execution.
Reliance has been placed on behalf of
the decree* holders upon the decision of
(the Privy Council in Mahomed Wajid v,
Tayyuban (3). This appeal was' heard
by the Judicial Committee along with
another appeal : Bazayet Hossein v.
Dooli Chund (3). In dealing with the
case of Bazaytt Hossein v. Dooli Chund (3)
their Lordships held that a creditor of a
deceased Maharnmadan cannot follow his
estate into the hands of a bona fide pur-
chaser for value to whom it had been
alienated by his heir-at-law. In deal-
ing with the case of Mahomed Wajid v.
Tayyuban (3) their Lordships observed
that this case was similar to the¥case of
Bazayet Hossein v. Dooli Chund (3) with
one exception, viz., that the appellant
Mohammed Wajid claimed under a sale
in execution of a decree upon a mort-
gage bond executed by Najmuddin to
Abdul Aziz on the 30fch of October 1867
and the great distinction between this
case and the case of Bazayet Hossein was
that in this case the mortgage bond was
executed pending the suit brought by
the 'widows, whereas in the other case
the mortgage bond was executed before
tho institution of the widow's suits ; and
their Lordships agreed with the decision
of the High Court which held that the
purchaser from Najmudin was bound by
the decree as he was affected by the
doctrine of Us pendens.
It has been contended that in the pre-
sent case Habibur Rahman made his
purchase with knowledge of the decree
in the dower suit and that, therefore, he
must be held bound by the decree and
that the properties purchased by him
were available to the decree-holder as he
was affected by the doctrine of lis pen-
dens. In my opinion this contention is
not sound. The principle applied by
their Lordships in the case of Mohamm-
ed v. Wajid (3) was an equitable prin-
ciple. Here in the present case we find
that Mt. Izatunnisa the predecessor in
interest of the present decree-holder
executed three mortgages in respect of
the properties purchased by the claim-
ants. The decree under execution was
also mortgaged and by the purchase of
the 8th of July 1923 the claimants satis-
fied the previous mortgages executed by
Mt. Izatunnisa along with Ahmadi Begum
and the effect of it was to release the
decree under execution and free it from
the mortgages created by Izatunnisa and
(3) [1859] 4Cal. 40fc=6 L A, 211=3 Bar. 863
(P. 0.).
4C8 Patna NARESH CHANDRA v. CHARLES JOSEPH SMITH (Ross, J.) 1929
Ahmadi Begum. Izatunnisa herself
never treated the decree as a decree
creating a charge. She tookt out execu-
tions in her own lifetime treating the
decree as a money decree. Her heirs
also took out execution of the decree
treating it as a money decree. The pur-
chasers Habibur Rahman and Mt. Kba-
toon Jannat are certainly bona fide
purchasers for value and it will be oppos-
ed to all principles of equity to hold that
the properties purchased *by the present
claimants are liable to be sold in execu-
tion of the dower decree. I am, there-
fore, clearly of opinion that the learned
Subordinate Judge was wrong in holding
that the decree created a charge and
that it could be executed as such.
Having regard to this finding, it be-
eomes unnecessary to consider whether
the learned Subordinate Judge had juris-
diction to allow amendment of the ap-
plication for execution at the stage at
which he ordered the amendment. Vari-
ous rulings h$ve been cited on both sides,
gome of which are conflicting ; but, as I
have said, having regard to the fact that
the decree under execution did not create
a charge, it is not necessary to consider
this question.
It is stated by the learned Subordinate,
Judge in his order under appeal that if
the decree bo held not to create a charge,
then the claim of the claimants must be
allowed. I would, therefore, set aside
the order of the Subordinate Judge and
allow the claim of the plaintiffs and
direct that the properties purchased by
them be released from attachment and
'sale. The appellants are entitled to
their costs in this Court as well as ia
the Court below.
Ross, J.— I agree.
Order set aside.
A. I. R, 1926 Patna 408
Ross, J.
Naresh Chandra Sink a — Petitioner,
v.
Charles Joseph Smith— Opposite Party.
Civil Revision No. 265 of 1925, Deci-
ded on 17th June 1925, from the order of
the Sub/J,, Patna, D/- 5th June 1925.
Court-Fees Act, S. 11 —Patna— Stamps -im^e^
sed with "for use In the High Court only" are not
invalidated for use in subordinate Courts—Court
Fees.
The words "for use in the High Court only"
impressed on the back of Courtr-fee stamps do
not limit their us^ to High Court only. The
words may have some significance for adminis-
trative purposes,'but they are not capable of in-
validating the stamps themselves if filed in
lower Courts. [P 408 C 2]
S, M. Mitllick—ior Petitioner.
Govt. Pleader— tor Opposite Party.
Judgment.— The petitioner filed three
Court-fee stamps of the aggregate value
of Us. 240 with his plaint in a suit before
the Subordinate Judge of Patna. The sta-
mps after being punched have been rejected
by the learned Subordinate Judge on the
ground that they bear on the back the
words "for use in the High Court only."
The learned Government Pleader hjis
not been able to show that the Local
Government has made any rule to the
effect that the sale of any stimp may be
limited to a particular purpose or Court. j
The words impressed on the back of thej
stamps may have some significance for
administrative purposes, but they are, in
my opinion, not capable of invalidating1
the stamps themselves, I can see no;
reason why the stamps should not be ac-
cepted by the Subordinate Judge. In my
opinion the refusal to accept these stamps
was not justified. The application must
be allowed and the order of the learned
Subordinate Judge must be set; aside and
he must be directed to accept these stamps.
There will no order as to costs.
Application allowed.
1926
QAZI MD. AFZAL v. LACHMAN SINGH (Mullick, J.)
Patna 409
A. I. R. 1926 Patna 409
MULLJCK AND KlJLWANT SAHAY, JJ.
(Syed) Qazi Muhammad Afzal — Plain-
tiff — Appellant.
v.
Lachman Singh — Defendant — Respon-
dent.
Appeal No. 401 of 1925 and Civil
Eevision No. 510 of 1924, Decided on
4th November 1925, from a decision of
the Addl. Diet. J., Patna, D/- 19th March
1925.
# Civil P. C., 0. 23, R. 1— Withdrawal of suit
allowed on certain conditions — conditions not
fulfilled — Suit Is not automatically dismissed but
Is deemed as pending.
Where a Court allows a suit to ba withdrawn
on certain conditions and those conditions are
not fulfilled in the prescribed time, the suit can-
not be deemed as dismissed. It continues to
remain pending in the Court, and the plaintifi, if
he chooses, may elect to go on with it and the
Court must then dispose of it according to law •
19 C. L. J. 529, Appr. ; 2 C. L. J. 480. and A. I.
R. 1924 Mad. '877. Dtsappr.
[P. 410, C. 1,2]
Muhammad Hassan Jan and Sashi
Sekhar Prashad Singh — for Appellant.
Shiveshwar Dayal and Raghunandan
Prasad — for ^Respondent.
Mullick, J.— On the 15fch August
1923, the Munsif of Barh made the
following order in a suit :
I therefore parmit the plaintiffs to with-
draw this suit with parmission to bring a
fresh suit on a condition that they pay all costs
to defendants besides pleader's fee Rs. 32
within two mouths from the date of the
decree.
Subsequently the village in which the
cause of action arose was transferred to
the jurisdiction of the Munsif of Patna
and, on the 12th September 1923, a
second suit on the same cause of action
was lodged before the latter Munsif.
But the costs directed to be deposited
under the order of 15th August 1923,
were not deposited in the Court of the
Munsif of Patna till the 1st Feb-
ruary 1924, aqd at the trial it was con-
tended that the money not having been
paid within two months allowed by
the order of the 15th .August 192?, the
suit was not maintainable. The Munaif
accepted this objection and dismissed
the suit.
In appeal the Additional District Judge
of Patna "agreed with this view and
Second Appeal No. 401 of 1925 has now
1926/P 52 & 53
been preferred to this Court against the
District Judge's order.
After the suit was dismissed by the
Munsif of Patna an application was made
to the Munsif of Barh for an extension
of the time allowed for the payment
of the costs decreed by him. The
Munsif held, firstly that he had no
jurisdiction to entertain the application ;
and secondly, that on the merits no
sufficient reason had been made out for
allowing the plaintiff any extension of
time and he declined to extend the
period of two months allowed by his
order of the 15th August 1923. It is
this order of refusal that we are asked to
revise under S. 11 > of the Civil Proce-
dure Code in Civil Revision Case No. 510
of 1921.
Now the argument addressed to us by
the learned advocate for the plaintiff
appellant is that time was not of the
essence of the order of the 15th August
1923, and that it is competent to the
second^Munsif of Patna to proceed with
the suit provided the costs are paid any
time before the disposal of the suit, and
reference is made to Kuldip Singh v.
Kuldip ChoudKury (l).
But in that case the Court did not fix
any time within which the payment was
to be made. The order in that suit was
that the plaintiff might withdraw the
suit and might bring a fresh suit if nob
otherwise barred, and that the payment
of costs should be a condition precedent*
to the institution of a fresh suit. But in
the present case a very different state of
things exists. Here a definite time was
fixed for the payment of the costs and it
was not open to the Court in which the
second suit was instituted to accept the
costs.
The question, however, is, whether, the
present case comas within the rule laid
down by Sir Lawrence Jenkins, C. J., in
Shital Prashad Mandal v. Gay a Prasad
Dingal (2).
On behalf of the defendant-respondents
reliance is placed upon Hari Nath Dass
v. Syed Hossainali (3). There it was held
that when a plaintiff fails to pay the
costs within the time prescribed he can-
not be permitted to bring a fresh suiti
upon the same cause of action because
(1) [1918] 3 Pat. L. J.' 68=44' I. 0. 79=4
Pat. L. W. 134.
W [1914] 19 C. L. J. 629=H3 I. C. 310
(3) [1905] 2 C. L. J. 480=10 0. W. N. 8.
410 Patna
QAZI MD. AFZAL v. LACHMAN SIKGH (Mullick, J.)
1926
the withdrawal in that case was a with-
drawal without permission which, for
prac ical purposes, was a dismissal of the
suit. Reliance is also placed upou Goola-
pudi Seshayya v. Nadendla Subbayya
(4). There Phillips, J., of the Madras
High Court, put the argument in a some-
what different form. He held that the
order allowing the withdrawal of a suit
upon terms was separable into two parts,
one allowing the withdrawal which ipso
facto- carried -a dismissal of the suit and
the other allowing the institution of a
fresh suit upon complying with the
conditions laid down by the Court, and
that the withdrawal being complete the
plaintiff could not, upon failure to com-
ply with the conditions prescribed, elect
tg treat the suit as still pending. The
learned Judge dissented from the view
taken by Sir Lawrence Jenkins, C. J.,
in Sital Prasad Mandal's case (2). Now
the reasoning of Sir Lawrence Jenkins
appears to us to be conclusive, He ob-
serves that what the Court allows is not a
withdrawal and an institution separ-
ately but a withdrawal and institution on
certain conditions; the whole is one order
and the one parfc cannot be severed from
the other. It seems to us that this is the
correct view of the order. Ifc is open to
a Court to say to a plaintiff : Your suit
is defective and I give you leave to
institute a fresh suit on conditions. If
then the plaintiff complies with the
condition the withdrawal is complete
And the suit is at an end. If he does
not he may, if he chooses, elect to go on
and the Court must dispose of the suit
according to law. If the Court directs
that on failure to comply with* the condi-
tions by a certain date the suit shall
stand dismissed and the plaintiff defaults
the suit is at an end from the date
prescribed. It follows, therefore, in the
present case, that the Munsif before
whom the second suit was instituted was
not entitled to dismiss the suit outright
but was bound, under S. 10 of the
Oivil P. 0., to stay the trial of the second
suit on the ground that the first suit was
still pending.
The same view has been taken by the
Calcutta High Court in Deb Kumar Roy
Bhoudhury v. Debnath Barna Bipra (5).
But in Sabal Chandra v. Mosaraf Ali (6),
~(4) A. I. B. 1924 Mad. 877.
(6) [1920] 64 I. C. 788.
(6; [1917] 38 I. C. 476,
the learned Judges, while approving of
Sir Lawrence Jenkins' judgment in Sital
Prasad Mandal's case (z) appeared to
have made an order which was not consis-
tent with the view that 'the previous
suit was still pending. They observed
that the permission to withdraw with
liberty to bring a fresh suit must be con-
strued in accordance with the wording
of the order in each particular case, and
that where the order was that the pay-
ment of costs was a condition precedent
to the . institution of the second suit
failure to pay the amount before the
institution of such suit effected a dismis-
sal of the first suit. Upon the reasoning
in Sital Prasad Mandal's case (2) we-
prefer to hold that until the 'conditions
are complied with the original suit still
remains pending and the second suit,
though maintainable, cannot be proceeded
with by reason of S. 10 of the Civil
Procedure Code.
In this view of the case the order of
the District Judge in Second Appeal 401
of 1925 cannot be supported. The suit
was maintainable, but as* the first suit
was still pending the proper direction was
that it be stayed. The appeal therefore
succeeds.
There remains the application under
S. 115 of the Civil P. C. The Munsif
of Barh, before whom the first suit must
be still considered to be pending had
jurisdiction under S. 148 to extend the
time for depositing the costs. In our
view the order of the 15th August 1923,
merely meant :
I give you time to pay within two months
from this date and if you pay before that date
you will be entitled to institute a fresh suit upon
the same cause of action ; but if you fail, then,
from the expiry of the time so granted, this suit
will stand dismissed.
This was an order he was entitled to
make under the Civil P. C. and, there-
fore, he was entitled to give an extension
of time under S. 148. The argument on
the other side is that it was not an
order to which S. 143 applies and the
authority of Suranjan Singh v. Bam-
bahal Dal (7), was invoked. But in that
case it was held that where a preliminary
decree in a pre-emption suit fixed the
time for payment, it was not open to
the Court to resort to S. 148, for
the purpose of extending the time. It
was observed that the extension of time
(7) [1913] 85 All. 582=21 I. C. 685=11 A. L.
J. 950.
1926
BIBI HAPSA v. KANIZ FATMA (Kulwanfc Sahay, Jj
Patni 411
effected a variation of the decree in the
suit and that S. 148 could not be
called in aid. That, however, is not the
case before us, and we think that under
thq Civil P. C. time could have been
extended by the Mnnsif if he had chosen
to do so. Now although we are tqld that
owin^ to the negligence of the karpardaz
and the pleader's clerk the money could
not be deposited within the time allowed,
it does not appear that any evidence to
thafc effect was given before the Munsif
and we think that having, regard to the
fact that the sum was only Rs. 32 and
that no attempt to pay was made till the
1st February following, the Munsif was
justified in holding that no proper reason
had been shown for the delay and in
refusing to extend time to authorize the
institution of the suit.
Therefore the only thing that remains
for the plaintiff to do is to prosecute the
suit as framed in the Court where it was
originally lodged or in such other Court
as is competent to try it. It will be the
Court's duty to continue the suit from the
stage at which it was on the 15th August
19^3, and to dispose of it according to
law.
The order in Civil Revision No. 510
of 1924 is modified. The declaration
that the suit stands dismissed is set
aside, but the decision that no further
time be allowed to the plaintiff to pay
the costs incidental to the institution of
a fresh suit is affirmed.
Bach party will pay his costs both in
the re vision and in the second appeal.
All orders as regards costs in the lower
Courts will stand.
Kulwant Sahay, J,— I agree.
Appeal allowed.
* A.I. R. 1926 Patna 411
MULLICK AND KULWANT SAHAY, JJf
Bibi Hafsa— Decree-holder— Appel-
lant.
v.
Eaniz Fatma and others — Judgment-
debtors — Respondents.
Appeal No. 31 of 1925, Decided on
30th November 1925, from an order of
the Sub.-J^ Gaya, D/- 17th January
1925.
ajc Decree — Execution — Decree for dower
passed—Executing Court cannot direct In execu-
tltm payfnent of decree proportionate to shares of
different Mrs.
Although the proposition that the estate of a
deceased Muhammadan devolves upon his keir or
heirs from the moment of his death and that the
proportionate interests of the heirs, if more than
one, come into separata existence from that
moment is correct, yet when a decree for dower
is passed the Court executing the decree is not
entitle^ to go behind the decree and to direct the
release of a portion of the estate on payment of a
proportionate share of the debt; A, 1. jR. 1924
All, 690, Dissented from. [p 412 C 1J
K. Husnain and Ahmed Rexa—im
Appellant.
Md. Hasan Jan— -(or Respondents. ,
Kulwant Sahay, ' J.— On the 1st
April 1922 the appellant obtained an
ex-parte decree for dower against the
respondents. The decree directed that
the decretal amount be recovered from
the properties left by the husband of the
appellant and that the decretal amount,
viz., a sum of Rs. 6,000 and a further sum
of Rs. 404-1-3 on account of coats of the7
suit with interest thereon at the rate of
6 per cent, per annum be paid by the
defendants to the plaintiff. This decree
was passed by the Subordinate Judge of
Patna and execution was taken in the
Patna Court and a portion of the deeretal
amount was realized by the sale of a
house belonging to the estate of the
husband of the appellant. Subsequently
the appellant applied for transfer of the
decree to the Gaya Court as the proper-
ties of the deceased were within tha
jurisdiction of that Court. The decree
was accordingly transferred by an order
of the Subordinate Judge of Patna, dated
the 6th of August 1924, and on the 19th
of August 1924 the appellant applied for
execution of the decree in the Court of
the Subordinate Judge at Gaya and
prayed for attachment and sale of certain
properties lying within the jurisdiction
of that Court.
One of the judgment-debtors, Mt.
Kaniz Fatma, filed an objection to the
execution raising various points : but
the only question which seems to have
been pressed before the learned Subordi-
nate Judge was as to whether the
objector was entitled to have her three-
fourths share in the property released
from attachment and sale on payment
of three* fourths of the decretal amount.
The objection was raised on the ground
that the appellant as widow of the
412 Patna BIBI HAPSA v. KANIZ FATMA (Kulwant Sahay, J.)
192&
deceased was entitled to a four annas
share of the estate of her husband by
inheritance and that the remaining
twelve annas share belonged to Bibi
Kaniz Fatma, and, that, therefore, the
latter was entitled to pay only three-
fourths share of the debt, the remaining
one-fourth being payable by the appellant
herself. The learned Subordinate Judge
ha? given effect to this objection and has
directed that three-fourths share of the
attached property be released from
attachment and sale on the objector's
depositing three-fourths of the decretal
amount. Against this order the decree"
holder has come up in. appeal to this
Court.
The learned Subordinate Judge has
relied upon the principle that under the
Mahomedan law devolution takes place
immediately after death and is not con-
tingent on the payment of the debts due
from the deceased owner. A number of
authorities have been cited before us in
support of this proposition. There can
be no doubt as regards the correctness of
the proposition that the estate of a
deceased Muhammadan devolves upon his
heir or heirs from the moment of his
death and that the proportionate interests
Df the heirs, if more than one, come into
separate existence from that moment.
The question, however, in this cage is as
to whether the Court executing the
decree was entitled to go behind the
decree and to direct the release of a por-
tion of the estate on payment of a pro-
portionate share of the debt. In my opi-
nion it was not open to the Court execut-
ing the decree to make this apportionment
of the debt The decree clearly
directs that the decree was to be realized
from the entire estate left by the deceased
husband of the appellant and the defend-
ants were directed to pay the decretal
amount to 'che plaintiff. The question
as regards the proportionate liability of
the respondents and of the appellant for
the payment of the debt due from the
estate of the deceased ought to have been
raised in the s^it itself and before decree
was passed, and it is not open to the
respondents to raise this question before
the Court executing the decree.
Reliance was placed on behalf of the
respondents upon a decision of the
Allahabad High Court in Mohammad
Ashiq Ali v. Mt. Hadra Bibi (1) where the
(1) A. L K. 1924 All. 690.
learned Judges held that the execution'
Court was bound to construe the Decree
in the light of the admitted fact thatr
both parties were fighting over a dower
decree and if the decree itself created
any obstacle, justice could be done by
amending it so that the shares of the-
various defendants may be specifically-
apportioned as between them;, and the
learned Judges proceeded to direct that
the decree be amended by apportioning;
the shares amongst the several heirs. I
am unable to agree with the view taken
by the learned Judges in that case. I
fail to understand how the Court execut-
ing the decree could direct an amend~
ment of the decree. Reference was made
to certain decisions which laid down that
the share taken by a Muhammadan'
widow by inheritance is liable propor-
tionately for the satisfaction of her dower
debt in the same way as the shares taken
by the other heirs, and that the liability
of each heir is limited to the extent of
the assets in his or her hands. There*
cannot be any doubt as regards the
correctness of the proposition ; but the-
question as regards the liability has to be
raised in the suit itself, and the decree-
ought to direct in whafc proportion the;
dower debt is to be paid by each of the
heirs.
I am therefore of opinion that the'
learned Subordinate Judge was not right
in directing the release of the three-
four^hs share of the estate on payment
by the respondents of the three-fourths-
of the decretal amount.' It appears,,
however, that the respondents have
deposited in Court three-fourths of the
decretal amount. If the parties agree,,
the amount in deposit may be paid to the
appellant in part satisfjiction of the
decree, and the execution may procee'd
for realization of the balance1 of the
decree. In such an event the Court may
direct the properties to be sold in two-
lots of four annag and 12 aiinas, the first
lot being of the four annas share. If by
sale of the first lot of four annas the
balance of the decretal amount be realized
the remaining twelve annas need not be
sold ; but if the sale-proceeds be insuffi-
cient to satisfy the decree then the
remaining 12 arenas might be sold. This-
can, however, be done only If the parties
agree to it.
The result is that the order of the-
learrfed Subordinate Judge is set asidb
1926
and bhe appeal decreed. The entire
•estate ^of the* deceased attached and
advertised for sale should be sold for
realization of fche entire decretal amount
unless the parties agree to sell them in
the way suggested above or in any other
way. The appellant is entitled to her
costs of this appeal.
Mullick, J.— I agree.
Order set aside.
B. I. RY. Co. v. BHIMRAJ SRILAL (Kulwant Sahay, J.) Patna 4 13
Kulwant Sahay, J. — This appeal
arises out of a suit for compensation for
non-delivery of a hale of cotton goods
consigned to the defendant,the East Indian
Railway Co., at Howr^h, for carriage to
Rafiganj, a station on the line of the said
Company. Both the Courts below decreed
the suit and the Railway Co., has come up
in second appeal to this Coujrt.
The only point for consideration is
whether the suit is incompetent for want
of notice as prescribed by Si 77 of the
Indian Railways Act.
The facts found are that the bale was
consigned on the 9th of July 1920 ; that
several letters were sent by the plaintiff,
who is the consignee, to the 'Divisional
Traffic Manager making claim for com-
pensation for non-delivery of the goods ;
all those letters were within six months
from the date of consignment, and they
were replied to by the Traffic Manager,
On the 20th of January 1921 the plain-
tiff sent a registered notice to the Agent
through his pleader claiming compen-
sation for the loss of the gooda,. The suitj
was brought on the 21st of May 1931*
and in the plaint the cau^e of action was
alleged to have accrued on the 24th of
July 1920, when tb'd \M\Q ought to hav$
been delivered V, Rafiganj.
The learn^d Munsif found that the
notice to t^ie Agent was within six months
from tb'j date when the cause of action
aoorv'ed to the plaintiff, and that the
tt^use of action arose when the goods
Vere not delivered to tho plaintiff. He
further found that lotfcer=j claiming com-
ensation had been sent to the Divisional
°nd h0' aPPar0Dt5ly' was
* A. I. R. 1926 Patna 413
ROSS AND KULWANT SAHAY, JJ.
East Indian Railway Company — De-
fendants— Appellants.
v.
Bhimraj Srilal— -Plaintiff — Respon-
dent.
Appeal No. 756 of 1923, Decided on
123rd April 1926, from a decision of the
Dist. J., Gaya, D/- 2nd May 19:33.
(a) Railways Act, S. 77 — Six months run
Jrom date of delivery of goods for carriage,
The notice required by S, 77 has to be given
within six months from tho date of delivery ot
ihe goods for carriage by railway and not from
cfche date on which goods ought in the ordinary
course to be delivered to the consignee.[P 413 C Ij
# (6) Hallways Act, Ss. 77 and 140— Notice
-addressed to Subordinate Officer and fonvarded
by him to Agent within six month* is suffi-
cient.
• Notice to a subordinate officer ot a railway
company is riot a sufficient compliance with the
provisions of the Jaw ; but if it can be shown by
the plaintiff that a noticj of claim for loss of
•goods, although addressed to a subordinate officer
• of the Railway Administration, did actually
reach the Agent within the time prescribed V*
Jaw it would ba a sufficient compliance with
the requirements of the law ; A. I. R. 1925 Pat
-.98 and A. I. & 1924 Mad, 567, Eel on,
K*W
*, S. 11-Delegatlon c, _,
M''*dUct^ J°itCe,,may be *»/<"<* f™>
*lWe '££ • °f r<Mvay — Authorizing to
Notice tS n0t dek9atin1 P™*r to receive
^delegation of authority by Agent to receive
framed by^e l^oS^or^'ttS
™£lh? ?L*01£UQt?.ih6 Railway Company whioh
taight lead the public to believe that notice given
*alidP Police °ffi0er °f the ComPanv would be a
ifcet that a particular "officer is appointed by the
Agent to investigate into and settle claims for
oss of goods doss not show that the Agent
aeiegated his powers to receive notice to such
pnicer. rp £j. Q ^
NO. Sinha, N. C. Ghosh and B. B.
Ghosh— for Appellants.
S. M. Mullick and B. C. Sinha— tor
Respondent.
* <ftm()uim
a notice as prescribed by law. ThS
learned District Judge, dn appeal, did fio&
base his decision upon the first ground
taken by the learned Munsif which was
clearly wrong. The notice required by
S. 77 of the Indian Railways Act has tc
be given within six months from the
date of delivery of the goods for carriage
by railway and not from the date on
which goods ought in ordinary course to
be delivered to the consignee. The
learned District Judge, however, has held
that the notice to the Traffic Manager
was a good notice to fche Agent within
the%meaning of Ss. 77 and 140 of the
Indian Railways Act. He >relied for this
purpose upon a decision of this Court in
the East* Indian fiailway Co, v. Kali-
4H Patna
E. I. RY. Co. v. BHIMRAJ SRILAL (Kulwant Sahay, J.) 1926
charan Earn Prasad (l). He further
referred to the fact that in the railway
receipt (Ex, 7), granted by the Railway
Company on receipt of the goods, there
were certain conditions printed on the
back, one of which was that notice was
to be given to the Divisional Traffic
Manager in case of loss ; otherwise the
Eailway will not hold itself responsible ;
and the learned District Judge concludes
from this that the railway will be res-
ponsible if notice was given to the Divi-
sional Traffic Manager. He further re-
ferred to tbe fact that the replies sent by
the Traffic Manager show that he had
power to settle claims and he, therefore,
considered that powers had been dele-
gated to him by the Traffic Manager and
held that the notice given to the Traffic
Manager was a sufficient notice according
to law.
It is clear on reference to Ss. 77 and
140 of the Indian Railways Act that a
notice must be given to the Agent of the
Company before a suit for compensation
for loss can be entertained. It is settled
law that notice to a subordinate officer
ot the Railway Company is not a suffi-
cient compliance with the provisions of
the law, and the learned District Judge
does not base his decision on such ground,
nor has it been argued before <us on be-
half of the plaintiff respondent- that a
notice to the Traffic Manager was a suffi-
cient notice as required by law.
The question, however, is whether a
notice to the Traffic Manager can be
considered to be a notice to the Agent.
The decisions of the various High Courts
on this point are almost uniform. In the
Agent E. I. Ry. Co. v. Ajodhya Prasad (2)
a Division Bench of this Court held that
a notice under S. 77 of the Indian
Railways Act, to be valid notice, must be
served upon the Agent or Manager of the
Company and not upon a subordinate
official of the Railway Co., 'and that any
communication addressed to the District -
Traffic Manager is not a notice in accord-
ance with the requirements eof S. 77 read
with 8. 140 of tbe Indian 'Railways Act.
In Janki Das v. Bengal-Nag pur Railway
Co. (3). Sir Lawrence Jenkins held that a
notice of claim for loss of goods des"
patched by rail given to the Goods Super-
U) A.LR. 1922 Pat. 106.
(2) [1919] P.H.C.O. 150=49 I.C. 498.
(3) 11911] 16 O.W.N. 366=13 LO. 509=15 C.
L.J. 211,
intendent did not comply with the ie-
quirements of Ss. 77 and 140 of the Rail'
ways Act. In the Assam- Bengal Bail'
way Co. Ltd, v. RadhiJca Mohan Nath (4)
a Division Bench 'of the Calcutta High.
Court held that a service of notice on the
Traffic Manager was not a sufficient
compliance with the Act and the notice
must be given to the Agent of 'the Com-
pany. The Bombay High Court has-
taken the same view in the G. I. P. Ry.
Co. Ltd. v. Chandulal Sheopratap*(5).
The same view was taken by the Allaha-
bad High Court ; see Cawnpore Cotton
Mills Co. Ltd. v. G. I. P. By. Co. (6) and
the cases cited therein, and by the Lahore
High Court : see Paras Das v. East Indian
Railway (6a) and E B. & C. I. Ry. Co. v.
Manohar Lai Parwin Chand (7). In
Mahadeva Aiyar v. S. I. Ry. Co. (8) a
Full Bench of the Madras High Court
considered the question of notice, and
two of the learned Judges composing the
Full Bench held that where the notice
under S. 77 read with S. 140 of the
Railways Act is sent to the District
Traffic Superintendent and there is noth-
ing to show that the power of the Agent
to receive such notices had been dele-
gated to that official, or that the Rail-
way Company by its rules or course of
conduct had held out to the public that
the notices might be sent to that officer
instead of the Agent and it is not proved
that the Agent became aware of the
notice within the prescribed time, a suit
for damages for short delivery of goods
against the Railway Company would not
be maintainable. Eumaraswami Sastri,
J., however, held that S. 140 was only an
enabling provision and that its object was
to see that the notice provided for by it
somehow reaches the Agent, and that in
cases where a subordinate railway
official sends on the notice to the Agent
or informs him of its contents within six
months, there is a subst ntial compliance
with the requirements of the Act, and
that an Agent can depute a subordinate
officer of the company to receive the
notice. In the S. I. Ry. Co. v. Nara-
yana Aiyar (9) similar view was ex-
pressed by the Madras High Court where
(4) A.I.R. 1923 Cal. 397.
(5) A.I.R. 1926 Bom. 138.
(6) A.I.R. 1923 All. 301.
(6a) A.I.R. 1924 Lab. 504.
(7) A.LR, 1923 Lah. 84,
(8) A.I.R. 1922 Mad. 362.
(9) A.LR, 1924 Mad. 567.
E, I. EY. Co. v, BHIMRAJ SBILAL (Kulwant Sahay, J,)
1926
it was held that if it is found that the
notice required hy S. 77 of the Act has
not been given to the Agent of the Kail-
way, but was sent to some subordinate
pfficer of the Eailway, the plaintiff, in
order to succeed, must prove either that
the power of the Agent to receive notice
under S. 140 of the Act «had been dele-
gated to the subordinate officer who had
actually received the notice or that the
Company by its rules or course 'of busi-
ness had held out to the public that
notices ought to be given to such officer
instead of to the Agent.
These Madras decisions, therefore, pro-
ceed on fche principle that the notice has
to be given to the Agent, and although
the notice might be addressed to a sub-
ordinate officer of the Railway Company,
yet if that notice actually reaches the
agent within the prescribed time, it
would amount to a sufficient compliance
with 'the requirements of the law. A
similar view appears to have been ex-
pressed by this Court in Durga Prasad
v. G. I. P. Eailway (10) where a claim-
ant who had failed to comply with clause
(c) to S. HO of the Railways Act was
held entitled to prove that the notice
was in fact delivered to the Agent under
clause (a) to the section. In that case
the notice was addressed to the Agent, E.
I. Railway/at Howrah, but the office of
the Agent was v not at Howrah but at
Fairlie Place, Calautta. The notice was
received by the General Traffic Manager
of the East Indian Railway at Howrah,
who then sent the letter to the Divisional
Traffic Manager who, after carrying on a
correspondence with the plaintiff for
sometime, finally wrote to him denying
the liability of the Railway Company. It
was held that although the notice was
not served in accordance with clause (c)
of S. 140, yet if, in fact, the notice
reached the Agent, as contended for by
the plaintiff in that suifc, it was ^ood
service under 01. (a) of S. 140. In my
opinion this is a sound view of the law,
and if it can be shown by the plaintiff
that a nojifce of claim for loss of goods,
although addressed to a subordinate
officer of the Railway Administration,
did actually reach the Agent within the
time prescribed by law, it would be a
sufficient compliance with the require-
ments of the law. All the High Courts,
however, agree in holding that a notice
(10) A.I.B. 1924 Pat. 98.
Pain* 415
must be actually given to the Agent. In
the present ease it has not ?been shown
that the notice sent to the Divisional
Traffic Manager reached the Agent. In
fact the plaintiff himself did not consider
the notice to the Divisional Traffic
Manager to be a sufficient compliance
with the law inasmuch as he himself sent,
a duly registered notice to the Agent on
the 20th of January 1921. This was,
however, beyond six months from the
date of delivery of the goods to the
Railway Company, and was not a compli-
ant with the requirements of S. 77 of
the Act.
As regards the observation of the
learned District Judge that there was a
delegation of power to the Traffic
Manager and that therefore the notice to
the Traffic Manager was a valid notice, I
am of opinion that this contention is nob
sound. In the first place no such plea
was taken by the plaintiff. No issue was
raised on the question of fact as to whe-
ther there was a delegation of the powers
of the Agent to the Traffic Manager.
There is absolutely no evidence on the
point except the printed conditions on
the back of the receipt given by the
Railway Company to the consignor when
the goods were delivered to the Company.
One of the conditions on the back of the
receipt was that notice must be given to
the Divisional Traffic Manager before a
claim can be entertained. That did nob
in any way amount to a delegation of the
powers of the Agent to receive notices
prescribed by S. 77 of the Act to the
Traffic Manager. It was simply a con-
dition prescribed for speedy investigation
into claims. No doubt, it had been held
in the Madras High Court, and also in
some of the other High Courts, that a
delegation of authority will be presumed
from rules framed by the Railway Com-
pany or from the course of conduct of
tho Railway Company which might lead
the public to believe that notice given to
a particular officer of the Company would
be a valid notice under S. 77 of the Act.
But in the present case there is no such
allegation and no such proof. The fact
that a particular officer is appointed by
the Agent to investigate into and settle
claims for loss of goods does not show
that the Agent delegated his powers to
receive notice to such officer. I am
clearly of opinion that in the present
case it has not been shown that the
416 Patna CHANDRA MOULBSHWAB v. HEMNALINI DEBI (Kulwant Sahay J.) 1926
Divisional Traffic Manager had any dele- (W Bengal Revenue Sales Act, S. 37, Excep. 4
#lted powers to receive the notice, and —Eruption does ™t ™*n thai lease must be
that the notice given ^ to the Traffic °^ f^ excavating a tank thereon.
Manager was not a sufficient compliance
with the requirements of law.
Under the circumstances it is clear
that the present suit cannot be main-
tained for want of notice to the Agent
within six months of the date of delivery
of the goods and the claim of the plain-
tiff must therefore be dismissed. This
appeal is decreed and the plaintiff's suit
dismissed. The ground of dismissal,
however, is ^ technical ground and the
plaintiff has actually suffered loss on
account of the non-delivery of the goods
to him. I am, therefore, of opinion that
although the suit is dismissed he is not
liable to pay costs. Therefore, although
the appeal is decreed, no costs are allowed
to the appellant in any Court.
Ross, J.— I agree.
Appeal allowed.
A, I. R, 1926 Patna 416
BOSS AND KCJLWANT SAHAY, JJ.
Chandra Mouleshwar Prasad Singh —
Plaintiff — Respondent.
v.
Uemnalini D&bi and osiers— Defen-
dants— Eespondents.
Appeals Nos. 150 to 153 and 288 to
297 of 1924, Decided on 4th May 1926,
from the appellate decrees of the Dist.
J., Monghyr, D/- 17th July 1923.
(a) Bengal Revenue Sales Act (11 of 1859), S, 37
'—Purchaser at sale for arrears suing for reco-
vtry of land— Defendant claiming lat.d as lakhl-
raj—Onus is on the plaintiff to show that at
Permanent Settlement the land was entered as
mal and was Included tn the estate as such.
A purchaser of an entire estate sold for arrears
of revenue suing to recover land claimed by the
defendant as lakhiraj must make out a prima
facie case that at the time of the Permanent
Settlement the land in dispute was mal land and
was included In the estate as such, and that the
revenue assessed upon the estate was fixed on
consideration of the assets of the land in dispute ;
in other words, that the assets of the land were
taken into account in settling the revenue at the
time of the Permanent Settlement. The fact
that the lands are within the ambit of the estate
is not sufficient to meet this burden : 14 M. I.
*• Jjjf (£ CO ; 20 C. W. N. 1028 ; and .27 C. L.
J. 133, Fon.* [R 314, o. aj
In order to bring a case within Exception 4
it is not necessary that the lease must be a lease
for the purpose of excavating a tank thereon. *
[P. 419, C. 2]
(c) Bengal Revenue Sales Act ( 1859), S. 37 —
Encumbrance — Revenue sale dees not Ipso facto
annul an encumbrance — Steps have to be taken
by purchaser to annul 'it — Denial of purchaser's
title by tenants before encumbrance Is annulled
does not create forfeiture.
An encumbrance is not annulled ipso facto by
the revenue sale the purchaser at the revenue
sale has to take steps to annul the tenure alleged
to be an encumbrance, and if before the rent
suits are instituted tho purchaser has taken no
steps to annul the encumbrance, the denial of
the purchaser's title by the tenants on the land
creates no forfeiture. [P, 420, C. 2]
Sultan Ahmad, Jagannath Prosad and
S. K, Mitter-ier Appellant.
S. K. Mullick, S. N. Bose and P. K.
Mukerjee — for Respondents.
Kulwant Sahay, J. — These 14 ap-
peals arise out of suits brought by the
plaintiff for declaration of title to and
recovery of possession of certain lands
and houses. The plaintiff is the purchaser
of the entire estate* bearing Touzi No.
6104 of the Monghyr Collectorate at a
sale for arrears of revenue hold on the
25th of March 1913. She obtained deli-
very of possession on the 16th of Septem-
ber 1913 and her name has been regis-
tered as proprietor of the 16 annas of
the estate. The present suits are for
declaration that the lands and houses in
dispute are included in this Touzi No.
6104 and, therefore, by virtue of the
purchase at the revenue sale she had
acquired a title thereto and is entitled
to possession. There was an alternative
relief prayed for for fixing PI, fair and
equitable rent.
It has been necessary to deal with
these appeals separately as the subject-
matters of the suits are different and
the points raised are not ex actly the
same in each case.
Appeal Nos. 150 and 288 of 1924.
These appeals arise out of Suit No.
454 of 1920 which was Appeal No. 78 of
1922 before the District Judge. Appeal
No. 150 is by the defendant and Appeal
No. 288 by the plaintiff. In this suit
the plaintiff claimed a tank known as
Laloopokhar whioh was in the exclusive
possession of the defendant, the Maha-
raja of Girdhaur. The plaintiff claims a
4 annas share in this tank as lying
within her Touzi and alleges that she is
1*926 CHANDRA MOULESHWAR v. HEMNALINI DEBI (Kulwant Sahay, J.) Patna 417
•entitled to possession thereof on dispos-
sessing the Maharaja. The defence of
the Maharaja was that he had a lakhiraj
title to this tank as it was included with-
in an area of 30 bighas of lakhiraj land
purchased by him in 1882 and it was not
included in the mal land of the Touzi.
The Munsif dismissed the suit holding
that the tank was ijmal and that the
Maharaja had a lakhiraj title thereto.
The learned District Judge has found
that a 2 annas share of the tank was
allotted by batwara to Touzi No. 6104
and that the Maharaja had failed to
prove that the 30 bighas of land pur-
chased by him, within which this tank
was situated, was lakhiraj land at the
time of the Permanent Settlement. Ho
however, held that the plaintiff was not
entitled to oust the Maharaja from pos*
session as the tank came within the 4th
Exception to S. 37 of Act 11 of 1859 but
was entitled to recover rent for a 2
annas share of the tank. He, however,
held that the rent could not be assessed
in the present suit as the remaining 14
annas1 proprietors were not before the
Court and he accordingly dismissed the
suit.
The Maharaja appeals against this
decree, in so far as it is against him in
Second Appeal No. 150 of 1924 and the
plaintiff appeals against the decree dis-
missing the suit in Second Appeal No.
288 of 1924.
The mahal out of which Toazi No.
6104 was carved out was partitioned
twice, once in 1868 and again in 1880.
The touzi -number of the original mahal
was 424. In the partition of 1868 half
of the tank was allotted to the estate
which retained the old Touzi No. 424.
In the partition of 1880, which was a
partition of the estate which retained
the old Touzi No. 424, the tank was not
divided, but the income derived from
the tank was divided. One-fourth of
the income of this tank was by this
partition allotted to the putti of Dar-
wesh Muhammad and others, which was
given Touzi No. 6104. Now * this one
fourth was of the one-half of the tank
which was allotted to Touzi No. 424 by
the partition of 1863. Therefore, what
was allotted to the putti of Darwesh
Muhammad and others bearing Touzi
No. 6104 was one-fourth of one-half, i. e.
one-eighth of the tank. The learned
District Judge therefore found that a
2 annas share of the tank was allotted
to Touzi No, 6104. This finding is sup-
ported by the batwara khasra of 1868
(Ex. Z 7) and the 16 column register of
1880 (Ex. 12a). It is also supported by
the other batwara papers referred to by
the learned District Judge. The finding
of the learned Judge, therefore, that a 2
annas share of the tank was included in
Touzi -No. 6104 is based on the evi-
dence in the case and must be accepted
as correct.
The question is whether the plaintiff
is entitled to oust the Maharaja on a
declaration that the latter had no lakhi-
raj interest therein. As stated above
the Maharaja claims title to this tank
as included in 30 bighas of lakhiraj land
purchased by him from Sardharilal
under a deed of sale, "Ex. A, dated the
10th of August 1882. These 30 bighas
of land were purchased by Girdharilal,
the 'father of Sardharilal, at a Court
sale on the 2nd of October 1852. Ex.
X (a) is the sale certificate of Girdha-
rilal. It appears, however, that a suit had
to be brought by Sardharilal* for khas
possession of these 30 bighas of land, and
he obtained a decree on the 9th of May
1863 and obtained delivery of possession
in execution of the decree on the 2nd of
August 1866. The patwarana, dakhaide-
hani, under which Sardharilal obtained
possession is Ex. W. and is dated 'the
17th of March 1866. In the sale certi-
ficate, Ex. X (a) the property is described
30 bighas situate in Laloopokhar in
Mouza Salempur Dhamdaha, pergana
Monghyr. There is no mention therein
that the land was lakhiraj. In the par-
wana dakhaldehani (Ex. W) the descrip-
tion of the property is similar to that in
the sale certificate Ex. X (a), but there
is a further description that the land
was lakhiraj. The learned Munsif held
that the land must have been held to be
lakhiraj in the civil suit brought by
Sardharilal and that the description of
lakhiraj' in the sale certificate ?might
have been omitted by mistake. The
learned District Judge, however, ob-
served that there is no reason to suppose
that there was a mistake in the t des-
cription of the property in the sale certi-
ficate ; he infers that the lakhiraj title
might have been created between 1852
and 1866. He, however, found that the
Maharaja was actually in possession and
no rent fwas paid by him for these 30
418 Patna CHANDRA MOULESHWAB v. HEMNALINI DEBi'(Kulvant Sahay, J.) 1926-
bighas of land, but he was of opinion that
this does not establish that the land«was
lakhiraj since the time of the Perma-
nent Settlement as required by S. 37 of
Act XI of 1859.
The point taken by the learned
counsel for the Maharaja, 'appellant, is
that the learned District Judge has mis-
placed the onus of proof upon the Maha-
raja to show that the land was lakhiraj
from the time of the Permanent Settle-
ment. He contends that it was for the
plaintiff to prove that the land was in-
cluded in the Permanent Settlement in
mat land of the estate, and that the
onus was upon the plaintiff to prove
that the land was mal land at the time
of the Permanent Settlement. In my
opinion this contention is sound and
ought to prevail.
Section 37 of Act XI of 1859 provides
that a purchaser of an entire estate shall
acquire the estate free from all encum-
brances which may have been imposed
upon it after the time of the Permanent
Settlement, and shall be entitled to
avoid and annul all under-tenures and
forthwith to eject all under-tenants with
certain exceptions. In Hurryhur Moom
khopadya v. Madub Chunder Baboo (l)
it was held by the Privy Council that
a plaintiff in a suit for resumption of
land as part of his mal zamindari, for
assessment is bound in the first instance
to prove a prima facie case of payment
of rent since 1790 or that the land
formed part of the mal assets of the
estate at the Decennial Settlement.
When such a prima facie case is made
out the onus probandi is shifted on to
the defendant, who, to exempt himself
from assessment must show that his
tenure existed rent-free before the 1st of
December 1790. Their Lordships ob-
served :
If this class of oases is taken out of the speoial
. nd ex optional legislation concerning resump-
tion suits, it follows, that it lies upon the plaintiff
to prove a prima facie case. His case is that his
mal. land has, since 1790, been converted into
lakhiraj. He is surely hound to give some evi-
dence that his land was once mal.
Their Lordships further observed that:
He (plaintiff) may do it by proving payment of
rent at some time since 1790, or by documentary
or other proof, that the land iu question formed
part of the mal assets of the estate at the Decen-
nial settlement. His prima facie case once proved,
the burden of proof is shifted on the defendant,
(1) [1871] 14 M. 1. 152=8 B. L. B. 666=20
W. E. 459=2 Suther. 484=2 Bar. 713, (P.O.)
who must make out that his tenure existed
before December 1790.
The principle enunciated by the Privy
Council in this case is applicable to the
present case. The plaintiff has to prove
in the present case that at the time of
the Permanent Settlement the land was
included within the estate permanently
settled as mal land. This principle has
been followed in the Courts in India in a
large number of cases. In Krishna
Kalyani Dasi v. R. Braunfield (2) it was
held by a Division Bench of the Calcutta
High Court 'that a purchaser of an
entire estate sold for arrears of revenue
suing to recover land claimed by the
defendant as lakhiraj must prove a prima
facie case that his mal land has, since
1790, been converted into lakhiraj. The
fact that the lands are within the ambit
of the estate is not sufficient to meet this
burden. In Abdul Rahman Kazi v. Baim
kunth Nath Roy Choudhury (3) the same
view was taken by another Division
Bench of the Calcutta High Court. As
was observed by Mookerjee, J., in the
last case, the rule is that the purchaser
of an entire estate at a sale for ar-
rears of revenue takes the estate as
created at the time of the Permanent
Settlement, and the question is reduced
to this : Has the plaintiff established
that these lands were included in the
estate at the time of the Permanent
Settlement ; in other words, was the
revenue assessed on the basis of the as-
sets of these lands ? It is clear, there-
fore, that in order to succeed, the plain-
tiff in the present case must make out
a prima facie case that at the time of
the Permanent Settlement the land in
dispute was mal land and was included
in the estate as such, and that the reve-
nue assessed upon the estate was fixed
on consideration of the assets of the land
in dispute ; in other words, that the as-
sets of the land were taken ;nto account
in settling the revenue at the time of the
Permanent Settlement. It appears from
the decisions of the Courts below that
there is a total absence of such evidence
on the part of the plaintiff. Learned
counsel for the plaintiff is unable to
point to a single piece of evidence show-
ing that the land in dispute was treated
as mal land at the time of the Perma-
nent Settlement. The Defendant Maha*
12) [1916] 20 C. W. N. 1028=36 L C. 184.
(3) [1918] 27 0. L. J. 138=41 1. 0. 757, '
1926 CHANDRA MOU^ESHWAR v. HEMNALINI DEBT (Kulwant Sahay, J.) Patna 419
raja has prove! that at least since the
year 1866 no rent ha? been paid for the
30 bighas of land within which the tank
in dispute is sicuate. The learned Dis-
trict Judge has relied on the absence of
the description of the land as lakhiraj
in the sale certificate E*. (a) : This, in
my opinion, is not sufficient in law to
show that the land was mal at the time
of the Permanent Settlement.
Under the circumstances, I am of
opinion that the decision of the learned
District Judge that the land was not
lakhiraj land, and that <the plaintiff was
entitled to possession of the land but for
Exception (4) to S. 37 of the Act, is
nofc sound. The plaintiff having failed
to prove that the land was mal at the
time of the Permanent Settlement her
suit for declaration of title and posses-
sion in respect of this tank mu^t fail.
In this view of the case it becomes im-
material to consider the appeal of the
plaintiff, namely, Second Appeal No. 288
of 1924. Her contention in this appeal
is that the learned District Judge was
wrong in holding that the case came
within Exception (4) to S. 37 of the Act,
and that she was entitled to oust the
Maharaja from possession, or in any
event, she was entitled to have a rent
assessed in respect of the two annas share
of the tank which the District Judge
had found to appertain to her estate
Touzi No. 6104 and that the proprietors
of the remaining 14 annas were nofc
necessary parties to the suit.
As regards Exception (4) to S. 37 of
the Act it is contended that there is no
plea in the written statement that the
tank came within the exception. It is
also contended that the leases referred
to in the Exception 4 must be leases
of lands for the purpose of excavating
tanks thereon. In my opinion neither
of these contentions can prevail. The
defence of the defendant in the present
case was that the entire area of 30 bi-
ghas within which .the tank in dispute
was situate was lakhiraj land, and the
mere omission of the defendant to take
the plea of Exception (4) to S. 37 in the
written statement will not entitle the
plaintiff to a decree for possession.
As regards the second contention,
the language of Exception 4 does not
warrant the construction sought to be
placed upon it by the learned counsel.
It does not say that in order to bring
the case within this exception the lease
must be a lease for the purpose of ex-
cavating a tank thereon. Reliance was
placed upon the decision of the Calcutta
Hisjh Court in Asmat Ali v. Hasmat
Khan (4) where it was held that a lease
of a tank without any portion of the
surrounding land is not protected under
01. (4J, S. 37 of Act XI of 1859, as it was
not within the meaning of that clause a
lease of land whereon a tank has been
excavated. This case has clearly no
application to the facts of the present
case. In the present case the lease is
of 30 bighas of land upon which stands
the tank in dispute.
As regards the contention that rent
ought to have been assessed for two annas
share of the tank even in the absence of
the proprietors of the remaining 14 annas
share reliance has been placed upon
Kamal Kumari Chowdhurani v. Kiran
Chandra Roy (5). That was not a case
for assessment of rent and in that case
the plaintiffs did not ask for 'direct or
actual possession of the land, but in-
direct or constructive possession by a
receipt of rent to the extent of their
share from the cultivating tenants upon
a declaration that the intermediate ten-
ure was cancelled by the sale for ar-
rears of revenue. That case is clearly
distinguishable from the facts of the
present case.
The result is that Suit No. 454 of
1920 must be dismissed with costs. Ap-
peal No. 150 of 1924 of the Defendant
Maharaja is decreed, and Appeal No. 288
of 1924 of the plaintiff-appellant is dis-
missed. The Defendant Maharaja will
be entitled to his costs in all the Courts.
There will however be only one hearing-
fee in the two second appeals in this
Court.
Second Appeals Nos. 151, 152, 153,
291,296 and 295 0/1924.
These six appeals arise out of three suits
Nos. 453, 456 and 483 ; the correspond-
ing appeals before the District Judge
being Nos. 90, 79 and 82. Appeals
Nos. 151, 152 and 153 are by the Maha-
raja of Gidhaur and Appeals Nos. 291,
296 and 295 are by the plaintiff; ' Suits
Nos. 453 «and 456 relate to certain rai-
yati lands and Suit No. 483 relates to
a house which forms part of the 30 hi*
(4) [1897J 2 C. W. N. 412.
(5) [1897] 2 C. W. N. 229.
420
P«tna CHANDRA MOULESHWAB v. HEMNALINI DEBI (Kujwant Sahay, J.)
bighas of lakhiraj land referred to in Suit
No. 454. In these suits the raiyati
lands and the bouse are held by tenants
who. took settlement thereof from the
Maharaja defendant and these tenants
;are also parties to the suits.
The learned Munsif found the land to
•be lakhiraj of the Maharaja and he held
that the tenant defendants could not be
-ousted. The learned District Judge has
foeld that the landa lie in the plaintiff's
Touzi No. 6104 and they are situated
within the 30 bighas purchased by the
Maharaja and that the tenants have
«been paying rent to the Maharaja. He,
however, found that the 30 bighas of
land was not lakhiraj since the time of
the Permanent Settlement arid that,
therefore, the Maharaja defendant was
liable to ejectment under S. 37 of Act
.XI of 1859. In Suits ftos. 453 and 456
the plaintiff wanted to oust the tenant
^defendants because in a previous suit for
rent instituted by her, these defendants
had denied her title as landlord and had
-set up the Maharaja's title, and the
•plaintiff seeks to dispossess the tenants
x>n the ground of forfeiture by denial of
•her title. The learned District; Judge
has held that the denial of the title by
the tenants was a bona. fide assertion on
their part inasmuch as they took settle-
ment of the lands from the Maharaja
-and had been paying rent to him. As
regards Suit No. 483 which was for the
'house in possession of the defendant
Lafcif Mian, there was no denial of title
<of the plaintiff by the tenant, but the
learned District Judge found that this
case came within Exception (4) to S. 37
Act XI of 1859 inasmuch as the house
was a permanent building erected upon
the land. The result was that the
.learned District Judge gave a decree to
the plaintiff for possession as landlord
fey ousting the Maharaja defendant, and
*nade a declaration that the plaintiff
^ras entitled to recover rent from tho
tenant defendants at rates paid by them
to the Maharaja.
The points raised in the appeals of the
Maharaja are the same as in Appeal
No. 150 arising out of Suit No. 454 dealt
with above. The lands and the house
form part of the 30 bighas of the lakhi-
raj land purchased by the Maharaja and
which has continued to be lakhiraj at
least since the year 1866. The onus be-
jng on the plaintiff to shpw thaf the
land was included in the mal lands of
the estate at the time of the Permanent
Settlement, and there being absolutely
no evidence on that point, the plaintiff
is not entitled to a declaration of her
title as landlord and she is not entitled
to oust the Maharaja defendant. That
being so, it follows that the tenant defen-
dants .cannot be ousted either. More-
over, the denial of title of the plaintiff
was at a time when the plaintiff really
was not the landlord, but the Maharaja
was the landlord. Even, assuming that
the lakhiraj set up by the Maharaja was
an encumbrance which could be annulled
under S. 37 of the Act, such annulment
had not taken place at the time the
plaintiff had brought her rent suits.
The encumbrance is not annulled ipso
facto by the revenue sale ; the purchaser
at the revenue sale has to take steps to
annul the encumbrance, and at the time
the rent suits had been instituted the
plaintiff had taken no steps to annul the
encumbrance and the Maharaja was
really the landlord of the tenants and
their denial of the title of the plaintiff
was correct.
As regards Suit No. 483, tho house is
no doubt not a masonry house, but the
finding is that it is a permanent house,
and even if the Maharaja was liable to
ejectment, the tenant defendant in Suit
No, 483 was not liable to ejectment.
The result is that these three suits,
No?. 453, 456 and 483 will be dismissed
with costs. Appeals Nos. 151, 152 and
153 will be decreed with costs ; Appeals
Nos. 291, 296 and 295 will be dismissed
but without1 costs. (His Lordship then
dealt with the other appeals and agree-
ing with them finding of the Distriqfc
Judge dismissed them.)
Ross, J.— I agree.
1926 AJODHYA PRASAD v. BAMKHEIAWAN SINGH (Bucknill, J.) Pfctira 421
A.I. R. 1926 Patna421
ADAMI AND BUCKNILL, JJ.
Ajodhya Prasad and
dants — Appellants.
others — Defen-
v.
Ramkhelawan Singh and others —
Plaintiffs — Respondents.
Appeal No. 1323 of 1923, Decided on
9th June 1928, from the appellate decree
of the Addl. Dist. J., Patna, D/- 30th
July 1923.
(a) Bengal Estates Partition Act (1697). 8. 119
— Objection, as to certain -plots not belonging to
the estate under partition, raised— No adjudica-
tion given on the question, but the plots allotted in
the final partition award — Civil suit by objector
is not barred.
~Ir there has been any adjudication upon the
question, whether certain plots belonged to tho
estate which was being partitioned, raised by a
party during the course of the bafcwara proceed-
ings, S, 119 would undoubtedly affect adversely
his position. But where there has been no
adjudication upon such a claim, the mere fact
that there has been in the final partition award
an allocation of the land which the objection
had contended was not propsrly capable of inclu-
sion in the estate which was being partitioned,
cannot operate to prevent the claimant from
bringing * suit for a declaration of his title and,
if necessary recovery of possession : 37 Cal, 662,
Eel. on. [P. 423, C. 2]
(6) Limitation Act, Art. 11— Partition under
Estates Partition Act (1897) — Land not belonging
to the estate under partition allocated — Claimant
of the land can bring a suit for its recovery
vJlthln 12 years— Art. 14 does not apply— Limi-
tation Act, Art. 144.
If property which did not fall in any way
within the estate which was being partitioned
was allocated to one of tha persons, who was a
party to the partition proceedings, it seems in-
credible to suggest that the person to whom
that property so allocated rightly belonged
could not within 12 years from the date when
his right of action accrued, bring a suit for a
declaration of his title and if necessary for re-
covery of possession of that land in question.
Further it matters not whether such claimant
was an outsider ; that is to say, a parson who
was not a party to the partition proceedings, or
a person who was a party to the partition pro-
ceedings. In such a case there is no act or
order of an officer of Government in the official
capacity which could be regarded as bringing
the period of limitation within the purview of
Art. 14. [P. 422, C. 1, 2]
S. N. Rai—ior Appellants.
S. Dayal—ior Eespondents.
Bucknill, J. — This was a second ap-
peal from a decision of the Additional
District Judge of Patna, dated the 30th
July 1923, by which he confirmed a
judgment of the Munsif of Barh, dated
the 29th June 1922.
The facts of the case, so far as they
are before this Court, appear to have
been very simple. The plaintiffs brought
a suit on the 20th October 11921, against
three sets of defendants-; the second
party and third party defendants need
not be considered as of importance for
the purposes of this appeal. The allega-
tion put forward by the plaintiffs was
that they had been dispossessed of two-
pieces of land known as- Plots Nos, 2242
and 2735 which properly appertained to-
Mauza Marachi Bhagafc- Ekhtiyarpur;
that this dispossession had come about;
owing to the fact that in a partition of
an adjoining mauza known as- Marachi
Bariar, the first party defendants had
been wrongly allotted these two plots
of land which in fact did not belong to
Mauza Marachi Bariar at all. It may
be convenient here to say that the tauzi
number of the village Marachi Bhagat
Ekhtiyarpur was 86 and that of Marachi
Bariar 641. The plaintiffs claimed the
following principal reliefs :
(1) That on adjudication of their title
the Court might be pleased to declare
that the two plots in question lay in
Mauza Marachi Bhagat Ekhtiyarpur :
that they were the plaintiffs' bakasht
lands in that mauza and that the defen-
dants had no right or title in connexion
therewith ; and
(2) that the Court should be pleased
to award the plaintiffs direct possession
of the two plots on ouster of the first
party defendants.
Now for a number of years a slow
partition — a Collectorate Batwara — had
been taking place in the Mauza Marachi
Bariar ; it would appear that these parti-
tion proceedinga -had commenced so long
ago as 1906 ; they did not end until 1915.
It will be seen that, as a result of this
partition proceeding, Plots Noa. 22^2
and 2735 were in some way or other
allotted as if they appertained to Mauza
Marachi Bariar to the defendants first
party ; delivery of possession appears to
have taken place on the 31st May and
llth June 1915, respectively. During
the period occupied by this partition pro-
ceeding it would appear that a cadastral
survey took place some time in or about
1910 or 1911 and there seems no doubt
that in the cadastral survey the two
seem to have been entered as part of
Tauzi No. 641 ; but it is contended by
the plaintiffs that that entry was wrong
422 Patna AJODHY.A PIUSAD v. BAMKHELAWAN SINGH (Buoknill, J.) 1926
and wrongly obtained. On the 17th
July 1912, the plaintiffs filed a petition
in the batwara proceedings asking that
Plot No. 2242 should be included in
their takhta, because they (the plaintiffs)
were in possession thereof ; however,
somewhat later, that is to say, on the
8th September 1913, another petition
was filed by the plaintiffs pointing out
that their previous petition had been
discovered to be completely in error and
that as a matter of fact both Plots
Nos. 2242 and 2735 did not belong to
Tauzi No. 641 at all, but should be
excluded therefrom. It is not clear that
any notice of any sort was taken of this
petition. At a later stage of this judg-
ment I will refer in some detail to the
manner in which the learned Additional
District Judge has dealt with what is
supposed to have taken place at the
Batwara proceedings with regard to
these two plots of land. It is sufficient
to state that, as I have already men-
tioned, these two plots were allocated to
the first party defendants as if they did
appertain to Tauzi No. 641, Mauza
Marachi Bariar. The suit was then
brought by the plaintiffs some years
afterwards for the relief which I have
already named.
The Munsif of Barh found in favour of
the plaintiffs and his decision was
affirmed by the Additional District Judge
of Patna. Now there are only two
points raised by the learned advocate,
who appeared for the appellants, here.
The first of these points is that the
period of limitation which applies to a
suit of this kind is governed by Art. 14
of the Schedule to the Limitation Act,
1908 ; that is to say, that under that
Article a suit such as this must be brought
within one year of the date of the act or
order of an officer of Government in his
official capacity not otherwise expressly
provided for by other articles of the
schedule or by the act itself* In this
case, however, there was no act or order
>:n my opinion which could be regarded
kg bringing the period of limitation
within the purview of this Art. 14.
The second point which « was put for-
ward by the learned advocate who
appeared for the appellants was that
under S. 119 of the Estates Partition Act
it was not possible for the plaintiffs to
bring a suit to set aside anything which
had taken place under the partition unless
they did so under the proviso to that
section which proviso, however, could
not be brought into effect under the
circumstances of the present case. The
material provisions of this section read
thus :
Section 119 : No order (a) refusing to admit
an application for partition or to carry out a
partition on any of the grounds mentioned in
S. 11, or (b) made under S. 20, S. 30, Ch. V, Ch.
VII, Ch. VIII, Ch. IX (except S. 81), Ch, X,
S. 107 or 8. 117, shall be liable to be contested
or set aside by suit in any Court, or by any
means other than those expressly provided in
this Act : Provided that (1) any person claiming
a greater interest in lands which were held in
common tenancy between two or more estates
than has been allotted to him by an order under
8. 84 or S. 83 ; or (2) any person, who is aggrieved
by an order made under S. 88 may bring a suit
in a Court of competent jurisdiction to modify or
set aside such order.
The learned advocate contends that
there has been no order under S. 88 of
the Act which is the only possible section
would could apply to what took place in
this case ; and that by the very allocation
by theCollectorate of these two plots of
land to the defendant first party, the
plaintiffs have no recourse to or remedy
in any civil Court. I must admit that
I think that this is a fallacious argument.
If, as is contended here, property which
did not fall in any way within the estate
which was being partitioned was alloca-
ted to one of the persons, who was a
party to the partition proceedings, it
seems to me incredible to suggest that
the person to whom that property so
allocated rightly belonged could not
within 12 years from the date when his
right of action accrued bring a suit for a
declaration of his title and if necessary
for recovery of posssssion of that land
in question ; and, indeed, I would go a
step further and say that it matters not
whether such claimant was an outsider ;
that is to say, a person who was aot a
party to the partition proceedings, or a
person who was a party to the partition
proceedings.
In the case of Janaki Nath Ckowdhry
v. Kali Narain (l) this proposition is
clearly laid down by Mookerjee and
Teunon, JJ. Their Lordships there
observed that if in the course of a parti-
tion proceeding any question arose as to
the extent or otherwise of the tenure,
the tenure-bolder not being a party to
(1) [1910] 37 Cal. 662=7 I. 0. 881=
N. 45.
a w.
1926
LACHMAN SAHAY v, GAUIII OHABAN
Patna 423
the proceeding he was not affected in
any manner by the decision which might
be arrived at by the revenue authorities
for the purpose of partition between the
proprietors and that it would be unrea-
sonable to hold that a party who ap-
peared before the revenue authorities
in bis character as a proprietor should
he finally concluded by a decision upon a
okestion of title, which would not have
been binding upon him, if he had been a
stranger to the proceeding.
Now the learned advocate who has
appeared for the appellants here has
quoted to us a considerable number of
cases of which the general trend has
been to insist upon the importance of
the bar presented by S. 119 of the
Estates Partition Act. The case which
perhaps most strongly supports / this
proposition is perhaps that of Qurubuksh
Prasad Tewari v. Kali Prasad Narain
Singh (2). In that case, where a party
to a partition proceeding objected during
the proceedings only to the mode in
which the partition was being made, but
never took any objection that land out-
aide the limits of the property which
was being partitioned was being included
wrongly in the estate, and where the final
order for partition was made without
such objection, that party was precluded,
under the provisions of S. 119 of the
Estates Partition -Act, from bringing a
suit for a declaration of title in his
favour and for recovery of possession of
land which in the suit for the first time
he declared belonged to him and did not
appertain to the estate which alone
should have rightly been partitioned.
In the other cases, which were quoted
by the learned advocate we find that
the party seeking to bring a suit which
would affect the final partition award
is generally found to have brought for-
ward his objections during the course
of the batwara proceedings and in effect
to have had a substantive adjudication
thereupon.
Now it is, therefore, I think, at this
stage important to ascertain, so far as is
possible, whether there really was any
adjudication upon this question of the
plaintiffs' claim with regard to these
two plots of land. (His Lordship then
agreed with the finding of the lower
Court that no orders under S. 88 had
been passed.) It is quite clear, I think|
(2) [1915J 19 C. W. N. 1322=32 I. 0. 167.
that the authorities indicate that if there
had been any adjudication upon this
question raised by the plaintiffs during
the course of the batwara proceedings
(i. e., that Plots No* 2IH2 and 2735 did
not at all lie within the estate which
was in the course of being partitioned)
the relative provisions of the Estate?
Partition Act would undoubtedly have
affected adversely tbeir position. But
it must also be admitted that where
there has been no adjudication upon such
a claim, the mere fact that there has
been in the final partition award an allo-
cation of the land which the objectors
have contended was not properly capable
of inclusion in the estate which was be-
ing partitioned cannot operate to prevent
the claimants from bringing a suit for a
declaration of their title and, if neces-
sary, recovery of possession. If we look
at what toofc place here it certainly
appears, as it has appeared to both the
lower Courts, that there was no sort of
enquiry or adjudication upon the claim-
ants' claim. That being so, it does not
appear to me that there was any bar to
the right of the plaintiffs to bring the
suit in the manner and in the time at
which they have so done.
In my view therefore both the lower
Courts were correct in their decision and
this appeal must be dismissed with
costs.
Adami, J.— I agree.
Appeal dismissed.
A.I. R.I 926 Patna423
DAS AND Boss, JJ.
Lachman Sahay and others — Defen-
dants— Appellants.
v.
Gauri Charan Mahton and others —
Plaintiffs — Respondents.
Second Appeal No. 124 of 1923, Decided
on 24th June 1925, from a decree of the
Sub. J., Pafcna, D/- 16th September 1923.
Landlord and Tenant — Non-transferable occu-
pancy holding — Landlord may sue for rent
against the original tenant even after the transfer.
The landlords may if they choose ignore the
sale of non-transferable occupancy holding and
proceed to bring a rent suit as against their
tenants. They may, if they choose, bring a suit
for ejectment as against the purchaser.[P 421 G'2]
Shiveshwar Day al— for Appellants.
Bimla Charan Sinha— for Respondents.
424 Patna
KISHUN MANDARV. KING-EMPEROR (Boss, J.)
1926
Das, J. — There is a deficit Court-fee
of Rs. 80-4-0 due from the plaintiffs- res-
pondents on their plaint and on their
memorandum of appeal in the Court
below. They are given seven days' time
to make good the deficiency; if they fail
to do so their suit in the Court of first
instance will stand dismissed and the
appeal in this Court will stand decreed
with costs in all the Courts.
I now proceed to deal with the case on
the understanding that the deficiency will
be made good. The plaintiffs, who are
respondents before us, sued the appellants,
the defendants first party, for a declara-
tion that the decree passed on the 30th
of March, 1920 in Bent Suit No. 1964 of
1919 and the auction sale held on the
15th of November 1920 in execution case
No. 861 of 1920 are irregular, against the
provisions of law and fraudulent and are
fit to ba set aside and rendered null and
void.
The facts are these. The defendants
second party had a holding of 5 bighas of
kasht land under the defendants first
party. They transferred the entire hold-
ing to the plaintiffs. Thereafter the
landlords brought a rent suit as against
the defendants second party, obtained a
decree against them, proceeded to execute
the decree, and in due course purchased
the holding at a sale held in execution of
their decree.
The plaintiffs contend that there is a
custom of transferability of occupancy
holdings in the village and that the
decree obtained by tho landlords against
the defendants second party is fraudulent
and not binding upon them. The Court
of first instance found that there was no
custom of transferability of occupancy
holdings in the village. The learned
Judge in the Court below has not gone
into that question, but he has come to
the conclusion that, assuming that the
decision of the Court of first instance on
this psinfc is right, the plaintiff* are still
entitled to succeed on the ground that
the decree obtained by the landlords as
against the defendants second party was
fraudulent. In my opinion the decision
of the learned Subordinate Judge cannot
be supp3rted. If there is no custom of
transferability of occupancy holding? in
the village, the plaintiffs have no cause of
action and their suit should be dismissed
on that ground. The learned Subordinate
Judge was under the impression that the
landlords had to bring a suit for eject-
ment as against the purchaser. • In my
opinion this is not right. The landlords
may, if thoy choose ignore the sale and
proceed to bring a rent suit as against
their tenants, This is the course which
they adopted; and they are -undoubtedly
entitled to succeed unless it be established
that there is a custom of transferability
of occupancy holdings in the village.
I must set aside the judgment and the
decree passed by the Court below and
remand the case to that Court for dis-
posal of the question, as to the custom of
transferability of occupancy holdings in
the village. This judgment will not be
signed by us until the 30fch of this month.
Costs will abide the result and will be
dispose.d of by the lower appellate Court,
Rose, J. — I agree.
Case remanded.
A I. R. 1926 Patna 424
BOSS AND KULWANT SAHAY, JJ.
Kishun Mandar — Accused — Applicant,
v.
King- Emperor — Opposite Party.
Criminal Bevision No. 156 of 1926,
Decided on 29th March 1926, from an
order of the S. J., Bhagalpur, D/- 20th
January 1926.
$ Criminal P. C., Ss. 56 and 54— Command
certificate issued under S. 53 — Constable effecting
arrest not notifying contents to person arrested—
Arrest is not Illegal If facts entitle the constable
to arrest under S. 51.
Where a command certificate has been given
to a constable under S. 5t> tor effecting the arrest-
of a psrson, bat tho constable arrests that parson
without notifying to him the substance thereof
the arrest does not become illegal if facts of the
case are such that the const ibla can arrest the
person under S, 51 without a warrant, irrespec-
tive of a command certificate under S. 56.
[P 425 C lj
S. P. Varma — for Applicant.
Sultan Ahmed — for the Crown.
Ross, J. — The first petitioner has been
sentenced to six months' rigorous impri-
sonment under S. 147 of the Indian Penal
Code and to four months' rigorous im-
prisonment under S. 332. Petitioners
Nog. 2, 3 and 4 have been sentenced to
six months' rigorous imprisonment under
S. 147 and petitioner No. 5 has been
dealt with under S. 562 of the Code of
1926
KAHU SINGH v. KIN^-BMPEROB (Macpherson, J.) Patna 425*
Criminal Procedure on conviction under
S. 147 of the Penal Code.
It appears that three persons, Dipu,
Kishun and Bawan had been charged be-
fore the police with the theft of a bul-
lo&k. On, the 3rd of June 1925, the Sub-
inspector deputed a constable Harihar
Singh tp arrest them. Harihar Singh,
accompanied by fche complainant in that
case, went to the house of Dipu in the
early morning and found him asleep and
arrested him and took him away. He
had gone some distance when he was at-
tacked by the petitioners and Dipu w&s
rescued, injuries being inflicted upon the
constable. The ground upon which the
conviction is attacked is that the con-
stable did not comply with the provisions
of S. 56 of the Code of Criminal Proce-
dure in making the arrest inasmuch as he
did not, before making the arrest, notify
to the person to be arrested the substance
of the order. This provision has been
added to S. 56 by the recent amendment
of the Code of Criminal Procedure ; and
it is contended that the effect of that
amendment is to bring in the decisions on
S. 80 of the Code to the effect that if the
police officer executing a warrant of ar-
rest does not notify the substance thereof
to the person to be arrested, he is not
acting in the discharge of his public func-
tions in the manner authorized by law.
*The learned Government Advocate who
appeared in support of the conviction did
not contend that the provisions of S. 56
had been complied with ; but he argued
that independently of S. 56 the constable
was entitled to arrest Dipu without a
warrant under S. 54. The terms of S. 54
are very wide and authorize any police
officer without an order from a Magis-
trate and without a warrant to arrest
any person who has been concerned in
any cognizable offence or against whom a
reasonable complaint has been made or
credible information has been received
or a reasonable suspicion exists of his
having been so concerned. Now there
can be no doubt in the present case that
Dipu was such a person. The fact that
he was eventually acquitted is of no con-
sequeuce. A complaint had been made
which the police believed to be true and
his arrest had been ordered. The fact
that a command certificate had been given
to the constable under 9.56 is immaterial,
as the constable, independently of any
1926 P/54
such command certificate was entitled to
make the arrest.
It was contended on* behalf of the peti*
tioners that S. 56 lays down the proce-
dure to be followed in the cases to which
it applies and that that procedure had
not been followed in the present case ;
and that the section applies to constables
equally with chaukidars. But the fact
that S. 56 applies to constables does not
deprive them of their statutory powers
conferred independently of that section.
In my opinion, therefore, this arrest was
perfectly legal and the petitioners were
rightly convicted. The application must
be dismissed and the petitioners will sur-
render to their bail to undergo the rest-
of their sentences.
Kulwant Sahay, J.— I agree.
Rule discharged.
A. I. R. 1926 Patna 425
MACPHERSON, J.
Karu Singh and others —
Petitioners.
• Accused—*^
v.
King-Emperot — Opposite Party.
Criminal Revision No. 408 of 1926,
Decided on 6th July 1926, from an order
of the Sub-Divl. Officer, Jahanabad, D/-
27th April 1926.
if Penal Code, S, 499— Defamatory statement
in a plaint is not absolutely privileged.
The rules of the English Common Law apply
to questions of civil liability for defamation in
India, but criminal liability is determined exclu-
sively by the Penal Code. A defamatory state-
ment whether on oath or otherwise, e. g., one
contained in a plaint, falls within S. 499 and ia
not absolutely privileged : 48 Cal. 388 and 40
Cal. 433, Foil [P. 426, C. 2]
S, N. Rai — for Petitioners.
Judgment. — This rule has been issued
to consider the conviction of the three
petitioners under S. 500 of the Indian
Penal Code and the sentence of fine of
Rs. 25 imposed upon each of them.
The petitioners, of whom Karu and
Mainath (otherwise Bhainath) are bro-
thers, along with others, filed a suit in
the Court of the Munsif of Gaya against
Jhangi Mahton, his brother Arihach
Mahton, Mfc. Budhni and Mukhram Singh
for a mortgage decree on a deed .of 1919
said to be executed by the first two de-
fendants in favour of the plaintiffs. la
426 Patna
KABU SINGH v. KING-EMPEBOR (Macpherson, J.)
1926
•the heading of the plaint they described
Defendant No. 3 Mt. Budhni as " zan
4asta " or " kept wjoman " of Defendant
No. 1, and in para. 5 of the plaint they
set out that as the Defendant No* 3 is
the kept woman of Defendant No. 1, and
Defendants 1 and 2 have with a dishon-
•eat motive, as a precautionary measure
and in order to derive undue advantage,
•executed a farzi deed of sale without con-
sideration in respect of the mortgaged
property, in the name and in favour of
Defendant No. 3, the kept woman of De-
fendant No. 1, and of Defendant No. 4, a
friend and creature of the latter, there-
fore they too are brought into the cate-
gory of defendants.
Musammat Budhni who is 40 or 45
years of age and a widow for a quartei
of a century, instituted criminal proceed-
ings under S. 500 of the Indian Penal
Oode against the petitioners and alleged
that the imputation in the plaint that
•she was kept woman of Jhangi Mahton
was maliciously false and very harmful
to her reputation and that in fact she
had no interest whatever in the mort-
gaged property and had been made a de-
fendant unnecessarily with ulterior mo-
tives, because she had purchased lands
from the first defendant other than the
mortgaged property.
The petitioners pleaded in defence that
the complainant was in fact the concu-
bine of Jhangi aud that Jhangi in order
to evade payment of the amount due to
them had with that object sold some of
his land to her, that under legal advice
they had made Budhni defendant and
that they stated a fact which they were
entitled to state.
The petitioners attempted to prove
their allegation that Budhni is the con-
oubine of Jhangi, but the Sub-divisional
Magistrate held that the attempt had
failed completely and that she is of good
character. He further found that the
allegation that Budhni was the kept
woman of Jhangi Mahton was not made
in good faith nor for the benefit of any-
body. The petitioners, he held, had in
fact made it because of resentment at
transfer of some land by Jhangi to
Budhni, which they considered was in-
tended to defraud them, and their object
clearly was to injure the reputation of
the complainant.
Finding all the ingredients in the
charge under 8. 600 of defaming the com*
plainant by describing her as the concu-
bine of Jhangi Mahton to be established,
he convicted and sentenced the peti-
tioners already stated.
In support of the rule Mr. 3. N. Boy
does not challenge the findings on th$
facts. He contends, however, that the
occasion was privileged and refers to
several decisions of the Calcutta High
Court in support of his contention. These
decisions are all antecedent to the Full
Bench decision in Satish Chandra v.
Bamdayal (I) in which they were consi-
dered. The only decision of this Court
on the question of privilege is Jag at
Mohon Nath v. Kalipada Ghosh (2) in
which it was held in considering the
case of a legal practitioner that the rules
of the English common law apply to
questions of civil liability for defamation
in India. As to liability on the criminal
side, there has, it is well known, been
diversity of opinion among the High
Courts in India. It will serve no good
purpose to consider them in detail. In
my judgment criminal liability is deter-
mined exclusively by 'the provisions of
the Indian Penal Code. The law is to my
mind correctly set out in Eari Singh v.
Emperor (3) and in Satish Chandra v.
Bamdayal (1) already referred to which
was cited with approval in the decision
of 'this Court which I have mentioned.
A defamatory statement, whether on oath
or otherwise, falls within S. 499 of the
Indian Penal Code, and is not absolutely
privileged.
The question of importance is therefore
that of good faith. In the present case it
has been found and there is not the
slightest doubt that the statement that
the complainant was the kept woman of
Jhangi is without foundation and that it
was made maliciously because Budhni
had, as the petitioners considered to their
detriment, purchased some of the lands
of Jhangi.
Following the decisions cited I hold
that the petitioners were not absolutely
privileged and that on the facts found
the conviction is correct.
The application being without merits,
this rule is discharged.
Rule discharged.
(1) [1921] 48 0*1. 888=32 0. L. J.
I. 0. 143=24 0. W N. 082 (8. B,).
(2) A. I. B. 1992 PaU04=l Pat. 871.
(8) [1918] 40 Cal. 488=18 1. 0. 660=17 0. W.
N. 997.
1926 ACHUTANAOT v. SURJANARAIN (DaWson-Miller, C. J.)
* A. I R. 1926 Patna 427
DAWSON-MILLER, 0. J., AND FOSTER, J.
Patna 42T
. Achutanand Jha and others — Plaintiffs
— Appellants.
Surjanarain Jha and others — Defen-
dants— Respondents.
Second Appeals Nos. 1056 of 1923 and
41 of 1924, Decided on llth May 1926,
from a decree of the Dist. J., Darbhanga,
D/- 30th June 1923.
(a) Civil P.O., 0. 6, R. 11— Amendment prayed
for after evidence— Question of fact to be raised
by amendment already raised and evidence ad-
duced— Amendment should be allowed*
A died leaving two sons B and C. B alienated
family properties. 0 instituted a suit against B
and his vendors for the recovery of his shares on
the ground that after the death of his father and
helore the sale he had separated from B and
that B had no right to sell anything beyond
his share. It was also alleged that the sale deed
was not genuine and for consideration and that
it was executed without legal necessity. An
issue was framed as to whether there was legal
necessity and was discussed in the trial Court
as well as the first appellate Court. After the
evidence was closed the plaintiffs filed a petition
praying that he might be allowed to amend his
plaint upon payment of the neoeseary addi-
tional Court-fee by adding to the relief claimed
therein the prayer that if in the opinion of
the Court the separation as alleged by the
plaintiffs be not proved then a decree for re-
eo very of possession of the entire property be
psssed in favour of C or jointly in favour of G
aud B- [P, 428, C. 1, 2]
Held : that the question of legal necessity
having been raised in the plaint and an issue
been framed on the point the amendment should
be allowed for the purpose of determining the
real questions in issue between the parties.
(6) Hindu Law—Joint family—Alienation bV
manager— If sale for consideration is not much
over the legal necessity and the transaction is not
an improper onet sale should not be set aside.
In oases where the part of the consideration
not justified on the grounds of legal necessity is
small, sale should not be set aside, and where it
is insignificant the sale should even be upheld :
48 All. 183, Bel. on.
Where it is necessary to sell property in order
to discharge a binding legal obligation, the pur-
chase price most occasionally exceed the actual
cash requirements, and unless it appears
that the transaction itself was an improper one
or that some more advantageous arrangement
could have been made, the Courts should be
slow to set aside a sale to a bona fide purchaser
merely because the oonsid Ation paid is some-
what greater than the aomal requirements of
the joint family. [p 439, 0 2 ; P 480, 0 I]
* (c) Hindu Law— Debts— Pious obligation of
son does not extend to time-barred debts of
father.
The pious obligation of the son does not ex-
tend to the payment of his father's time-barred
debts, [p. 430, C. 1].
Murari Prasad and B. K. Jha— tor
Appellants.
8. K. Mitter — for Respondents.
Dawson-Miller, C. J.— These twa
appeals numbered 1056 of 1923 and 41
of 1924 are brought; from a decision of
the District Judge of Darbhanga, modify
ing the decree of the Munsif .
The appellants in Appeal No. 1056,
who are the plaintiffs in the suit, are
the younger son and the widow of Deo-
kishun Jha who* died in 1913 leaving, in
addition to the plaintiffs, an elder son*
Subhanand Jha (son of a deceased wife)
who became the karta of the family OD
Deokisb tin's death.
By a kobala dated the 17th Marok
1917, (Ex. E) Subhanand Jba, during the
minority of his half-brother, sold to the
defendants first party a portion of the
family property consisting of between 6
and 7 bigbas of kasbt and brahmottar
land in mauza Banti fora sum of Bs. 750.
By a second kobala dated the 20th May
1918 (Ex. I) he sold two other plots of
land and a dwelling house to the defen^
dant second party for a sum of Bs. 128.
In 1922 the male plaintiff, who by
that time bad attained majority together
with his mother instituted the present
suit against the respective purchasers
and Subbanand Jha, their vendor, claim-
ing to recover a two-thirds share in the
property sold on the ground that the
plaintiffs bad separated from the elder
brother after the deatb of Deokishun and
before the sales took place, and they
were entitled to a third share each in
the property which the elder brother
had no power to sell beyond the extent
of his own share. The plaint also al-
leged that the sala deeds were nofc
genuine or for consideration, and that-
they were executed by Subhanand Jh»
without any legal necessity and that th*
plaintiffs were not benefited by tife
transaction. They claimed a declaration
that the sale deeds were illegal anil in-
operative as against the plaintiffs and
asked for recovery of' their two- thirds
share with mesne profits.
16 will be seen from what I have stated
that the claim was baaed upon
428 Patna ACHUTANAHD v. SUBJANABAIN (Dawson-Miller, 0. J.)
1926
.allegation that at the date of the trans-
fers the family property had already
been partitioned, the mother and each
of the sons being separately entitled to
a third share in the whole. The question
of legal necessity was therefore only
material in case there had been no separ-
ation, but such a case was not speci-
fically pleaded. Nevertheless issues were
framed before the hearing dealing with
this point. The fourth and fifth issues
were as follows :
(4) Are the kobalas sought to be impugned
genuine and for cousideratiou and for the bene-
fit of the plaintiffs ?
(5) ^ Were the kobalas in question for legal
necessities aud are they binding upon the
plaintiffs ?
Considerable evidence was adduced at
»the trial upon these issues and the ques-
tion of legal necessity was discussed in
great detail in the judgment of both the
Munsif, who originally tried the case
.and the District Judge before whom it
went on appeal.
On the 20th February 1922, after the
evidence was closed, the plaintiffs filed
a petition before the Munsif praying that
they might be allowed to amend their
plaint upon payment of the necessary
additional Court-fee by adding to the
relief claimed therein the following
prayer.
That if in the opinion of the Court the sepa-
ration, as alleged by the plaintiffs, be not proved
then t* decree for recovery of possession of the
an tire property with mesne profits covered by the
kobalas, dated 27th March 1917 and 20th May
1918, may be passed in favour of your petitioners
or jointly in favour of your petitioners and De-
fendant No. 6 (Subhanand Jha),
The learned Munsif rejected the appli-
cation on the ground that it was unfair
fco ask the defendants to meet a different
case at the stage. Had the question of
legal necessity not been raised in the
plaint, and had no issue been framed on
the point, I consider that the learned
Munsif's decision would have been un-
assailable and that it would have been
improper to allow the amendment at
that stage as it would involve the taking
of evidence on a question of fact not
raised in the pleadings or the issues.
But having regard to the course which
the^case took it cannot be said that the
defendants would be in any way preju-
diced by allowing the amendment adked
for. The question of legal necessity was
one of the issues for trial and both
J>arties h*d every opportunity to produce
evidence, and -did produce evidence, on
the point, and as the materials were
before the Court to enable to decide the
point and both Courts in fact decided
it. I consider that iu the particular!
circumstances of the case, and in the
interests of justice, the Court should
have allowed the amendment undet
0. 6, B. 17 of the Code of Civil Procedure
for the purpose of determining the. real
questions in issue between the parties.
We accordingly ruled * that the plaint
should be treated as amended in the
manner prayed as above set out.
The trial Court found that there had
been no separation and that the plaintiffs
and the Defendant No. 6, Subhanand
Jha, were joint in estate. This finding
was, in the absence of any amendment
of the plaint, sufficient to dispose of the
suit, but the learned Munsif, after stating
that his decision might not find favour
with a higher tribunal, proceeded to
determine Issues 4 and 5. He found
that the sales were genuine and for legal
necessity and binding on the plaintiffs
and dismissed the suit.
From this decision the plaintiffs ap-
pealed to the District Judge. The
learned District Judge found that there
had been»no separation in the family of
the plaintiffs and the Defendant No. 6
and that the property in suit was joint
family property. With regard to the
kobala of 1917 he found that out of the
consideration of Bs. 750 a sum of Bs. 550
was required for family necessity, but
that no legal necessity had been proved
in respect of the balance of Bs. 200.
He considered that this was only a small
portion of the consideration and held
that the kobala should not be set aside,
but directed that the plaintiffs should
recover from the transferees, the defen-
dants first party, the male plaintiff's
half-share of this amount, viz., Bs. 100.
With regard to the second kobala the
sale was made to the defendant second
party in order to raise money to pay
off a sum of Bs. 128 due under a mort-
gage dates" the 1st March 1904, executed
by DeoLjbhun Jha, the father of the
first plaiiitiff, and the Defendant No. 6
whereby certain family property had
been mortgaged. The personal debt in-
curred by Deokishun Jha under v the
mortgage of 1904, WAS time barred in
1918, when the kobala was executed, and
therefore, it could not be justified on the
ground of the antecedent debt of the
1926
AcHUTANANb v. StJRJANAB AIN (Dawson-Miller, 0. 3.) Pataa
father. Tke property which wa^ the sub-
ject of the mortgage had also passed out
of the possession of the family, as it
formed part of the property sold to the
first party defendants under the kobala
of 1917. The District Judge accordingly
lound that there was no necessity to pay
the debt and the family property could
not vaiidly be sold for that purpose. In
the result the appeal was allowed in
part and the decree of the trial Court
was varied by awarding the plaintiffs the
sum of Rs. 100 in respect of the first sale
and by declaring that the second sale was
not binding on the plaintiffs and had no
effect in so far as the half share of the
male plaintiff was concerned. The
learned District Judge, although he does
not in terms say so, in fact dealt with the
suit as if the plaint had been amended.
From this decision the plaintiffs have
preferred a second appeal, 1056 of 1923,
to this Court and contend that as the
lower appellate Court has found that
legal necessity was not established in
respect of the whole of the consideration
for the first kobala it should have set
aside the sale upon payment by the
plaintiffs of the amount found justified by
legal necessity, viz., Rs. 550.
The defendants 1st party, the pur-
chasers under the first kobala, have also
entered a cross-objection and contend
that on the pleading the question of legal
necessity did not arise, the plaint not
having been amended and that the4lower
•appellate Court was wrong in awarding
the plaintiffs the sum of Us. 100.
The defendant second party the pur-
chaser under the second kobala has also
preferred a second appeal numbered 41
of 1924, to this Court. He contends (1),
ihat the lower appellate Court was not
justified, in the absence of any amend-
ment of the plaint, in considering the
question of legal necessity and allowing
the plaintiff's claim on the ground of the
•absence of legal necessity, (2) that the
Defendant No. 6 as karta of the family
was under a pious obligation to discharge
his father's debt under the mortgage of
1904 even though the personal debt was
1;ime-barred and (3) that the mortgage
•debt still subsisted after the transfer of
the mortgaged property under the first
kobala And the liability of the joint
family to di&charge the debt remained
Wthtnfetfc.
As to the plaintiff's contention in Ap-
peal No. 1056 of 1923, certain authorities
have been relied on to support the argu-
ment that where a portion of the consi-
deration for a sale of family property is
not justified by legal necessity the sale
should be set aside on payment to the
transferee of that part of the considera-
tion which is so justified. No doubt this
rule has been followed where a substan-
tial portion of the consideration is not
proved to have been necessary for the
needs of the family. In the Deputy Com-
missioner of Kheri v. Khanjan Singh (1),
their Lordships of the Judicial Committee
set aside a sale where out of a total con-
sideration of R<*. 19,998 necessity 'was
found to have existed for Rs. 7,080 only.
In Samukh Pande v. Jagarnath Pande
(2), Rs. 200 out of Rs. 1,000 was found
not to have been supported by legal neces-
sity or antecedent debts. The learned
Judges of the Allahabad High Court
(Sulaiman and Mukherji, JJ.) in setting
aside the sale in that case said :
It is impossible to lay down any hard and fast
rule which could apply equally to every case ;
for every transaction has to be considered on its
owt^. merits and the Court has to come to a
finding on the merits of every case.
Other cases were cited where in simi-
lar circumstances the sale was set aside,
but in all of them the portion of the
consideration not justified by family
necessity or antecedent debt was sub-
stantial. The rule, however, is not of
universal application and in cases where
the part of the consideration not justified
on the ground of legal necessity is small,
the Courts have frequently refused to set
aside the sale, and where it is insignifi-
cant the Courts have even gone the
length of upholding the sale, without
ordering the defendant to restore to the
plaintiff that parfr of the consideration
not proved to have been justified by
necessity. One of the latest cases on the
subject is the Full Bench decision of the
Allahabad High Court in Lai Bahadur
Lai v. Kamleshar Nath (3), where the
authorities are reviewed and where the
Court refused to set aside the sale, or
even to order a refund, where the sum of
Rs. 259, out of a consideration of Rs.5,995
was found to be unsupported by legal
necessity. Other cases where the Court
exercised its discretion in favonr of the
~~~ ~4 A. L. «H
TTj~~[1907] 29 All. 381=34 1. A,
232=11 0. Wf N. 474 (P. C.L /
(2) A. I. R. 1924 All, 708=±|6 A1JL 681.
(8) A. I. B. 1925 All. 624=4$ Alt. 188 (P.B.
430 Patna KUSUNDA NAYADI COLLIEHIES v. BHOLANATH SARKAR
1826
purchaser are Felaram Boy v. Bagalanand
Banerjee (4) ; Chattar v. Chote (5) ; L. A.
Nilakanta Sarma v. Ganesha Iyer (6) ;
and Medai Dalavoi Thirumalaiyappa
Mudaliar v. Nainar Tevan (7). In the
last; case cited their Lordships of the
Judicial Committee held that where
Bs. 711 out of a consideration of Bs. 5,300
was not proved to have been justified by
legal necessity the sale was not invalid.
It seems obvious that where it is neces-
sary to sell property in order to discharge
a binding legal obligation, the purchase
price must occasionally exceed the actual
cash requirements, and unless it appears
that the transaction itself was an im-
proper one or that some more advan-
tageous arrangement could have been
made, which is not the case here, I con-
sider that the Courts should be slow to
set aside a sale to a bona fide purchaser
merely because the consideration paid is
somewhat greater than the actual
requirements of the joint family. More-
over in the present case the transfer has
remained unchallenged for a period ap-
proaching five years and on & considera-
tion of all the circumstances I am not
prepared to hold that the District Judge
acted illegally, or exercised a wrong dis-
cretion in allowing the sale to stand on
condition that the purchasers pay to the
plaintiffs the sum of Bs. 100. Appeal
No. 1056 of 1923 is accordingly dismissed
with costs. The cross-objection of the
defendants first party in this appeal is
also dismissed with costs, as we consider
that the plaint should be amended as
prayed.
With regard to Appeal No. 41 of 1924,
in which the defendant second party, the
purchaser under the second kobala is
appellant, his first point fails as we have
allowed the amendment. His second
point is based upon the contention that
the pious obligation of a son to pay his
father's debts extends even to a time-
barred debt. Whatever may be the duty
jOr the powers of a Hindu widow succeed-
ing to her husband's estate with regard
to the payment of her husband's debts,
when barred by limitation, the pious
obligation of the son does not extend to
the payment of his father's time-barred
debts. If the debt could not have been
(4) [1909] 14 0. W. N. 895=6 I, 0. 207,
(5) [19171401.0.269.
(6) A. I. B. 1925 Mad. 469.
(7) A. L R, 19542 P. 0. SOT.
enforced against the father, were he alive,
the son is not bound. This, however,
does not conclude the case for it appears
that the kobala of 1918, was executed in
order to pay off the sum due under a.
previous mortgage (Ex. C) executed by
Deokishan Jha, father of Subhanand and.
the male plaintiff, in 1904, and it is con-
ceded that the mortgage (Ex. C) created
a valid charge upon the family property.
The learned District Judge held that, as
the property charged by Ex. G had
already been transferred to the first party
defendants under the previous kobala of
1917, the liability to discharge the mort-
gage no longer rested with the plaintiffs'
family. If this property had been sold*
subject to the encumbrance the learned
Judge's decision might be justified on
the ground that the liability to discharge*
the encumbrance had passed away from
the family. But under the terms of the
kobala of 1917 (Ex. E), it appears that
the lands comprised in that sale were
sbld free of all encumbrances, the vendor
undertaking to discharge any encum-
brance, still subsisting and to indemnify
the purchasers from any loss they might
suffer by reason of the existence* of such
encumbrance. This was not creating a
new liability, but retaining a liability
already created and binding on the
family in respect of the vended property.
I must hold, therefore, that the transac-
tion of 1918 (Ex. 1) was binding upon the
plaintiffs and cannot be set aside.
Appeal No. 41 of 1924, is accordingly
allowed. The judgment and decree of
the District Judge are set aside and the
decree of the Munsif is restored in so far
as it dismissed that part of the claim
which relates to the kobala of the 20th
May 1918. The plaintiffs will pay the
defendant second party his costs incurred
in this appeal and in both the lower
Oourts.
Appeal No. 41 of 1924 allowed.
A. I. R. 1926 Patna 430
DA?JU*D ADAMI, JJ.
Kusunda Isayadi Collieries — Defen-
dant No. 1— Appellant,
v.
Bholanath Sarkar and others — Plain-
tiffs— Respondents.
Appeal No. 1005 of 1923, Decided on
8th July 1926, from the appellate decree
of the Dist. J.t Manbhum, Samba 1 pur
D/- 5th June 1923.
1926 KUSUNDA NAY ADI GOLLIBBIBS v. BHOLANATH SARKAR (Das, J.) Pataa 431
Bengal Cess (Act 9 of i860), 8. 6—Lessee of
•minify rights need not pay eess to lessor.
A case oi rent or royalty payable under a mining
lease does not come within Chap. 2 which relates
to assessment of oess on the annual value of
lands and not to assessment on the annual net
profits from mines, etc. A holder of mining
rights in a mouz* is liable to pay oess to the
Government under Chap. 5 of the Act but At to
the lessor. [P. 431, 0. 2]
S. M . Mullick and 8. N. Bose—tor Ap-
pellant.
S. C. Mazumdar, N. N. Sen and N. C.
Sinha — for Bespondents.
Das, J. — This appeal arises out of a
suit instituted by Bholanath Sarkar, the
respondent in this Court, for recovery of
eess. The facts are these : Bholanath gave
a mukarari lease of 100 bighas of land
with under-ground rights to Haricharan
Bose at a rent of Bs. 2,500 a year. Hari-
charan transferred his interest to the
patnaiks who are Defendants Nos. 2 — 5
in this suit. The patnaiks gave a mining
lease to Kusunda Nay ad i Coal Co., Ltd.
and it was provided in the lease that out
of the royalties and commissions payable
'by the Company to the patnaiks Bs. 2,500
should be paid direct to Bholanath
Sarkar. Kusunda Coal Co. was Defen-
dant No. 1 in the suit and is the appel-
Hant in this Court.
In 1918 a suit was instituted by the
patnaiks against Bholanath and the
Company in substance for a declaration
that Bholanath had no right to the
mouza and for recovery of the royalties
paid by them to him through the Com-
pany. A compromise was entered into
by the parties. It was agreed that out
of Bs. 2,500 payable by the defendant
Company to Bholanath under the previ-
ous arrangement on account of the annual
rent of Bs. 100 bighas of land Bholanath
would get an annual rent of Bs. 800
only and the patnaiks, who were the
plaintiffs in that suit, would get the
balance. It was also agreed that Bhola-
nath would have no other right in the
surface or under-ground of the mouza
•except the right to receive Bs. 800 per
year from the defendant Company. The
plaintiff contends that he is entitled to
recover cess from the defendants on the
annual rent of Bs. 800 which is being
paid by the defendant Company to the
plaintiff. The learned Judge in the
Court below has allowed the claim of the
plaintiff and the defendant Company
appeal this Court.
The learned Judge has taken the view
that on the compromise between the
parties the defendant Company must be
regarded as the tenants of Bholanath and
that as such they are bound to pay his
cess recoverable under Chap. 2. Now it
is to be observed that the defendant
Company is in possession of certain
mining rights in the mouza. What is
being paid to the plaintiff by the defen-
dant Company is rent or royalty in res-
pect of such mining rights and the ques-
tion arises whether Chap. 2 of the Cess
Act is at all applicable to a case of this
nature. 3. 6 of the Cess Act provides
that the road-cess and the public works
cess shall be assessed on the annual value
of lands and on the annual net profits
from mines, quarries, tramways, railways
and other immovable property ascer-
tained respectively as in this Act pres-
cribed. Annual value of land is defined
in the Act to mean
the total rent which is payable, or if no rent
is actually payable, would, on a reasonable
assessment, be payable during the year by all
the cultivating raiyats of such land, estate or
tenure, or by other persons in the aotual use and
occupation thereof.
It is obvious to my mind that a case
of rent or royalty payable under a mining
lease does not come within Chap. 2
which relates to assessment of cess on
the annual value of lands and not to
assessment on the annual net profits from
mines, etc. If this be so, it id clear that
the plaintiff cannot recover any oess from
the defendant under Chap. 2 of the Act.
The Defendant Company is no doubt
liable to pay cess to the Government
under Chap. 5 of the Act and as a matter
of fact it is paying cess to the Govern-
ment under Chap. 5. The plaintiff is
obviously not entitled to ask the defen-
dant Company to contribute towards the
cess payable by him to the Government
on his profits.
I would allow the appeal, set aside the
judgment and the decree passed by the
Court below and dismiss the plaintiff'*
suits with costs throughout.
Adami, J.— I agree.
Appeal allowed.
432 Patna
OHOTA LAL v. GUMANI (Bucknill, J.)
1929
A. I R.1926 Patna 432
BUCKNILL, J.
Chota Lai Sahu — Plaintiff — Petitioner.
Gumani Chawlhury — Defendant — Op-
posite Party.
Civil Bevision No. 151 of 1925, Deci-
ded on 24th June 1925, against the
judgment of the Murjsif, Darbhanga, D/-
25th February 1925,
Pro-note — Loan transaction and pro-note con-
temporaneous— Suit based on pro-note lohich
cannot be proved fails.
Where the loan transaction and the promis-
sory note constitute ona and the same transac-
tion and were actually contemporaneous, and
the suit was based upon the promissory note
alone and there was no suggestion that it was
maintainable without tha promissory • note or
that it was a case founded upon a claim merely
for money lent : Held : that if the pro-note
cannot be proved, the suit fails : 9 M. L. T.
281, Poll [P 432 C 2]
$. S. Bose for Murari Prasad — for
Petitioner.
S. K. Mitter — for Opposite Party.
Judgment. — This is an application
in civil revisional jurisdiction. The
application is made under the following
circumstances : The appellant was a
plaintiff in a suit, which he brought on
a promissory note to recover from the
defendant a small sum of money. The
suit came before the Munsif of Darbhanga
sitting as a Small Cause Court Judge ;
and when the plaintiff endeavoured to
prove his case by the production of this
promissory note, it was found that the
promissory note was not stamped and
could not be received in evidence. No
other argument or matter appears to
have been addressed to the Munsif (so
far as we can ascertain from the record)
and the Munsif held on the 25th Febru-
ary 1925 that as the plaintiff had failed
to prove his promissory note upon which
he had brought his suit the plaintiff's
suit must fail and must accordingly be
dismissed with costs.
Now, the matter has come before me
in revision and the suggestion is that
the suit might have been maintainable
as for one simple money lent. It is
perfectly clear frcm the plaint in the
suit and from the plaintiff's own petition
to this Court that the loan transaction
and the promissory note constituted one
and the same transaction and wejre
actually contemporaneous* It is also
perfectly clear that the suit was based
upon the promissory note alone and upon
no suggestion that it was maintainable
without the promissory note or that it
was a case founded upon a claim merely
for money lent. If the suit is founded
on af) instrument and that instrument
cannot be proved it appears to me that
it is clear that the suit fails. The
learned counsel who has appeared for
the respondent here has drawn my
attention to a case which appears to be
strongly in point : Chinnappa Pillai v.
M . B. Muthuraman Ghettiar (1).
In that 'case, which was decided by
Benson and Sundara Aiyar, JJ., it was
clearly laid down there that where a
loan and the execution of a promissory
note are contemporaneous and constitute
one transaction, a suit based on the
original consideration, if the promissory
note is inadmissible for insufficiency of
stamp, is not maintainable. This would
tend to show that in the present case
if the execution of the promissory not&
and the loan transaction were, as indeed
is admitted, contemporaneous and as
appears to be clearly the case one
transaction, it would have been impossi-
ble for the plaintiff to have attempted
to submerge his promissory note and to
bring a claim solely upon the considera-
tion of money lent. For this reason I
am satisfied that, as the plaintiff founded
and brought his suit on his promissory
note, and as he failed to prove it, his
case was rightly declared to fail and in
consequence that the Munsif was right
in dismissing his case.
I do not, therefore, see that it is
possible for me to interfere in this matter
in revision, and the application is dis-
missed with costs.
Application dismissed.
(1) [1911] 9 M.L.T. 281=10 I, Q. 669*
KHAN v. KiNiHBitefiBOB (Boss, J J
Patna 448
* A I. ft. 1926 Patna 433
BOSS AND KtT&WANT SAHAY, JJ.
Parman E&an— Accused— Appellant
v.
Ring-Emperor— Respondent.
'Criminal Appeal No. 25 of 1926, De-
ci^ed on 23rd March 1926, from- a deci-
sion of the 8. J., Purnea, D/-lst Febru-
ary 1926.
(a) Penal Code, S. W— Right of private defence
of property— Onus Is on accused to prove their
oibnershlp of property.
Where a plea of private defence of property is
raised, th* burden of proving that the property
belonged to them, is on the accused. [P 434, C 1]
* (b) Penal Code, S. 100— Right of private de-
fence arises only when there Is no recourse for
safety — Accused must not be tlie creator of neces-
sity for self -defence — No right of self-defence
exists when both parties are determined to vlndi*
cat* their rights by show of criminal force.
Before a person can avail himself of the de-
fence, that he used A weapon in defence of his
litei he must satisfy the Court that that defence
was necessary, that he did all he could to avoid
it and that it was necessary to protect his own
life or to protect himself from such serious
bbdily harm as , would give him a reasonable
apprehension that his life was in immediate
danger. A man cannot, in any case, justify
killing another by pretence of necessity unless
he were wholly without fault in bringing that
necessity upon hirpself. When a body of men
are determined to vindicate their rights, or sup-
posed rights, by unlawful force, and when they
engage in a fight with men who on the other
hand are equally determined to vindicate by
unlawful force their rights or supposed rights,
no question of self-defence arises. [P-436, C 1,2-j
Manuk, Md. Yunus, S. P. Varma and
Bhagwat Prasad — for Appellants.
H. L. Nandkeolyar — for the Crown.
Ross, J. — This case had an unfortu-
nate course, largely the result of an
order passed by the District Magistrate
of Purnea directing the Public Prosecu-
tor to appear on behalf of the Govern-
ment before the committing Magistrate
and that his fees should be paid by the
parties and he should receive instruc-
tions from the Court Inspector. This
order is to be deprecated. It has re-
sulted in a trial in which forty-seven
witnesses were examined for the pro-
secution and which lasted for thirty-six
days. Day after day the prosecution
presented to the Court evidence which
wnfc false, evidence which has been re-
jeeted by the assessors and the Sessions
Judge* and which the learned' Assistant
Government Advocate has not attempted
1926 P/55 & 56
to support here. The case which
trial Court -found to be proved and which
rests on a first information given by
Lodhi chaukidar, is supported by the
evidence of a dafadar and three ohauki-
dars only. Hi differs from the official
case of the prosecution in eve>y respect-
and there can be no question that this
trial has involved a great waste of public-
time and money.
The three appellants have been sen-
tenced to three years' rigorous imprison-
ment iinder S. 304 read with S. 149 of
the Indian Penal Code and to concur-
rent terms of one year under each of the
sections 148 and 324. I do not propose
to discuss the case upon which the pro-
secution relied and which has been found
to be false. I shall confine myself to
the case upon which the appellants
have been convicted. The occurrence
took place at 7. 30 A. M. on the 22nd of
May 1925. Information was given at the>
police station, six miles distant, at
9. 30 A.M. on the same day by Lodhi oha-
ukidar to the effect that in the morning
at about 6 A. M. two or three Muhanama-
dans whom Gour Babu zarnindar's the a
had brought from Bengal for cutting lao
and forty or forty-two peons on behalf
of Gour Babu were getting lac gathered.
At about 7 A. M. twenty or twenty-five
peons on behalf of Muhammad Bakhsh
Ohowdhry, zamindar, came from the>
direction of Manshahi Kothi armed with
lathis, spears and axes. The peons of
Gour Babu were similarly armed. Durga
Singh, the jamadar of Chowdhry, said to
Mahadeo { Singh, the jamadar of Gour
Babu : " Why do you cut lac." On
this Mahadeo Singh said : "The banker
belongs to my master Gour Babu, I will
cut the lac". When this talk was going
on, Durga Singh was trying to appease
them saying that there is no need, of
quarrelling, give up gathering lac, the
landlords will settle among themselves. In
the meantime three peons of Gour Babu
began to shout " Beat beat1' and came
forward jumping and the peons of both
sides closed and began to use lathis, axes.
and spears. The dafadar and three
ohaukidars tried to stop the fight, but
without success. When a peon of Gour
Babu fell, the mob dispersed and a man
was found to be dead. This was Misri
Gope, and later it was found that
Mahadeo Singh had also been killed.
There was some discussion about the
434
FARMAN KHAN v, KING-EMPEEOR (Boss, Jj
side to which Misri Oope belonged. The
question is immaterial, but, in my
opinion, the ^yidenoe that he was a
peon of (Jour Babu ought to be
believed. Tht only reason for doubting
it is tbftfe A? mer was able , to identify
the jnan ;Iwt as the peons were col-
letted from $• outlying villages, there
wa* nothing necessarily suspicious in
this.
The accused were charged under 8. 302
read with S. 149, the common object of
the unlawful assembly being to beat the
men of Oour Babu. There was also a
charge under S. 148 and minor charges
against the individual accused under
8. 324* The defence was that the lac of
tnauza Narainpur had been settled on
behalf of Ohowdhry Sahib with Sheikh
Kalu ; and on the day of the occurrence
peons of Gour Babu were getting this
lac out without any right or possession
and that a riot occurred in which Gour
Bairn's men were the aggressors. It thus
appears that the appellants raised a plea
of private defence both of property and
of person, and that is the defence that
has been urged in this Court. There was
also a general argument on behalf of the
appellants that the common object of
assaulting the peons of Gour Babu al-
leged by the prosecution arose out of a
dispute over the cutting of trees, that this
was the case which the prosecution put
forward as true and which the accused
were called upon to meet, and that when
that case broke down, the prosecution
were not entitled to substitute what was
really a different intention, though in-
cluded within the same words, of as-
saulting the peons of Gour Babu over a
dispute about lac. In my opinion there is
no substance in this argument. The
whole case was presented against the ac-
cused— both the allegation about the tree
cutting and its sequel and the allegation
about 'the lac cutting and its sequel.
There was np embarrassment or prejudice
to the accused, as is shown by their writ-
ten defence ; and the fact that they were
able to destroy the case for the prosecu-
tion, about the tree cutting is no reason
for! Acquitting them of rioting in con-
nexion with the lac cutting.
On the plea pf^rivafce defence of pro-
perty, the Burden of proof is on the ac-
cused,. If they assert that they injured •
the deceased in the defence pT their pro-
pejrty, tney must show that it was their
property. Learned, counsel relied on the
finding of the Sessions Judge that it was
not proved that either side had peaceful
possession ; but this is a finding which
is fatal to the defence. It was also
argued that the defence on the question
of possession of the lac had been pre-
judiced by the fact that the prosecution
had set up as their substantive case an
occurrence arising out of tree cutting,
and that the cutting of lac was only a
subsidiary element. But the evidence
was there and there was no question of
prejudice. The accused had ample notice
(as their written statement shows) and
if they had any proof of possession of
the lac they ought to have given it.
Learned counsel admitted that the proof
of possession on behalf of the defence
was meagre, and on the evidence it must
be held that the possession of the party
of the accused has not been proved.
(His Lordship theu discussed the evi-
dence on the point of possession and
proceeded). All that can be concluded
from the evidence is that rival claims
were being made by Gour Chandra Eoy
and the tenants, who were in league with
him, on one side, through their lessee
Haro, and by Chowdhry Muhammad Bux,
the proprietor of the village, on the other
side, through his lessee Kalu. But it is
not proved that Kalu was in possession
or that the accused were defending his
property. The plea of private defence of
property therefore fails.
I now turn to the plea of defence of
person. It was strongly contended on
behalf of the appellants that the pro-
secution evidence, from the first informa-
tion onwards, proves that the accused
had the right of private defence of person
and that this is clear when the sequence
of events is closely examined. The
learned Assistant Government Advocate
contended that the evidence of the
dafadar and the chaukidars is partial to
the accused because these witnesses are
tenants of Ghowdhry. I have considered
the evidence of these witnesses at the
different stages at which it was given ,
and, in my opinion, it is fairly consistent
throughout and makes the sequence of
events sufficiently plain. I have already
given the substance of the first informa-
tion, and from that document it would
appear that the sequence of events
was this hre cutting was going on from
about 6 A.M. At 7 A.M. Chowdhry 's men
PABMAN KHAN v. KiNcHBiBfBROB (Boss,
P«ftaft435
oame armed from the direction of the
factory. Some of the men of Gour Babu
went near the door of Phuhi Khan and
some hid themselves in the jungle. Then
tfcere was a conversation between the
leaders, Durga Singh, the jamadar of
Ghowdhry, and Mahadeo Singh, the
jamadar of Gour Babu, in which Durga
Singh took up a pacific attitude, but the
^persons of Gour Babu shouted " Beat,
beat" and then a conflict ensued. In
his statement before the committing
Magistrate Lodhi made a few additions
to his statement. He then said that he
asked Chowdhry's men not to riot. He
also -said that Chowdhry's men rushed
towards Gour Babu's men. That ap-
parently was before the conversation
between the leaders. With regard to
"the conversation he then stated that he
•did not hear what was said. Then he
«,dded that Kupan Singh, peon of Gour
Babu, was beaten and thereafter there
was intervention by the ohaukidars and
•dafadar after which both sides dispersed.
Then Debi 'Singh taunted Gour Babu's
-men and the riot ensued. Some parts of
•this statement are apparently untrue in
points that bear against the defence,
"especially, that Chowdhry's men rushed
•towards Gour Babu's men at an early
•stage and that Kupan Singh was beaten.
Tn the Sessions Court he returned to his
original statement, giving slightly fuller
details. Thus after the talk between the
leaders he says that half an hour elapsed
before the dafadar came. He changes
his statement with regard to Eupan
'Singh and says that he with others
shouted " Maro." He speaks of the in-
tervention of the ohaukidars and dafadar
and the incitement by Debi Singh.
Behari'is a more common place witness.
He agrees with Lodhi about the arrival
of the two parties and then he was sent
to fetch the dafadar. On his return he
-says that the men of Gour Babu abused
the men of Chowdhry S" hib and began
to fight them. This was before the com-
mitting Magistrate. He amplifies this
-statement in the Court of Sessions and
s ays that Gour Babu's men raised the
alarm " Mar, mar" and the ohaukidars
anu dafadar entreated Gour Babu's men
not to commit rioting, but they did not
listen. He also adds that Debi Singh
instigated and that Mahadeo Singh struck
•th<3 first blow. The evidence of Jalil
-dafadar is to the same effect and his
statement has not varied. He also
speaks about the. intervention of the
chaukidars and himself and the with-
drawal of both sides thereafter and the
Vistigation by Debi Singh.
The argument on behalf of the appel-
lants based on this evidence is that the
appellants did not fight until they were
compelled to, that they adopted a paei*
fie attitude, that Gour Babu's men were
the first to attack, and that they acted
in .self-defence. The learned Assistant
Government Advocate on the other hand
in his very able argument contended, and
I think rightly, that this is not a case
of the private defence of person at all.
Both parties went out armed on account;
of the dispute about the right to out lac,
Apparently the peons of Gour Babu had
been collecting for some days though
they may not have arrived on the scene till
the morning of the 22nd, the chaukidar
says that they had not arrived the previ-
ous evening, and the twenty or thirty
men who were on the side of Chowdhry
were not collected in a moment eithdr.
There was therefore ample time to hfcve
recourse to the authorities, the poliod
station being only six miles dfefca&fc and
it was the clear duty of Muhammad
Bukhsh Chowdhry when he heard that
armed peons were being collected on
behalf of Uour Ohand ra Hoy, to inform
the authorities instead of raising an
armed force on his own account.
Homicide upon chance medley (or ohaude
mellee) borders very nearly upon manslaughter
and in fact and experience, the boundaries in
some instances are scarcely perceivable, though
in consideration of law they have been fixed
In all oases of homicide excusable by selt-de-
fence, it must be taken that the attack was
made upon a sudden occasion, and not premedi-
tated or with malice ; and from the doctrine*
which has been above laid down, it appears thai
the law requires that the parson w-ho kills an-
other in his own defence should have retreated
as far as he conveniently or safely could to
avoid the violence of the assault before he
turned upon hh assailant ; and that not ficti-
tiously, or in order to watch his opportunity but
from a real tenderness of shedding his brother's
blood... The party assaulted must therefore flee,
as far as he conveniently can, either until pre-
vented by reason of some wall, ditch or other
impediment or as far as the fierceness of the
assault will permit him ; for it may be so fierce
as not to allow him to yiald a step without
manifest danger of his life or great bodily harm,
and then, in his defence he may kill his as-
sailant instantly. Before a person can avail
himself of the defence, that he used a weappn jtn
defence of his life, he must satisfy the jury that
that defence was necessary ; t&ai; her
did all be could to avoid it and, that itiwa*
Palda
HARGOBIND *v
aeoewaryto protect his own life or to protect
himself from such serious bodily harm as would
give him a reasonable apprehension that his life
was in immediate danger. If he used the weapon
having no other means of resistance and no
means of escape, in such oasef if he retreated as
far- as ha could, he would ba justified : (Russel
on Crimes, Eight Edition, pages 769-770).
And it may ba further observed that a man
cannot, in any oase, justify killing another by
pretiraoe of necessity unless he were wholly
without fault in bringipg that necessity upon
himself, ibid, page 777.
£hig gfcatdttdhti of the law ia baaed
upon authority [1 Hale, 440, 441, 481,
498, R. v. Smith (l)] which is as
valid in India as in England. Now
the accused in this oase had no notion
of retreating, They actually advanced
ta meet the attack. There can be no
doubt that thia was a free fight for which
both sides had come prepared. In Queen
v. Jeolal (2) it was said :
In such a oase there could be no private de-
fence either to one side or the other. Both sides
were evidently aware of what was likely to hap-
pen, for they both turned out in force and were
armed with deadly weapons.
In Kalee v. Baparee (3), where the
appellants had. been concerned in an
affray in which a man was killed, their
Lordships observed as follows :
There is good reason to believe that on both
bides there was irritation and also determina-
tion to resort to force to support the rights and
wishes of the parties ; and the Judge expressly
says that it appears from the evidence (and it
must ba taken therefore that he believes it in
that respect) that there had been preparation on
both sides for an armed encounter.
It was held that under these circum-
stances it made no difference who was
the attacking party where both parties
were armed and prepared for battle. The
leading case is Kabiruddin v. Emperor
(4) where it was laid down that accord-
ing to the Penal Oode no right of pri-
vate defence arises in circumstances such
as those of that oase when both parties
armed themselves for a fight to enforce
their right or supposed right and deli*
berately engaged in very large numbers
in , a pitched battle. And in Queen-
Empress v. Prag Dat (5) the opinion
of Sir John Edge was quoted with ap-
proval :
That when a body of men are determined to
vindicate their rights, or supposed rights, by
unlawful force, and when they engage in a fight
with men who on the other hand are equally
determined to vindicate by unlawful fore* theii
rights or supposed rights, no question of gelf-
ffc±?K3fi88u Sel^8r 8id.*is "ying to protect
itself but eaoh sld* 18 trying to get the better
of the ofchar.
Taera oaa be no doubt in the present
case th*t if Ohowdhry's men had wanted'
togefeaway from the fight, they oould have*
done so. The evidence 6f the ohaukidar
nukes it^ clear that after the leaders had
had their discussion both parties con-
tinued to stand their ground for a con-
siderable time and it was in these cir-
cumsfeaaoag that the fight took place,
ND right of private defence, therefore,
arose, and, in my opinion, tha appellants
ware rightly convicted. The appeal must,
ba dismissed and tha appallanfca will
surrender to thalr bail to undergo their
sentences.
Kulwant Sahay, J.— I agree.
Appeal dismissed..
A. I. R. 1926 Patna 436
ADAMI J.
Hargobind Singh — Plaintiff —Appal
lant.
v.
Kishundeyal Gope — Defendant— Res-
pondent.
Appeal No. 118 of 1923,, Decided on
16bh April 1926, from the , appellate
decree of tha Offg, Sub-J., Fafcna, D/- 9th
December 1922.
(a) Bengal Tenancy Act, 8. Il—Sult .for rent—
Bhaull rent— Tenants removing crops before
appraisement— Landlord fo entitled to claim rent
on the baits of best crops In the neighbourhood on
similar lands.
V [1887] 8 0. & P. 160. ~~
] [1867] 7 W. R Or. 84.
) [187811 0. L. B. 5*1.
[1909] 35 Oal. 868 sa 12 0. W. N. 384 =s
Q.L.J. 359.
HO All. 459=(1S98) A. W. N,,UT;*
It is true that, where a plaintiff claims a
certain amount of rent in cash and tha defendant
admits a lesser amount, unless the plaintiff can
give good proof of the larger amount baing
payable, the suit will ba decreed on tha defen-
dant's admission. But a different situation
arises in the oase of a ofaim, for Bhauli rent. H
tenants out and take away orop before it can be
appraised or do not attend at the appraisement,
under S, 71 (4), Bengal Tenancy Act, presump-
tion arises against them and the landlord is
entitled to the full measure of the crop as of the
bast crop in the neighbourhood of a similar
character to that harvest : 52 L C. 267, Rel. on^
[P 437, 0 a]
(b) Evidence Act, Ss, 74 and 36— Crop cutting
report of Deputy Collector under 8, 40, Bengal
Tenancy Act, is public document and admissible
to prove Quantity of crops cut— Bengal Tenancy
Act. S. 40.
/ The crop cutting report of the Daputy Collector
/made under 9, 40, Bengal Tenancy Aob, should
HARGOBIND y^ KISHUSDBYAL ( Adami, J.)
Phtaa 487
be considered a public document and is evidence i
of the amount of crops produced by tbe land.!
4 Oal. W,tel. on. - [P 488 0 I]1
Sarju Prasad and $. N. Boy— for
Appellant.
N. N. Sinka — for Respondent,
Judgment.— The plaintiff in the suit
is appellant here. He sued for recovery
of arrears of produce rent for the years
1325 to 1328 he being the landlord of the
16 annas share. He claimed a half share
of the paddy crop for the years in suit,
1325 to 1328, at the rate of 18 to 22
maunds per bigha and in respect of
khesari at the rate of 8 to 12 maunds per
bigha. The defendant pleaded payment
and asserted that the produce of the paddy
lands, waa only 2i to 4 maunds per
bigha and that there was no khesari
grown on the lands. The plea of pay-
ment was disbelieved by both the Courts
to prove the produce. The plaintiff
produced some appraisement khesras said
to have been drawn up by his own man,
also the report of a crop cutting experi-
ment made by a Deputy Collector, who
made the crop-cutting experiment in the
course of a case under S. 40 of the Bengal
Tenancy Act respecting this same land.
He held that a copy of the report was a
<50py of a public document and was
admissible in evidence. The Munsif also
found that both paddy and khesari were
grown on the land, and he gave reasons
for finding that khesari was grown. The
defendant admitted that where the lands
are irrigated by a canal, rabi crops are
grown, and he found that the lands in
suit are irrigated by a canal. The learned
Munsif refused to place any reliance on
the appraisement khesras produced by
the plaintiff as he doubted their genuine-
ness. He gave the plaintiff a decree for
two-thirds of the amount claimed for the
paddy and khesari.
. On. appeal the learned Subordinate
Judge, while agreeing that the payment
by the defendant was not proved, held
that there was no good evidence to support
the plaintiff's claim as to the amount of
paddy grown. He held that the crop-
cutting report was not admissible in
evidence not being a copy of a public
document, and he found that the witness
brougnt to prove the plaintiff's appraise-
ment khesras was altogether unreliable.
He held, therefore, that the plaintiff
baving failed to produce any satisfactory
evidence 'to prove1 the amount of his
claim, the suit would have to be decreed
at the amount of paddy per bigha admit-
ted by the defendant. He disallowed
the plaintiff's claim for khesari altogether
on the ground. I suppose, that the plain-
tiff had no sufficient evidence and the
defendant denied that khesari was grown.
It is true that, where a plaintiff claims
a certain amount of rent in cash and the
defendant admits a lesser amount, unless
the plaintiff can give good proof of the
larger amount being payable, the suit
will be decreed on the defendant's
admission. But a different situation
arises in the case of a claim for bhauli
rent. If tanants out and take away crop
before it can be appraised or do not attend
at the appraisement, it is impossible for
the landlord to give any. certainty of
the amount of crop produced on the land,
and even if he sends his own man" to
make an appraisement, the khesra drawn
up by his own man is given little credence
by the Court because it is a document
drawn up by the plaintiff himself.
In the case of Balak Mahton v. Mathura
Bam Dubey (l), sub-S. 4 of S. 71 of the
Bengal Tenancy Act was referred to.
That sub-section runs as follows :
If the tenant removes any portion of $he
produce at such a time or in euoh a manner as
to prevent .the due appraisement or division
thereof at the proper time, that produce shall
ha deemed to have been as full as the fullest orop
of the same description appraised in the neighbour-
hood on similar land for that harvest.
And the learned Judges in the case I
have mentioned remarked that this sub-
section seems to contemplate that where
tenants do remove a crop without having
the same properly appraised the presump-
tion arises against them and the landlord
is entitled to the full measure of the
crop as of the best crop in the neighbour-
hood of a similar character to that
harvest.
In the present case the tenant defen-
dant had taken away the crop and gave
no opportunity for an Appraisement and
I db not think that he cfrn be "allowed to
derive profit from the fact that the land-
lord had no opportunity of finding out
what the produce really was. The land-
lord did produce a crop-cutting report of
lands close to the lands in suit and that
report was drawn by a Deputy Collector
acting in his official duty under S. jlO of
the Bengal Tenancy Act. A question
hag been raised in the case whether that
(1) [1919] 52 I. C. 267.
438 Pataa CHAIRMAN, DT. BOABD MONGHYB v. SHEODUTT (Boss, J.) 1926
report is a public document which would
be admissible in this case. According to
the case of Taru Patur v. Abinash Chun-
der Dull (2), the report would seem to be
* public document. In that case it was
held that a Jamabandi prepared by a
Deputy Collector while engaged in the
settlement of land under Regulation VII
of 1822, ia a public document within the
meaning of 3. 74 of the Evidence Act.
That case has been considered in several
cases since, but where the finding has
been differed from, it has been differed
from on the ground that in the oases
where it was differed from, the document
had been prepared by a Government
official performing the duties for Govern-
ment as landlord.
In my mind the report of the Deputy
Collector made in the case under 8. 40
should be considered a public document
and the evidence of the amount produced
by the land should be admitted, and the
decision of the suit with regard to the
paddy produce should be based on that
crop-cutting report as it was by the
learned Munsif.
As to khesari. the learned Subordinate
Judge gives no reason why he disallows
the claim. The learned Munsif found
definitely that khesari was produced and
if the Subordinate Judge wished to reverse
that finding he was bound to give
reasons. The reasons given by the learned
Munsif are good and cogent reasons, and
in this point too, the learned Subordinate
Judge was mistaken.
I set aside the decree of the lower
appellate Court and restore the decree
passed by the Munsif.
The appellant will get his costs in
both Courts.
(2) [1879] 4 Oal. 79,
# A. I. R. 1926 Patna 438
BOSS AND KtJLWANT SAHAY, JJ.
Chairman, District Board, Monghyr —
Appellant.
V,
SKtodutt Singh — Respondent.
Appeal No. 184 of 1925, Decided on
19th April 1926, from the Original Order
of the Dist. J.. Saran, D~ 16th March
# Provincial Insolvency Act (1920), 8. 2 (1) (<Z)
—Hindu joint family—Father adjudged in sol-
vent— Sons9 shares are liable to be sold by Off I clot
Receiver to pay off debts not Incurred /or Im-
moral purpose— Hindu Law— Joint family.
Where in the case of a Hindu joint fam Hy
the tather is adjudged an infohrent, even th&
BODS' shares vest in the Official Receiver and ho
can dispose of the same to pay the debts of the-
father unless they are incurred for immoral
purpose; and the pious obligation of the sons*
will prevent them from contending that their
shares are not liable to be sold : X. I. JR. 1925'
Patna 127 ; A. I. R. 1924, P. C. 50 (P.O.); A. 1. R~
1928 Lah. 1 (ff. B.) Foil. [P. 489, C. 1, 2}
Harnarayan Prasad — for Appellant.
Sambhu Saran and Bankey Behari
Sahay — for Bespondent.
Ross, J.— In 1918 Sheodutt Singh filedi
a petition in insolvency, and on the 7th
January 1919, a receiver was appointed
to take charge of his property. On the
7th September 1921, the wife of the*
insolvent, on behalf of her minor
children, filed a petition claiming that
three-fourths of the properties should be*
exempted from liability. The District
Judge referred the matter to the re-
ceiver ; and accepting his report, ex-
onerated the share of the minor children*
from sale.
The matter came before the High
Court, and the case was remanded in
order that the District Judge should
deal with the question himself. .The
District Judge has now given his decision •
and, overruling the objection of one of
the creditors, the Chairman of the*
District Board of Monghyr, he has*
accepted the evidence on behalf of the
minors that Sheodutt Singh was a mark
of immoral habits and has held thafe
there is nothing to show that there
was any enquiry regarding the neces-
sity for the loan ; and that it had not
been established that thq loan was-
raised for the benefit of* the minors.*
He has consequently directed that three-
fourths share of the property, being the
share of the three minor sons of the*
insolvent, should be exempted from sale.
The Chairman of the District Board of
Monghyr has appealed against this-
decision ; and it is contended on his-
behalf that as it is the pious duty of the
sons to pay their father's debt the whole
of the estate is assets in the hands of
the receiver. It is farther contended
there is no evidence of the immorality
of the debt in question in this cass ; thtfe.
a general charge of immorality is not
sufficient ; and that there must be some*
1926 CHAIRMAN, DT. BOARD MONGHYR v. SHBODUTT (Boss, J.) Paten 439
thing to connect the immorality of the
debtor with the debt.
The debt ia a decree for money ob-
tained by the District Board against
Sheodtifct Singh. There is nothing to
•show What the nature of the debt was.
The learned advocate for the respon-
dents relies upon the definition of " pro*
party" contained in S. 2 (l) (d) of the
Provincial Insolvency • Act :
" Property " includes any property over which
6t the profits of which any person has the dis-
posing power which he may exercise for his own
benefit ;
and he contends that 'although a Mitak-
sbara father can dispose of the property
of the family for necessity or for antece-
dent debt, his powers extend no
further ; and as there is nothing to show
in the present case that the debt had
been contracted for family necessity or
to pay off au antecedent debt, the family
property is not liable. It is pointed out
that the decision in Amolak Chand v.
Mansukh Bai Mangal Lai (l) upon which
the appellant relied, was a decision in
a case of antecedent debt. Now there
is no doubt that the District Board
could have executed tbeir decree against
the family property : Brij Narain v.
Mangal Prasad (2), where it was laid
down by the Judicial Committee that
if the managing coparcener is the father
and the reversioners are his sons, he may,
by incurring debt, so long as it is not
for an immoral purpose, lay tbe estate
open to be taken in execution proceed-
ings upon a decree for payment of that
debt. The principle underlying this rule
is thus stated in that decision :
Then there comes in the further doctrine
that the debt has been contracted by the father,
and the pious obligation incumbent on the son
to see his father's debts paid prevents him from
asserting that the family estate, so far as his
interest is concerned, is not liable to purge that
debt. It my become liable by being taken in
execution on the back of a decree obtained
against the father, or it may become liable by
being mortgaged by the father to pay the debt
for which otherwise decree might be taken and
execution be sought.
If their pious duty prevents the sons
from asserting that the family estate is
Hot liable ^ to be taken In execution, I
dp not see in principle how the sons can
dispute the right of the receiver in insol-
vency to sell the property in order to
liquidate the father's debt. If the debt
recoverable by execution before
insolvency it is not eatfy to see why the
creditor should be deprived of his relief
merely because the estate has vested in
the receiver. And it has been so held
by the Full Bench of the Lahore High
Court in Bihari Lai Jamna Das v. Sat
Narain (S), where the learned Chief
Justice said :
It has, however, been repeatedly held .....
that joint family property can he attached and
sold in execution of a decree for money passed
against the father, and that the sale affects the
interest of the son as well as that of the father,
and in principle I see no real difference between
an individual creditor realizing his debt from, the
coparcenary property and an official assignee
who represents the general body -of the credi-
tors, seizing it for the satisfaction of their debts*
It has not been proved that this debt
was incurred for immoral purposes ; and
there is in my opinion no obstacle to the
sale of the family property by the
receiver in order that the debt may be
discharged.
It was further contended on behalf of
the respondents that the case was re-
manded by the High Court [Sant Prasad
Singh v. Sheodutt Singh (4)] for a deci-
sion on the allegations in the petition
filed on behalf of the minors and that
the District Judge has come to a deci-
sion on these allegations and has found
that the debt was not contracted for the
benefit of the family ; and that conse-
quently the position taken up by the
minors has been established ; and it
must be taken, under the decision of the
High Court, that nothing has vested in
the receiver. But the legal consequences
of the findings of the District Judge
cannot be taken to have been determined
before these findings bad been arrived
at ; and, moreover, the view of the law
expressed in Sant Prasad Singh V. Sheo-
dutt Singh (4), which rested on tbe
decision in Sahu Bam Chandra's case
(5) has been held to require reconsi-
deration in view of the later decision
of the Judicial Committee which has
been referred to above: vide Amolak
Chand v. Masukh Bai (l). It follows
that this appeal must be allowed and
the order of the District Judge exemp-
ting three-fourths of the property from
sale must be set aside. There will be
no orders as to costs.
Kulwant Sahay , J.*— I agree.
Appeal allowed.
|1) A, & B, 1925 Pfttna W=*8 Pat. 867.
(2) A. I. B. 1924 P. 0. 50=46 All 95.
(8) A. I. R. 19*3 l*n. l=stf Lah. 829 (F. B.>,
4) A. I. R. 1924 Patna 269=2 Pat. 724.
[1917] 89 All. 437=39 1.C. 280=44 LA.
(P. C.;.
,440 Palpa
BlONA KUMHAB V. KlNG'EMPBROB
* A. I, R<~1926 Pains 440
BOSS AND KUfcWANT SAHAY, JJ.
Bigna Kwrihafc and others — Accused —
Appellants.
v.
King-Emperor — Opposite Party — Res-
pondent.
. Criminal Appeal No. 199 of 1925, Deci-
•ded on 24th February 1926, from an
order of the Judl. Comtnr., Ohota Nagpur,
D/~ 27th October 1925.
(a) Criminal P. C., 8. MS— "Subject to the pro-
visions of the Evidence Act1' means so far as the
previous evidence 1$ evidence under the Evidence
Act and not so far as It is admissible under that
Act-*-Weight to be given to the previous evidence
depends on facts of each case, but It cannot be
utilized to support conviction unless there is other
evidence to corroborate It.
Section 288 makes the previous evidence of a
•witness taken before a committing Magistrate*
•evidence admissible at the trial and the limita-
tion imposed to such admission by the introduc-
tion of the words ''subject to the provisions of
the Indian Evidence Act" merely means that
«uch evidence catt be used at the trial for all
purposes as long as * the evidence is evidence
within the meaning of the Evidence Act. In
other words, that the deposition recorded by the
committing Magistrate can be utilized at the
trial if the matter contained therein is according
to the rules of evidence laid down in the
Evidence Aot, of evidential value. To limit the
admiasibility of such evidence at the trial only
to oases where the evidence is admissible under
the Evidence Aot would be to frustrate the
object in enacting 8. 288 of the Criminal P. C. :
A. L R. 1925 Pat. 61, Rel. on. [P 442, 0 2]
It is difficult to lay down any precise rule as
regards the weight to ba placed on a piece of
evidence admitted at the trial. Each case will
depend upon )ts own peculiar facts and the
nature of the other evidence adduced in the case.
It can, however, be said that if a witness makes
two contradictory statements, his evidence can-
not be inplioitly relied upon and must be taken
with a good deal of caution. [P 443, C 1]
Unless there is clearly present, besides the
evidence given before the Magistrate, evidence
which will show that the evidence given before
the Magistrate should be preferred to and sub-
stituted for that given before the Sessions Judge,
the evidence given before the Magistrate cannot
ba effectively utilized in support of a conviction,
A. 1. B. 1925 Pat. 51, Pott. ; A. L R. 1924 Mad.
379, Ref. . ' [P 443, 01]
(b) Evidence Act, S. 3Q— Confession to be used
against co-accused must be confession of guilt of
trfofor.
Confessions of an accused can be used against
other accused persons who are tried jointly with
the accused making the confession when such
confession aiSeots the person making it. A con-
fession must be a confession of guilt [P 443, C 2]
Anand Prosad and Sndhan*u
Gupta — for Appellants.
Asst. Govt. Advoiate—lor Respondent.
Judgment— The six appellants with
three others were charged with .offences
under 3s. 302 and 147 of the Indian
Penal Oode. They were charged yrith
committing murder by intentionally
causing the death of Mt. Ghasin and with
being members of an unlawful assembly
with the common object to kill and cause
hurt to Mt. Ghasin in prosecution pf
which common object the said Ghasin was
beaten by the members of the assembly
causing her death. The trial was held
with the aid of four assessors. Three
of the assessors were of opinion that it
was doubtful if Mb. Ghasin was dead or
alive and missing, and that the evidence
was not sufficient to convict the accused.
One assessor was of opinion that Mt.
Ghasin has been killed but that the
charge under S. 302 had not been proved.
He considered that the charge under
S. 147 had been proved. The learned
Judicial Commissioner agreed with the
assessors that the charge under S. 802,
I. P. C. had not been established against
any individual accused. He, however,
came to the conclusion that a riot had
been committed and that those who took
• part in the riot were guilty under S. 147,
I. P. 0. He was of opinion that the six
appellants were guilty under 8. 147 and
convicted them under the said section
and sentenced them to undergo rigorous
imprisonment for two years. He aq-
quitted three of the accused, being of
opinion that the evidence against; them
was not sufficient.
This Oourt, in admitting the appeal
also directed notice to issue on the ap-
pellants t6 shew cause why they shall
not be convicted of an offence under
S. 302, I. P. 0. We have therefore to
consider not only the question as to
whether the conviction under S. 147,
I. P. 0. should stand, but also as to
whether the evidence on the record leads
to the conclusion that the appellants
were guilty under S. 302, I. P. 0.
The appeal has been very ably and
fully argued by Mr. Anand Prasad on
behalf of the appellants and the learned
Assistant Government Advocate* with
his usual fairness, has conceded that the
evidence is not sufficient to convict tht
appellants of an offence under S. , 302
LP.O, I propose, however, to discuss
the evidence as regards both tne offences).
Mt. Ghasin was* a widow living' with
her only son Lohra Kumhaf , a obfld ten
BIGNA KUMHAB v.
years old. The appellant, Bigna Kumhar,
is her husband's brother .and her house
was situated in the same angan as that
of Bigna. The other appellants are all
related with each other, and with Bigna.
• JThe , prosecution case is that the
-deceased Mt. Ghasin was supposed to be
•a witch or possessed by some evil spirit
^.nd that she was the cause of illness of
•several persons in the village. The ap-
pellant, Bucha Kumhar, had a son named
Bandhan and he died on the 1st of May
1925. The prosecution case is that the
appellants believed that the death of
Bandhan had been caused by the witch-
craft of Ghasin. The appellants and one
Tipru Sawasi, who is a bhandari of the
landlord of the village, went to bury the
body of Bandhan and there was some
talk about the death of the boy having
been caused by Mt. Ghasin and there was
a proposal that Mt. Ghasin should be got
rid of. After the burial a meeting is
said tq have taken place in the house of
Bucha after sunset, to which Tipru was
also called, where it was resolved to kill
Mt. Ghasin. Tipru says that he warned
them not to do so, and that he went
straight from the meeting to Mt.. Ghasin
and told her to run away as there was a
proposal to kill her. It is said that at
about midnight the deceased Mt. Ghasin
and her son Lohra were sleeping on a
%hatia in a room facing the verandah of
heir house when the appellants went and
Bigna called Ghasin and asked her to
come out. She did come out and accord-
irig to one version. Bigna caught her by
the throat and threw her, down, and
according to another version, Harakh
caught and threw her down. They are
said to have throttled her and to have
trampled upon her and killed her and to
have carried hqr either dead or alive.
Now this is said to have taken place
on the night of the 1st May, 1925.
Nothing happened until the 17th of May.
The boy, Lohra, used to live w^ith his
uncle, the appellant Bigna. On the 17th
.of May, Lohra's sister's husband Kandna
and his father, Mahesh, who live at
Mouza Tingaria went to Mt. Ghasin's
house and enquired of Lohra as to where
«he was, and then Lohra is said to have
told thqm at on,c$ that she had been
Killed by the appellants and others .and
that her body had been" thrown away.
Thitiy apparently did not believe him.
4Mid they took him to the house of
Dukhan and Ladhu, who are the brothers
of the deceased woman and lived at
M!ouzah Timra ; and there they enquired
as to whether Mt. Ghasin was there. On
being informed that she was not there,
Lohra told them about her death and
they all resolved to go to the thana and
lodge the first information. It appears
that Kandna and Mahesh before going
to Timra, had gone to the chaukidar
Sohrai and informed him ; but that
Sohrai told them that he would first go
to the village and enquire into the
matter and then go to the thana the
next day. The first information was
lodged at the thana at Karra on the 18th
of May 19&5 at about 2 p. m. by the
boy Lohra. He was accompanied by
the chaukidar Sohrai, by Mahesh and
Kandna and by his maternal uncles
Dukhan and Ladhu. He stated that
Bigna Kumhar came to the house at
about midnight and asked his mother to
open the door and that his mother,
opened the door and that the other
appellants then came up and they all
accused her of being a witch and of
bringing about the death of Bucha
Kumhar 's son. Bigna is said, in this
first information report, to have seized
his mother by the throat and knocked
her down and the other appellants to
have kicked and fisted her and killed her
by trampling. Lohra stated in this first
information that he was awakened when
Bigna first came to the house and that
he had seen all that had happened. He
further stated that Bigna had warned
him not to speak about the affair to
anyone and that, he was threatened that
they would kill him if he told anybody
about it. He stated that, on the previous
day, when hie sister's husband Kandna
and the latter's father Mahesh came to
his house and enquired about his mother,
he told them that she had been lulled.
Now the evidence of this boy Lohra
is the most important evidence in the
case. He is the only eyewitness of the
occurrence and if his evidence is believed,
the whole of the occurrence, as stated by
him is proved. The other important
evidence is that of Tipru Sawasi, the
bhandari of the village. The cause of
the murder is said to be the general
belief that the, deceased woman was a
witch. Itfis said that the appellants
and others believed that she -was the
cause of the illness of the people in the
442 Patna
BlONA K0MHAR V. KlNG-BBffPEROR
1926
village and that the death of Buoha's
son was the immediate cause of the
murder. There is no doubt upon the
-evidence that there was some sort of
belief in the minds of the accused and
others that the illness in the village was
caused by Ghasin. But it seems that
the belief was not that she was really a
witch but that she was herself possessed
by some evil spirit. In Ohait or Baisakh
preceding the occurrence there appears
to have been a panohait, which Tipru
and others attended, and there a proposal
was made to take steps to drive away
the evil spirit from her and that one of
the members of the panchait undertook
to do so if he was given expenses for
making certain sacrifices. This appears
to have been a friendly proposal to
relieve Mb. Ghasin of the evil spirit
which possessed her. The evidence is
that during the illness of Budhan and
others, Mt. Ghasin used to go and see the
sick men and there was no objection to
her doing so. She used to go and visit
the appellants and others and to dine
with them and no objection appears to
have been taken to this. There does not
•pj/ear to be any strong feeling in the
mind of the accused and others to get
rid of Mt. Ghasin herself on account of
her being a witch. Therefore, although
there appears to be some sort of belief
in the mind cf the accused of Mt. Ghasin
being either a witch or possessed by some
evil spirit, and although it has been
established by the evidence that Buoha's
son died on the 1st of May, the evidence
falls short to prove that the appellants
resolved to kill Mt. Ghasin on account
of such a belief and on account of the
death of Buoha's son.
The meeting of the villagers at the
funeral and the resolution to dispose of
Mt. Ghasin is deposed to by Tipru alone.
As regards his evidence it is clear that one
cannot place great reliance upon it. He
made conflicting statements before the
committing Magistrate and in the Sessions
Court. The learned Judicial Commis-
sioner has relied upon his evidence before
the committing Magistrate which was
admitted under S. 288 of the Criminal
Procedure Code. It was contended by
the learned vakil for the appellants that
the evidence before the 'committing
Magistrate Was not admissible at the
trial. Reliance was placed upon the
words "Subject to the provisions of ^e
Indian Evidence Act, 1872" introduce
into the section by the Amending Act o'
1923. By this Amending Act,' the evi~
deuce of a witness taken before a com*
mitting Magistrate may be treated as
evidence in the case5, if such witness c is
produced and examined at the trial" for
all purposes "subject to the provisions of
the Indian Evidence Act." These words
have introduced a certain amount of
ambiguity in the section. One cannot
be certain as to what is exactly meant
by these words. Under the provisions of
the Indian Evidence Act the evidence of
a witness examined before a committing
Magistrate would not be admissible irr
evidence except under 3. 145 or under
8. 155 of the Evidence Act for the pur-
poses of the witness being examined as to
his previous statement and relevant
matters in question or with the intention
to contradict him with the statement
made by him in previous depositions or
generally in order to impeach the credi-
bility of the witness ; or under S. 157 for
the purpose of corroborating the testi-
mony of the witness given at the trial.
To my mind S. 288 makes the previous
evidence of a witness taken before a
committing Magistrate, evidence ad-
missible at the trial and the limitation
imposed to such admission by the intro-
duction of the words "subject to the pro-
visions of the Indian Evidence Act*
merely means, as laid down by this Court
in Emperor v. Jehal Teli (l) that such
evidence can be used at the trial for all
purposes as long as the evidence is evi-
dence within the meaning of the Evi-
dence Act. In other words, that the
deposition recorded by the committing
Magistrate can be utilized at the trial ii
the matter contained therein is accord-
ing to the rules of evidence laid down in
the Evidence Act of evidential value.
To limit trhe admissibility of such evi-
dence at the trial only to oases where
the evidence is admissible under the
Evidence Act would be to frustrate the
object in enacting S. 288 of the Criminal
Procedure Code. In my opinion tha
previous deposition of Tipru taken before
the committing Magistrate was rightly
admitted at the trial.
The question, however, is as to what
is the Weight .of such evidence. This
point has been discussed in a number of
oases some of which have been noticed
~"(i)" A.LR. 1926 Patna. 51=±3 Pat. 781. r"f"'
1*26
BlGNA KtJMHAR V. KlNG-EMPfcROR
Patoa 443
by the learned Judges in the case of
King-Emperor v. Jehal Teli (1). In ad-
tion to this, raference may be made to
the oase of Bachula Peda Somadu v.
King-Emperor (2J. It is difficult to lay
down any precise rule as regards the
weight to be placed on a piece of evi-
dence admitted at the trial. Each case
will depend upon its own peculiar facts
and the nature of the other evidence
adduced in the oase. It can, however,
be said that if a witness makes two con-
tradiotory statements, his evidence can-
not be implicitly relied upon and must
be taken with a good deal of caution. In
Jehal Teli's case (l) after consideration of
the oases bearing on the point, the lear-
ned Judges observed as follows :
I think, therefore, that ihe principle is quite
clearly settled "by this line of oases that unless
there ia clearly present, besides the evidence
given before the Magistrate, evidence which will
show that the evidence given before the Magis-
trate should be preferred to and substituted for
that given before the Sessions Judge, the evidence
given before the Magistrate cannot be effectively
utilized in support of a conviction.
I entirely agree with this expression
of opinion and unless Tipru's statement
before the committing Magistrate is mate-
rially corroborated by other evidence or
is shown by faofcs clearly established by
other evidence that the statement made
by him before the Magistrate was a true
statement, the conviction ought not to
be sustained upon such evidence. (The
judgment then discussed the evidence
and proceeded.) I now come to the con-
fession of Bigna. It appears that on the
27th of May 1925, he made a statement
before the Sub-divisional Officer in
which he stated that on a Saturday or
Sunday at the end of Baisakh, Harakfa,
Hati, Sibu Kumhar, Dhirju Nana, Ramjia
Fagu and Bora Kumhar killed Mt.Ghasin
and threw away her corpse. The Sub-
divisional Officer then asked him as to
what had happened and he stated that
when Bucha's son died, Phagu called
bim (Bigna) and said1' See the child is
dead. Why have you killed him, have you
eaten him what have you done, say or
else I will kill you and throw you away.
If you go by what yonr sister-in-law says
we shall kill you, if you go -by what we
say nothing will happen to you. That
there was a meeting about sunset in the
angan of Bangia and Bfcoha ; that it was
decided to kill his sister-in-law. He
(*) AOJt. 1924 Mad. 879=47 Mad. 282. "*
gave the names of all the appellants and
of others as being present. He says that
he was also present as Bora and Phagtt
had gone to call him. He then says that
they came during the first part of the*
night when Harakh called his sister-in-
aw saying that he wanted to speak
something to her and asked her to com*
out for a drink of haria. His sister-in-
law said that she would not go at night
and that Harakh said that he had got
something to tell her and thereupon his
sister-in-law came out of the room and
sat in the varandah. Harakh asked her
if she had haria, to which she replied
that she had not got haria. Harakh
then seized her by the throat, Phagu
seized her legs and some of the others
trampled and some kicked her ; Sibu
thrust cloth in her mouth and Harakh
throttled her to death. On being asked
as to where did he see the occurrence
from, he said that Harakh woke him
and took him to the spot and told him
that if he would lodge information they
would kill him. That is why he did
not give information. On being asked
where did they throw the corpse of his
sister-in-law, he said that after they had
killed her they immediately carried her
corpse and buried her in the sands ia
Karo river on the boundary between
villages Bilsiring and Eedli.
Now the question is whether this is a
confession at all and whether it could bo
used as evidence not only against Bigna
but also against the other accused.
S. 30 of the Evidence Act is quite clear.
Confessions of an accused can be used
against other accused persons who are
tried jointly with the accused making
the confession when such confession
affects the person making it. A confes-
sion must be a confession of guilt
The statement made by Bigna could,
in no sense, be considered to be
a confession of guilt. He does not
inculpate himself in any way. He states
that he himself was accused by Phagu
as being instrumental in killing the son
of Buoha and he Was himself threatened
with being killed. He accounts for his.
presence there as he was called there by
Phagu and Boro. His statement does not
make it out that he was a member of
the assembly with the common object of
killing or causing hurt to Mt. Gbasin. I
am, therefore, clearly of opinion that this*
statement is not a confession at all which
444 Patna SARDA DEVI v. BAM LOUCHAH (Eulwaot S$hayt Jj
can be used in evidence either as against
iBigha or against the other accused. This
^confession was retracted subsequently
and it was stated tbat he bad made the
statement at the instance of Tipru.
It is then contended tbat his state-
ment to. the police which led to the dis-
covqry of the bones and the ornaments
could be used as evidence. It is clear
that the bones were not discovered on
Account of the statement, made by Bigna.
His statement was that the body was
/buried at a certain place. The Sub-
Inspector went there and did not find the
*body there. He next stated that it was
.removed to another place and there also
•no trace of the body was found. The
bones were discovered at a third place
.and as I have said above the bones have
•not been proved to be the bones of Mt.
Ohasin,
, In the circumstances the charge under
43. 302 oannofc stand.
The charge under S. 147 also cannot
•stand as it is based entirely upon the
•evidence of Tipru and Lohra, whose
•evidence is not sufficient to prove that
the appellants were members of an un-
lawful assembly. The learned Judicial
Commissioner has found that the present
-accused persons were members of the
unlawful assembly on account of the dis-
covery of the stains of human blood on
the cloths of the accused. A motia
•chadar was found on the person of
'Bonghia; a dhoti was found on the. person
of Boro; a chadar was found in the house
>of Boro; a dhoti was found ou the person
of Fhagu; a cbadar was found on the
iperson of Buoha and another ohadar on
the person of Bigaa, on all of which were
fltains of human blood. The cloths were
discovered about three weeks after the
occurrence and it is hard to believe that
if the stains of blood were the stains
•caused by the murder of Mt. Ghasin the
accused persons would not have taken
;the ordinary precaution: of washing the
stains from the cloths. In my opinion
the finding of the stains of blood on the
•cloths is not a circumstance which would
.prove the complicity of the accused in
«crime.
After a careful consideration of the
•entire evidence in the case* I am of
opinion that the charge under 8. 302 has
not* been established and that the charge
<under S. 147, Indian P. 0., has also not
sufficiently proved at against the
accused. I would, therefore, set aside
the conviction and sentence passed upon
the appellants and direct that* they be
set at liberty.
Conviction and sentence set aside. .
A. I. R. 1926 Patna 444
ADAMI AND KULWANT SAHAY, JJ.
S.arda Devi — Juigment-debbor— Appel-
lant.
v.
-De-
Bam Louchan Bhagat and others-
cree-holders — Respondents.
Appeal No. 263 of 1925, Decided on
,8th April 1926, from the appeliaba order
of the Dist. J., Santhal Pargannas,
D/" 7th September 1925.
(a) Or ant — Brahmottar Interest created by
Ghatwal Is not burdened with service— It is liable
to be sold in execution of a decree.
A Brahmottar interest created by a Ghatwal i&
not burdened with any services as a Ghatwali
estate is, and although the interest created by
the Brahmottar grant is liable to resumption
under certain circumstanced, such intareat can
be sold in execution of a decree. The Brahmottar
interest cannot be held to ba % inalienable bacausa
the Ghatwal who created the' Brahmotta-r right
had no power to alienate his own estate. SD long
as ths interest created under the Brahmottar
grant is in existence such interest is liable to be
attached and sold in execution of a decree against
the Brahmottadar. [P. 445, 0. 1, #]
(6) Bengal Regulation (3 of 1872), S. 27—
Landlord's interest in ralyati holding* can be sold
In execution of a decree.
3. 27, prohibits the transfer by a raiyat of hi9
right iu his' holding or .any portion thereof by
sale, gift, mortgage or otherwise ; it does not pro-
hibit! the landlord from transferring his or her
interest in a raiyati holding if the landlord by
gome means or other comes into possession of such
holding. No doubt the possession of the landlord
is the possession of the land as raiyati land and
not as zarait or proprietor's private land, but so
long as the proprietor remains in possession of
.this raiyati land, the interest wh'ch he has in
such raiyati land to remain in possession is liable
to transfer and sale. [P. 445, 0 2]
IT. C. Sinha and B> P. Sinha—ioi; Ap"
pellant.
S. M. Mullick and P&shitpati De — for
Respondents.
Kulwant Sihay, J.— This is an ap-
peal by the judgment-debtor. The res-
pondents in execution of a money decree
obtained by them against the appellant,
sought to attath .and soil4 the four
annas brahinotbar interest of appellant) in
Mauzah 8adau*dih. Itappair* that 6
1*2*
SARDA DEVI v. BAM LOUCHAN (Kulwaat Sahay, J;) Pafaa 44£
bighas of land comprised within the four
annas bmhmottar interest is under the
direct cultivation of the brahmottardar
and the decree-holder wanted to attach
and sell her right, title and interest in
this 62 bighas of land also. The judg-
ment-debtor objected to the attachment
and sale of her brahmottar interest and of
her interest in the 62 bighas of land on
the ground that the brahmottar interest
was not saleable, nor was her interest in
the 62 bighas which was raiyati interest.
The learned Subordinate Judge allowed
the objection and held that the interest
of the judgment -deb tor in the properties
sough* to be attached and sold was not
saleable. On appeal the learned District
Judge disallowed the objection and haa
held that the interest of the judgment-
debtor is saleable. The judgment-
debtor has come up in second appeal
against the decision of the District Judge.
As regards the four annas brahmottar
interest the objection of the judgment-
debtor arises under the following circum-
stances :
The village Sadhuadih is compromised
within the Handwe estate which is
a ghatwali estate and is inalienable. The
brahmottar interest in the 16 annas of
village Sadhuadih was granted by the
proprietors of the Handwe estate, and the
objection of the judgment-debtor is that
the Handwe estate being inalienable on
account of its being a ghatwali estate, the
brahmottar interest created by the ghat-
wal in village Sadhuadih was likewise in-
alienable. The learned District Judge
has pointed out that the interest created
by the ghatwal by the brahmottar grant
is a resumable interest but it is an inter-
est which is not protected from sale or
alienation like a ghatwali estate. A brah-
mottar interest is not burdened with any
services as - a ghatwali estate is, and
although the interest created by the
brahmottar grant was liable to resump-
tion under certain circumstances, such
interest could be sold in execution of the
decree.
In my opinion the decision of the
learned District Judge on this point is
correct. The brohmottar interest cannot
be held to be inalienable because the
ghatwal who created the brahmottar
right had no power to alienate his own
estate. So long as the interest created
tinder the brahmottar grant is in exis-
tence such interest is liable to be attached
and sold in execution of a decree against-
the brahmottardar.
Mr. Naresh Ghandra Sinha, appearing
on behalf of the judgment-debtor appel-
lant, does not press che point as regards*
the brahmottar interest with any serious-
ness. He, however, 'seriously objects to
the attachment and sale of the 62 bighas
of land included in the four annas brah
mottar interest of the judgment -deb tor
He contends that this 62 bighas is a rai
yati interest and under the Santhal Beg
3 of 1872, a raiyati interest is not sale
able and therefore the 62 bighas of land
comprised within the four annas brah-
mottardar as also under the direct oulfei
ration of the brahmottardar, is also not
saleable.
The learned District Judge has come
to the conclusion that the interest oi
the judgment-debtor in the 62 bighas is
not the interest of a raiyati but she is
in possession of the 62 bighas in bet
capacity as brahmottardar or tenure*
holder.
In my opinion, the view taken by the
learned District Judge appears to be
sound. The reoord-of-rights which h
conclusive under Keg. 3 of 1872 shows
that the 62 bighas is in possession of the
judgment-debtor as brahmottardar ; the
entry in the reoord-of-rights is " bakasht
brahmottardar/1 This evidently means
that although the land might have been
raiyati land at one time, by some means
or other it has come into the possession
of the brahmottardar and that the brah*
mottardar is in direct cultivation of 6S
bighas in the capacity of a brahmottardar
and not as a raiyat. S. 27 of -Beg. ,3 ol
1872 prohibits the transfer by a raiyat ol
his right in his holding or any portion
thereof by sale, gift, mortgage or other-
wise ; it does not prohibit the landlord
from transferring his or her interest in a
raiyati holding if the landlord by some
means or other comes into possession oi
such holding. No doubt the possession oi
the landlord is the possession of the land
as raiyati land and not as zerait or pro-
prietor's private land, but so long as the
proprietor remains in possession of this
raiyati land, the interest which he has in
such raiyati land to remain in possession
is liable to transfer and sale. The learned
District Judge was careful to point out
that what will be sold was the right,
title and interest of the judgment-debtor
in the four annas brahmottar interest
44.6 Patnft
AKLU v* JtisG-EMPEBOR (Bucknill, J)
and in the 62 bighas of land held by her
in the capacity of a brahmottardar.
The view taken by the learned District
Judge appears to be correct and* must be
affirmed. This appeal is dismissed with
<508tS.
Adami, J.—I agree.
Appeal dismissed.
A. I. R. 1926 Patna 446
BUCKNILL, J.
another' Accused— Petitio-
Aklu* and
tiers.
v.
King-Emperor — Opposite Party.
Criminal Revision No. 287 of 1926,
Pecided on 7th June 1926, from an order
of the 8. J., Purnea, DA 8th March
1926.
f<j) Motor Vehicle Act, 8s. 8 and 16— Right
to demand driver's license for Inspection Is not
restricted to a public place only.
Section 8 does not contemplate that police
oflflfoer cannot ask a driver of a motor vehicle for
His license in the private grounds of a private
person and that he oan only do so when a oar is
actually being driven by the person, whose
license is demanded, whilst on the public road.
[P. 447, C. 1]
(b) Motor Vehicle* Act (1914), 8. 16— (Patna)
Motor Vehicles Rules~-R. 12—Person responsible
for fixing board Is the owner and not the user of
the car.
The person responsible for having a board
fixed upon the vehicle under R, 12 is owner and
not the person who, from time to time, may have
the use of the oar.
Where a oar is purchased by an estate for the
use of its manager the manager cannot be said
to be the owner under B. 12. [P. 449, 0. 1]
(c) Motor Vehicles Act (19l4), S. 16- (Patna)
Motor Vehicles Ruje?t JR. 18— Time at which car
was found driven without proper lights must be
accurately proved.
It is of the utmost importance that when a
prosecution for driving the car without proper
lights is being undertaken, there should be inde-
pendent and direct evidence (preferably of two
persons with separate and accurate timepieces)
indicating exactly the time at which the car has
been observed being driven on the public road
with defective lights. [P. 448, 0. 1]
Hasan Imam and D. L. Nandkeolyar —
for Petitioners.
Bucknill, J.— This was an application
made to this Court in criminal revisional
jurisdiction by two persons named Aklu
and Shyamnarain Bai. The first of the
applicants is a chauffeur in the employ-
ment of a wealthy gentleman named Mr.
P. 0. Lai, the proprietor of a large pro*
petty known as the Dharamganj Estate.
This chauffeur was convicted by a
Deputy Magistrate of Purnea on the 12th
of January last of an offence against the
provisions of 8. 8 of the ' Motor
Vehicles Act (VIII of 1914) which is
punishable under the, provisions of 8. 16
of the same Act. The offence contem-
plated by 8. 8 is the non-production by
the driver of a motor vehicle of his
license upon demand by any police officer.
This applicant was fined Bs. 5.
The second applicant is an Assistant
Manager of the Dharamganj Estate; he is
also in the employment of Mr. Lai and
is in a responsible position. He was con-
victed by the Deputy Magistrate of
Purnea on the 12th of January last of
two offences against rules made under
the provisions of the Motor Vehicles Aot
of 1914. The first of these convictions
was in respect of an offence committed
against the provisions of B. 12. This
rule relates to the necessity for having
marked and numbered plates on a motor
vehicle. The second conviction was
relative to B. 13 of the rules made under
the Motor Vehicles Act of 1914. This
B. 13 relates to the necessity for the
appearance of certain lamps on motor
vehicles driven on public roads at certain
times of the night. Apparently, as a
sort of compound penalty for the breaches
of Br. 12 and 13, »the Deputy Magis-
trate sentenced Mr. Shyamnarain Bai to
pay a fine of Bs. 25 ; the penalties for
contravention of rules made under the
Act are regulated mainly by 8, 16 of the
Act itself. From these convictions and
sentences the two applicants applied to
the Sessions Judge of Purnea, asking
that he should refer the matter to this
Court ; the Sessions Judge, however, on
the 8th of March last, refused to do so
and hence the matter has come up here
in revision.
The whole matter is really a very
petty one ; but it seems to have aroused
a considerble amount of feeling in the
neighbourhood. I do not propose, how-
ever, to refer to anyi question of that
kind, but merely to examine the matter
from a legal point of view. In the first
place, with regard to the first applicant*
the chauffeur, there is no doubt that
he had been driving a car ; he had driven
the car to the house of a Deputy Magis-
trate, Babu Banaeshwar Singh, at
Kisaanganj and when at that gentleman's
house was asked by a Deputy Superin-
tendent of Police (Mr. Sanyal) to produe*
1926t
bis license ; he had not got it with him, ,
but had it at his house. S. 6 of the Act
prescribes so far as is here material, as
follows :
No person shall drive a motor vehicle IB a
puttie place unless he is licensed in the pres-
cribed manner, and no owner or person .in
charge of a motor vehicle shall allow any person
who is not licensed to drive it.
Section 8 reads ;
The driver of a motor vehicle shall pro-
duce his license upon demand by any police
officer.
The learned counsel, who has appeared
for the applicants here, suggests that
a police officer cannot ask a driver of a
motor vehicle for his license in the
private grounds of a private person ; but
can only do so when a car is actually
being driven by the person, whose license
is demanded, whilst on the public road.
I do not think that there can properly
be read into the Act any such exact
restrictions of the time or place at which
a police officer can demand a driver's
license. The administration of this law
should/ however, be carried on with
sympathy and firmness. In this case, it
seems that the Deputy Superintendent
of Police,, o&e evening, saw the oar in
question being driven into the premises
of the Deputy Magistrate* ; it seems to
have had no name plate and the
lights are said to have been defective ;
the Deputy Superintendent therefore
followed the car and eventually reached
"the Deputy Magistrate's compound and
there it was that he asked the chauffeur
foe his license. Now, as a matter of fact,
it is common ground that the chauffeur
was a properly licensed driver and had at
his house near by his license. I must
admit that it does seem to me (although
it may be said that the chauffeur was
guilty of a technical offence) that it is
rather a harsh way of administering the
law to institute a prosecution against a
chauffeur simply because he may have
not got his license on his person. In any
case, although I think that he has com"
mitted a technical offence I do not; think
that he should, under the circumstances,
have been prosecuted ; and I therefore
order that his fine shall be reduced from
Bs. 5 to one anna as I do not think that
prosecution under the circumstances
should have, taken place.
I next come to the question of the ab-
sence of the name-plate, There seems
no doubt whatever that there was no
, |£IHG-EM?BBOB (Bupknill, JJ
proper name-plate on the oar thai?
evening. The explanation is that the
car had just come that day from a work*
shop where it had been repaired and that
the plate vras at the Dharamganj
katcheri ; it would no doubt have been
fixed the next day ; there was plate
which had always been used and pro-
perly used on the car. Now B. 12 of
the rules made under the Motor Vehicles
Act of 1914 throws upon the owner of
the car the burden of seeing that the
plates containing the distinctive letters
and number of the oar are fixed in the
proper place upon motor vehicles. The
material part reads thus :
Every owner shall within three days of the
registration cause the mark assigned to the
motor vehicle under B. 9 to be shown in white
on two black rectangular plates eto. etc.
Now the facts with regard to this par-
ticular car are somewhat confused ; one
thing, however, is quite certain and that
is that Mr. Shayamnarain Bai was not
the owner. It would seem from the evi-
dence of a Mr. J. Ji Maokay that he was
at one time the Sub-Manager at Dharam-
ganj katcheri at Kishanganj; that dur-
ing the period when he occupied that
position Mr. Lai purchased a car for the
use of the officer who was Sub-Manager
of the Dharamganj katoheri at Kishen-
ganj> It was a Ford oar and, although
it was purchased by Mr. Lai and was an
estate car, it appears that Mr. Mackay
(probably through ignorance of the law)
registered the car in his (Mr, Mackay 's)
own name. So far as I am aware, this
registration has never been altered ; but,
some time after Mr. Maokay vacated his
position, he seems, under the provisions
of B. 10 of the rules made under the
Motor Vehicles Act of 1914, to have
given written information to the police
that he no longer "was in ' charge of the
car." No doubt the "charge of the car"
(whatever that may exactly mean)
conveys in popular language the general
idea that Mr. Mackay was in control of
the car itself whilst he was Sub-Manager
of the estate at Kishanganj. No doubt,
too, Mr. Shayamnarain Bai succeeded
Mr. Mackay in office and also in. being
"in charge of the car" ; but although Mr.
Mackay seems to have wrongly oeen
registered as owner of the car, there is
nothing to indicate that Mr. Shyanv
narain Bai was ever registered even
wrongly as the owner ; and it is quite
4*8
AfifctT v. KllTG-EMPB^OS (BuQknill, J.)
ctear that be is Hot the owner within
the meaning of R. 12 of the rales. Under
these circumstances it seems impossible
So uphold this conviction under this
role. The person responsible for having
a, board fixed upon the vehicle appears to
be the owner and not the person who,
from time to titae, may have the use of
b'he car.
Lastly, I come to the question of the
conviction under B. 18 of the Motor
Vehicles Act of 1914. B. 13 reads :
No motor vehicle ahall be driven on a public
road during the period between half an hour
after sunset and half an hour before sunrise
unless every lamp prescribed by B. 8 (i) is
lit and unless its light is visible within a
reasonable distance.
Now it may well be asked as to
who is responsible with regard to the
lights being in proper order and duly lit.
This opens up a considerable field for
speculation ; one may think that the real
person who is in charge of the oar and
who is looking after and should look
after the lamps must primarily be the
driver ; but then one may well say that
there might occur cases in which the
person not actually in charge of the car
might be responsible ; as, possibly, for
example, in the case of a person who
was the owner of the car and who
retused to provide his driver with the
necessary batteries for the purposes of
illumination or with the necessary lamps
or bulbs. However, this question does
not really arise, I think, here ; because I
am not satisfied that it was clearly
shown that the oar was being driven on
a public road at a prohibited time.
(While examining the evidence regard-
ing the time when the car was found
driven with defective lights his Lordship
proceeded.) We do not find any distinct
statement as to the exact time at which
the Deputy Superintendent of Police saw
the oar being used wrongfully without
proper lights ; and I may say that it is
of the utmost importance that when a
prosecution of this character is being
undertaken, there should be indepen-
dent and direct evidence (preferably of
two persona with separate and accurate
timepieces) indicating exactly the time
at which the oar has been observed be-
ing driven on the public road with
defective lights, It is little practical
use for a police officer to come into Court
and say that "some titoe after dusk" or
''about 7 p. m." or words to that effect,
if it is hoped that snob a prosecution is
to be successfully conducted. la questions
of contravening regulations as to the
time of lightinglamps on, what I suppose
one must consider, a dangerous vehicle,
time is practically the most material
point and the point of time must be proved
meticulously and accurately. I do not
think that this is the oase here. The
Deputy Superintendent of Police, in the
course of a very long cross-examination,
indeed, says that he cannot swear that
the oar was not at the Deputy Magis-
trate's place from 6 to 6-15 "p. m. on that
day. One may understand that thia
officer means that he cannot} say whether
between those two times the car was not
at the Deputy Magistrate's compound.
I do not gather that he thinks that bis
statement with regard to the hour or
approximate hour at which he had seen
the car being driven on the' road waa
wrong : but I may point out that accord*
ing to the evidence of the Deputy Magis-
trate and the Sub-Deputy Magistrate
there was only one occasion upon which
the oar dame into the Deputy Magistrate's-
compound that evening ; and that was at*
the time when they were all together
and when the Deputy Superintendent of
Police followed "the car in sorne 15 or 2O
minutes after it arrived. I do not think^
therefore, that the oase of conviction
with regard to the improper lighting,
of the oar in contravention of B. 13 of
the Motor Vehicles Act of 1914 can be
upheld and must be set aside.
The result is that the conviction of the
first applicant will be upheld but, under
the circumstances, his sentence of Bs. 5
fine will be reduced to a fine of one anna*
The surplus fine of the chauffeur, if paid^
must be 'refunded. With regard to the
convictions of the second applicant, Mr*
Shyamnarain Bai, for contravention of
B. 12, it must be set aside on the ground
that he was not the owner of the car. Hia
conviction for contravention of B. 13
under the Motor Vehicles Act of 1914
must also be set aside on the ground that
the time at which the alleged offence
was committed has not been satisfactorily
proved, the joint sentence of fine passed
against him for the double offence which,
he is alleged to have committed in con-
travention of the two Rules Nos. 12 and.
13 under the Act must be set aside and
the fine, if ptfto- "funded.
Order accordingly
1926 ANWAB ALI v. DEOGHAR MUNICIPALITY (Jwala Prasad, J.) Patna 449
* A. I. R. 1926 Patna 449
JWALA PRASAD AND MACPHERSON, JJ.
Anwar Ali — Petitioner,
v.
Chairman, Deoyhar Municipality —
Opposite Party.
Criminal Bevision No. 355 of 1926*
Decided on 15th Junejl926, from an order
of the Oommr., Bhagalpur, D/- 23rd
April 1926.
# Criminal P. C., S. 4 (j)—'l}Hgh Court" for
purposes of revision against acquittal from pro-
ceedings from Sonthal parganas Is Commissioner
of Bhagalpur — Sonthal Parganas Regulation
(5 of 1693), 8. 4 (1) (II).
Under 01. 1 (ii) (a) of S. 4 the High Court of
Patua has only jurisdiction to deal with appeals
under S. 417 againsfc an order of acquittal. It
has no power to deal with an application under
S, 439 for setting asida acquittal for which the
proper forum is the Commissioner of Bhagal-
pur. [P 450 C 2]
M. Yunus — for Petitioner.
Sultan Ahmed — for Opposite Party.
Jwala Prasad, J. — The Petitioner
Anwar Ali was prosecuted by the Chair-
man of the Deoghar Municipality under
8s. 186 (1) and 192 of the Bihar and
Orissa Municipal Act of 1922. He was
tried by a Magistrate of the second class
of Deoghar, who by his judgment, dated
the 19th February 1926, acquitted the
petitioner.
The Chairman of the Municipality
moved the Commissioner of the Bhagal-
pur Division against the order of acquit-
tal and the Commissioner by his order,
dated the 23rd April 1926, set ^aside the
acquittal and directed re-trial of the
petitioner.
Aggrieved by this order of the Com-
missioner the petitioner moved this
Court under S. 439 of the Code of Cri-
minal Procedure and obtained a rule by
this Court on the 27th May 1926, which
runs as follows :
The application will be heard by "the Criminal
Beach. Issue the usual notices, Let further
proceedings he stayed pending the disposal of
' this application.
Accordingly a letter of this Court,
Memo No. 1477, Cr. A., dated the 27th
May 1926,- forwarding a copy, was
addressed by the Assistant Eegistrar to
the .Commissioner of Bhagalpur
enclosing copy of 'letter No. 1477, Or. A.,
of the same date to the Deputy Com-
nai&sioner of the Santal Parganas, calling
1936/ P 57 & 58
upon the latter to submit the original
record and to stay further proceedings,
and requesting the Commissioner to for-
ward the original record and proceedings
in his own Court. In reply to this letter
the Commissioner in his letter No. 98
J/V, dated the 1st June 1926, pointed
out that he had dealt with the case under
S. 439 of the Code of Criminal Procedure
in the exercise of his power as the High
Court of the Santal Parganas tinder S. 4
(I) (ii) (b) of the Santal Parganas Justice
Beg. V of 1893, and consequently the
requisitions issued by the High Court
were issued by inadvertence. He also
intimated th-it pending further orders of
the Court, the record of the case has
been withheld and the Deputy Com-
missioner has been asked not to take any
action upon the order of this Court,
dated the 27th May 1926.
Considering the importance of the
question raised by the Commissioner of
Bhagalpur, the Govermont Advocate was
asked to appear. The case was argued at
great length on both sides. The com-
plainant Chairman of Deoghar Municipa-
lity has also appeared in this case.
Tke first question is whether this
Court had any power to pass the order
of the 27th May 1926. In the applica-
tion of the petitioner on the basis of
which the aforesaid order was passed the
petitioner, prayed that the order of the
Commissioner setting aside his acquittal
and directing his re-trial be set aside was
also prayed that the proceedings re.the trial
of the petitioner started upon the basis
of the order of the Commissioner be set
aside. The Commissioner says that he
passed the order in question as the High
Court of the Santal Parganas under S. 40
(I) (ii) (b) of the Santal Parganas Justice
Bog. V of 1893. S. 4 of that Regulation
says that the Code of Criminal Proce-
dure of 1898 shall have effect in the
Santal Parganas, subject to the modi-
fications indicated in that section. The
most important modification is the con-
stitution of the Commissioner of Bhagal-
pur as the High Court for certain crimi-
nal cases in the Santal Parganas within
the meaning of the term as defined in
S. 4 of the Code of Criminal Procedure.
The "High Court" in this section, leaving
out the words with which we are
not concerned, means the highest
450 Patna ANWAR ALI v. DKOGHAH MUNICIPALITY (Jwala Parsad, J.) 1926
Court of Criminal appeal or revision
for any local area ; or where no such
Court is established under any law for
the time being in force, such officer as
the Governor-General in Council may
appoint in this behalf.
The High Court within the province
of Bihar and Orissa known as the Patna
High Court established in 1916 under the
Letters Patent of that year is che highest
Court of appeal in the civil and cri-
minal matters and exercises revisional
jurisdiction under S. 439 of the Code
of Criminal Procedure. The jurisdiction
of fchis Conrt is modified by the Santal
Parganas Justice Reg. V of 1893 referred
to by virtue of the definition of High
Court with respect to the area called
tho Santal Parganas in that section. 01. I
of that section defines the " High Court "
(i) in reference to proceedings against
European British subjects, or persons
jointly charged with European British
subjects, the High Court of Judicature at
Fort William in Bengal (now in the pro-
vince of Bihar and Orissa the High Court
of Patna).; and (ii) in reference to pro-
ceedings against* other person, (a) in cases
tried by the Court of Sessions and in
appeals under S. 417 from original or
appellate orders of acquittal the High
Court of Judicature at Fort William in
Bengal; and (b) in other oases the Com-
missioner. SubrGl. (i) of 01. I applies
only to oases against European British
subjects and we are not concerned with
that case. We are concerned with sub-
01. (ii) of 01. I. In oases coming under
that sub-clause the High Court of Patna
has jurisdiction in the area called the
Santal Parganas. In oases not coming
under that clause, in other words, in
other kinds of cases, the High Court of
the Santal Parganas is the Commissioner
of Bhagalpur.
The question then is whether the pres-
ent case comes under Cl. (a) or 01, (b)
of sub-01. (ii). The present is a case of an
jicoused person tried by the Sub-Deputy '
Magistrate of Deoghar for offences under
the Bihar and Orissa Municipal Act
which is in force in the Santal Parganas.
The accused (petitioner) was acquitted
by the- Sub-Deputy Magistrate. The
order of acquittal was appealable and was
also revisable by the High 'Court under
S. 439 of the Criminal P. C. An appeal
against an acquittal is allowed only to
Local Government and it lies only to a
High Court. Any private person just
like the complainant might invoke the
revisional powers of the High Court to
set aside an order of acquittal under
S. 439 or the High Court may of its own
motion set aside such an order. There
was no appeal in the present case by the
Local Government under S. 417. If
there was an appeal it would have lain
only to the High Court of Patna under
Cl. I (ii) (a) of S. 4. The Chairman of
the Deoghar Municipality who' was the
complainant in the case applied to the
Commissioner of Bhagalpur to set aside
the order of acquittal in his capacity
as the High Court of the Santal
Parganas.
The learned Government Advocate con-
tends that the matter dealt wich by the
Commissioner under S. 439 came under
01, I (ii) (b) of S. 4. His contention is
that the High Court of Pafcna has only
jurisdiction to deal with appeals under
S. 417 agiinst an order of acquittal and
that it has no power to deal with such
an order under S. 439 of the Criminal
P. 0. and that the Commissioner oi
Bhagalpur is the High Court in such
matters. Mr. Yunus on behalf of the
petitioner resists this contention of the
learned Government Advocate and says
that all matters connected with an order
of acquittal, be it an appeal from that
order or an application in revision, is*
Excluded from the jurisdiction of the
Commissioner of Bhagalpur and that the
High Court of Judicature at Patna is the
only authority competent to deal with
such matters. He says that although
the words used in 01. I (ii) of S. 4 refer
especially to appeals under S. 417, it
includes also applications in revision
under S. 439 of the Criminal P. 0. In
support of his contention he relies upon
S. 439 of tho Code which says that the
High Court dealing with matters in revi-
sion under that section may exercise
any of the powers conferred on a Court
of appeal by Ss. 423, 426, 427 and 428
or on a Court by S. 338, and he says
that an order of acquittal can only be
set aside by the High Court acting under
S. 439 in the manner prescribed by S. 423
of the Criminal P. G. which deals with
appeals.
Kcference has also teen made to the
provision in S. 423 (l) which says that
in dealing with an appeal under S. 417
from an order of acquittal the Court
1926 ANWAR ALI v. DEOGHAR MUNICIPALITY (Maopherson, J.) Patna 451
may reverse such order or direct that a
further enquiry may be made, or that
the accused may be re- tried or com-
mitted for trial as the case may be and
find him guilty and pass sentence accord-
ing'to law. The contention is that read-
ing Ss. 424 and 439 together the order of
acquittal can only be set aside by the High
Gourt exercising its ro visional powers
under S. 439 by a reference to the pro-
visions in 3. 417 renting to an appeal
from an acquittal. Therefore, the power
given to the High Court at Patna to deal
with appeals undor S. 4i7 against an
order of acquittal implies that the power
of revising such an order under S. 439
is also vested in the siid High Court and
is taken away from the Commissioner
of Bhagalpur.
The contention does not seem to be
sound. The powers of revision are
different from powers exorcisable in
appeal. The right of appeal can only bo
conferred by express provision in the
Criminal P. C., whereas the power of
revision conferred under S. 439 is larger
in scope and it deals with matters in
which there may or may not be an
appeil. It gives a wide power to the
High Court to look into the record of
any cause and satisfy itself as to
the correctness and propriety of the
finding or sentence recorded or order
passed and as to the irregularity of pro-
ceedings of an inferior Court. This power
of revision is exeroisible at the instance
of a party or by the High Court of its
own motion. Even in cases where
there is an appeal the power of revision
may be exercised where no appeal lias
actually been brought : vido 01. (5) of
S. 439. Under that clause a private
party has a right to apply to the High
Court to set aside an order of acquittal
although it has no right of appeal.
S. 439 indicates the manner in which
certain cases coming to this Court
might be disposed of. It refers to the
powers of the appellate Court defined
in'S. 423 as indicating the mode in which
appealable orders may be dealt with by
the High Court. It does not mean that
an application in revision is converted
into an appeal simply because under
S. 439 a High Court is empowered to
exercise the powers defined under S. 423
with respect to appeals.
It is obvious that an application by
private party against an order of
acquittal under S. 439 cannot be re-
garded as an appeal under 8. 117, for a
private party has no right of appeal under
that section. Reference to 8. 417 in
S. 423 and to S. 423 in S. 439 simply
means that under the revisional powers
of the High Court an order of acquittal
may also be reversed and further enquiry
of re- trial of the accused be directed
as is indicated under 01. (l) (a), S. 421]
The application of the Chairman of the
Municipality in the present case cannot
be treated as an appeal under S. 417 by
the Local Government, and hence it
cannot come under 01. I (ii) (a) of S. 4
which applies only to appeals under
S. 417 from orders oJ acquittal. We
have to read into that clause the words
11 and applications under S. 439 " or
words to that effect in order to amplify
the scope of the provision and thus to
give jurisdiction to the High Court at
Patna to deal with applications in revi-
sion against orders of acquittal. This we
are not permitted to do. It may seem
to be an anomaly that an appeal from
an order of acquittal under 8. 417 should
lie to the High Court at Patna, whereas
an application in revision against the
same order under S, 439 would lie to the
Commissioner under S. 4 '!) of the
Santal Parganas Justice Regulation V
of 1893. It may be that this is a case
of omission ; but that is a matter which
has to be dealt with by competent
authority.
The application to this Court against
the order of the Commissioner of Bhagal-
pur passed under S. 439 of the Cri-
minal P. C. setting aside the order
of acquittal in the present case did not
lie to this Court and it is obvious that
it was entertained under a misapprehen-
sion. The order of the Commissioner
exercising his powers as the High Court
of 'the Santal Parganas under S. 4 cannot
be dealt with by this Court, and, there-
fore, the petitioner had no right to come
to this Gourt against the order of the
Commissioner.
The result is that the rule issued on
the 27th May 1926 calling for the re-
cord of the caso and staying further pro-
ceedings is discharged.
Macpherson, J. — I also entertain no
doubt that this application must be re-
jected.
It l^as been made under S. 439 uf the
Code of Criminal procedure on behalf of
452 Patna ANWAR ALI v. DEOGHAR MUNICIPALITY (Macpherson, J.) 1926
a person other than a European British
subject and other than a person jointly
charged with a European British subject,
with fche prayers that this Court will (l)
set aside an order of the Commissioner of
Bhagalpur purporting to act as High
Court of the Bantal Parganas in which he
set aside the acquittal of the petitioner
in the Court of the Sub- Deputy Magis-
trate of Deoghar and directed his re-
trial; and (2) quash the proceedings now
pending against the petitioner in that
Court.
The first prayer fails because this High
Court has, as Mr. Yunus admits, no juris-
diction under 8. 439 or otherwise to set
aside the order of the Commissioner. In
point of fact the rule was granted to
consider the second prayer. The second
prayer fails because this Court possesses
no jurisdiction under S. 439 over the
proceedings against the petitioner in the
Court of a Magistrate of the Santal Par-
ganas. Furthermore, the order for re-
trial of the petitioner was in fact with-
in the jurisdiction of the Commissioner.
Under Chap. II of the Santal Parganas
Civil Justice Beg. V of 1893 the jurisdic-
tion of this Court under the Code of Cri-
minal Procedure with reference to pro-
ceedings against the petitioner does not
extend beyond cases tried by the Court of
Sessions and appeals under S. 417 from
Original and Appellate orders of acquit-
tal [S. 4 (7) (ii) (a)] , the Commissioner
being the High Court with reference to
all other proceedings against him. The
proceedings now pending against him are
manifestly not included within such
cases or appeals.
In fact Mr. Yunus for the petitioner
admits that he is out of Court at once if
S. (Z") (ii) (/«) be strictly construed. His
position is that a wide interpretation
should be accorded to " appeals under
S. 417" so as to make fche expression
cover also applications under S. 439 to
set aside orders of acquittal. His ground
is that anomalies may result if an
appeal under S. 417 is made to one High
Court and an application to set aside the
same acquittal is made under S. 439 to
the other High Court. The discussion
before us has' however, clearly demon-
strated that the possibility of divergent
order on the subject of an acquittal be-
ing passed by the two High Courts is so
remote- as to be in practice entirely neg-
ligible. It is certainly not such as would
lead one to construe " appeals under
S. 417" (which are presumably excluded
from the jurisdiction of thd Commis
sioner as High Court because they are1
preferred by the executive 'Government,'
and the Commissioner is, except for his
special judicial functions in the Santal
Porganas, an executive officer) as includ->
ing applications under S. 439 in respect
of acquittals which can only be prefer*
ded by the privata prosecutor and with
which the executive Government is not
concerned.
Mr: Yunus next argues, if I understand
him aright, that as this Court is :
the only Court that can set aside an ac-
quittal by a Court in the Santal Par-
ganas, the Court of the Sub-Deputy
Magistrate is an inferior criminal Court
situated within tho local limits of the
jurisdiction of this Court, at least so far
as acquittals are concerned, and accord-
ingly this Court is empowered to revise
tho proceedings of such Magistrate in a
case such as the present where he is
about to try the petitioner whom he has
already acquitted.
But there is no reason to hold that
this is the only High Court that can set
aside an acquittal by the Magistrate in
the Santal Parganas. No doubt this Court
alone can set aside an acquittal on appeal-
The learned Commissioner in his judg-
ment does indeed describe the proceed-
ings before him as an appeal against an<
acquittal, and he has also set out that
the private prosecutor/* has a right of
appeal under S. 439." But that pro-
ceeding was in fact not an appeal, still
less an appeal by the Local Government
under S. 417, and the intention mani-
festly was to hold that it was open to
him as the High Court to revise an order
of acquittal. In fact his order concludes :
"• I accordingly direct that re- trial shall
take place (under S. 439, Criminal P. C.)."
That an acquittal may be set aside by
che High Court under S. 439 at the in-
stance of a private prosecutor is settled
law. It had also been so held in several
High Courts prior to the date when the
Regulation of 1993 was made, and the
authority which made the regulation
is to be presumed to have been
aware of that fact and to have intended
that as High Court for the Santal
Parganas the Commissioner of Bhagal-
pur should possess the ordinary power
under S. 439 to revise orders of acquittal
1926
KHIEI CHAND MAHTON v. MT. MBGHNI
Pataa 453
in such circumstances. Mr. Yunus
then points oat that the powers exeroi-
sable under S. 439 are "the powers con-
ferred on a Court of appeal under S. 423"
and that the only powers conferred under
S. 423 to set aside an acquittal on appeal
relate to appeals under S, 417 which are
Removed from the jurisdiction of the Com-
missioner, and contends that in the face
of these provisions the presumption
should not be made. But the argument
involves the importation of words into
S. 439 so as to make the provision quo-
ted run "the powers conferred on(it as) a
Court of appeal under S. »423." The in-
dications are that in S, 4 (7) (it) (a) of
Reg. V of 1893 the enacting authority
specifically set out all the powers which
it intended should not rest with the Com-
missioner as High Court in proceedings
against persons of the status of the peti-
tioner,'and lean see no justification for
importing any words into S. 439 which
would restrict his jurisdiction by impli-
cation. Accordingly this Court is not
the only High Court which has jurisdic-
tion to set aside an acquittal by a Magis-
trate of the Santal Parganas.
Jurisdiction in respect of sotting aside
acquittals is in fact distributed between
the two High Courts : this Court possess-
ing it on appeal by Government and the
Commissioner on application by a private
party in revision. In Ss. 435 to 439 : as
in other provisions of the Code, " High
Court" means the Commissioner except;
where S. 4 (I) (it) (a) of the 'Regulation
operates. It has no operation in the pro-
ceeding pending against the petitioner
in the Court of the Sub-Deputy Magis-
trate of Deoghar which for this purpose
at least is not an inferior Court to this
Court. Accordingly this Court has no
jurisdiction to quash that ' proceeding
The same would have been the case if
the Magistrate had without the interven-
tion of the Commissioner, started suo
inotu and illegally to re- try the peti-
tioner ; the petitioner's remedy would
have lain in an application for re-
vision in the Court of the Commissioner.
Mr. Yunus, it may be remarked, adop-
ted in so many words the argument of
.Mr. Hill in In the matter of Wilson f l)
twhich is summarized at the top of p. 249
Jin support of his claim that this Court
has jurisdiction over all the criminal
~llj £1891] "
Courts of the Santal Parganas under its
revisional powers under the Code of
Criminal Procedure, but a perusal of the
Acts, Regulations and oases there cited
has failed to satisfy me that the claim is
well founded.
Rule discharged.
# A. I, R. 1926 Patna 453
JWALA PftASAD AND BUCKNILL, JJ,
Khiri Chand Mahton — Defendant No, 2
— Appellant.
v,
Mt. Meghui— Plaintiff — Respondent.
In the matter of Court- fee in Second
Appeal No. 1388 of 1925, Decided on
24th March 1926,
# Court-fees Ad. S. 1 (lv).(c)— Two. reliefs not co-
extensive and both necessary — S. 1 (tv) (c) will
apply.
The plaintiff prayed for two reliefs. The first
relief related to a declaration as to the general
title of the plaintiff to all the properties in-
herited by her from her husband. The second re-
lief related to the particular deed of transfer
executed by Defendant No. 1 in favour of Defen-
dant No. 2 with respect to a particular property
as part of the estate Inherited'by her from her
husband.
Held : that the two reliefs prayed for were not
co-extensivo, nor was one of them a surplusage,
Hence the suit was one for a declaration and it
consequential relief and.au ad valorem Court-
fee under S. 7 (iv) {c) was payable : 29 Horn. 207 ;
22 C. L. J. 415 and 03 /. C. 38, Dlst. [P 456 C a]
Sant Pras&d — for Appellant,
Shadi Shaikher Prasad Sinyh and
Laclimi Narain Sinha — for Respondents.
Judgment. — The question is : What
Court-fee is payable upon the plaint
in the present case filed in the Court of
the Munsif of Bihar and upon the
memorandum of appeal tiled uy the
defendant in the Court 'of the District
Judge of Patna ? In the plaint the re-
liefs sought are as follows :
(1) It may be held by the Court that 'the dis-
puted properties form portion of the properties
left by tho husband of the plaintiff ; that Defen-
dant No. 1 has no title thereto and that she has
no right to transfer the same,
(2) On determination of relief No. 1 it mas-
be held that Defendant No. 1 had no right to
execute the sale-deed, dated the 3rd August, 1920,
an! that neither it has affected the title of the
plaintiff nor has Defendant No. 2 'acquired any
right thereby.
(3) If during the pendency of this suit tho
plaintiff be dispossessed of the disputed proper-
ties, then oti Court-fee being taken she may ba
Patna
KHIRI CHAND MAHTON v. MT. MEGHNI
192*
awarded a decree for recovery of possession of the
disputed properties.
(4) The costs in Court with interest up to the
date of realization raav be awarded to the plain-
tiff against the defendants.
(5) Such other reliefs as deemed equitable
by the Court may be decreed in favour of the
plaintiff.
The plaintiff's case as laid in the
plaint is based upon the following facts.
It is said that one Tarni Mahton had
two sons Puran Mahfcon and Budhan
Mahton. He died while joint with his
sons, and after his death the two sons
continued to be members of a joint
Mitakshara family. Defendant No. 1,
Mt. Jogia, is the wife of Puran Mahton.
The plaintiff is the wife of Budhan Mah-
ton. Puran is dead. It is said that when
he died ho was joint with Budhan Mahton
and consequently the latter succeeded to
the properties by right of survivor-
ship as the sole surviving male member.
Budhan died in 1909. The plaintiff's
case is that she has succeeded to the
property as his widow under the Hindu
Law and that the Defendant l\o. 1
Mt. Jogia, wife of Puran, is entitled
only to maintenance. Continuing, the
plaint stakes fchafc fche plaintiff obtained
possession of the property and has been
enjoying ifc ; and that the Defendant No, 1
has not acquired any right to it nor any
right to transfer or encumber the family
property ... In the record-of-righta, how-
ever, Mt. Jogia, Defendant No. 1, got her
name recorded as in possession and oc-
cupation of the family property along1
with the plaintiff, and fche names of both
the plaintiff and Defendant No. 1 were
recorded in the khatian with respect to
the raiyati kasht lands of the family.
Defendant No. 1 though she had no
right of any sort in the property nor had
she possession thereof executed a sale-
deed on the 3rd of August 1920 in res-
pect of half of the properties left by the
husband of the plaintiff, in the farzi
name of Defendant No. 2. Ifc is also
stated in the plaint that the Defendant
No. 3 for self and on behalf of other
properties got a kabuliyat and kishtbandi
bond executed by the plaintiff in respect
of the area and made Defendant No. 2
also join in fche execution of the said deed
on the ground that her name was al-
ready entered in the survey khatian.
Tbe aforesaid transactions, namely,
the entry in fche record -of -rights apd fche
kabuliyat are attacked' by the plaintiff.
She says that :
although the sale-deed in question has not
affected her title, yet the existence thereof is
apprehended to cause dispute hereafter and a
cloud is thereby oast over the title of the plain-
tiff in respect of the disputed properties ; hence
the suit.
The cause of action is said to have
arisen on fche 3rd of August 1920, fche
date of fche execution of the aforesaid
sale-deed. The plaint was stamped with
a Court-fee of Es. 15 under Art. 17 of fche
Courfc-fees Act. The defendant in his
written statement took a distinct plea
as fco insufficiency of the Court-fee, and
upon fchafc plea Issue No. 3 svas raised
in fche trial Court :
Is the Court-fee paid sufficient J
But at fcho actual hearing of the case
fchis issue was not pressed. The suit
therefore, was determined by the Munsif
upon the aforesaid Court-fee, The De-
fendant No. 2, fche transferee, appealed
to the District Judge and paid a Court-
fee of Bs. 15 upon the memorandum of
appeal ; and upon an objection raised by
fche District Judge an additional Court-
fee of Rs. 15 was paid upon the ground
that reliefs (l) and (2) constituted two-
separate declarations. The appeal was
dismissed in the Court below, and hence
fche defendant has filed a second appeal
in this Court.
Under fche orders of the Taxing Officer
of thisCourfc, dated the 9th November
1925, the appellant has paid the addi-
tional Courfc-fee, as according to the
Taxing Officer, an ad valorem Courfc-fee,
was chargeable under S. 7, 01. (4) (c) of
fche Court-fees Acfc. If fchis view of fcbe^
Taxing Officer is correct, the Courfc-fees
paid upon fche plainfc and fche memoran-
dum of appeal in fche Courfc below were-
insufficient, and fche plaintiff and fche
defendant both have to make good their
respective deficiencies. The question as
fco the sufficiency or otherwise of fche
Courfc-fee payable in the Court below
does not lie wifchin fche province of fche
Taxing Officer ; bufc ifc has fco be deter-
mined by fche Courfc under S. 12 of fche
Courfc-fees Acfc. Accordingly, fchis being
fche preliminary question before the ap-
peal can be allowed fco proceed, ifc has
been placed before fchis Bench for a deci-
sion as fco whefcher ad valorem Courfc-fee
should be charged upon the plainfc and
the memorandum of appeal in fche Courfc
1926
KHIRI OHAND MAHTON v. MT. MEGHKI
Patna455
below under 8. 7, 01. (4) (o) of the Oourt-
fees Act.
The Taxing Officer in his order direct-
ing ad valorem Court-fee to be paid upon
the memorandum ' of appeal has relied
upon a decision of mine as Taxing Judge
in the case of Ram Ekbal Singh v. Sar-
jug Prasad Misser (l). Tho second re-
lief in that case quoted by me in my
judgment was similar to the second re-
lief in this case. It sought to have an
adjudication by 'way of a declaration
that certain sales and transfers made by
the defendants in that case were with-
out any valid necessity and without any
consideration and were not binding upon
the plaintiff after the death of the
limited owner who was a Hindu lady.
I held that that relief clearly came under
S. 42 of the Specific Relief Act and was
chargeable with a fixed Court-fee of
Rs. 10 which under the then provisions
of the Court-fees Act was chargeable.
The first relief sought in that case was
as follows :
That it may be held by the Court that the
plaintiff is a near gotia and reversionary heir of
Manga I Prasad Singh.
That relief related to the title of the
plaintiff in that case to the property in
dispute and his locus standi to question
the validity of the transfer made by the
widow of the late holder of the property.
The plaintiff in the present case is the
widow of Budhan Mdthton and claims to
have succeeded to the properties on ac-
count of Budhan 's brother, husband of
Defendant No. 1, having died in a state
of jointness. This is *the title claimed
by her to the property and upon that
title her right to question the validity
of the transfer made by Defendant No. 1
in favour of the Defendant No. 2 rests. If
that title was not at all disputed nor was
there any reason for any apprehension
on the part of the plaintiff of the title
being seriously denied by the defendant,
then the mere asking for a declaration
by the Court to declare her title in order
to enable her to seek the principil and
the second relief would not make the
relief essential, and would not require
any additional Court-fee to be paid* In
that case relief No. 1 would have been
deemed simply a surplusage or as an
ornamental relief. This is the view
taken by me in the miscelleneous judi-
cial case referred to above. I do not
U) M. J. 0. 49 of 1921. "
think that the other reliefs in the pres-
ent case demand any serious considera-
tion for they do not seem to affect the
real character of the suit. The third
relief was only a contingent one depend-
ing upon the finding of the Court thai
the plaintiff was noc in possession of fche
property and in that event she offered
to pay Court-fee for getting the relief
for recovery of possession. That contin-
gency has not arisen and the Courts
below have held that the plaintiff has
been all along in possession of the pro-
perty. Therefore that relief has be-
come unnecessary and the occasion for
calling for additional Court-fee Jhas not
arisen.
The fourth relief obviously is im-
matetial relating to costs. Depending
upon the adjudication in her favour of
the othep reliefs, the fifth relief is what
is often said to be an omnibus relief
which does not in itself ask for a specific
relief so as to make the plaintiff liable
to pay Court-fee upon it. A number of
authorities have been cited to us at the
Bai, one of which is of our own Court
Mt. Noowooagor Ojain v. Shidhar Jha (2),
in which Roe, J., held that a suit for
avoidance of a registered deed of gift
was chargeable with ad valorem Court-
fee upon fche ground thafc the Court was
bound, upon deciding the suit in the
plaintiff's favour, to send a copy of the
decree to the office in whose book the
deed was registered. The report of the
case does not show the details of the
reliefs sought in the case. Thfe deci-
sion was entirely based upon certain
previous authorities cited therein. One
of these cases is Parvatibai v. Vishva-
natli Ganesh (3). In that case, however,
there was a specific relief sought for
sending a copy of the decision noted in
the b">ok containing a copy of the docu-
ment with a view to have the cancella-
tion of the deed noted in the register of
documents kept in the Sub-Registrar's
office. In this case there is no prayer
for sending a copy of the decision to . the
Sub-Registrar and we cannot import a
relief into the plaint in order to make
the relief consequential and thus to
charge Court- fee thereon. If the 06urt
is bound to send a copy of the decree to
the office of the Registrar it is no
business of the partyjjp ask for it, but
(2) [1918] 8 Pat. L. J. 194—45 I. 0. 233.
(8) [1905] 29 Bom. 207=6 Bom. L, R. 1125.
456 Patnm
KHIBI CHAND MAHTON v. MT. MEGHNJ
1926
it is the duty of the Court to send it of
its own accord.
The next case relied upon is Jhumak
Kamti v. Debu Lai Singh (4). In that
case it was held that a relief for a
declaration coupled with a relief for
confirmation of possession makes the
suit one for a declaration and conse-
quential relief. In that case also there
was a specific prayer made by the plain-
tiff for confirmation of possession. No
such prayer has been made in the pres-
ent case, and upon the principle already
stated we cannot add that prayer to the
reliefs sought by the plaintiff and make
the relief a consequential one.
The decision of this ' Court in Sheikh
Rafiq~uddin v. Haji Shaikh Asgar All
(5) (Das and Adami, JJ.) has been cited
to show that 'two declarations do not
necessarily make a suit for a declaration
and a consequential relief. Similarly,
the case of Mahabir Prasad v. Shy am
Bihari Singh (6), has been cifced to show
that a relief which is unnecessary and
follows as a matter of course from the
decision in favour of the plaintiff on the
other reliefs, is not a consequential re-
lief. In that case the principal relief
asked for 'a declaration chafe a certain
transfer made by a judgment-debtor
of the plaintiff was with a view to de-
feat the decree of the plaintiff and au
additional relief was asked that the
plaintiff be declared entitled to realize
the decree from the estate of the defen-
dant judgment-debtor. It was held
that thA last relief was a surplusage, for
the plaintiff would be entitled to exe-
cute the decree and attach the property
without any declaration by the Court
upon the decision obtained on other re-
liefs in his favour. In the case of Shaikh
Rafiq-ud-din v. Haji Shaikh Asgar All
(5), the two reliefs asked for, as a matter
of fact constituted ono relief, and the de-
claration of the first relief rendered un-
necessary the declaration with respect
to the second relief.
Upon the principles of the aforesaid
decisions the question is whether the
two principal reliefs claimed by the
plaintiffs in the present case are sepa-
rate* and necessary, or the decision
of one of them renders the decision of
the other relief unnecessary, or the other
(4) [1915] 22 C. L. J71l5^=16 I. cT^OB.
(5) [1921] 68 I. C. 88.
(C) A. I. K. 1925 Pat. i4=3 Pat. 795.
is obtainable without any further de-
claration by the Court and merely upon
the strength of the decision oi one of
the reliefs. The first relief in the pres-
ent case i elates to a declaration as to
the general title of the plaintiff to all the
properties inherited by her from her hus-
band. The second relief relates to the
particular deed of transfer executed by
Defendant No. 1 in favour of Defen-
dant No. 2 with respect to a parti-
cular property as part of the
estate inherited by her frcm her hus-
band. The second relief is admittedly
essential ; the first relief will be essen-
tial only when upon the plaint it would
appear that it is necessary for the plain-
tiff to have any doubt or cloud cast upon
the estate inherited by her removed.
The two astounding facts stated in the
plaint : the entry of the name of Defen-
dant No. 1 'in the record-of-rights and
in the kabuliyat in favour of the proprie-
tor, would go to show that the plaintiff
is apprehensive of the claim of Defen-
dant No. 1 not only to the property in
suit but to a moiety of the entire estate
in question and that the deed in ques-
tion was only a first move in the matter
with a view to have it established that
the husband of Defendant No. I died
while separate from that of Defendant
No. 2. The plaintiff, on the other hand,
claims the entire property on the ground
that the husband of Defendant No. 1
predeceased her husband and died
while joint with him, the whole estate
having passed by survivorship to the
husband of the plaintiff.
Therefore, in the present case we are
not prepared to hold that the two re-
liefs are co-extensive or that one of
them is surplusage. We are pre-
pared to give the plaintiff an op-,
tion to state which of the aforesaid re-
liefs she would wish to be deleted as
being superfluous and not required by
her. If she does not intimate her inten-
tion within three days it will be pre-
sumed that both the aforesaid reliefs
are essential, which will render plain-
tiff liable to pay ad valorem Court-fee on
her plaint as estimated by the Stamp- Re-
porter.
1926
PEBMANAXD KUMAR v. BHON LOHAR (Kulwant Sahay, J.) Pataa 457
A. I. R. 1926 Patna 457
AND KULWANT SAHAY, JJ.
Permanand Kumar and others — Plain-
tiffs — A ppellants.
v.
Bhou Lohar and others — Defendants —
Respondents.
Second Appeals Nos. 1302 to 1309 of
1925, Decided on 8bh July 1926r from a
decree of the Sub-J., Muzaffarpur, D/-
13th August 1925.
$ Civil P. C., S. 151 — Remand order is ap-
pealable only if it amounts to decree— Order rever-
sing trial Court's decree is not a decree unless
order Itself decides any point for determination
—Civil P. C., 0. 41, R. 23.
An order of remand under S. 151 is appealable
only when it amounts to a decree. Where the
order of remand merely sets aside the decree of
the trial Court and does not itself decide any
of the points raised for determination and doe<<
not determine the rights of the parties with
regard to any of the matters in controversy in
the suit, it cannot amount to a decree and must
be treated as an order ; and no appeal would lie
against it as a decree. The more fast that the
order reverses the decree of the trial Court and
deprives the plaintiffs of the valuable right they
had acquired thereunder would not make an
order of remand a " decree," unless that order
itself determines any of the points arising for
determination in regard to the .matters in con-
troversv in the suit : 44 Col. 929 (F. JJ.), 7>W-; 3
P. L. J. 09 and 58 I. C. 909, Bef. [P. 459, C. 2J
L. K. Jha — for Appellants.
Ray, T. N. Sahay and Aditya Naraiu
Lai — for Eespondents.
Kulwant Sahay, J. — These are ap-
peals by the plaintiffs filed ,against the
decision of the Subordinate Judge of
Muzatfarpur whereby he remanded the
suits to the trial Court for fresh trial
laying down certain issues for considera-
tion.
A preliminary objection is taken on
behalf of the respondents that no second
Appeal lies in these cases. The objection
is baaed on the ground that the remand
was made not under the provisions of
O. 41, E. 23 of the Civil P. C., against
which an appeal would lie under
O. 43, *B. 1, 01. (u), but that the
remand was under the inherent power
of the Court, and that, therefore, no
Appeal would lie to this Court as an
appeal from an order ; and that the
order making the remand was not a
** decree ' within the meaning of the Code
of Civil Procedure and, therefore, the
present appeals as appeals against the
appellate decrees of the Subordinate
Judge were not maintainable. On behalf
of the appellants it is contended that
the orders of the learned Subordinate
Judge were decrees and, therefore, second
appeal would lie to this Court as an
appeal against a decree. The question
for determination, therefore, is whether
there was smy decree made by the Court
of appeal below against which an appeal
would lie to this Court,
Learned vakil for the appellants relies
on four decisions, three of which are
decisions of this Court and one is a 'deci-
sion of the Calcutta High, Court. The
decisions of this Court relied upon are
Ram Chandra Rao v. Naraiyan Lai (l) ;
Achuta Singh v. Bit Narain Singh,
Second Appeal No. 1382 of 1922, which
has not been reported as yet ; and Raqhu-
nath Das v. Jhari Singh (2). The deci-
sion of the Calcutta High Court relied
upon is Bhairab Chandra Dutt v. Kali
Kumar Dutt (3). It is necessary to con-
sider these decisions in detail. The case
of Ram Chandra Rao v. Narain Lai (l)
was decided by Mr. Justice Jwala Prasad
sitting alone. It appears that this appeal
was originally filed as an appeal from an
order and it was directed against an
order of remand which did not come
under O. 41, B. 23. The Begistrar was
of opinion that the appeal, was incom-
petent and he referred the case to the
Bench- for orders. The matter came up
before the Hon'bio the Chief Justice
and Adami, J,, and their Lordships made
the following order on the 13th June
1919:
Tho learned vakil for the appellant consen-
ting, let this appeal be admitted as an appeal
from tho decree of the lower appellate Court
reversing tho decree ot the Muusif. Bond for
the record and issue the usual notices. Thirf
order is subject to a further report from the
Stamp Reporter aa to tho sufficiency of the
stamp on a memorandum of appeal on the above
basis. The memorandum must be amended
accordingly.
The appeal was accordingly admitted
as an appeal against the decree and it
ultimately came on for hearing before
Mr. Justice Jwala Prasad sitting alone,
when an objection was taken on behalf
of the respondents that the appeal did
not lie. Jwala Prasad, J., overrule^
this objection. His Lordship observe^
that the remand in that ca^e was no^
" (TTC1920j 58 : 1. C. 909.
(2) [1918] 3 Pat. L. J. 90=45 i. C. 100.
(«) A. 1. B. 1923 Cai. 006.
458 Palaa PERMANAND KUMAR v. BHON LOHAR (Kulwant Sahay, J.) IB2B
under 0. 41, B. 23 and, therefore, no
appeal lay un 0r 0. 43, B. 1, 01. (u),
hut an appeal lay against the deoree
made by the lower appellate Court set-
ting aside the deoree of the trial Court.
His Lordship relied upon a decision of
this Court in Brijmohan Pathak v.
Deobhajan Pathak (4), and upon the
order of the learned Chief iustioe and
Adami, J., dated the 13th June 1919
referred to above. His Lordship also
referred to the decision in Bhadai Sahu
v. Sheikh Manewar Ali (5). No reasons
are given by his Lordship for holding
that the order setting aside the decree
of the trial Court was itself a deoree.
In Brijmohan Pathak v. Deobhajan
Pathak (4) relied upon by the learned
Judge, it was merely held that a remand
which was not made under B. 23 of
O. ^i of the Civil P, C. was not appeal-
able. There was no decision in this
oase that the order could be appealed
against as a decree. In the order of the
learned Chief Justice and Adaini, J.,
dated the 13th June 1919, directing tho
appeal to be admitted as an appeal
against the deoree of the lower appellate
Court no reasons are given as to how
the order appealed against could bo
treated as a decree. In Bhadai Sahu v.
Sheikh Manoivar Ali (5) the question
as to whether an appeal could be filed
against an order of remand treating it
as a deoree was not raised or discussed.
The question raised there was whe-
ther the order appealed against came
under B. 23 or B. 25 of O. 41. Their Lord-
ships observed that there was no reason
why there could not be at one and the
same time an order both under B. 23
and under B. 25 of O. 41. In such a
case the orders, although made upon one
pieoe of paper, would in effect be quite
separate, and the party affected would
be competent fco pursue the remedy by
an appeal provided by the Code in res-
pect of each ; that, with regard to the
order under B. 23 he could appeal
against the deoree or against the remand
order itself under O. 43, B. 1, Cl. (u);
and, that the order under B. 25 cculd be
attacked in a second appeal against the
final decree in the suit. Now, when
their Lordships observed that with
regard to the order under B. 23 the
"(4) "[1919] 1 PatTir~Tr609==65 I. C748*i
(5) [1919] 4 Pat. L. J. 645=52 I. 0. 125~
(1920) P. H. 0. 0. 91.
party affected could appeal against the
deoree, I apprehend that what was
intended was 5h -t an appeal would lie
against the fini decree made in the case
and in that appeal the order of remand
under B. 23 could be challenged. It
was not laid down that the order of
remand itself under B. 23 could be
appealed against as an appeal against a.
decree. The language used by their
Lordships is :
With regard to the order under B. 23 it in-
open to him either to appeal against the whole
decree or to a,pp3al agiinst the order of remand
only under O. 43.
Their Lordships merely pointed out
that it was opon to the party to appeal
against that portion of the order which
was under B. 23 or he could wait and
appeal against the final decree and in
that appeal object to the order under
B. 23. I am, therefore, of opinion that
the oases relied upon by Jwala Prasad, J.
in Bam Chandra Rao v. Narain Lai (l)
do not support the contention that an
appeal would lie against the deoree of
the lower appellate Court remanding a
case to the trial Court, the remand being
under the inherent power of the Court
and not under O. 41, B. 23 of the Code..
The decision 'of Bucknill, J. in S. A-
No. 1382 of 1922 merely follows the
decision of Jwala Prasad, J., in the case
referred to, and to the order of the.
learned Chief Justice and Adami, J.
made on the 13th June 1919, referred to-
above. His Lordship gives no reason
whatsoever for holding that the order
appealed against could be treated as a.
deoree and an appeal could lie against it
as an appeal from decree. It is remark-
able that the judgment of Bucknill, J., in
8. A. No. 1382 of 1922 was .appealed
against in Letters Patent Appeal No. 76
of 1925 : but the question of maintaina-
bility of the second appeal as an appeal
against a decree was not raised or deci-
ded in the Letters Patent appeal.
In Raghunath Das v. Jhari Singh (2)
the appeal was originally filed as an
appeal from an order of remand under
0. 43, B. 1, clause (u). An objection was
taken by the respondent that the appeal
was really not an appeal from the order
of remand but from an appellate deoree.
The trial Court had dismissed the suit on
various grounds. On appeal by the
plaintiff the District Judgb had held thai
the plaintiff was entitled to the laud-
1926 FERMANAND KUMAR v. BHON LOHAS (Kulwant Sahay, J.) Patna 459-
whioh he claimed and that the suit was
within limitation and therefore, the
plaintiff was entitled to a deoree for
possession and the remand was made hy
the District Judge for determining the
question aa to whether the plaintiff was
entitled to mesne-profits and if so what ;
and whether the plaintiff had any cause
of action against Defendant No. 6. Tho
learned District Judge directed that after
determining these issues the lower Court
will pass a decree accordingly. It was
held by this Court that the District
Judge did really reverse the decree of tho
first Court on merits and that he should
have passed a decree for possession in
favour of the plaintiff and sent the case
to the Court below for inquiry as to
mesne profits. Their Lordships, there-
fore, treated the order of the District
Judge as a decree for possession and
held that the defendant's appeal against
the decision of the District Judge must
be considered as an appeal against an
appellate decree. The decision of this
Court in that case proceeded on the
assumption that the District Judge on
appeal had conclusively determined the
rights of the parties with regard to some
of tho matters in controversy in the
suit and that such a decision was a dec-
ree within the definition of the term as
given in the Code of Civil Procedure.
In this view of the case it was clear
that the decision of the District Judge
in that case could be treated as a decree
and appealed against as such. This case,
therefore does, nofc help the appellants in
the present appeals.
It now remains to consider the deci-
sion of the Calcutta High Court in Bhai-
rab Chandra DM v. Kali Kumar Dutt
(3). This decision no doubt is in favour
of the appellant in the present case.
There also tho appeal was against an
drder which did not purport to have
been made under 0. 41, K. 23 of the
Civil P. 0., but it had been made in the
exercise of the inherent power of the
Court as explained by the Full Bench in
Ghuznavi v. Allahabad Bank, Ld. (6).
The learned Judges, however, remarked
as follows : —
The order so made (i. e., in exereis* of the inhe-
rent power of the Court) is a decree which
reverses the decree of the Court of first instance
and deprives the plaintiffs of the valuable right
598=21 C. W. N. 877 (F. B.).
j. 49=4X J. 0
they had acquired thereunder. The appeal is con-
sequently competent not as an appeal from order
under 0. 43, R. 1, sub-rule (u),.but as an appeal
from a decree under 8. 96 ot tho Code read with
8. 100.
With very great respect to the learned'
Judges, I am unable to agree with the
view taken by them. I fail to under-
stand how an order of remand under the
inherent power of the Court can be treat-
ed as a decree unless the order can be
brought within the definition of "decree"
as given in the Code of Civil Procedure;
in other words, unless the Court of
appeal making the remand conclusively
determines the rights of the parties with
regard to all or any of the matters in
controversy in the suit so far as that
Court is concerned. Where the order oi
remand merely sets aside the decree ol
the trial Court and does not itself decide
any of the points raised for determina-
tion and does not determine the right ol
the parties with regard to any of the
matters in controversy in the suit, I ana
of opinion that it cannot amount to a
' decree" and must be treated as an order
and no appeal would lie against it as a
decree. The mere fact that the order
reverses the decree of the trial
Court and deprives tho plaintiffs
of the valuable right they had
acquired thereunder would not make an
order of remand a "decree," unless that
order itself determines any of the points
arising for determintion in regard to the
matters in controversy in the suit. Das
and Foster JJ., in admitting the present
appeals now before us under 0. 41, R. 11,
of the Civil P. 0. expressed grave doubt
whether an appeal would lie in the pre-
sent case. It was conceded before their
Lordships that no appeal lay against the
order as an order, but it was contended
that the order appealed against amounted
to a decree and that, as such it was ap-
pealable. Their Lordships observed: —
But a decree has been defined in the Civil
P. C. as the formal expression of an adjudication
which, so far aa regards the Court expressing it,
conclusively determines the rights of the parties
with regard to all or any of the matters in con-
troversy in the suit. In this case there is no
expression of an adjudication conclusively or
otherwise or at all determining the rights of the
parties. AH that tho Court says is that it is
unable to determine the rights of tba parties
unless certain other matters are decided by the
Court of first instance.
Their Lordships, however admitted
this appeal in view of the ruling of this
Court in Ram Chandra Rao.v. Narain
Lai (1) referred to above. I fully agree
460 Pallia
with the view expressed by Das and
Foster, JJ., in the above order. I, there-
fore, hold that no Second appeal lies „ in
this case.
It has then been contended by the
learned vakil for the appellants that
the present appeals might be treated as
applications in revision and that we
ought to set aside the order of remand
in exercise of our power of revision
under 8. 115 of the Code. In my opi-
nion there is no question of jurisdiction
involved in the case. It is contended
that having regard to the findings of the
trial Court.the Court of appeal below
had no jurisdiction, to make the remand
and its proper duty was to dispose of the
appeal itself. But it appears from the
order of remand that the learned Sub-
ordinate Judge thought it necessary that
certain issues framed by him should be
decided before the suit could be finally
disposed of. I am, therefore, of opinion
that thore is no reason to set aside the
order of the learned Subordinate Judge
in exercise of our revisional powers
These appeals must be dismissed with
costs.
Ad ami, J. — I agree.
Appeal* dismissed.
AZtR HUSSAIN V. AULAD HAIDER (DAS, J.)
1926
A. I, R. 1926 Patna 460
DAS AND ADAMI, JJ.
N'tzir Huss'tin and (inothei — Defen"
dants — Appellants.
v.
Aulai> Haider and others —Plaintiffs —
Respondents.
Appeal No. 0 of 1926, Decided on 8th
July 1926, from the appellate decree of
the Addl. Sub-J., Saran, D/- 20th Novem-
ber 1925.
Easement- -Right of way -Servient ownsr plead-
ing permissive uw must allege and prove It.
In order to establish a right of way it must bo
proved that the claimant has enjoyed it for the
full period of twenty years and that he htis done
so as of right ; but if it should be the case of the
opposite party that the enjoyment was by
violence or by stealth or by leave asked from
time to time, it is for him to allege and establish
that case But where no such case is made by
him the Court ought not to allow him to argue
Hiuh a case : 8 C. If. Ar. 859, Dl*$. from.
[P 460 C 2 P 461 C 1]
Khursaid Hussain and Syed Ali Khan
— for Appellants.
Hasan Jan — for Respondents.
Das, J. — In my opinion the decision
of the learned Judge in the Court below
ought to be upheld. The learned advocate
for the appellants has assailed the
judgment of the lower Appellate Court
on two grounds : first, on the ground that
it is not correct to say that an open user
without interruption for along time, and
not shown to be attributable to permis-
sion or sufferance on the owner's part,
is prima facie evidence of enjoyment as
of right ; and, secondly, on the ground
that the learned Judge in the Court
below should have dismiss ad the suit as
barred by limitation. o
In regard to the first p int it is to be
observed that the defendants did not set
up a case of permissive user. On the
other hand they denied the user upon
which the plaintiffs relied. On this
question the learned Judge in the
Court below has found in favour of the
.plaintiffs that they have as a matter of
fact used the lane for the statutory period.
The only question is whether that user
should be regarded as a right. In
Sheikh Khoda Buksh v. Shaikh Tajuddin
(1) Banerji, J., said as follows :
Then in the second place, having regard to the
habits of the people of this country, i do not
think that it would be right to draw the same
inference from mere user that would be proper
und ligitimate in ti case arising in England.
The question is always a question of fact and
the propriety of the rule that the presumption'
from user should be that it is as of right, must
depend upon the circumstances not only of each
particular case but also of each particular coun-
try, regard being had to the habits of the
people of that country.
I entirely agree with this view ; but
that learned and distinguished Judge pro-
ceded to say that although no case of
permissive user may bo set up by the
defendant, still it is for the plaintiff
to establish that the ^user has been of
right. The question is really one of fact;
and in my opinion it is nofc possible to
the extent to which Banerji, J,, did go in
that case. The rule is well establisbed
in England that a party enjoying an
easement acted under a claim of right
until the contrary is shown : see Gale
on Easements, 10th Ed., p. 227. Now
fche rule under what circumstances an
easement can be acquired is the same in
England as here. In order to establish;
a right of way in England it must be
proved that the claimant has enjoyed
it_fgr_th.e full period of twenty years anc
(1) [1903J 8 C. W, N. 359.
1926
KULDIP SARAH v. RAGHUNANDAN (Boss, J.)
Patna 461
that he has done BO as of right ; but if it
should be the case of the defendant
that thB enjoyment was by violence or by
stealth or by leave asked from time to
time, it is for the defendant to allege
that case and establish that case.
On what ground are we then to say
that the English rule does not apply to
this country ? I am quite aware that
circumstances are different in this
country and that in the villages there is
often express or tacit permission to use
the private lanes, but such a case must
be alleged by the defendant and when so
alleged the Court may consider the
jwhole matter with a strong leaning in
favour of fche defendant. But where no
such case is made* by the defendant, tho
Oourt, in my opinion, ought not to allow
him to argue such a case. In my opin-
ion, the point has been correctly decided
by the learned Judge in the Court
below.
The question of limitation must also
be decided against the defendants. The
plaintiffs gave evidence which was
accepted by the learned Judge in the
Court below that their house fell down
in 1923. The suit was filed in 1923.
I must dismiss this appeal with costs.
Adami, J. — I agree.
Appeal dismissed.
A. I. R. 1926 Patna 461
BOSS AND KULWANT SAHAY, JJ.
Kuldip Saran Singh — Plaintiff — Ap-
pellant.
v.
% Baghunandan Singh and others — De-
fendants— Respondents.
Appeals Nos. 267 to 271 of 1925, Deci-
ded on 16th June 1926, from the appel-
late decrees of the SulrJ-, Patna, D/-
31st January 1925.
Bengal Tenancy Act, Ss. 188 and 105— Appli-
cation under S. 105— -Sole plaintiff karta of the
family and the sole recorded proprietor — HI s sons
need not be joined as plaintiffs.
Where the sole plaintiff is not only the karta
but he is the sole recorded landlord of the touzi,
he can apply alone under S. 105 without joining
his sons as plaintiffs : 16 C. L. J. 4'27 and 25
C. W. N. 38, Dist ; A. I jR. 1924 Pat. 104, FoU.
[P. 461, C. 2, P. 462, G. 1]
B. C. Sink a— for Appellant.
Ross, J.— This is an appeal by the
plaintiff in a suit for enhancement of
rent. The Munsif decreed the suit for
enhancement at the rate of 5 annas 3 pies1
in tho rupee. Before the Subordinate
Judge in appeal that rate was questioned^
hut this point was decided in favour of
che p laintiff . The suit was, however,
dismissed on the ground that it was
brought by the plaintiff alone, although
admittedly he had an infant son, and
under S. 188 of the Bengal Tenancy Act
the suit had to be brought by all the
landlords and was, therefore, not main-
tainable by the plaintiff only.
The learned Subordinate Judge relied
on the decision in Satiprosad Garga v.
Eadhanath Matty (l) and in Raja Sati
prosad Garga Bahadur v, Sonaton Jhara
(2). ID both of these cases the same*
point was decided and on the same
grounds ; and in fact in the second the
first decision was quoted. Now all that
was decided in that case was that a suit
for assessment of rent for excess land in-
stituted by some of the members of a
joint Mitakshara family, cannot he con-
sidered as instituted by them as agents
for other members, authorized to act on
behalf of all the landlords within the
meaning of S. 188 of the Bengal Tenancy
Act. It was pointed out that the Legis-
lature has expressly provided for the
performance of such an act, not only by
the entire body of the joint landlords
but also by their representative. In that
suit it could not have been argued that
the plaintiffs were acting in a represen"
tative capacity because more than one
member of the joint family had brought
the suit without including the other
members. The present suit is entirely
different. The sole plaintiff is not only
the karta, but he is the sole recorded
landlord of this touzi. The principle
applicable in such a case has been laid
down by this Court in Hazari Lai Sahu
v. Amhica Gir (3) where at p, 534 it was
said in dealing with the question of
applicability of S. 188 in the circum-
stances of that case which dealt with an
application under S. 105 of the Bengal
Tenancy Act :
All the recorded proprietors of the tpuzi are,
named as applicants in the application and
in the absence of the name of Sukhram
Singh even if he be the managing member
will not make tho application illegal if the per
sons who are recorded as proprietors are all
(1) [m-ifiS c7iTjria7"^iriro7l97
(2) [1921 J 25 C. W. N. 38=61 I. C. 649*
(8) A, I. H. 1924 Patna. 104r=3 pat. 67
462 Patna
SONE KUAB v. BAIDYANATH
192€
joined in the application. I am, therefore, of
opinion that the learned Special Judge was
wrong in holding that the application uuder
3. 106 could not be maintained by reason of the
provisions of b. 188 of the Bengal Tenancy Act.
It is true that in that case the deci-
sions upon which the learned Subordinate
Judge relied were not cited, but the prin-
ciple is laid down and there is nothing
in these decisions to conflict with that
principle. In my opinion the suit was
properly constituted and fche plaintiff is
entitled to a decree for enhancement at
5 annas 3 pies in the rupee.
The appeal must, therefore, be decreed
and the decision of the Subordinate Judge
set aside and that of the Munsif restored.
As the respondents do not appear there
will be no coats in the appeal but the
plaintiff is entitled to the costs in the
lower appellate Court.
This judgment will govern Second Ap-
peah Nos. 268 to 271 also.
Kulwant Sahay, J. — I agree.
Appeal allowed.
A I. R. 1926 Patn* 462(1)
MACPHERSON, J.
ftambilakh Sinyh ancl another —Pefci -
tioners.
v.
Chairman of Dinajpure Nizamat Muni-
cipality— Opposite Party,
Civil Revision No. Ill of 1926, Deci-
ded on 3rd May 1926.
Bihar and Orissa Municipal Act, S. 877 (1) and
(2l-~ Scope.
Section 377 (1) and (2) do not cover cases of
contract: 65 I. C. 105, Bel. on. [P 402 C 2]
B> C. Sinha — for Petitioners.
Sashi Shekhar Prasad Singh — for Op-
posite Party.
Judgment. — This is an application
under S. 25 of the Small Cause Courts
Act.
The petitioners contend that the dis-
missal of their suit against the Dinapur
Nizamafe Municipality is not in accor-
dance with law.
The petitioners had a contract to re-
pair one of the municipal roads and sub-
mitted their bill for Rs. 181-1-0 which
was reduced by the Municipality which
considereJ that they were entitled only
to Rs. 110-4-0, and offered that sum.
Not balislied, the plaintiffs brought a
Small Cause Court 'suit on the 22nd
August 1925 for Rs. 209-8-0 including
Rs. 28-7-0 as interest.
The Judge held, first, that the peti-
tioners were not entitled to more than
Rs. 110-4-0, and secondly, that under
S. 377 (1) of the Bihar and Orissa Muni-
cipal Act the suit failed because they
had not given the requisite notice of one
month to the Municipality and that it
also failed under 8. 377 (t) because they
had not commenced their action within
three months next after the accrual of
the cause of action on the 24th Decem-
ber 1924.
On behalf of the petitioners the deci-
sion as to the amount dua is but feebly
assailed and in my opinion there is no
ground for interfering with the decision
of the Court below.
As to the second point, however, it is
difficult to seo how the decision can be
maintainod, The suit was in contract
and not in tort and it has been held that
S. 363 of the Bengal Municipal Act, 1884,
which does not differ from S. 377 of the
Bihar and Orissa Municipal Act, 1922,
does not cover cases of contract. I would
refer to the judgment of Richardson. J., in
Panclianan Chattarji v. Sontosh Kumar
Hose (l) in which the position was pre-
cisely the same as it is in the present
case. In my opinion S. 377 does not
apply in either sub.-S. (1) or sub-S. (2)
and the suit ought not to have baen dis-
missed in toto by reason of any of its
provisions.
There must, therefore, be a decree for
th9'pUinbitT* for Ri. UO-i-0 with future
interest at 6 per cent, per annum. But as
this amount wag offered to him prior to
the suit by the Municipality and he
refused to accept it, it is clear that he
ought to pay the costs of the defendant
opposite party throughout. Pleader's fee
in this Court one gold mohur.
Appeal dismissed.
(1) [lihJlJ 05 I/O. "105."
# A. I. R. 1926 Patna 462 (2)
DAWSON MILLER, C.J., AND FOSTER, J.
tione Kuar and others — -Appellants,
v.
Baidyanath Sahay— Eespondent.
Second Appeal No. 1330 of 1923, De-
cided on 17th May 1926.
# Civil P. C.,O. 26, R. IQ—Report of Com-
missioner Is not binding.
A Commissioner's report is only evidence /n a
case but it is in no way binding on the Court If
such report is not satisfactory, it is in Courts
1926
SONE KUAR v. BAIDYANATH (Dawson-Miller, C. J.)
Pafnm 46?
.discretion to order another Commissioner to be
appointed: 23 C. L. J. GOO, Dlst. [P. 463, 0 2]
K. P. fayaswal and B. C. Sinha — for
Appellants.
K. Husnain and R. T. N. Sahai — for
Respondent.
Dawson- Miller, C, J. — This case
.arises out of a boundary dispute between
the proprietors of neighbouring estates.
The plaintiffs succeeded as to part of
their claim in the trial Court and on
appeal to the District Judge the whole of
their claim was decreed.
Before the trial Court the defendant
applied for the appointment of a Com-
missioner to inspect the locality and pre-
pare a map and report the result of his
inspection. This he did, but the report
of his inspection although in some res-
pects in favour of the defendants was
adversely criticized by the learned
District Judge. The Record of Rights
was in favour of the plaintiffs, and tho
defendants placed no documents before
the Commissioner to rebut the presump-
tion arising from the record. They
relied merely on certain physic*! features
of the ground which they contended sup-
ported their case. The Commissioner
could not come to any definite findings
on such materials. He, however, pre-
pared two rough maps which supported
the defendants. At the same time
although he was asked to locate the plots
in dispute and to ascertain whether they
formed part of the plaintiffs' mouza
according to the survey map, he said he
could not do so on account of insufficient
materials.
The learned District Judge on appeal
described the report as perfunctory and
oame to the conclusion that it was based
on surmise and was not supported by the
evidence. He accepted the Record of
Rights and the Survey map which were
supported by the oral and documentary
evidence of the plaintiffs, and he gave
valid reasons for preferring the survey
authorities' map to those prepared by
the Commissioner.
Che defendants have appealed to this
Court and the only point urged in appeal
is that the Commissioner's report having
been found to be unsitisfacfcory, the Dis-
trict Judge should have appointed
another Commissioner to make a fresh
report. It does not appear that he was
asked to do so, nor is this in the present
instance, in my opinion, a good ground
of appeal. The Commissioner's report
was merely evidence in the case, Although
generally accepted, when the Com-
missioner performs his duties satisfactorily
it is not binding upon the Court. The
Court has full power to arrive at its own
conclusions even if they are at variance
with the report, and I am not prepared
to hold that the mere fact that the report
is based upon inconclusive material or
upon an inspection indifferently performed
imposes an imperative duty upon the
Court to order a fresh inspection. In such
cases tho Court must exercise its discre-
tion and may or may not require a fresh
inspection. If the Court considered the
evidence sufficient to en ible it to decide
the case, it has, in my opinion, full dis-
cretion in the matter, and unless a
higher tribunal finds that that discretion
was improperly exercised, its judgment
cannot be called in question merely be-
cause it refrained from ordering a fresh
inspection In the present instance, after
reading '-the careful judgment of the
learned District Judge, I consider that he
exercised his discretion wisely* He was
satisfied that the other evidence on the
record was to be preferred to the Com-
missioner's report based as it was on
unsubstantial foundations. There was
every reason to suppose that had the
report been based upon a more careful
inspection it would not have supported
the defendants' case.
Our attention has been drawn to the
case of Tirthibasi Singh Roy v. Bepin
Krishna Roy (l). In my opinion that
decision lays down no general principle
that in all cases where the Commis-
sioner's report is not accepted there must
be a second enquiry. Each case must be
considered upon its own particular facts
and I am certainly not prepared to say
that the mere fact that the learned Dis-
trict Judge has not accepted the
Commissioner's report, nor the fact that
the inspection has not been very satis-
factorily carried out is in itself, a ground
upon which the Court must be com-
pelled to order a fresh inspection.
In my opinion this appeal should be
dismissed with costs.
Foster, J. — I agree.
Ai} peal dismissed*
~[i9iG] w cr
606^34 i.
464 Pallia
DWARIKA SINGH v. KING-EMPEROR (Bucknill, J.)
192*
* A. I. R. 1926 Patna 464
BUCKNILL, J.
Dw&rika, Singh and others — Petitioners,
v.
King- Emperor — Opposite Party.
Criminal Bevision No. 28 of 192G, De-
cided on 6th May 1926.
# Criminal P. C.t 8. 526 — Crown case con-
ducted by Court Inspector — Complainant appoint-
ing a pleader, who Is a near relation of Magis-
trate, to watch tJie case Is no ground for transfer.
Where* a Crown caso is being conducted by the
Court Inspector, the mere fact that the complain-
ant has engaged, to watch the case, a pleader who
i« a near relation of the Magistrate trying the caao
is no ground for transfer of the case so long &H
the pleader is only watching the case : A. I. jR.
1925 Oudh 848, Irtss from.
Dhyan Chandra — for Petitioners.
Assistant Govt. Advocate—tor the Crown.
Judgment — This is an application in
criminal miscellaneous jurisdiction. The
application is made under the provisions
of 8. 526 Cr.P.C. and 3. 107, Govt. of India
Act, 1915 and asks that a criminal case
which is being tried before Mr. Syed
Ahmed Nawab, Magistrate First Class of
Gaya, should be transferred from that
Magistrate to another Magistrate of com-
petent jurisdiction. Apparently the ap-
plicants (10 in number) have been charged
with various offences punishable under
the provisions of Ss. 147 (rioting) 148
(rioting with deadly weapons) 323 (simple
hurt) and 324 (causing hurt with cutting
weapons) of the Indian Penal Code. It
is said that the complainant is the bar-
ahil of the 7 annas Tikari Raj. The case
ia a Grown case and the prosecution is
being conducted by the Court In-pector ;
but ic is alleged that the complainant
has engaged to watch the case Mr. Waris
Nawab, a Barrister who is the brother of
the Magistrate ; that the applicants say
that they are afraid that the presence of
Mr. Waris Nawab wathching the case in
the Court may influence in some way the
course of the proceedings. The District
Magistrate was applied for a transfer,
but he did not think that the circum-
stances were sufficient to justify -any
apprehension.
There are, of course, obvious disadvan-
tages in relatives of Judicial Officers
practising in front of them and had Mr.
Wans Nawab been prosecuting in the
case I should probably have felt inclined
to consider that a transfer was desirable.
The general view upon matters of this
kind, which of course are very often
largely matters of professional etiquette
and delicacy, has been mentioned in the
case of Nityaranjan Mandal v. Emperor
(1), where Newbould and Ghose, JJ., in the
Calcutta High Court stated that it was
undesirable that a member of the legal
profession should practise in a Court
presided over by a near relation. In
their Lordships' judgment their Lordships
observed :
The only serious ground on which this appli-
cation for transfer is based, is that the muktear
who is appearing for the complainant is, as if*
admitted by the learned Magistrate, a near rela-
tion of his. It ia undesirable that a member of
the legal profession should practise in a Court
presided over by a near relation. The complain-
ant in this case is a pleader and we are surprised
that a member of that branch of the profession
should have engaged a mukhtear whom he knew
to be related to the Magistrate who would try the
case. The mukhtcarnama was not filod until the
day on which the case was transferred to this
Honorary Magistrate.
In the case of In Be the Petition of
Basapa (2) a Bench of the Bombay High
Court held that where the trying^ Magis-
trate was the master of the complainant
his magisterial jurisdiction was not
affected thereby though it was probably
expedient that the complaint should be
dealt with by another Magistrate.
There is, however, a recent case from
Oudh (reported in Pear ay Lai v. Puttan
(3) where Pullan, A. J. C., held that the
mere fact that the Magistrate's son was a
pleader and was engaged in a criminal
case befoso that Magistrate, was no ground
for granting a transfer to another Magis-
trate. I do not think that I can subscribe
to the proposition laid down in this last
decision. I do feel that it is not very
seemly or suitable that a practising lawyer
should pursue his practice in the Court of
a near relative ; it gives rise to ideas in
the mind of the public which should not
have the opportunity of being thus en-
gendered. It might be a gesture well in
keeping with the traditions of our pro-
fesaion if Mr. Waris Nawab retired from
the case ; but as long as he confines his
attention to watching the case on behalf
of the complainant, I do not think that
I have the least ground for ordering or
that it would be right to order any
transfer. The matter might be different
if Mr. Waris Nawab took any active part
in the conduct of the prosecution. This-
application will therefore be rejected,
(2) Um] 9 Bora. 172.
(3) A.LB, 1925 Oudh 348.
1926
SHAIKH ABDUL GAFFAR v. DOWNING (Jwala Prasad, J.) Patna
A. I. R. 1926 Patna 465
JWALA PBASAD AND BUCKNILL, JJ.
•
Shaikh Abdul Gaffar and others—
Plaintiffs — Appellants.
F. B. Downing and others — Defendants
— Eespondents.
Appeal No. 135 of 1922, Decided on
18th December 1925, from the original
decree of the Sub-J,, Purnea, D/- 7th
February 1922.
(a) Landlord and Tenant— Relationship is not
established by marfatdart receipts.
Marfatdari receipts, i. e., receipts granted in
the name of payer on behalf of another, do not
constitute any relationship of landlord and
tenant between the payer and the payee, nor any
recognition of the payee's right as tenant.
[P 4G7, C. 2]
(6) Bengal Patnl Regulation (8 of 1819), S. 5
— Transfer of tenure — Fees not paid — Landlord
can ignore transfer and proceed against trans-
f error for rent — Sale for arrears of rent cannot
be challenged by unregistered transferee.
The transfer of a patni tenure is subject to the
payment of fees and security to the landlord as
required by S. 5, and until these conditions are
fulfilled, the landlord has a right to refuse to
register and otherwise to give efhct to such alien-
ations by discharging the party transferring his
interest from personal responsibility and by
accepting engagements of the transferee. Until
tha registration of transf error's name has taken
place, the transfer does not affect the zamindar's
right and it does not create any relationship of
landlord and tenant. In spite of the transfer
tne landlord may ignore the transferee and may
continue to hold the recorded tenant responsible
for the rents and other obligations imposed upon
the tenure ; and if the tonuro in sold by the
landlord for the arrears of rent due therefor in
a proceeding against the recorded tenant, the
purchaser acquires the tenure free from any ia-
cumbrance created upon it by act of tho default-
ing proprietor, his representatives or assignees,
the zamindar having an indefeasible right to
hold tho tenure answerable for the rent which is
his reserved property in the , tenure. Tho whole
tenure at such a sale passes, and not only the
right, title and interest of tha recorded tenant,
so that the interest of an unrecorded transferee
ceasas and he has no right to impugn the sale
upon the ground that he was not made a party
to the proceedings taken by the landlord in
selling up the tenure for the realization of his
rent. [P. 468, C. 2]
(tf Bengal Patni Regulation (8 of 1819), 5s. 5
and 6 — Unregistered assignee of lease can have
sale set aside on tfie ground of fraud but not on
ground that lie was not party to rent realisation
proceedings.
An unregistered assignee, though he cannot
claim to ba a tenant of the landlord and to
lelease his assignor, yet has an interest indepen-
dently of the regulation and can impugn a sale
held under the Patni Regulations as being no
1926 P/ 59 & 60
sale at all and as being v void against everybody
else. Ha can have the sale set aside on the
ground of its being illegal or irregular, or tainted
with fraud. And if he succeeds in getting the
sale set aside on the above grounds, he will be
restored to the position which he had before the
sale. But he has no right to have the sale set
aside upon the ground that he was not a party to
the proceedings taken by the landlord to realize
his rent by sale of the holding : 26 Col. 677 ;
17 Cal. 162 ; 32 Cal 1031 ; 20 W. R. 380 ; 20 Col.
247 ; 19 Cal 703 ; 3 C. W. N. 38 ; 29 C. L. J.
481 ; A. I. R. 1923 Cal. 627 and 9 C. W. N.
224, Eel. on. [P. 469, 0. 1]
(d) Bengal Patnl Regulation, S. 11— Land-
lord can realise rent after one year under ordi-
nary law, 4. e., Bengal Tenancy Act.
Even if a landlord allows his rent to fall into
arrear for a period exceeding one year, he is not
debarred from realizing it under ordinary law.
The Patni Regulation gives to the zandudar the
right to realiza the rent by a summary procedure
and that summary procedure is restricted only
to pariodical rents. But the zamindar is not
bound to realize his rent every six months, He
can wait for a longer period, and if he does wait
for a longer period he can proceed under the
general law for the realization of his rent,
[P. 471, C. 1, 2]
(e) Bengal Tenancy Act, S. 195 (e,v — Tenancy
Act applies where Patni law is silent — Bengdl
Patni Regulation, S. 11.
Section 195 (e) of the Bengal Tenancy Act
says that the Bongal Tenancy Act would not
apply to enactments relating to patni tenures in
so far as it relates to those tenures. Where the
patni law is silent, the provisions of the general
rent law would apply. The Patni Regulation
does not take away tho right of the /amindar to
proceed in the ordinary way under the general
law to recover arrears of rent ; it only gives him
an additional right to recover rent by a summary
process of sale which is restricted to the recovery
of rent for only one year : 22 C. W. N. 181 and
19 Cal. 504, Foil, [P. 471, 0. 2J
(/) Bihar and Orlssa Public Demand Recovery
Act (B and 0. 4 of 1914), S. 46— Recorded patni-
dar holding benaml for another or transferring
by private arrangement — Beneficiary or trans-
feree cannot sus to set aside rent decree on
grounds other than fraud.
Where tho recorded patnidar is a benami-
dar for another, or where tho recorded
patnidar has transferred his interest to another
by private arrangement, that other in a represen-
tative of the recorded to lant and is bound by a
rent decree obtained under the Act against tho
recorded tenant and by the sale held there-
under. His suit therefore for setting aside the
sale on grounds other than that of fraud is
barred by S, 46. p 472,0. 1 ]
Khursaid Husnain and S. M. Naimat-
ullah—foY Appellants.
Sultan Ahmed and Simbhu Saran —
for Respondents.
Jwal* Prasad, J.— The plaintiff^
who are the appellants before us, claim
totocover possession of an eight annas
share of a Patni Taluq Mahals Khora-
466 Patn* SHAIKH ABDUL GAFPAR v. DOWNING (Jwala Prasad, J.)
1926
gach, Bormasea, Dipnagar, Kantari and
Sedabad in Fergana Fatehpur-Sedia,
District Purnea, upon a declaration of
their title thereto and upon a declaration
that the sale of the putni on 4th Novem-
ber 1920, in execution of a certificate debt
for arrears of rent under Bihar and Orissa
Public Demands Recovery Act (IV of
1914), is fraudulent, illegal, null and void
and not binding upon them.
The 16 annas disputed putni taluq
was originally owned by the Defendants
Nos. 2 and 3, Janardan Prasad Thakur
and Tirpurari Prasad Thakur, who, for
convenience' sake, will hereafter be refer-
red to as the Thakur defendants.
Previous to the present sale in question,
the putni was sold in execution of a
•certificate debt for arrears of rent and
was purchased by Defendant No. 4, Haji
Shaikh Majidur Rahman. By a compro-
mise, the auction-purchaser, Defendant
No. 4, retained the eight annas share and
the other eight annas share went to the
Thakur defendants. Thus Defendants
Nos. 2 — 4 became owners of the putni
taluq in 1909 and their names were
recorded in the register of the zamindar,
Defendant No. 1.
Defendant No. 5 is the purchaser of
the putni taluq at the auction-sale now
sought to be set aside.
Defendant No. 4 is a step-brother of
the plaintiffs and in 1907 was appointed
guardian, under the Guardians and Wards
Act (VIII of 1890), by the District Judge
of Purnea, of the two plaintiffs and his
other brothers, Abdul Wahab, Abdul
Halim, Abdul Samacl, Abdul Sattar and
Muhammad Siddique* who were all
minors at that time. Plaintiff Mo. 1,
Abdul Gaffar, and his two brothers,
Abdul Sattar and Abdul Siddique, attain-
ed majority in the year 1916 and the
guardianship of Haji Shaikh Majidur
Rahman ceased. By a compromise peti-
tition, Ex. 3, filed before the District
Judge on the 26th February 1915, Haji
Shaikh Majidur Rahman's guardianship
was withdrawn from the person and
properties of the remaining brothers also,
namely, Abdul Jabbar, Abdul Halim,
Abdul Wahab and Abdul Sana ad and in
his place their mother Mt. Nasiban was
appointed guardian : vide Ex. 5, extract
from order sheet in Miscellaneous Case
No. 21 of 1907.
The plaintiff's case is that Defendant
No. 4 purchased the putni taluq at the
first certificate sale in the year 1909 for
himself as well as for the plaintiffs and
his other minor brothers ; and that after
the eight annas of the putni was returned
to the Thakur defendants, the plaintiffs
and their other brothers remained in
joint possession of the remaining eight
annas share in the taluq through Defen-
dant No. 4, Haji Shaikh Majidur Rahman,
who alone was the recorded tenant in
respect of their moiety share. They
further say that by a private family
arrangement, their step- brother Defen-
dant No. 4, ceased to have any share in
the putni taluq and the whole moiety
share in the putni was allotted to the
plaintiffs and their full brothers, Abdul
Wahab, Abdul Samad and others. The
plaintiffs say that they and their brothers
and not Defendant No. 4 have been in
exclusive possession of the said eight
annas share in the said putni taluq and
have been paying rent in respect thereof.
Consequently the plaintiffs say that the
certificate should have been issued in
their names and notice thereof should
have been served upon them and not
upon Shaikh Majidur Eihman, who had
ceased to have any concern with the
putni taluq, and they impugn the certi-
ficate proceedings and the sale held in
execution thereof as having been brought
on account of fraud and collusion of
Defendants Nos. 2 — 5, who are inimically
disposed towards them in order to
deprive the plaintiffs of their share in
the putmi. They also say that on account
of collusion, the processes were not served
in accordance with law and the service
returns were fraudulently obtained in
collusion with the Court peon, and the
plaintiffs were kept out of knowledge
thereof with the result that the property
in dispute was sold for a very inadequate
value.
Defendant 1st party, No. 1, Manager,
Court of Wards, filed one written state-
ment and Defendant No. 5, of the third
party, filed another written statement.
They deny that there was any fraud or-
collusion in the preparation or issue of the
certificate, the service of processes or in
the sale in execution of that certificate.
They also deny that the plaintiffs have
any interest in the putni or that they
ever paid any rent in respect of it or
that there was any private partition
between the plaintiffs and their oo-
sharers. They deny any knowledge of
1926
SHAIKH ABDUL GAFFAR v. DOWNING (Jwala Prasad, J.) Patna 467
the plaintiffs' possession as pufcnidars or
that; there was any collusion between
tlipm and the other defendants in bring-
ing the property to sale. They assert
that the property was sold at an adequate
price and that the notice and other pro-
cesses were duly served in accordance
with law and that the plaintiffs nob
having been recorded in the office of the
zamindar as holders of the putni had no
right to the certificate being issued in
their names or any process being served
upon them and that they have no status
to bring the suit.
The Subordinate Judge dismissed the
plaintiffs' suit holding that the certificate
was properly drawn up and issued and
that the processes, including the sale pro-
clamation, were duly served and were not
fraudulently suppressed as alleged by the
plaintiffs inasmuch as their servant,
Yusuf, bade at the sale up to Rs. 6,000
and that the price fetched at the sale,
Rs. 7,000 was not, in any way, inade-
quate. Inasmuch as the plaintiffs did
not get their names recorded, the learned
Subordinate Judge held that they were
not entitled to be made party to the certi-
ficate proceeding or any notice served
upon them even if they had any interest
in the tenure and the purchaser at the
auction-sale acquired good title.
The principal contention in this appeal
of the learned advocate on behalf of the
appellants is that the plaintiffs' title
to an eight annas share in the putni
taluk has been conclusively established
and that their title and interest therein
is not affected by the sale of the putni
inasmuch as they were not parties to the
certificate proceedings. The plaintiffs
base their title upon the auction-pur-
chase of the putni in 1909 in the name
of their step-brother, Defendant No. 4, in
execution of a certificate sale for arrears
of rent. They say that Defendant No. 4
at that time was guardian appointed by
the District Judge, under the Guardians
and Wards Act (VIII of 1890) of the
person and property of the plaintiffs and
their other minor brothers, and that sub-
sequently, on the 25th February 1915, by
a private partition, the eight* annas share
in the putni taluq was allotted to the
share of the plaintiffs and their other
brothers. For this they rely upon an
inventory or takhtabandi filed with the
petititfon, Ex. 3, dated the 25th February
1915, in Misc. Oase No. 21 of 1907. In
that inventory this property has been
described as having been allotted to fche
plaintiffs and their other brothers. De-
fendant No. 4 was a party to the petition
and signed it. In paragraph 3 of the
petition, referring to the takhtabandi, it
is stated as follows :
The parties shall execute within three months
•A taksitnuama or partition deed of the properties
in accordance with the terms of the parties.
Abdul Gaffar, Plaintiff No. 1, in his
evidence admits that a deed of partition
was drawn up but was not registered. As
to actual possession over the property he
says that he has never had the occasion
to go to the Mahals and his servants
looked after it, and names one Narayan
Chaudhry as his tahsildar. He also says
that the papers showing collections are
kept, but neither any collection papers
have baen filed nor has any tahsildar
been examined.
The plaintiffs then rely upon the peti-
tion, dated the 13th January 1920, Ex. 2,
filed by Defendant No. 4 in the certificate
proceedings stating that the plaintiffs,
along with their brothers and their
mother are in possession of the property
and that it belongs to them and that he
himself had no concern with it. This
petition of 'disclaimer by Defendant
No. 4 cannot confer any right upon the
plaintiffs. They must prove their title
and possession by better evidence. The
Plaintiff No. 1 became major in the year
1915 and both tho plaintiffs wore released
from the guardianship of their step-
brother, Defendant No. 4. If they had
been in possession of the property they
would have been in a position to give
better evidence. The only evidqnce is
the oral statement of the Plaintiff No. 1
and in my opinion this is not sufficient ti
establish the plaintiffs' possession ovei
the property in dispute. No doubt the
rent receipts and chalans, Exs. A and 1
to l(e), show that rents used to be paic
by the plaintiffs : but in all these re
ceipts they have been mentioned a;
rnarfatdars meaning that the rents were
paid through them. The payment!
were made by them not as tenants of the
holding but on behalf of the recordec
tenant, Majidur Rahman, whose name ii
mentioned in the receipts as tenants
Such marfafedari receipts have been helc
as not constituting any relationshij
between the payer and the payee, nor an^
recognition of the payee's right as tenant
468 Patnm SHAIKH ABDUL GAFPAR v. DOWNING (Jwala Prasad, J.)
1926
These receipts therefore cannot prove
any tenancy right of the plaintiffs nor
any recognition of such a right by the
zemindar. D. W. No. 5, Aggar Ali, the
Head Clerk of the Court of Wards says
that the plaintiff never asked him to
substitute his name. Plaintiff No. 1 him-
self admits that ha did not file any appli-
cation for mutation of his name and that
he was aware that a fee of Rs. 5 on the
jama is paid to 'the zamindar for effect-
ing mutation. He was certainly conver-
sant wittj the rules and practice on the
subject as is stated by D.W. No. 1 Gowhar
Ali, the certificate clerk, that the Plain-
tiff No. 1, Abdul Gaff a*', often used to
come to the Collectorato. Therefore the
plaintiffs for some reason or other know-
ingly and deliberately did not get their
names registered in respect of the share
they claim in the putni. The plaintiffs
are not clear about the extent of the
interest they had in the putni. Plaintiff
No. 1 SAys that the other two brothers
are also interested in it and that the
plaintiff's share is only four anna*. The
petition, Ex. 2, also shows that not only
t,he plaintiffs but their brothers and
stepmother were all interested in the
putni.
The plaintiffs have failed to prove
satisfactorily the interest claimed by
them in the tenure in question and their
possession thereof. Even 'if they ac-
quired any interest by the auction
purchase of Defendant No. 4 in 1909 and
subsequently by allotment in the parti-
tion of family properties, they did not
get their names recorded in the zemin-
dar's sarishta and allowed Defendant
No. 4 to continue as recorded holder of
the tenure along with the Thakur defen-
dants Nos. 2 and 3. Gin they contend
that their interest is not affected by the
sale of the tenure for arrears of rent held
in „ certificate proceedings under the
Bihar and Orissa Public Demands Re-
covery Act (IV of 4914) against the
tenants whose names were recorded in
the zemindar's sarishta ?
The tenure in question is admittedly a
patni tenure and designated as "patni
mahals" in paragraph 1 of the plaint.
It i-s unquestionably governed! by the
Patni Eegulation VIII of 1819 Brinda-
ban Chunder Sircar Chowdhry v. Brinda
ban Chunder Dey Ghoudhry (l). This is
(1) [1673] 1 I A. 178=13 B. L. B, 403=21
\V. R, 324-8 Bar, 365 (P. C.).
not disputed by the learned advocate on
behalf of the appellants.
By S. 3 of the Regulation the" tenure
is "capable of being transferred by sale,
gift or otherwise at the discretion of
the holder as well as answerable for his
personal debts and subject to the process
of the Court of Judicature in the same
manner as other real property." The
transfer, however, is subject to the
payment of fees and security to the
landlord as required by S. 5 and until
those conditions are fulfilled, the land-
lord has a right to refuse to register and
otherwise to give effect to such aliena-
tions by discharging the party transfer-
ring his interest from personal responsr
bility and by accepting engagements of
the transferee" : vide S. 5. The trans-
feree can seek his remedy in the civil
Court to compel the zemindar to give
effect to the transfer if the security
tendered is not accepted by the landlord :
vide S. 6. But until the registration of
his name has taken place, the transfer
does not affect the zemindar's right and
it does not create any relationship of
landlord and tenant. 'In spite of
the transfer the landlord may
ignore the transferee and may con-
tinue to hold the recorded tenant
responsible for the rents and other
obligations imposed upon the tenure :
and if the tenure is sold by the landlord
for the arrears of rent due, therefor, in a
proceeding against the recorded tenant,
the 'purchaser acquires the tenure free
from any incumbrance created upon it
by act of the defaulting proprietor, his
representatives or assignees, the zemin-
dar an indefeasible right to hold the
tenure answerable for the rent which is
his reserved property in the tenure. The
whole tenure at such a sale passes, and
not only the right, title and interest of
the recorded tenant, so that the interest!
of an unrecorded transferee ceases and
he has no right to impugn the sale upon
the ground that he was not made a party
to the proceedings taken by the landlord
in selling up the tenure for the realiza-
tion of his rent.
The obligations of having his name
recorded in the landlord's sarishta are
the same in the case of a purchaser in
execution of a decree other than a decree
for arrears of rent due from the tenxire.
In the latter case the purchrser is , not
required to pay any fee, though be is
1926
SHAIKH ABDUL GAFFAR v. DOWNING (Jwala Prasad,
Patna 469
liable to be called -onto give security
under the conditions of the tenure
purchased : vide the last portion of S. 5.
The zemindar can refuse to accept a
tender or any amount of rent from un-
registered transferee of a patni and he is
not bound to recognize deposits of rent
made by such a transferee in his own
name ; vide fche case of Saibesh Chandra
Sarkar v. Kumar Bonoiuari (2).
The above is the effect of the various
provisions in the Regulation and it
was put in a nutshell by Sir Comer
Petheram, C, J,, in the case of Joykrishna
Mukhopadhya v. Sarfannessa (3). His
Lordship observed as follows :
the effect of the provision of- those section8
(S. 5 and 6) amounts to this, that upon an aliena"
tion or transfer by the putnidar the zemindar
may exact a fee, which represents his profits
being the portion of his interest in 'the property
whenever a transfer of the tenure is made, the
amount of which is regulated by the Regulation
itself and farther than that, until that fee has
been paid, the zemindar shall not bo bound to
register the transfer and further than that, until
transfer has been registered, he shall not be
bound to recognize the transfer in any way, that
is to say, until his demand has been satisfied and
registration has -been effected, the old tenant
remains his tenant, and the relation of landlord
and tenant has not been created between him
and the assignee of the putnidar, whatever the
arrangement may be between the putnidar and
his assignee.
No doubt, as held in that case, an
Unregistered assignee, though he cannot
claim to be a tenant of the landlord and
so release his assignor, yet has an inte-
rest independently of the Regulation and
can impugn a sale held under the Patni
Regulations as being no sale at all and
as being void against everybody else.
He can have the sale set aside on the
ground of its being illegal or irregular,
or tainted with fraud. And if he
succeeds in getting the sale set aside on
the above grounds, he will be restored to
the position which he had before
the sale. But he has no right to have the
sale set aside upon the ground that he
was not a party to the proceedings taken
by the landlord to realise his rent by
by sale of the holding. This view is
supported by a string of cases quoted at
the Bar, which for the sake of reference
are given hereunder : Uitayi Behari
Saha Paramanick v. Hari Oovinda Saha
U) ; Gyanada Kantho Roy Bahadur v.
S
w
2) [1909] 10 0. L, J. 453-4 L (X 371.
' i) [1888] 15 Cal. 845.
4) [1899] 26 Cal, 677,
Bromomoyi Dassi (5) ; Surendra Naiain
Singh v. Gopi Sundari Dai (6) ; Lackhi
Narain v. Khettro Pal (7) ; Surendranath
Pal Choudhry v. 'Tinchoivri Dasi (8) ;
Rajnarain Mitra v. Ananta Lai Mondul
(9) ; Rajah Sir Soimndra Mohan Tagore
v. Moharani Surnomoyee (10) ; Golam
Sattar v, Maharaja Sir Prodyat Kumar
Tagore Bahadur (11) ; Behari Lai Biswas
v. Nasimannessa Bibi (12) and Sourendra
Narayan Singh v. Gopi Sundari Dasi
(13).
The learned advocate on behalf of
the appellants has equally cited a
number of authorities, namely, Kali
Kumar Ghose v. Bidhu Bhusan Banarji
(14) ; Ishan Chandra Sarkar v, Beni
Madhab Sarkar (15) ; Baja Jagadish
Chandra Deo v. Dhabel Deb (16) ; Pro-
bhash Chandra Ch attar ji v. Jaharmud-din
Mondal (17), Kali Kumar Ghose v. Bidhu
Bhushan Banerji (14), and Gobinda
Sunder Sinha Chowdhury v. Srikrishna
Chakravarty (18).
On the strength of these authorities
it ie contended that a transferee of a
tenure is not bound by the sale in exe-
cution of a decree to which he was not
a party. The authorities relied upon
are either cases where tha sale was
brought about on account of fraud and
collusion with a view Co deprive the
purchaser of his right, or are cases under
the Bengal Tenancy Act the provisions
whereof relating to the sale or transfer
of a permanent tenure and recognition
thereof by the landlord are different
from those contained in the Patni
Regulations. On the other hand, where
a transferee, without any sufficient cause
omits to get his name registered, he is
bound by the sale held in execution of
a decree against the recorded tenant
even in a case governed by the
Bengal Tenancy Act. For instance,
(5) [1890] if Oaf. 162.
(6) [1905] 32 Cal. 1031=9 C. W. N. 824.
(7) 20 W, E. 380=13 B. L. E. 146=24 W. E.
407 Note=3 Sar. 273 (P. C.).
(8) [1893] 20 Cal. 247.
(9) [1892] 19 Cal. 703.
(10) [1898] 26 Cal. 103=3 0. W, N. 38.
(11) [1919] 29 C. L. J. 481=61 1. C. 933, .
(12) A. I. E. 1923 Cal. 627.
(13) [1905] 32 Cal. 174=9 C. W. N. 224.
(14) [1911] 16 C, L. J. 89=10 I. C. 382.
(15) [1897] 24 Cal. 62=1 C. W. N. 36 (F. B.).
(16) [1918] 44 I. C. 26.
(17) [1920] 32 C, L. J. 77=59 I. C. 49.
(18) [1909] 10 C. L. J. 588=3 I. C. 346=6 H.
L. T. 255,
470 Patna SHAIKH ABDUL GAFPAR v. DOWNING (Jwala Prasad, J.) 192ft
vide Sham Chand v. Brojonath (19);
Profulla Kumar Sen v. Nawab Sir
Slimulla Bali adur ( 20) ; Raj a Jagadish
Chandra Deo v. Dhabel Deb (16) ; Pro\
hash Chandra Chattarji v. Jahar-ud-din
Mandal (17) and Maharaja Sir Rame-
fihar Sinyh Bahadur v. Rajo Ghoudhrain
(21). In the present case the title set
up by the plaintiff is further affected by
the fact that they claim to have ob-
tained only eight annas share in the
patni taluq in question. S. 6 says that
the rules of that section and of S. 5 do
not apply to transfers of any fractional
share of a patni taluq nor to any aliena-
tions other than transfers of the entire
interest unless made under the zamin-
dar's special sanction. The plaintiffs
say that by a private partition in the
year 1915, Shaikh Majidur Rahman
transferred his interest in favour of the
plaintiffs. But he had only a fractional
share in the taluq and the transfer was
not valid so far as the landlord was
concerned without his special sanction.
No sanction of the landlord is pleaded
in this case. Therefore, ho is not botnd
to recognize the transfer or to register
it. Even the receipt of money or rent
from the transferee of a portion of a
patni taluq will not have the effect of
recognition of the transfer or splitting
up of the tenure. Therefore, the plain-
tiffs have no right to question the vali-
dity of the sale or to urge that their
intfcrept in the tenure, if any, is not
affejofeed by the sale in execution of. the
certificate obtained by the zemindar for
realization of his rent.
The learned Subordinate Judge has
held that the plaintiffs failed to estab-
lish any fraud either in the preparation
or issue of the certificate or the process
required by law. There is absolutely no
evidence on the record of any enmity
between the plaintiffs and any of the
defendants. Tbe finding of the learned
Subordinate Judge as to fraud has ,not
been seriously challenged in the present
case. It is not disputed that the rents
for whioh certificate was issued were
due, A certificate, No. 318 of 1919-20
(Ex. J), was prepared and filed on the
27th November 1918 in the office, of the
Certificate Officer under the Bihar and
Public Demands Eecovery Act
(19) 21 W. B. 94=12 B. L. B.
(201 [1920] 28 0. W. N. 590=62 I. C. 304.
(21) A. 1 B. 1926 Patna 210.
(IV of 1914). The notice of the certi-
ficate (Ex. C) was served upon the certr
ficate-judgment-debtors, Defendants Nos.
2 to 4 under S. 7 of the Act and a notice
through post (Ex. D) was served upon
and acknowledged by Defendant No. 4,
Shaikh Majidur Kahman. On the 13th
January 1920, Shaikh Majidur Kahman,
one of the certificate-debtors, filed a
petition (Ex. 2) stating that he had no
connexion ur concern with the patni
taluq nor was it in his possession and
that the patni taluq belonged to and was-
in possession of Abdul Gaffar, Abdul
Jabbar, Abdul Wahab, Abdul Sammad
and Mt. Nasiban and the Thakur defen-
dants. In that petition he prayed that
the certificate may be issued in the
names of the above persons and that the
certificate issued upon him may be
cancelled, or that the said mahal be
attached and put to sale. The Manager
Court of Wards, filed a petition consent-
ing to the mahal being sold and did not
insist upon proceeding against the person
or other property of the judgment-debt-
ors. rf:he certificate officer ordered the
sale of the mahal and directed a sale
proclamation to issue : (vide order sheet
Ex. 1). After some adjournments, at
the instance of the Thakur defendants
who made part payments from time to
time as noted in the order sheet, ulti-
mately 4th November 1920 was fixed for*
the sale and a sale proclamation was
directed to be issued afresh for the
balance of the amount due. The sale
proclamation was duly served (vide
Exs. B to B-4), and on the date fixed
the sale was held and the property
was knocked down in favour of the
highest bidder, Sheobhanjan Lai, Defen-
dant No. 5, for Rs. 7,000 (vide bid sheefc
Ex. E). No objection was made
within the time allowed by law and the
sale was confirmed on the 4th January
1921. The purchaser obtained a sale
certificate (Ex. L ) on the 22nd Janu-
ary 1921 and delivery of possession
of the property on the 21st February '
1921 (Ex. K). The processes have
been conclusively proved to have been
duly served and effected. The Plaintiff
No. 1 says that Yusuf is his law-agent
and the witnesses on behalf of the defen-
dant say that Yusuf was taking keen,
interest in the sale and the plaintiff/
used to go to Court in connexion with
the sale. Therefore, the sale far from
1926
SHAIKH ABDUL GAFFAR v. DOWNING (Jwala Prasad, J.) Patma 471
being fraudulent was held with the
knowledge of the plaintiffs and they
tried th'eir best to purchase the pro-
perty. The reason is not far to seek.
They wanted to acquire the entire
16 annas interest in the property,but they
failed, ^hey did not appear in the certi-
ficate proceedings nor did they pay the
rent due from the tenure, but soon after
the sale on the 3rd January lodged their
plaint.
It has been strenuously contended on
behalf of the plaintiffs that the petition
of Defendant No. 4, dated the 22nd
January 1921, was not legally disposed
of. In the petition the Defendant No. 4,
the certificate-debtor, stated that he had
no concern with the property and that
the certificate be issued in the names of
the persons who possessed the property
and that the certificate issued in his
name be cancelled. Pie further said that
the mahal might be attached and put to
sale. The Manager, Court of Wards,
also consented to the mahal being sold.
The certificate under S. 12 of the Bihar
and Orissa Public Demands Eecovery
Act (Act IV of 1914) could be executed
against both the person and property of
the judgment-debtors. The objection of
Defendant No. 4 was allowed in so far as
exemption of his personal liability was
asked for and the Court directed the
property to be sold. Thus the petition
was validly disposed of.
The learned advocate has also conten-
ded that the certificate covered rents for
the period exceeding one year. Conse-
quently the certificate demand cannot
create a charge upon the property. It
is difficult to appreciate this contention.
His contention, if I have understood it
aright, is that the rent due to the zamin-
dar is the first charge upon the property
under S. 11 of the regulation only when
the periodical steps for realization of
rent under the regulation are taken by
the landlord. He says that the landlord
has a right to realize his rent by the
summary procedure prescribed in the
regulation every six months and there-
fora if he allows his rent to fall into
arrear for a period exceeding one year,
he loses the benefit of S. 11 which makes
the rent the first charge on the property.
Thus, upon this contention, it is urged
that the right, title and interest only of
the certificate-debtors passed by the sale
held in execution of the certificate under
the Public Demands Eecovery Apt and
hence the plaintiffs' right in the property
is not affected. There does not seem to
be any force in this contention, The
Patni Regulation gives to the zemindar
the right to realize the rent by a summary
procedure and that summary procedure
is restricted only to periodical rents.
But the zemindar is not bound to realize
his rent every six months. He can wait
for a longer period, and if he does wait
for a longer period he can proceed under
the general law for the realization of his
rent. S. 195 (e) of the Bengal Tenancy
Act says that the Bengal Tenancy Act
would not apply to enactments relating
to Patni tenure in so far as it relates to
those tenures. Where the Patni law
is silent, the provisions of the General
Bent Law would apply. This has been
settled ay authorities. The Patni law
is silent as to the realization of rent
beyond one year and, therefore, the.zamin-
dar is entitled to bring his suit under the
ordinary rent law.
It is noticeable that the decree for the?
rent due from the Patni taluq in the case
of Brindaban Ch under Sircar Choivdhry
v. Brindaban Chunder Dey Chowdhrif
(21), was obtained under the Bent Law
(VIII of 1859^ and the sale in execution
of that decree took place under that law
and not under the Patni Regulations. It
was held there that the provisions of the
Patni Regulations did apply 'and that
the effect of the sale was to destroy all
encumbrances including the darpatni
created by the patnidar. In the case of
Kumar Satya Sankar Ghosal Bahadur v.
Mon Mohan Guha Roy (22), Chatterji, J.»
held that the Patni Regulation does not
take away the right of the zemindar to
proceed in the ordinary way under the-
general law to recover arrears of rent ; it
only gives him an additional right to
recover rent by a summary process of
sale which is restricted to the recovery
of rent for only one year. Similar was
the view taken in an earlier case of
Durga Prosad Bondopadhya v, Brindaban
Boy (23). Therefore this contention i&
overruled.
It would seem further that the plain-
tiffs' suit is barred by the provisions of
S. 46 of the Public Demands Recovery
Act. The plaintiffs based their title
upon^ the^jpurchase of the tenure in 1909
~(22) [1918] 22 C. W. N. 131-43 I, 0. 990.
(23) [1892] 19 Gal, 504,
472 Patna
DlNDAYAL V. INDRASAN EAI
1926
at a sale held in execution of a rent
decree by their step brother Defendant
No. 4 who subsequently gave away eight
annas share of it to the old holders
thereof, Defendants Nos. 2 to 4, and
retained the eight annas in his own name.
Defendant No. 4 acquired the property
for himself as well as for the plaintiffs.
Therefore Defendant No. 4 was a benarni-
dar of the tenure to the extent of the
interest of the plaintiffs therein. In
1915 the plaintiffs say that Defendant
"No. 4 abandoned his interest and gave
the entire eight annas share to the plain-
tiffs; in other words, by a private
arrangement or exchange in the partition
of family properties, the plaintiffs
acquired the interest of Defendant No. 4.
They were thus the representatives of
Defendant No. 4 and as such their suit
is barred under S. 46 unless upon the
ground of fraud which is not established
in the present case ; and as represen-
tatives they are bound by the 'decree
made against Defendant No. 4 : vide the
case of Ishan Chandra Sarkar v. Beni
Madhab Sarkar (15). The case in
Kali Sundari Debi v. Dharani Kanta
Lahiri (24) is exactly on all fours with
'the present case. In that case the
purchaser had a money decree, hut he
did not get his name registered in the
landlord's serishta and he was held to be
a representative of the judgment-debtors
within the meaning of S. 244 of the Code
of Civil Procedure and was held to be
bound by the subsequent decree for
^arrears of rent against the registered
patnidar and the sale held in execution
of such a decree. Again, in the aforesaid
Privy Council case of Drindaban Chunder
JSircar Chowdhry v. Brindaban Chunder
Dey Chowdhry (21), at one stage of the
litigation it was held by the Principal
Sadr Ameen that the zamindars were
-entitled to sue the patnidar whose name
was registered ignoring the right of a
person claiming to have beneficial right
in the property and the patnidar being
only a benamidar. The sale in that
case took place in execution of the
•decree against the recorded tenant and
such a sale was held to be valid and
proper under the regulations irrespective
of whether the recorded patnidar was
the benamidar or not. The point, how-
ever, did not directly arise in that case,
but^there is no doubt that the plaintiffs
" (24) [1906] 83 Cal. 279=10 G. W, N, 272.
are bound by the sale in execution of the
decree against Defendant No. 4 w.ho was
the recorded tenant, and who represented
them so far as the zemindar is concerned
even if he was a benamidar for them.
Therefore whether Defendant No. 4 is a
benamidar of the plaintiffs or he trans'
ferred his interest to them by means of
private arrangement the plaintiffs are
bound by the sale and their interest, if
any, passed by it. In this case the sale
having been held properly under the
Public Demands Recovery Act, the
tenure passed to the purchaser and not
the right, title or interest of the judg-
ment debtors (vide 01. 3 of S. 26 of the
Act). Thus, even if the plaintiffs had
any interest in the estate it passed by
the sale held under the Public Demands
Recovery Act.
The result is that the appeal is dis-
missed with costs to the defendants who
have entered appearance in this Court
and contested the appeal. The defen-
dants who did neb appear in this Court
will not get any costs.
The cross-objection has not been
pressed at the time of the arguments and
is, therefore, dismissed.
Appeal dismissed.
# A. 1, R. 1926 Patna 472
BUCKNILL, J.
Diudayal Rai — Plaintiff — Petitioner,
v.
Indrasan Eai and others — Defendants
— Opposite Party.
Civil Revision No. 44 of 1926, Decided
on 23rd March 1926, from an order of the
Sub-J., Arrah, D/- 21st November 1925.'
# Civil P. C., 0. 23, fl. 1— Permission to
withdraw given, on condition of p&ylng defen-
dant's costs, not mentioning that suit will stand .
dismissed If costs not paid, within prescribed
time — Fresh suit is not barred for non-payment
of costs — Remedy is, not to proceed with the fresh
suit till costs are paid,
Where a plaintiff is allowed to withdraw a suit
with liberty to bring a fresh suit on his deposit-
ing the costs of the defendant within a specified
time, but where the order contains no direction
to the effect that on failure to pay within that
time the suit will stand dismissed, the non-pay-
ment of such costs within the time specified
does not bar the fresh suit until the costs are
1926
DlNDATAL V. INDRASAN BAI (Buoknill, J.)
Patna 473
paid and when they are paid to proceed with the
Jtrial of the fresh suit : 64 J. C, 738, Foil.
[P. 473, C, 2]
Siveshwar Dayal — for Petitioner.
L. N. Singh and S. P. Asthana — for
Opposite Party.
Judgment. — This was an application
in civil revisional jurisdiction. It is a
very simple matter and arises in the fol-
lowing way: The applicant here desired
to bring a suit in forma pauperis and ap-
plied to the First Subordinate Judge of
Arrah, claiming a declaration of his title
to and recovery of possession of certain
property and other reliefs. The plain-
tiff's allegation that he was a pauper ap-
pears to have been substantiated. The
suit was admitted and it seems to have
progressed to some extent ; but after the
action had proceeded for some
months, the plaintiff, (that is the appli-
cant here) found it necessary to apply to
amend his claim in respect of the des-
cription of the property to which he
claimed possession. The Subordinate
Judge, however, thought that the amend-
ment which the plaintiff asked for was
of such a far-reaching character as to
alter materially the form and nature of
his claim ; and, in consequence, on the
16th of August 1924, he passed an order
refusing to allow the plaintiff to make
the amendment which he asked to make
but allowing the plaintiff to withdraw
from the suit with permission for fresh
suit
But the Subordinate Judge adds
Plaintiff must pay defendants' costs incurred
up to date as a condition precedent for institu-
ting a fresh suit.
Now on the 24th of October 1925, the
plaintiff made a fresh application to the
First Subordinate Judge of Arrah asking
that he might be allowed to bring his
fresh suit again in forma pauperis. It
was undeniable that the plaintiff was
a pauper, but the defendants' pleader,
when the matter came up before
the Subordinate Judge on the 24th
October last, drew the attention of the
Court to the fact that the plaintiff had
not yet paid the costs which he had been
ordered to pay to the defendants in the
previous suit which he had been allow-
ed to 'withdraw. The learned Subordi-
nate Judge, remarking that it had been
directed that the payment of these costs
was imposed upon the plaintiff as a con-
dition precedent to his liberty to com-
mence a fresh suit, thought that the
fresh suit could not be entertained at all
until these coats were paid.
It is true that the pleader for the
plaintiff asked for some time so that he
could find money to pay these costs ; but
the Subordinate Judge, for no particular
reason, at least for no good reason,
stated that no tinio would be allowed.
In consequence, the Subordinate Judge
refused to entertain the -application of.
the plaintiff at all and dismissed the ap-
plication made by the plaintiff to be re-
garded as a pauper and consequently his
application to bring this second suit
stood also dismissed.
Now, I think it is quite clear that this
order was one which could not and
should not have been made. The case of
Kuldip Singh v. Kuldip Choudhiiry (l)
decided by Chamier, C., J. and Shar-
fuddin, J., and the case of Deb Kumar
Roy Ghoudhury v. Deb Nath Barna Bipra,
(2) show quite clearly that the order
which the Subordinate Judge made on
the 21th October last was one which
cannot be supported. In the last of the
two cases quoted, it was held that where
a plaintiff is allowed to withdraw a suit
with liberty to biing a frosh suit on his
depositing the costs of the defendant
within a specified time, but where the
order contains no direction to the effect
that on failure to pay within that time
the suit will stand dismissed, the non-
payment of such costs within the time
specified does not bar the fresh suit. The
only course io be adopted by the Court
in such a case is to stay the hearing of
the fresh suit until the costs are paid and
and when they are paid to proceed with
the trial of the fresh suit. It will be seen
that that case which I have just quoted
is an even stronger case than the one
which is the subject-matter of the pre-
sent application now before me. The
question as to the applicant being a
pauper or not is, for the moment, quite
beside the mark. Now, it is clear, there"
fore, that what the Subordinate Judge
should have done was to have considered
the question as to whether the plaintiff
was or was not a pauper ; and, if, as
undoubtedly, it would appear would' have
been the oase, he had come to the con*
elusion that the plaintiff was a pauper,
(1) [I918J3 PaV7L.' j".~03=4i I. C^y^TPat,
L. W. 134.
(2) [1921] 64 L C. 738,
474 Pallia
ACHUTA RAM v. JAINANDAN (Buckaill, J.)
192ft
then he should have admitted his suit
hut stayed its progress until the costs,
which had been ordered to be paid in the
previous suit by the plaintiff to the de-
fendants, had, in fact, been so paid. But,
instead of this, he refused to take any
steps to inquire whether the plaintiff
was a pauper and in consequence he re-
jected the application for the institution
of the fresh suit as a corollary.
Now, by the 21st of November, that is
to say, less than a month after the order
made by the Subordinate Judge on the
cJ4th of October laso, the plaintiff had, in
fact, deposited the costs of which he had
been mulcted in the first suit brought
by him ; and on that date he made an ap-
plication to the Court for permission to
sue afresh. But tho Subordinate Judge
thinking that he was bound by his for-
mer decision of the 24th October came to
the conclusion that ho must reject both
the application to sue in forma pauperis
and the application to bring a fresh suit.
I suppose he thought that in view of his
earlier order he was debarred from re-
opening the matter. This may or may
not be so, but 1 have no hesitation in
coming to the conclusion that as the
order cf tho 21st of November 1925 was
rightly or wrongly based upon the order
of the 21th of October 1925, which was
patently a bad order, tho latter order as
well as the penultimate order must both
be set aside. Tho order of the 21st
November 1925 cf the Subordinate Judge
as well as the or, lor of tho Subordinate
Judge of the 24th October 1925 will,
therefore, both be set aside, The Sub-
ordinate Judge must now hear the appli-
cation made on the 21st November 1925
de novo ; he must first consider whether
the plaintiff is a pauper and if he decides
that he has made out satisfactorily that
he is a pauper he should, subject to any
other provisions of the law relative there-
to, permit the plaintiff to commence and
continue his fresh suit.
As I have said before, the costs which
the plaintiff was ordered to pay when he
was allowed to withdraw his previous
suit as a condition precedent to his being
allowed to bring a fresh suit have now
been paid or deposited and there should,
therefore, be no further obstacle in the
way of his prosecuting his claim.
Application allowed.
# A. I. R. 1926 Patn* 474
BlJCKNILL AND FOSTER, JJ.
Achuta Ram and others — Plaintiffs —
Appellants.
v.
Jainandan Tcwary and others — Defen-
dants— Bespondents.
Appeal No. 668 of 1923, Decided on
19th April 1926, from tho appellate
decree of the Dist. J., Shahabad, D/- 7th
March 1923.
# Mortgagor — Mortgagor selling equity of
redemption — Purchaser promising to pay the-
mortgage money—Mortgagee not a party to the
agreement — Purchaser Is not personally liable
to mortgagee for mortgage money— Contract.
Where the mortgagor sells his equity of
redemption/ and the purchaser agrees to pay off
the mortgage money to the mortgagee, the mort-
gagee being no pirty to the agreement, cannot
enforce the agreement 'against the purchaser and
got a personal decree for the mortgage money :
31 All. 03 (P.O.) and A. I. R. 1923 P. C. /U, Foil.
[P. 477, 0. 1]
L. N. Sinha, R. B. Saran and N. C.
Sinna — for Appellants.
P. Dayal and Jai Gobind Prasad~-tor
Bespondents,
Bucknill, J. — This was a second ap-
peal from a decision of the District Judge
of Shahabad, dated the 7th March 1923
modifying a judgment of the Subordinate
Judgo of the same place, dated the 18th
February 1922. The facfc3 in this case
were somewhat complicated ; but it i8<
unnecessary to refer to them in any great
detail as there has been argued before us
but one point at the hearing of this
appeal. It is sufficient to state that the
plaintiffs (who ard here the appellants)'
were the mortgagees of certain property
from Defendants Nos. 1 and 4. Theso
mortgages were effected by five deeds,
in addition to these five mortgages there
were also three other mortgages of which
the plaintiffs were not the direct mort-
gagees but assignees from those who were
the original mortgagees. It is only with
the five transactions in which the plain-
tiffs were the direct mortgagees that we
are in this appeal at all concerned. The
plaintiffs brought their suit to enforce
the mortgages and in addition to joining
the mortgagors they also joined certain
persons, who were Defendants Nos. 8 to
13 who had bought from the mortgagors
the equities of redemption of the proper-
ties hypothecated by virtue of thefive
mortgage-deeds referred to above. Ink bo
ACHQTA BAM v. JAINANDAN (Bucknill, J.)
1926
trial Court the plaintiffs succeeded in
obtaining a personal decree not only
against the mortgagors, but also against
the purchasers of the equities of redemp-
tion. Bat on appeal the learned District
Judge came to the conclusion that the
decree, so far as it related to relief
against these purchasers of the equities
of redemption, could not be in law up-
held. He, therefore, set aside that por-
tion of the judgment of the Subordinate
Judge and it is from that patt of the
decision of the District Judge that this
appeal has now been brought before us.
The simple point, therefore, for con-
sideration is whether the plaintiffs could
obtain a money-decree against the pur-
chasers of the equities of redemption.
It must first be pointed out that in the
instruments under which the purchasers
of the equities of redemption so pur-
chased, they (the purchasers), stipulate
that they would pay off the debts due
under the mortgages. It is common
ground that they did not do so. It is
also common ground that the plaintiffs
had no notice of what had taken place
between the mortgagors and the pur-
chasers of the equities of redemption and
were not privy to the contract. It is
important^ to observe that some support
was lent to the argument which was put
forward before us by the learned advo-
cate who has appeared for the plaintiffs
by the rulings in the caseof Dwarka Nath
Ash v. Priya Nath Malki (1). In that
case the facts were certainly very similar
to those which obtain in this appeal now
before us. The defendants had borrowed
a sum of money from the plaintiff for
which they had given a promissory note ,
they subsequently transferred their pro-
perty to another party who executed an
agreement in their favour expressly
undertaking to pay to the lender of the
money under the promissory note his
dues thereunder. The lender of the
money under the promissory note was no
party to this contract and had no notice
thereof ; but, having ascertained the
circumstances, he proceeded to sue the
borrowers as well as the individual who
had purchased the borrowers' property.
He claimed that, in view of the agree-
ment entered into between the borrowers'
property, he (the lender) was entitled to
take advantage of that agreement.
Patna
Mookerjee and Cuining, JJ., of the
Calcutta High Court held that the plain-
tiff was entitled to enforce his claim
against the purchaser of the borrowers'
property.
Had the matter rested there, one might
have thought that this case would con-
stitute an authority in favour of the pro-
position argued in the present instance*
There are also other cases which have
been quoted by the learned advocate for
the appellant which certainly at first
sight appear to support to some extent
the learned advocate's argument. In the
case of Khwaja Muhammad Khan v.
Husaini Began* (2) their Lordships of the
Privy Council held that under certain
circumstances (to which I shall refer
presently) it was possible for a person
who was no party to an agreement to
take advantage of the provisions of such
an agreement which were in fact benefi-
cial to herself. Their Lordships' decision
(which was given by the Right Hon'ble
Mr. Aineer Ah) relates the facts at some
length. Put very shortly, they were as
follows A minor Muhammadan lady,
prior to and in consideration of her
marriage with the son of the defendant
in the suit, was promised by the defen-
dant under an agreement executed bet-
ween the defendant and the lady's father
to be paid by the defendant the sum of
Bs. 500 per mensem from the date of her
reception in marriage , the defendant
also charged certain specified properties
for the purpose of producing the requisite
funds. The lady, as I have stated, was a
minor ; but, eventually, after the mar-
riage, lived with her husband for some-
time , owing, however, to disagreement
she, at the end of some 12 or 13 years,
ceased so to do. The defendant then
refused to continue to pay the allowance
and the lady accordingly brought the
suit against him basing her claim upon
the document of agreement which had
been entered into between the defendant
and her (the plaintiff's) father. It was
maintained on behalf of the defence on
the line of reasoning adopted in the well-
known English case Tweddle v. Atkinson
(3), that as the plaintiff was in no way
an actual party to the agreement, made*
(1) [1916J Sitt 0, W, N, i!79=3
• C. L J, 488,
(2) C1910] 32 AH. 410^7 I C. 237— 37 I. A.
152 (P. 0.).
(3) [1861] 1 B. A S. 303=30 L. J. Q. B. 265=4
J, C, 792-27 L. T, 463-8 Jur. (N. 8.) 832=9 W. K,
78X.
476 Patna
ACHCTA RAM v. JAINANDAN (Bucknill, J.)
1926
between her father and the defendant,
she had no locus stand i and was unable
to sue thereunder. Mr. Ameer Ali, how-
ever, pointed out that the case of Tweddle
v. Atkinson (3), was one decided under
the Common Law of England and was
not in their Lordships* opinion appli-
cable to the facts which were disclosed
in the case before their Lordships. Their
Lordships were of opinion that although
no party to the agreement (and it must
be remembered that the lady was then a
minor and the document was executed
by her father) she was clearly in equity
entitled to enforce her claim against the
defendant. The case, however, appears
to me to be distinguishable from the
present case in view of the fact that the
benefit which was to accrue to the plain-
tiff was one for which the consideration
was the marriage to take place between
herself and the defendant's son. Then
there is another case which was cited on
behalf of the plaintiffs : Deb Narain Dutt
v. Chuni Lai Ghose (4). In that case
Jenkins, C. J., and Mookerjee, J., held
that where the transferee of a debtor's
liability acknowledged in the provisions
of the registered instrument which con-
veyed to him all the original debtor's
properties, his obligation to the creditor
for the debt to be paid by him, and where
the acknowledgment was communicated
to the creditor and accepted by him, the
creditor could sue the transferee on the
registered instrument. Hero again their
Lordships based their decision upon the
equitable principle which had operated
^ pon the minds of their Lordships of the
Privy Council in the case which I have
just quoted. Hero in this case of Deb
Narayan Dutt v. Chuni Lai Ghose (4) it
may indeed bo said that the facts dis-
closed that the creditor was actually
privy to and concerned in the transaction
which took place between the transferee
and the debtor. In fact in the judgment
of Jenkins, C. J., it is expressly stated
that there was an arrangement between
the plaintiff and Defendant No. 5 by
which the liability of Defendant No. 5
under the transfer was acknowledged and
accepted, and it may also be observed that
(although under the mistaken idea of
their true legal effect) certain title-deeds
were actually handed over at that time
by the purchaser to the plaintiff,, Al;
(4) [1918] 41 CalT 137^18 C. W. N, 1143^20
I. C. 630^=18 C. L, J. 603.
though, therefore, the last two cases
quoted seem to be based upon consider-
ations somewhat different from those
which have to be regarded in the present
appeal, there is no doubt, as I have said
before, that the case reported as Dwarka
Nath Ash v. Priya Nath Malki (l) does
constitute some authority to support the
argument which has been addressed to us
by the learned advocate who has ap-
peared for the appellants. There are,
however, on the other hand two cases
which appear to be conclusive authority
upon the point which has been argued in
this appeal. The first of these is Jamna
Das v. Earn Autar Pande (5). It is a
decision of their Lordships of the Privy
Council, and although the facts are not
set out at any great length in the report
they can be found fully reported as
Jamna Das v. Ram Autar Pande (6). It
will be seen, from a perusal of the facts
as given in that report, that the circum-
stances were almost the same as those
which obtain in the present appeal. The
judgment of their Lordships of the Privy
Council delivered by Lord Macnaghten
is very short and very much in point
here. His Lordship observes :
This is a perfectly plain case. The action is
brought by a mortgagee to enforce^ against a
purchaser of the mortgaged property an under-
taking that he entered into with his vendor,
I may pause here to observe that the
undertaking referred to was to the effect
that the purchaser would pay off the
debt due to the mortgagee by the person
from whom the purchaser had purchased
the property. His Lordship continues :
The mortgagee has no right to avail himself
of that. He was no party to the sale. The
purchase: entered into no contract with him,
and the purchaser is not personally bound to
pay his mortgage debt.
There is still a later case in which the
same proposition has been similarly set
forth in another decision of their Lord-
ships of the Privy Council. In that case,
Nanku Prasad Singh v. Eamta Prasad
Singh (7) the facts again are in that
report, but very shortly set out. We have
had the advantage, however, of seeing
what the facts were from the record of
this Court, the case having been tried on
appeal on the 7th June 1918 before Boe
and Coutts, JJ. The facts were substan-
tially identical with those which exist
(6)~ri912] 3± All. 63=13 ifc. 3^39 I. A. 7.
(6) [1909] 81 All. 352=2 L 0. 460=0 A. L. J.
427.
(7) A. I, B. 1923 P. C. 54,
1936
ACHUTA BAM v. JAINANDAN (Foster, J.)
Patna 477
in the present appeal. A mortgagor
having executed a mortgage in favour of
the plaintiff sold the property to a third
party who, in the reoitals of his sale-
deed, agreed to pay off the mortgage with
a portion of the purchase-money which
was for that purpose left in his hands.
The mortgagee sued upon his mortgage,
not only the mortgagor but also the pur-
chaser ; but this Court refused to grant
any personal decree against the pur-
chaser, holding that he (the mortgagee)
could not avail himself of the stipulation
made in the contract between the pur-
chaser and the mortgagor. Their Lord-
ships of the Privy Council upheld the
decision of this Court, Lord Atkinson, in
a very short judgment stating :
Their Lordships have considered this case, .and
they think it is clear that no parsonal liability
was incurred by tho purchasers of the equity
of redemption. Their Lordships, therefore, think
that the decree of tho High Court was righfc and
that the point made by the appellant fails.
It may be observed that in the judg-
ment given by this Court on the 7th
June 1918, the cases to « which I have
referred above were mentioned and
quoted.
It seems, therefore, that wo are clearly
bound by the authority of these two
decisions of the Privy Council which are
so directly in point.
The appea.1, therefore, must be dis-
missed with costs. I should mention that
there was a cross-objecbion which, how-
ever, is not pressed and has not been
argued and that cross-objection also must
be dismissed with costs.
It is said by the learned advocate who
has appeared for the appellants (and it
may be mentioned that the question is
referred to in ground No. 7 of the appel-
lants' grounds of appeal to this Court)
that there has bean some arithmetical
or other mistake with regard to the
amount of costs which have been awarded
to 'the Defendants Nos, 8 to 13. It was
suggested that, as this question had been
made a ground of appeal it might ba
dealt with in this Court. We have,
however, no materials whatever before
us which would enable us to disouss or
consider this point. If there has been
any mistake in regard to the quantum of
costs, that matter should be referred to
and dealt with by the lower appellate
Court.
Foster, J. — I agree. The difference
between the case quotoi in Deb Narain
Dutt v. Chum Lai GJwse (4) and the last
cases quoted by my learned brother from
34 All. 63 and 3 Pat. D. T. 637 appears
to me to be very important in connexion
with the facts of the present case.
It is to be borne in mind that in the
present case there was no notice to the
plaintiff at the time of the contract. In
the judgment of 41 Calcutta^ we see that
the promisee, that is to say, the plaintiff,
had a proposal made to him by the pro-
misor, that is to say, Defendant No. 5,
and he accepted it. So in that case the
promisee was in the position indicated
in S. 2 of the Indian Contrast Act. He
held the benefit of a contract for con-
sideration. In the present case the
plaintiff, who claims to-be the promisee,
has never had a proposal made to him by
the defendants against whom he is seek-
ing a monay-decrae a id he certainly
never accepted any such proposal. There-
fore, S. 2 does not bring him into the
position of a person who can sue a pro-
misor upon a contract or for consider-
ation. That is tho distinction between
the two classes of cases, and I think the
present casa falls within the class indi-
cated in the Privy Council cases which
have been quoted. There may ba a third
class of cases in the judgments which wo
have been studying, namely, the class in
which minors or other third parties suo
under family or marriage settlements.
In such Ch,:: - ~s those, the plaintiff can
hardly bo regarded as a promisee who
has accepted any proposal or promise,
and such cases are probably decided on
the traditional principles governing tho
English Courts of Equity rather than by
any application of the terms of S. 2 of
tho Indian Contract Act. If I am ' correct,
this third class would, I think, ba
exemplified by the caso of Khivaja
Muhammid Khun v. Husaini Begum (2).
Appeal dismissed.
78 Patna
MAHARAJ BAHADUR SINGH v. FORBES (Das, J.)
1926
* A. I. R. 1926 Patna 478
DAS AND FOSTER, JJ,
Makaraj Bahadur Singh and another —
Decree-holder — Appellants,
v,
A. PL Z*Y>? to— -Judgment-debtor— lies-
pondent.
Appeal No. 167 of 1924. Decided on
29th March 1920, from the original order
of the Disfc. J., Purnea, D/- 16th April
1924.
%< (a) Civil P. C1., >S. 11— Execution putchawt ,
whether the decree be a money decree ot mottga^e
decree, tepresents judgment-debtor for purposes of
the section-— Evidence Act, H, 113.
An execution purchaser is the representative of
the judgment-debtor so as to bring him within
the rule of estoppel and the principle of res
judicata : A. I. R. 1022 Patna 03 Poll. There is
no difference m principle betwpen a purchaser in
execution of a money decree and a purchaser m
execution of a mortgage decree . 10 C L. J. 150,
Bel on. [P 479, 0. a]
(6) Mortgage— Mortgagee purchasing mortgaged
property at execution sale can we mortgage as
Meld against subsequent tncwnbt ance-t s
A mortgagee, when he purchases the mortgaged
properties at a sale held in execution of a decree
obt»mod by him, is at liberty to hold the mort-
gage aa a shield against any attack that might
ba made acamst him bv subsequent encum-
brancers. The purchaser of mortgaged propertv
acquires the equity of redemption of the mort-
gagor as at the time of the mortgage together
with a lien of the mortgagee which ho may use if
uecoesarv for hi<? protection. fP, 480, C. 1]
$ (c) Cti-tl P. C., S. ll— Co-defendant*— Con-
flict of Interest bet neen co-defendants and neces-
sity to adjudicate on that dispute to *qive rehef to
plaintiff are nece^arif to male the decision /es
judltatabetuecn them.
The general rule is that there is no estoppel
bj ros indicate between co-defendant, but theie
are exceptions to this rule. Where an adjudica-
tion between the defendants; is necessary to give
appropriate relief to the plaintiffs, there must be
such an adjudication, and in suoh a c.ise the ad-
judication will be res judicata between the defen-
dants ns well as the plaintiffs and defendants. 1 1
Bom. iHC, Foil. To produce the bar of res judi-
cata between two defendants there must bo a
conflict of interest between those defendants and
a judgment defining the actual rights and obliga-
tions of those defendants inter se.
[P, 480, C. 2, P. 481, C. 1J
P. K. Sen, C. C, Das, C. S. Banerji and
G. N. MuJceiji— -for Appellants.
AU Imam arid Lai Mohan
for Respondents,
Dai, J.— The facts 'are stated with
clearness and precision in 'the judgment
of the learned 'District Judge and it is
not neoessary to recapitulate them. The
following facts are, however, material to
understand the position :
One Dhanpat, who 'is respresentad iu
these proceedings by the appellants,
obtained a decree for vent against his
patnidar Ghatarapat Singh so far back as
the 10th July 1896 for the period prior
to the sale of the interest of Dhanpat' to
one Mt. Bhagwanbatia Ghaudhurain.
The proceedings which have given rise
to this appeal were taken by the decree-
holdeis, the appellants, to execute the
decree against Mr. Forbes, the respondent.
Mr. Forbes was the darputnidar under
Ghatvaput Singh and ib appears that
Chatrapat Singh having again defaulted,
the new landlord Mt. Bhagwanbafcia
Ghaudhurain took proceedings against
him under the Pufcni Regulation and put
up the putni taluq to sale. Mr. Forbes
deposited the rent m order to protect his
darputni interest and was put in posses-
sion of the taluq on the 29bh May 1900,
as a mortgagee under the provisions of
S. 13, 01. (4) of the Putni Reg. (8 of 1819).
Subsequently, one Surendra Narain Singh
who had a money decree against Chatra-
pat put up the property for sale and pur-
chased it himself on the 1st September
1902. The position then was this, the
appellants were the holders of a decree
against Chatrapat whose interest in the
taluq had passed to Surendra Narain
Singh, and Mr. Forbes was actually in
possession of the fcaluq as a mortgagee
under S. 13 para. 4 of the regulation and
entitled to claim redemption firsf« from
Ohafcrapat and also Surendra Narain
Singh
Although 1 am anticipating events, 1
may point out here that a suit for ac-
count was subsequently filed by Surendra
Narrin Singh against Forbes and that
suit was substantially converted into a
mortgage suit and a decree was passed on
the 22nd April 1914 giving Surendra
Narain the right, to redeem the property
and providing that on failure to redeem
the property should be sold in due course
of law to 'answer the claim of Forbes
against Chatrapat. This decision was
upheld by the Calcutta H5gh Court on
the 30th July 1915 and a final decree was
passed in favour of Mr. Forbes as against
Surendra Narain on the 8bh January 1917
for Es. 61,000. On the 2nd July 1917
Mr. Forbes put the decree in execution as
against Surendra Narain in the taluq for
Bs. 2,000. Ifc is conceded that the
balance is still due to him. It may be
taken then that Mr. Forbes at present
1926
MA.HARAJ BAHADUR SINGH v. FORBES (Das, J.)
Patna 479
represents both the interests of the mort-
gagor and the mortgagee.
Meanwhile execution proceedings were
taken by the appellants and the question
was at once raised whether the decree
obtained by Dhanpat Singh as against
Chatrapat was a rent -decree or a money
decree. It is not necessary to go through
all the proceedings ; it is sufficient to say
that claim cases were filed both by
Surendra Narain and by Mr. Forbes and
that those cases having been decided
against them, two suits were instituted,
one by Mr. Forbes and the other by
Surendra Narain for the purpose of trying
the question whether the decree obtained
by Dhanpat as agairst Chatrapat was a
rent decree or -a money decree. It is
obvious that if they could induce the
Court to hold that the decree was a
money decree, their interest in the pro-
perty could not be sold ; on the other
hand, if -they failed in their contention,
their interest was liable to be sold in exe-
cution of the rent'decree of the appel-
lants. The suit of Mr. Forbes succeeded
in the Court of first instance, whereas the
suit of Surendra Narain failed. Appeals
were taken to the Calcutta High Court
and on the 8th April 1908 the Calcutta
High Court held that the decree was a
rent decree and was enforcible as against
the taluq. Both Surendra Narain and
Forbes appealed to the Privy Council ;
Surendra Narain's appeal was dismissed
on'the 14th 'May 1912 for iion-prosecu-
tion : Mr. Forbes's appeal succeeded on
the 9th March 1914, -the Privy Council
holding that the decree obtained by
Dhanpat ' as against Chatrapat was a
money decree and not a rent decree.
That decision is Forbes v. Maharaj Baha-
dur Singh (l)r.
It is conceded that the effect of the
decision of the Privy Council is to release
Mr.. Forbes from all liability • to the ap-
pellants. But the appellants now con-
tend that Mr. Forbes, as the representa-
tive in interest of Surendra Narain, is
bound by the decree which the appellants
have obtained as against Surendra Narain
and that accordingly the appellants are
entitled to enforce the decree as a rent
decree as against Surendra Narain as re-
presented by Mr. Forbes. The questions
which fall to be considered are, first,
whether Mr. Forbes may be said to be
(1) [1914} 41 Cal. 926^23 L C. 632-U J, A, 91,
• (P. C,).
the representative in interest of Surendra
Narain ; secondly, whether the appellants
are entitled to rely upon the decree
obtained by them in the Calcutta High
Court as against Surendra Narain ; and
thirdly, whether the present application
is barred by limitation. The learned
District Judge has held that the applica-
tion is barred by limitation and has also
held that Mr. Forbes cannot be consi-
dered to be the representative in interest
of Surendra Narain. In this view he
dismissed the application 'for execution.
Hence the appeal to this Court,
In my opinion there is no (doubt what-
ever that Mr. Forbes must be regarded as
the reperesentative in interest of Suren-
dra Narain. The learned District Judge
has referred to various cases on the point
which cannot now be considered as good
law. The position is explained with
great clearness in Mr. Woodroffe's well-
known work, the Indian Evidence Act, at
pp. 247 and 248, Eighth Ed. ; and, so far
as this Court is concerned, the matter is
concluded by the decision of the learned
Chief Justice of this Court in Kali Dayal
v. Umesh Prosad (2). The learned Chief
Justice in that case held that an execu-
tion purchaser is the representative of
the judgment-debtor so as to bring him
within the rule of estoppel and the prin-
ciple of res judicata. As has been pointed
out there is no difference in principle
between a purchaser in execution of a
money decree and a purchaser in exec'u-
tion of a mortgage decree. It is not
necessary for me to pursue the point, for
it rests on principle and is covered by
authority. I need only refer to the de-
cision of Mr. Justice Mookerjee in Deben-
draNatk Sen v. Mirza Abdul Samed
Seraji (3).
But the decision on this point by no
means decided the case ; for although the
purchaser at a sale in execution of a
mortgage decree must be considered to be
representative in interest of the mort-
gagor, he must also be considered to be
the representative in interest of the
mortgagee ; and the question afc once
arises whether when a mortgagee himself
becomes the purchaser of the property,
it can be said that the charge is extin-
guished by the sale. In my opinion
there can be no doubt whatever that a
mortgagee, when he puohases the mort-
la) A. I. lO9#TPa taaTdsI^r "PatnaT 17i7
(3) [1909] 10 C. L. J. 150=1 I, C. 264L '
480 Patna
MAHARAJ BAHADUR SINGH v. FORBES (Foster, J.)
1926
gaged properties at a sale held in execu-
tion of a decree obtained by him, is at
liberty to hold the mortgage as a shield
jagainst any attack that might; be made
jagainst him by subsequent encumbran-
cers. It must be recognized that by
virtue of the decision of the Judicial
Committee in Forbes v. Maharaj Bahadur
(1), Mr. Forbes's charge under S. 13,
para. 4 of the Patni Regulation must take
precedence over the charge which a land-
lord has on the tenure in question. I am
assuming for the purpose of this case that
the decision in the c^se between Suren-
dra Narain and the present appellants to
the effect that the decree obtained by
Dhanpat on the 10th July 1896 was a
rent decree is final between the parties
and that Mr. Forbes is the representative
in interest of Surendra Narain. But even
if that be so, the rent decree cannot take
precedence over such charge as Mr. Forbes
had on the taluq by virtue of his position
as a mortgagee under S. 13, para. 4 of
Reg. 8 of 1819. What then is the posi-
tion ? Mr. Forbes was the holder of a
charge under S. 13, 'para. 4 of the Putni
Regulation. He had also purchased the
interest of the mortgagor at a sale held
in execution of a mortgage -decree. It is
well established that the purchaser ac-
quires the equity of redemption of the
mortgagor as at the time of the mortgage
together with 'a lien of the mortgagee
which he may use if necessary for his
protection. It was, therefore, for Mr.
Forbes to decide whether he should ex-
tinguish the security or keep it alive for
his benefit. We must assume that he
made that choice which was manifestly
for his benefit. We must assume, there-
foro that Mr. Forbes kopt alive the secu-
rity to use it, if necessary, as against the
present appellants. In this view, it is
not necessary for mo to enter upon the
other questions raised in this case.
I must dismiss the appeal with costs.
Foster, J. — I agree that the appeal
should be dismissed 'with costs ; but, as
the view of this case which I take differs
from that of my learned brother, I
think it necessary to express it, The
first reason that I have for dismissing
this appeal is that the Privy Council
judgment in Forbes v. Maharaj Bahadur
(1) constitutes res judicata binding the
parties to the present litigation. We
have hero before us an objection raised
by Mr. Forbes against his inclusion as a
judgment-debtor in the execution pro-
ceedings based upon a decree of 1896, it
being expressed in the decree-holder's
application that the decree-holder pro-
poses to follow the putni tenure in the
hands of Mr. Forbes. Now, Mr. Forbes
has obtained in the Privy Council not
only a declaration that the decree of
1896 is not a rent decree but a money
decree, not only a declaration that the
tenure is not subject to a charge under
S. 65 of the Bengal Tenency Act, but
also a perpetual injunction prohibiting
the decree-holder from putting the
tenure to sale. But it is urged that
Mr. Forbes now represents in some part
of his estate the interest of Surendra
Narain Singh, the recent putnidar and
mortgagor, and to that extent Mr. Forbes
is bound by such obligations as bound
Surendra Narain Singh.
I return to the question whether the
whole of the dispute is not concluded by
the rule^of rea judicata. My proposition is
that the present litigation is concluded
by the findings of the Privy Council as
to the respective rights of the decree-
holder, the putnidar and the mortgagee
of the putni. It is urged that because
Mr. Forbes is now the representative of
Surendra Narain, the putnidar, therefore,
the High Court decision, which was the
last decision on the merits in the suit
brought by Surendra Narain against the
decree-holder, and which has not been
disturbed, still avails to confer upon the
decree-holder the right to enforce a charge
under S. 65 of the Bengal Tenency Act.
The appeal in Forbes v. Maliaraj Baha-
dur (1) included two respondents : one
was the decree-holder Maharaja Baha-
dur' and the other Surendra Narain
Singh, the putnidar. It was my opinion
that there is an estoppel, not only bet-
ween the appellant mortgagee as he
then was (Mr. Forbes), and the respon"
dents in that appeal, but also between
those two respondents themselves. I
recognize the truth of the general rule
that there is no estoppel by res judicata
between co-defendants, but there are
acknowledged exceptions. I cannot
express the exception in the present case
better than it is set out in the judgment
of West, J., in Rama Chandra Narain v.
Narain Mahadeb (4)
Where au adjudication between the Defen-
dants is necessary to^^tve jippropriato relief to
1IH1S87T TTSom. 216.
1926
v. GENA LAL
Patna 481
bhe plaintiffs, there must b3 such an adjudi-
cation, and in such a case the adjudication will
ba res jadioata between the defendants as well
aa the plaintiffs and defendants.
Beferenoe is made . to Cottingham v,
Karl of Shrewsbury (5), a case in which
a mortgagor sued a number of mort-
gagees, some of them in possession of
part of his estate, for redemption, and
the adjudication of the suit necessitated
accounts being gone into between the
defendants. Now, in regard to the case
before us, we know with exactitude on
what lines the adjudication in the'c-ise of
Forbes v. Maharaj Bahadur (l) proceeded.
Their Lordships of the Judicial Com-
mittee first found that there was no rent
decree and then found that, even if
there were a rent decree, it would not
avail against Mr. Forbes* special rights
which had accrued under S. 13 (4-) of
Reg. VITI of 1819. In the discussion of
the former of these questions it was
necessary to establish whether the res-
pondent decree-holder Maharaj Bahadur
had a charge upon the tenure which was
the property of the respondent Surendra
Narain Singh. West, J., in his judgment
added the proviso that to produce the
bar of res judicata between two defen-
dants there must be a conflict of interest
between 'those defendant^, and a judg-
ment defining the actual rights and obli-
gations of those defendants intor se.
In Forbes v.'Maharaj Bahadur (l) there
was a conflict of interest between the
respondents, the decree-holder and the
putnidar and a decision thereupon. We
know that there was litigation between
those persons in the Privy Council in a
separate appeal. If, when Mr. Forbes'
appeal was argued, the decree-holder
respondent claimed, as he does now,
that he had by virtue of the still sub-
sisting High Court decision in Surendra 's
case, an established charge upon the
tenure owned by the respondent Suren-
dra, I have no doubt that his learned
counsel put the claim before their Lord-
ships of the Privy Council. The fact
was that Mr. Forbes could not have his
rights defined as a mortgagee unless and
until it was settled whether there was
a charge upon the mortgaged property
under the decree of 18%. I, therefore,
am of opinion that even if Mr.Forbes now
represents Surend ra Narain, he can still
plead rea judicata as against the
(5) [1844] 8 Hare. 627=15 L. J Ch. 441.
1926 P/ 61 & 62
claim of the decree-holder to put the
tenure to sale.
I am also of opinion that the execution
is barred by limitation. The painstaking
and helpful judgment of the learned
District Judge is, so far as I can see un-
assailable in this part of his discussion
of the case. I agree with him that the
petitions of the 22nd January 1915, 19th
March 1917, 23rd November 1918 and
2nd December 1922 marked substantial
departures from the original application
for execution preferred in 1008 — so subs-
tantial as to indicate breaks in continuity.
In the application of 1917 we find a
prayer to follow the moveable propertiep
of Chatrapat Singh and properties other
than the putni tenure. In the appli-
cation of 1918 we find a proposal to
follow the personal property of Surendra
Narain Singh. These appear to me to
show divergences of a fundamental
character from the course of execution
commenced in 1908. I therefore have no
hesitation in finding that the present
execution is barred by limitation.
Appeal dismissed.
# A. I R. 1926 Patnm 481
DAWSON-MILLER, C. J., AND FOSTER, J.
Pheku Pande — Appellant,
v.
Gena Lai Pande and others — Respon-
dents.
Appeal No. 1100 of 1923 and Appeal
No. 130 of 1924, Decided on llth May
1926, from the appellate decrees of the
Dist. J., Durbhanga, D/- 22nd September
1923
# (a) Hindu Law—Mlthlla Sclwol— Widow—
Grant of Immovable property by Uarta of joint
family for maintenance does not constitute her
strldhan, nor doei It create a widow9* estate—
After widow's death properties revert to donor.
A grant for maintenance to a woman of
immovable properties made by the karta of the
joint family do not constitute her stridban.
Nor does she take it as her widow's estate, that is
tbe estate created by a maintenance grant,
leaves a residuary estate still untransferred in
the grantors, just as happens in the case of
grants of leases and usufructuary mortgages.
The reversion in such circumstances W'~uld he,
not the reversion as the term is used in Hindu
Law, but the reversion of English Law suck as
is vested in a lessor for a term : 6 A/. I. A. 1
(P. C.}, Dist. [P. 484, C. 1, 2]
L. K. Jha and Murari Prasad — for
Appellants.
K. P. Jayaswal and S. N. Roy — for
Respondents.
182 Patna
PHEKU v, GENA LAI* (Foster, J,)
1926
Foster, J.— It is necessary for the
purpose of understanding this case to
&et cut in abridged form the genealogy
of the family with which we are
concerned .(see below)
•Narayan Dufct and Aghori were step-
brdthers. The line of Soman Panre, it
will be noticed, 13 extinct. The plain-
tiff is tho agnafie grandson of Bhekhan
Panre, The defendants are the descen-
dants of Nandan Panre, led by Phyku
Panre. The subject-matter of Suit
No. 617 consists in certain lands alleged
to have been held by Jagawati and
Baohawati Kuari jointly by way of
maintenance undsr a grant made on the
17th September 1853 by the surviving
brother, Narayan Dutt. In the other
suit (No, 652, the same plaintiffs, grand-
joint, and the latter that it was separate-
This dispute was settled by the ekrar-
nama or grant dated the 17th September
1853, with the construction of which
this cv*e is mainly concerned. The
plaintiffs claimed through their ancestor
Bhekhan Panre, alleging that on the
death of Gobinda Dutt his widow
succeeded, and after her death his mother
Phulabati succeeded ; and, when
she died in 1915, the nearest male
agnates, Pheku and. Bhekhan , inherited
the whole estate of Gobinda Dutt
as reversionaiy heirs ; and it Is
claimed that the reversion included the
properties which at fchat time Bachawati
was holding in lieu of maintenance
under the ekrarnami of 1853. On the
other hand, the defendant Pheku Panre,
who is in possession of the disputed pro-
I "
Naudan
(His grand son is
Pheku Pan re).
Dhuaar Panre
I
Soman
I
Bhairab Dutt
Hia
(His grand Ron was Bkekhau
Panre who died after 1925
and before 1920)
i
Narayan Dutt
(His widow Phulbati
died in 1915)
1
Gobinda Dutta
(His widow Shoonandan
Kuari predeceased
Phulabati),
Aghori Dutt
(Died in 1852 leaving his
mother Jagawati and widow
Bachwati who survived
Jagawati and died in 1910).
sons of Bhekhan Panre, sue one Han
Kishun Panre for recovery of possession
of 8 oattahs alleged to be a 'part of the
Ancestral estate of Gobinda Dutt. Hari
Kishun appears to be a stranger to the
family ; he admits that he acquired the
property from Baohawati, but denied
that it was part of a maintenance grant.
I wish to deal with the two suits
separately. Suit No 647, which was
Appeal No. 210 in the lower appellate
Court and is Appeal No. 1109 of 1923
in this Court, is the case which will
require longer discussion. So I take it
first. The plaintiffs allege that on the
death of Aghori Panre a dispute arose
between Aghori's surviving stepbrother
Narayan Dutt and Aghori's mother and
,widow, Jagawati and Bachawati ; the
former claiming that the family was
perty, claims through Biohawafci Kuari,
as heir of herstridhan ; and alternatively
as reversionary heir, succeeding on the
death of Bichawati. When he claims
through Bachawati as her heir he
alleges that the ekrarnama
Kuari an
when he
of Narayan
upon Bachawati
estate as stridhan
preferential heir
Gobinda Dutfc, he contends
ekrarnama had the effect of
conferred
absolute
claims as
Dutt or
that the
putting
Bachawati Kuari into the position of a
Hindu widow in a separate estate, and
thus the reversion would be delayed till
the death of Bachawafci Kuari in 1920,
at which time admittedly Pheku Panre
would be two degrees nearer to the last
male holder (or to the grantor Narayan
Dutt) than the defendants who are
grandsons of Bhekhan Panre. In a
1926
PHEKU v. GEN A LAL (Poster, J.)
Patnm 483
word, the plaintiffs claim to have in-
herited the property in 1915 and the
defendant olaim to have inherited it in
1920. If the defendant is correct in
his contentions he gets the whole of the
disputed property ; if his claim is wrong,
he gets a raoiety.
The suit was decreed and the appeal
•dismissed. The defendants Pheku and
others are appealing The whole ques-
tion is what estate came to Bachawati
under the ekrarnama of 1853. The
plaintiffs declare it to have heen a main-
tenance grant made by the karfca of the
joint family to the mother and widow
who survived his stepbrother. The
defendant, as I have said, clai :is that
the grand conferred either an absolute or
a widow's estate.
It has been held in the lower ap-
pellate Court that Aghori and Narayan
Dutt were "all along" joint in mess and
property. It has also been held that
not only the lands covered by tho
ekrarnami which are in Schedule I of
the plaint but also the small parcel of
land described in Schedule II were
granted t<f Bachawati Kuari for her
maintenance. These findings were also
arrived at in the trial. Unfortunately
the ekrarnama of 1853 is somewhat torn
and worn away in important places ,
the learned District Judge thinks that
Ipssibly the land of Schedule II was
included in the ekrarnama, but in any
case it wont with the other lands as
part of the grant made by Naravan
Dutt.
The first argument takan on behalf of
the appellant is that there is «a distinc-
tion m the ekrarnama between the pro-
perties in dispute and the emoluments
consisting mostly of grain and money
appropriated to the grantees as annual
maintenance. This argument has
necQssitated a reference to the deed it-
eeH The punctuation in the translation
is of course the work of the translator.
Now the purport of the document, on
reference to the original or to any
correct; translation, will be found to be
as follows : The declarant Narayan
Dutt Panre states that his brother
Aghori Panre was pint in mess and died
a natural death, and the declarant is in
the possession of his interest ; ifc is there-
fore necessary that maintenance of
Mts. Jagawati and Bachawati
should be provided. The Musummats
had entered an objection in the muta-
tion department, and the dispute was
settled amicably. So the declarant pro-
mises annually to give the Musummafcs
Rs. 750 in cash and 790 maunds of grain
and also certain parcels of land as well
as furniture, cash and grain in existence
in a village Barhi, and one-half of a
house with a granary in the same
village, as well as three families of
servants, 86 head of cattle and two
carts. The whole of this grant is
obviously governed by the reiterated word
maint mince Then the document pro-
ceeds :
It 11 desirable that the said Musummats
should hold possession of the moveable and
immovable properties and continue to reahza tne
cash and kinds given by me for their mainten-
ance from mo and after my death frcm mv
heirs. If I, the executant, or my heirs raise any
objection to the payment thereof, they shall
realiza tha same by instituting a suit in Court
or by resorting to such staps as they think
possible. Beyond getting tho maintenance
and holding possession of the moveable and
immovable properties referred to above
the said Musummats shall have no
right of alienation in resp3ot thereof. The said
Musum mats shall have no claim to or connexion
with the proparties left by Aghori panre. During
the lifetime of the said Musummats I, the exe-
cutant, shall not directly or indirectly transfer
the properties left by Aghori Panre, by sale, con-
ditional sile, usufructuary mortgage, etc., to any-
one If I do so, the same shall be deemed null
and void. If oie of tho Mussamats dies, even
then the cash and kind and the moveable and the
immovable prop^rtie^ fixod for their maintenance
whioh are in thoir possession shall continue to
ba in the possassion of the survivor.
As I construe this grant, it is a main-
tenance grant of a type common enough
in joint Hindu families The learned
Munsif and the District Judge both took
the same view and they pointed out that
there were on the record other docu-
ments which showed that the ladies had
always regarded the properties as their
maintenance grant ; and the learned
Munsif points out that Pheku Panre
joined the Musummats in this position,
in certain suits for arrears of main-
tenance. I hold therefore that the pro-
perties in Schedules I and II of the
plaint are proved hy oral and documentary
evidence to have constituted a mainten-
ance grant to widows in a joint family.
The appellant has however, attempted
to establish an argument on bare prin-
ciples of law that the grant must be
taken to be either an absolute grant or a
grant of an outstanding widow's estate
delaying the reversion to the nearest
484 Pallia
PHRKU v. GKNA LAL (Foster, J.)
1926
agnate. As to the question whether the
grant constituted an absolute estate, we
may refer again to the ekrarnama where
it imposes a restraint upon alienation
and where it refers to the Musummats as
personally entitled to maintenance. The
learned vakil for the appellant has re-
ferred to Tagore's translation of the
Vivad Chintamani at p. 263, as support-
ing his contention that in this family,
which is governed hy the Mithila system
of Hindu Law, a maintenance grant must
become part of the donee's stridhan. In
bhe first place, if the grant constituted
stridhan of the two Musummats, one
wQtild expect that the inherifcanos to the
property of the two ladies heing possibly
in different channels, there would not
have been provision for succession by
survivorship. In the second place, look-
ing at the Vivad Chintamani and the,
translation put before us (Tagore, p. 263,
Setlur, p. 257) and the Yivad Ratnakar
Chapter VIII, I see much that indicates
that a childless widow of a separate
husband will in Mithila obtain an abso-
lute right in the rnoveables left by her
husband ; and in fact we know that that
is the Mithila Law : Birajun v. Lachmi
(l). But it is equally certain that this
anomaly dees nob extend to immovable
property. As to money and grain deli-
vered for maintenance of coparceners, of
course they are prima facie absolute gifts.
But the texts are quoted to support the
proposition that a grant to a woman of
immoveable properties made by the karta
of the joint family constitutes sbridhan.
The text quoted is the familiar dictum
of Devala, which is translated : " Main-
Cd'nance, ornaments, sulk;i and grains are
stridban, that she may enjoy as she
pleases." The question is how this text
has been interpreted in the Mithila
School : the text itself, which, I may
observe, appears at first sight to be ap-
plioable only to moveables, cannot be
detached from the commentaries and
taken as the basis of a judgment. We
know how this text is interpreted in the
Mitakshara, and unless some special
authority bearing upon the Mithila Law
is shown to justify a departure frcm the
Mitakshara, the appellant's mere quota-
tion of the text cannot aid his argument.
No such exceptional interpretation has
been put before us. But in any case the
last and final aut horitv in the matter is
* fl) [1884] 10 Oal.*89K» """ ~
the document itself. In my opinion its
terms indicate quite clearly a mere life
estate.
As to the contention that the ekrar-
nama created a widow's estate in Bacha-
wati which had the effect of delaying
the inheritance, it appears to me to be
utterly inconsistent with the law and
the known facts. We are asked to con-
ceive a widow's estate as arising other-
wise than by succession to a previous
male holder and arising in a family
which has been found to be joint. It is
difficult bo imagine who in such a case as
that would be held to be che last male
holder when the reversion re-opened. The
answer given by the learned vakil for the
appellant to these objections is that any
arrangement is possible in a family set-
tlement, and that the case of Sreematti/
Rabuttij Dossee v. Sib Chunder Mullick
(2), is an exemplification of this, sup-
porting in its details the appellant's
construction of the facts of this present
cise. But the alleged similarities in the
two cases do nob extend to bhe cardinal
facbs. There bhe claim of Zojthra was
made as widow, heiress and sole repres-
entative of D^rarkanabh to her husband's
share and the deed only professed to pay
to her in that cipaciby the amount
which was agreed upon by the parties to
stand as the value of that share. In the
pressnt case we do not know clearljr
what the Lidies claimed in 18o3. Cer-
tainly what was granted bo them was
maintenance as bhe deed shows. From
a legal poinb of view bhe esbabe created
by the maintenance grant of bhis case
would appear to be one that left a resi-
duary estate still untransferred in the
grantors, just as happens in the case oi
grants of leases and usufructuary more-
gages. The reversion in such circum-
stances would be, not the reversion as
the term is used in Hindu Law, buf the
reversion of English Law such as is
vested in a lessor for a term. So the
ownership of the properties of Schedules
I and II of the plaint remained vested in
Narayan Dutt and his' heirs. The most
apposite authority that I have been able
to find is Kachwain v. Sarup Chand (3).
Relying on that authority, on the terms
o! the ekrarnama, and on general princi-
ples of Hindu Law, I hold bhit fche in~
tercst of Mt. Bachawati Kuari was a life.
(2) f 1S56-57] 6 M. I. A. 1—1 Sir. 484 (P. CJ,
(3) [1888] 10 All. 462 -(1888) A. W. N. 200.
1926
MAHANTA RAM v. NAKDI JHA (Foster, J.)
Patna 485
estate by way of maintenance and that
the property before and after the ekrar-
nama was vested in Narayan Dubt the
ekrarnama having only tho effect of a
grant of the usufruct for the term3 of
ttie joint lives of the two widows. I
hold also that the lands of Schedule
No. II of the plaint formed part of this
grant. In this connexion I may point
out that, so far as tho pleadings g:>, no
distinction is made as to Bjtchawati's
title in the properties of these two sche-
dules either in the plaint or in tho
written statement.
Tho plaintiff's appeal from the decision
in Suit No, 652 is concluded by findings
of fact. It has been found that the
plaintiff has failed to prove that Bioha-
wati Kuari got tho land from her hus-
band or by virtue of tho ekrarnama.
That being the case, the plaintiffs are
admittedly not the heirs of Bachawati
Kuari and cannot succeed to her pro-
perty. The result is that they have not
made out a cause of action.
I would dismiss both the appeals, with
•costs to tho plaintiff-respondents in Suit
No. 617 (Appeal No, 1109 of 1923), and
costs in Suit No. 652 (Appeal No. 1£0 of
1924) to the respondent Hari Kishun
Panre.
Dawson-Miller, C. J.— I agree.
Appeals dismissed.
A. I. R. 1926 Patna 485
DAS AND FOSTER, J.
Mahanta Ram E/ochau Das— Plaintiff
— Appellant.
v.
N m<li Jhft and others — Defendants —
Respondents.
Appeal No. 212 of 1923, Decided on
3rd February 1926, from the original
decree of the Sub-J., Darbhanga, D/- 24th
July 1923.
Benga1 Tenancy Act, S. IQ3 B—Xamlndar is not
presumed to be in jxweiilon of ralyatl holding* —
Record of rights recording land ?o be occupancy
holding— Onu* l<t on zemindar to prove thit the
land Is his inallk zerait.
The right of tha zirnindar to rent is so uni-
versal as to bj a presumptive right, but the
zuniiKUr has no right generally to poHses^idn of
tho raiyati holding*. Whore xi-nindac plaintiff
•claims oartui i land to b* mulik'a zarait whtle
the defendant claims as his occup-moy holding
and* the reoord of rights is in favour of the defen-
dant, burden of proof lies on tho plaintiff zamin-
dar and tho faot that the land in dispute fell in
the zimiudari of the plaintiff ia not sufficient to
rebut tho presumption arising from the record of
rights : 2 P,i\ 38 and .1. 1. R. 1922 P. C. 272
(P.O.), DW. [P 48(5 0 2-j
Murari Prasad—to* Appellant.
B. N. ATMer and N. N. Sinh a—tor
Respondents.
Foater, J,— The phintiff has proprie-
tary interest to the extent of 11 annas
odd in Mau£i Biaspur and the defendants
are proprietors of the residue. The plain-
tiff's suit is for partition. The only point
which is in dispute between them is whe-
ther the lands described in Schedules A
and B of tho plaint are zerait land of tho
village or the occupancy holding* of the
defendants, The learned Subordinate
Judge heard the defendants' evidence
first and then that of the plaintiff. In
his judgment he first examined the de-
fendant's evidence. He pointed out that
the record of rights WAS entirely in
favour of the defendants. As against
this tli3 plaintiff contended that it was
brought about by the fraud of the defen-
dants. The date of final publication was
the 13th October 1899, and from 1883 to
19i20 fcho defendants' ancestors held the
plaintiff's share in Thika. So, it is
urged, they had every chance of obtain-
ing a fraudulent entry in the record.
Ifc is also urged that as the Jands in dis-
pute fell within the ambit of the plaintiff
co-sharers' zamindari then under tho
ruling in Jaydeo Narain Singh v. Bcddeo
S infill (1), the record of rights must bo
considered to be rebutted. This is how
the caso is stated ; I shall have more to
say on this point lator. The learned
Subordinate Judge examined the oral
evidence and came to a finding that the
plaintiff's agents attended at the time
of the survey and settlement operations.
He remarked upon the uncertainty of
the plaintiff's claim : though the suit*
was instituted in June 1922 tho identity
of tho property claimed to be zerait was
not established till Juno 1923, when the
plaint was extensively amended and the
claim largely reduced. After noting that
ife lay upon tho plaintiff to prove what
is zerait and what is kasht of the defen-
dants, he points out that the plaintiff
has not discharged the onus. The de-
fendants produced old rent receipts
which he found DJ be genuine, and he
from _ je^e documents ihe on-
(1) 2
486 Patna
MAHANTA RAM v. NANDI JHA (Foster, J.)
1926
elusion fchafc fche defendants, from the
time of very remote ancestor?, have been
raiyats of this village. He examined
the two pafctas granted to the ancestors
of the defendants in 1883 and 1908 and
pointed out that in the first one there is
no mention of any zerait at all and laid
great stress upon the second patta which
mentions only 7 bighas and odd as zcrait.
He remarked that the defendants do not
for a moment claim those lands des-
cribed in the socond patfca to ho part of
their holding. Then ho examined the
road cess returns of J919, and pointed
out that the lands in dispute are shown
there a-, raiyati kasht of the defendants
and thafc these returns are signed by the
plaint ill's manager and attorney. As to
these documents the plaintiff pointed to
the fact that they were drawn up on
information provided by the defendants
who were in possession as Thikadars.
Proceeding to the evidence of the
plaintiff, the learned Subordinate Judge
examined the kabuliyat of. 1869 executed
by an indigo factory manager in favour
of the plaintiff's predecessor in interest.
In that document there is mention of
zorait but without specification. The
learned Subordinate Judge thought that
this must be a mere formality copied
from precedents. It should be noted
however that'one at least of the plain-
tiff's witnesses, an old man of 75 years,
Somodat Thakur, deposed "Kuthi grew
indigo in the land and so I called it
zesaifc." He also stated that 'during the
time of the factory there were 30 or 40
bighas of zerait in the factory's posses*
sion. Now looking at the Terij Jama-
bandi of 1875 (Ex. 2), I see that within
each tenant's holding there was some
area appropriated to the cultivation of
indigo ; in the total it must amount to
a considerable area. Each tenant's rent
was at certain rates according to the
classes of land comprised within the
holding and a deduction of 10 annas per
bigha was made upon fche total area in
consideration of the cultivation of indigo.
The learned Subordinate Judge then
examined Ex. 3 series, khasras for the
period 1875 to 1879. These are partly
lists of trees subject to danabandi (ap-
praisement), and there are several
khasra danabandi (accounts of appraise-
ment). The learned Subordinate Judge
is not correct in saying that these do not
show what village they refer to. * They
refer to Biaspur aad fche names of
Brahmin tenants include several persons
who we know were ancestors of the
defendants. The learned Subordinate
Judge found that in the plaintiff's oral
evidence there is no precise statement
found as to the identity of the zeraifc
lands. So he decided this issue against
fche plaintiff, who is now appealing.
The onus of proof rests upon the»plain-
tiff, not only because he is plaintiff but
because he has the record of rights
against him. In my opinion the case of
Jagdeo Narain Singh v. Baldeo Singh (l)
which has been quoted on the plaintiff's
side, has no application to the present
discussion. The right of the zainindar
to rent is so universal as to be a pre-
sumptive right ; S. 114 of the Evidence
Act would raise fche presumption. It is
a right all fche more enforceable because
fche zatnindar has to pass on a share of
the collection to Government in fche form
of revenue. But the zamindar has m>
right generally to possession of the-
raiyati holdings. The raiyafc existed
before the zamindar came, and in the
permanent settlement it was laid down,
that fche raiyats are fco be protected in
their possession. That policy is carried
out in the Bengal Tenancy Act. Ifc is a
mere fcruism to say fchafc fche zamindar
has a righfc fco all lands not held by
tenants, and the proposition appears, to-
be irrelevant until fche record of righfcs,.
prepared under fche Bengal Tenancy Act,.
is rebutted. There is here no conflict of
presumptions. In fche case quoted from
I. L. R. 2 Patna fche fact fchat fche land
of fche tenants fell within the ambit of
the plaintiff's zamindari was sufficient
to rebut the entry in fche record1
of righfcs showing fche defendants' land
fco be free of renfc ; and the defendant'
had the dufcy of showing by some grant
or such like evidence, fchafc he in parti-
cular was relieved from fche universal
dufcy of paying renfc. In fche case of
Sri Nath Ray v. Uday Nath Sahi Deo (2)
fche plaintiff was purchaser of fche par-
gana which in fche judgment of their
Lordships of the Privy Council is found
fco have been a renfc-payjng jagir within
fche ambit of the zamindari of Chofca.
Nagpur. The plaintiff's ^vendor pur-
ported fco be an independent Talukdar of
the pargana, and the defendant, the
zamindar of Chota Nagpur, contended
(*) A. L H. 1923 P. 0. *17.
1926 BAMBSHWA.R SINGH^V. SHAIK KITAB ALT (Dawson-Milier, C. J.) Patna 487
tha,t the pargana had been resumed on
failure of male issue in the line of depen-
dent Tariukdars. The plaintiff urged
that the pargana was not resumable.
The record of rights showed it to be re-
aumable ; and their Lordships laid great
stress on the presumption prescribed in
S. 103 B of the Tenancy Act. This case
appears to me to establish my argument
as to the burden of proof. Had the
entry been "non-resumable," the same
presumptive weight would have attached
to it, and the burden would have rested
on the defendant zamindar : here also
the zamindar has the duty of proving
his claim, in face of the Eecord of Bights.
(His Lordship then examined the evi-
dence and continued.) The plaintiff has
entirely failed to prove that the lands
in the possession of the defendants, as
recorded in the survey" khatian, include
zerait lands. There certainly is some
zera.it in the village ; the zerait within
the plaintiff's share is defined by metes
and bounds and survey numbers in the
patta of 1908. The translation in the
paper book is not accurate, on page 41,
line 29, of part III. It should be :
With zerait land, exclusively belonging o me
the proprietor measuring 7 bighas 9 kathas to-
gether with bhaoli, garden, bamboo clumps ....
It is suggested in argument that these
7 bighas and odd constitute a propor-
tionate part of the 10 bighas 12 kathas
*4 dhurs shown in Ex. 4. One thing,
however, is clear: the words "exclusively
belonging" relate to the entire share
demised, including exclusively possessed
zerait. These documents furnish some
amount of positive evidence as to the
identity of the so-called zerait lands, if
we have to search for them in the pre-
sent case. It may be mentioned here
that it is not seriously contended that
the term zeraiti as applied;to the land in
dispute is accurate : it should be pro-
bably bakast malik or ghairmazrua rnalik,
according to its condition.
For these reasons I would dismiss this
appeal with costs.
Das, J.— I agree.
Appeal dismissed.
A. I. R. 1926 Patna 487
DAWSON-MILLER, C. J., AND FOSTER, J.
Sir Rameshwar Singh Bahadur —
Plaintiff — Appellant,
v.
Shaik Kitab Ali — Defendant — Respon-
dent. *
Letters Patent Appeal No. 19 of 1926.
Decided on 3rd June 1926, from a deoi-
§ion of Adami, J., D/- ^15th January
1920.
(a) Deed — Construction— Lease — Dak fard la
not a lease.
A bid-sheet or dak fard showing the bids inado
at the auction of land for settlement is a verbal
settlement, and the document which did noli
contain the most important terms and WAS never
intended to bo delivered to tha lessee as a docu-
ment of title cannot in such circumstances con-
stitute a lease. [P. 487, C. '2, P. 4«9, C. 1]
(6) Deed— Construction — Principles.
Each document and the circumstances under
whic h it came into existence must be considered
separately, and the construction -of one docu-
ment is not generally of much assistanoo in
constructing another which may differ mate-
rially in its terms and in the attendant circum-
stances. [P. 488, C. 2]
Murari Parsad and Sambu Saran — for
Appellant.
Monohar Lai — for Respondent.
Dawsoir Miller, C. J.— The question
for decision in this appeal is whether a
document referred to as a dak fard pro-
duced in evidence on behalf of tha
plaintiff is a lease. The plaintiff sued
the defendant for rent ab the rate of
Rs. 5 per bigha for the years 1323 to
1326 E. The defendant had previously
been in possession of the land under a
registered kabuliyat for a term of five
years which expired at the end of 1322
F. ab a rental of Rs. 2-8-0 per bigha.
Shortly before the expiry of the term
the land was put up to auction for settle-
ment from 13^3 ff. onwards under a
permanent tenancy. The defendant bid
Rs. 5 per bigha, rent and Rs. 4 nazarana
and his offer was accepted.
There was only one other bidder. The
defendant remained in possession after
the expiry of his original lease and -at
the beginning of 1327 P. (September
1919) he was sued for rent for the, three
previous years which he had not paid*
His case was that although he bid for
the land he only bid Rs. 2-8-0. The
bid-sheet or dak fard showing the bids
made at the auction was produced and
"488 Patna BAMESHWAR SINGH v. SH.UK KITAB ALC (Da,wson-Miller, C. J.) 1926
'from this it appears that the plainfciff
foad bid Rs. 5 and it bore his thumb
impression in the margin under the
words :
Signature of bho highest bidder with whom
the settlement has been made.
In answer to this he admitted his
impression, bub said the form was not
filled up when he imp-essed his thumb
mark. This evidence was not believed
and it was found by the Munsiff, who
tried the case after remand, that the
defendant did agree to pay Rs. 5 per
bigha under the bid-sheet. This docu-
ment is a printed form headed '* Settle-
ment by auction with the highest bidder,"
The particulars to be filled in are : (l)
date ; (2) officer conlucting tho sale, (3)
details of the property and description,
(4) narao of tho highest bidder, (5) period
of settlement, (0) condition of settle-
ment, (7) names of bidders and 'amount
bid. In the margin fchore are spaces for
the signatures of (a) tho highest bidder
with whom the settlement has been
rnado, (b) the officer conducting the sale
and (c) the muharrir in attendance at
the sale. In the document in question
the particulars numbered (5) and (6)
above are left blank. The details of the
property and description are entered as
* 2% bighas o cofctahs 15 dhurs expired
term land in village Sondeep, Pargana
Dharainpur," but no boundaries are
given. It has nowhere been suggested,
however, that the land so described was
nob the defendant's holding. Had tho
matter rested there I doubt if it would
have occurred to anyone that the docu-
ment was a lease or that it was any
more than a memorandum kept by tho
landlord of the verbal transaction which
took place by tho bidding at the auction.
Ib was in fact kept by tho landlord's
manager and was clearly not intended
to be delivered to the tenent as a docu-
ment of title. It may have been con-
templated that a pafcta would eventually
be granted and the document would no
doubt have been of use for that purpose,
bub for somo reason or other, possibly
oversight, no formal loaso was ever
prepared.
After the defendant had impressed
his thumb-mark in tho spaoo indicated
for the signature of the highest bidder
tho plaintiff's sub-manager wrote in rod
ink at the foot of the document the
following entry and initialed it :
S3ttled 23rd Juno 1915 of land at Rg. 5 rate
and Rs. 4 par- bigha salami with Shaikh Kitab '
All permanently from 1323 P.
The Courts below have difrered as
to the nature of this document. The
Munsif held that ib was a lease and
being unregistered was inadmissible in
evidence. He accordingly passed a decree
for rent at Rs. 2-8-0 per bigha, the rate
admitted by tho defendant.
The Subordinate Judge on appeal con-
sidered that it was merely a memoran-
dum and could not be construed as a
lease or an agreement to lease and passed
a decree for rent at the higher rate.
Mr. Justice Adami, on second appeal
to this Court, held that ib was a lease
and restored the decree of the Munsif.
A number of cases have'been referred
to in argument in which various kinds
of documents have been in question, some
of which havo been held to be leases and
some of which have not, but each docu-
ment and the circumstances under which
it came into existence must be consi-
dered separately, and the constructor
of one document is not generally oi,
much assistance in construing another
which may differ materially in its terms
and in the attendant circumstances.
In the present case it is of importances
to bear in mind that when the defendant
appended his thumb-impression the
document did not contain all the entries
which now appear upon it. Neither the
period of settlement nor the conditions
of settlement were entered. Ib contained
merely the date, name of the officer
conducting the sale, description of the
property, names of the bidders and their
bids and tho name of the highest bidder.
The most material terms, namely, the
period and the condition of settlement,
wore nob recorded. Why bhen was bhe
thumb-impression of the defendant
taken ? I think that the answer to
this must be that it was for purposes
of identification and as an acknowledg-
ment that he was the person who made
the highest bid and M ith whom the.
settlement had been made. He was
already in possession and the rent was
being ircreased in accordance with his
own bid. There was nothing in the
document at that time to show that he
had taken a permanent settlement or a
lease on any other conditions than those
on which he already held except that be
had bid a higher rent. The settlement
1926
KAMGOBIND v. SITAL SIKOH (Adami, J,)
489
as the heading shows, was a settle-
ment by auction ; in other words, a verbal
settlement, and "the document which did
not contain the 'most important terms
and was never intended to be delivered
bo the leasee as a document of title
could not, in such circumstances, consti-
tute a lease. Can it make any difference
then that the plaintiff's sub-manager
afterwards noted thereon that the land
had been settled permanently at the rent
named with the defendant from 1323 BY?
I think not. This was merely a note upon
a document intended to be kept for his
own purposes showing the terms of the
agreement verbally corne to by the
defendant. In my opinion the document
in question was not and never intended
to be a lease and cannot be interpreted
as such. I think that the judgment
under appeal must be set aside and the
decree of the learned Subordinate Judge
restored. The appellant is entitled to
his costs throughout.
Foster, J. — I agree.
Appeal allowed.
A. I. R 1926 Patna 489
ADAMI, J.
Ramgobind Siwjh — Defendant —Peti-
tioner.
v.
Sital Singh — Plaintiff — Opposite
Party.
Civil Revision No. 498 of 1925, Deci-
ded on 15bh March 1926, from an order
of the 1st Suo-J., Arrab, D/- 27th Octo-
ber 1925.
Civil P. CT., O. 32, R. 3— Defendant alleging to
be minor — Is we should be framed and decided —
Court's opinion about defendant's appearance is
not sufficient.
If there is any doubt as to the minority, of the
defendant that question ought to be made an
issue in the case and the Court ought to decide
whether it is a cise in which a guardian ought
to bo appointed. It is not sufficient for the
Court by just looking at the defendant to come
to a conclusion that he is not a minor.
[P 100, C 1]
S> P. Varma and Parsuram Prasad
Virma — for Petitioner.
Sambhu Saran—io* Opposite Party.
Judgment. — The opposite party sued
the petitioner on a hand note dated the
30th April 1923. The suit was insti-
tuted on , the 15th June 1925. On the
20th July 1925, the petitioner produced
a medical certificate, before the Court of
Small Causes signed by the Civil Surgeon,
certifying that the petitioner on that
date was between tho ages of 17 and 19.
The certificate was not produced by the
petitioner himself but on his behalf, and
tho Court directed that the petitioner
should himself appear before it, and he
appeared on the 27th July. The Court,
after looking at h-irji and examining his
appearance, came to the conclusion that
he had reached the age of majority. The
17th August was fixed for the hearing,
but the petitioner did not file his list of
witnesses till the 8th August, Among
the names of witnesses shown on his list
was that of the Civil Surgeon. On the
17th August the plaintiff's witnesses
were examined and in defence the peti-
tioner and his elder brother gave
evidence. The defence then seems to
have closed, for no petition for further
time for summonses on witnesses was
asked for, but the Court gave time in
order that the parties might have a
chance of examining an expert in thumb-
impressions who had sent in a report on
the thumb- impression on the band note
in suit. The expert was not examined
in Court. On the 5th October, after the
vacation, the petitioner filed a petition
asking for the examination of the Civil
Surgeon, but his petition was rejected.
He again made a petition on the 7th
October, but that was again rejected, and,
on the 26th October, the Court, having
heard arguments, passed judgment in the
case.
The learned Small Cause Court Judge
stated that he could not rely upon the
report of the Fingerprint Expert although
it was in the plaintiff's favour because
the Expert had not been examined.
Now, in the first place, if the Court
could not use his report, no mention of it
ought to have been made in the judgment;
much less ought it to have been stated
that the report was in favour of either
of the parties. The judgment proceeds
to the effect that the evidence on tho
plaintiff's side satisfied the Court as to
the due execution of the pro-note and a
bond in which the passing of consider-
ation under the pro-note was mentioned,
and the Court found that the. plaintiff
490 Patna
BAM KAKAN MAHTO v. DAHUIV MAHTON (Poster, J.)
1926
had proved his case. Now the Court had
noticed in the written statement of the
defendant- petitioner that he claimed to
be a minor. Further, the Court had
seen the report of the Civil Surgeon
showing that he was a minor in 1925.
It was not sufficient for the Court, by
just looking afc the defendant, to come to
a conclusion that he was not a minor at
the time when the Court saw him, much
less that he WAS not a minor two years
before. If there was any doubt as to the
minority that question ought to have
been made an issue in the case and the
Oourt ou^ht to have decided whether it
was a case in which a guardian ought to
have been appointed. In my mind, after
considering the materials before me, it Is
doubtful whether the defendant was a
minor or riot. If he was a minor, the
decree of the Court of Small Causes is of
no avail, for no guardian is appointed.
With regard to the failure to secure
the attendance of the Civil Surgeon, I
think that the defendant himself was, to
a certain extent, responsible for it. He
was very late in filing his list of wit-
nesses. At the same time the evidence of
the Civil Surgeon was necessary for the
purpose of determining whether the
defendant was a minor, and it would have
helped the Court if it had complied with
the request of the defendant to take the
evidence of the Civil Surgeon. The case
is one in which, I think, the Court below
should be asked to determine the import-
ant question whether the defendant was
in fact a minor when the pro-note was
executed.
I must set aside the decree and direct
that the lower Court do give the defen-
dant-petitioner an opportunity of proving
whether he is a minor after framing an
issue on the point. At the same time
the Court may find it convenient to
secure the evidence of the Expert on
thumb- impressions in order that a 'satis-
factory decision may be come to in the
case. The application is allowed and
the directions I have given above should
be followed.
The costs of this application will
follow the result in the lower Court.
Application allowed.
A. I. R. 1926 Patna 490
DAWSON-MILLER, 0. J., AND ROSTER, J.
Ram Karan Mahto — Defendant No. 1 —
Appellant.
v.
Dahur Mahton and another — Plaintiff
and Defendant — Respondents.
Second Appeals Nos. 1085 and 1086 of
1923, Decided on 12th May 1926, from a
decree of the Sub-J., Saran, D/- 20th
March 1923.
Hindu Law — Alienation l»y widow — Defending
title to property no longer hers is no legal neces-
sity.
Where the widow was uncertain as to what
property was in her possession but filed a suit for
certain proparby as b^ing in her possession.
Held : that in the circumstances of the case
it was impossible to say that she had legal justi-
fication for spending money in defence of pro-
perty which at the time of the expenditure had
oeased to be hers. [P. 492, C. 1}
Sambhu Saran — for Appellant.
tiarju Prasad for Manohar Lai — for
Kespondents.
Foster, J.— Appeal No. 1085 of 1923
arises out of Suit No. 222 of 1921 and
Appeal No. 1086 of 1923 arises cut of
Suit No. 223 of 1921.
These suits were brought by a revei"
siorier Dahur Mahton (whose father was
Rainiad) against Ram Karan Mahto for
recovery of certain land. In the former
suit Ram Karan is in possession of the
land as purchaser in execution of his
own mortgage decree obtained against
the mortgagor Mt. Basmutia who, it is
agreed, was the mother and heiress of
the plaintiff's distant cousin's agnates
Gulzari and Sheobaran. Basmutia was
the widow of Moti and her sons, Gulzari
and Sheobaran, died without issue shortly
afther their father. In this case the
suit turns on the question of legal justifi-
cation of the mortgage. In the other
suit Dahur, the reversioner, sued the said
Ram Karan Mahto for recovery of other
lands on the ground of deposit in Court
made on the 6th June 1919, under S. 88
of the Transfer of Property Act of the
redemption price of a zarpeshgi bond
executed by the said Basmutia.
The two cases are so distinct in sub-
ject-matter that it is convenient to deal
with them separately. Their only point
of contact is that they are both brought
by the reversioner of the last male
owner, Gulzari or Sheobaran, for the
1926
RAM KAJEUN MAHTO v. DAHCJR MAHTON (Foster, J.) Pain*
recovery of property originally belonging
to the common ancestor of the plaintiff
and his two cousins and of which Bam
Karan, the defendant, has acquired pos-
session by virtue of mortgage.
In Suit No, 222 of 1921 the facts lead-
ing to the present litigation are these:
Basmutia having a Hindu widow's estate,
in 1905, executed in defendant Ram
Karan's favour a zarpesbgi' bond for
Rs. 192 and in 1908 a simple mortgage
bond for Rs. 115. In 1914 or 1915 Ram
Karan got a decree on foot of these two
mortgages and in execution purchased 1
higha 8 cottahs. The plaintiff-rever-
sioner was not a party, and after Bas-
mutia's death in November 1918, he
demanded possession from Ram Karan
on the ground that the mortgages could
not bind the reversionary interest. The
defendant's written statement purports
to state the legtl justification for the
particular debts making up the two
aggregate mortgage advances and the
question we have to consider is whether
the mortgage-deeds and the decree passed
thereon can affect the plaintiff's interest
as reversionary heirs. The two Courts
below have agreed that the suit should
he decreed and the defendant Ram
Karan is now making a second appeal.
The consideration for the zarpeshgi
bond of 1905 was made up of (a)
Rs. 155-8-0 and (b) Rs 36-8-0, total
Rs. 192; that of the mortgage-bond of
1908 was made up of (c) Rs. G9-15-G (d)
Rs. 46. In regard to the amount (a)
above, it is necesssary to mention that
shortly after the death of Basmutia's
two sons, she and her co-widow Bahuri
executed a deed of gift in respect of 5
cottahs in favour of a Brahmin Swami
Bishudha Nand. In Suit No. 430 of
1905 the plaintiff's father won a decla-
ration that the gift did not bind the
reversionary interest. The active defen-
dant was Mt, Basmutia. It is alleged
that part of the sum of Rs. 155-8-0 was
made up of small advances, totalling
either Rs. 100 or Rs. 150, according to
the oral evidence to Basmutia on chitta
for her expenses in the suit ; and the rest
was for the purchase of bullocks and
agricultural expenses. There is little
space left for the bullocks and agricultu-
ral expenses, if we accept the figure
Rg. 150 or even Rs. 100 as the total
of advances for the litigation. But the
discussion has proceeded on broader lines.
Moti and Basmutia and their sons had
6 bighas ancestral property, we are in-
formed, and prima facie a gift by &
widow of 5 cottahs, one twenty-fourth of
the whole inheritance might not be con-
sidered an extravagance; nor, if that be
granted, would money spent for securing
the gift to the donee in the suit of 1905
bo necessarily unjustifiable. The whole
might possibly in certain circumstances
be regarded as a &ift to a Brahmin for
the benefit of the soul of the last male
owner or the souls of the members of the
joint family. I think that we would bo
at liberty to take this view, which is
quite independent of the result of the
suit of 1905, because I cannot find any
ground for application of the rule of
res judicata to the present defendant
Ram Karan.
But the circumstances which would
support such a view are not to be found.
Here was a matter in which
the defendant could and should have
helped the Court, but we are left in
obscurity. Wo have no certainty what
total area of lands was still in Basmutia's
possession when she made the grant to
the Brahmin, nor do we know with what
intention she made the gift, whether for
her own merits or for those of other
members of the family. Then, when the
suit came about, it must be remembered
that she had 'no existing rights in the
property sho was defending. We do nob
even know how much the expenditure
amounted to. We know nothing so far
as has been put before us of her means
at the time of the litigation. As to
her property, we have confused accounts
in the brief before us. In the Munsif s.
judgment it is mentioned that from the
evidence of the defendant's Witness No. fl-
it appears that in the year 1895 the Mt.
was in possession of only 3 cottahs of
land and the rest was in the possession of
her creditors. In the Subordinate Judge's,
judgment the same witness is quoted as
authority for the same statement. But
in the plaint it is surprising to see that
in 1895, the very year in which this
witness limits the property to 3 cottahst
there was a dispute in the Court of the
District Judge in a succession certificate
case and in March 1896 by a compromise
between the parties it was agreed that
the Mt. should get a life interest in the
properties without having any right to
create a charge upon them. With all-
192 Patna
RAM KARAN MAHTO V.DUHAR MAHTON (Poster, J.)
1926
this uncertainty as to what property
was in possession of Mt. Basmutia, it is
impossible to say that she had legal
justification for spending money in
defence of property which at the timo
of the expenditure had 'ceased to be hers.
As to the sum of Bs. 36-8-0 above, no
remaks were addressed to us. It pur-
ports to have been taken for the cost of
purchase of potatoes and paddy seeds
and the two Courts have held that the
Mt. had so small an area in her personal
possession thatr it was unlikely that she
would need to borrow so much for the
expenses of cultivation. In my opinion
it is not shown that the lower appellate
Court took a wrong viow in finding that
legal necessity or legal justification for
the tfarpeshtfi had not been proved.
I come now to the mortgage of 190H,
Tho first item is Bs. 69-15-G which 1
have marked (c) above. It was said to
comprise the costs with interest decreed
against Basrautia in the suit of 1905
already referred to The justification is
said to be the salvage of her property
which was attached in execution. Wo
are told that 3 cottahs of land wore at-
tached, but it is not clear whether her
life interest alone or the wholn family
interest was attached, and some of the
evidence we are told indicates that only
the potato crop on the land was under at-
tachment. In such uncertain circum-
stances there are no grounds for forming
an opinion which differs from that of
the lower appellate Court.
No remarks have been made on tho
subject of tho last item, Bs. 46 marked
(d) above. I am of opinion that Appeal
No. 1085 of 1923 should be dismissed.
I come now to Appeal No. 1086, Suit
No. 223 of 1921. The zarpeshgi is of
1895 and the plaintiff has produced the
ohallan showing a deposit of Bs. 98 on
the 6th June 1919, the deposit purpor-
ting to have been made under the pro-
visions of S. 83 of the Transfer of Pro-
perty Act. The defendant says that this
is not sufficient and that the redemption
price is Bs. 596, that is Bs. 498 more.
Here, however, the appellant is confron-
ted with findings of fact. < The learned
Subordinate Judge has found that there
is absolutely no satisfactory evidence to
convince him that Buchh Mahto (Moti's
i'ather who is stated to have originally
taken the advance from tho defendant)
evor took any loan from the Defendant
No, 1. There is no witness to support
this part of the case, nor is there any
scrap of paper to substantiate it.*It is also
in evidence that Buchh Mahto died be-
fore his son Moti. It is also in evidence
that Buchh Mahto died 30 or 32 year,?
ago. It is said that an adjustment of
accounts took place four years before the
death of Buchh Mahto. How was it that
the Defendant No. 1 did not take any
steps to realize the amount from Buchh
or his son Moti ^r from the sons of Moti
Mahto ? Again the learned Subordinate
Judge remarks that the debt of Buohh
Mahto has not been proved and there-
fore, he thinks that Basmutia had no
justification or legal necessity to execute
any bond in respect of this debt. Lastly.
he rernrks that in tho Cadastral Survey
Khatian the defendant's narno is entered
but the xarpeshgi is stated to be for
B^. 98. This scrutiny of the defendant's
case is still more detailed in the judg-
ment of the learned Munsif. Bam Karan
Mahto has given his own evidence and
tho learned Munsif has examined it close-
ly. His conclusion is that from the
evidence of this defendant itself it ap-
pears thai he could never have ad-
vanced any money to Buchh. The point
taken in appeal is that the lower ap-
pellate Court would have treated the
case more correctly if it had taken inuo
account the recitals in the zarpeshgi
bond in question which being of the year
1895 is old enough to deserve this spe-
cial treatment ; and tho case of Nandci
Lai v. Jayat, Kishore (I) is quoted, It
appears to mo that the facts of the pres-
ent case are not such as to attract; the
rule mentioned in that decision.
It is to be remembered that in that
case nearly 60 years had passed between
the date of the first deed and the institu-
tion of the proceedings and the attempt
to support by contemporary evidence
statements as to tho private affairs of
the deceased man or his widows could
only result as might have been expected,
in a number of witnesses attempting to
give first hand evidence upon matters
which occurred when they were of
tender years and now could only be
dimly and imperfectly remembered.
Their Lordships were of opinion that
tho recitals in the deeds could not be
disregarded, nor, or* the other hand
U) TuTnRi cai.Ts'tf^iTjL. c."iau^SaTT
•^i9 (P. C.).
1926
NANHAK SAO v. KING-EMPEROR
Patna 493
could any fixed and inflexible rule be
laid down a^ to the proper weight which
they were entitled to receive. It was
held that the recitals in 'the circum-
stances of that case were clear evidence
o! the representation m'detothe pur-
chaser as to legil necessity ; and the
principle underlying the rule was indi-
cated in one sentence :
To hald otherwise would result in deciding
that a title becomes weaker ag it grows older, so
that a transaction perfectly honest and legiti-
mata when it took place would ultimately ba
incapable of justification merely owing to the
passage of time.
Here in the present case, as I have
shown, the statement of the person most
acquainted with the facts has been re-
corded. He is in fact the person who
has the duty of proving his own case. It
does not appaar to me, therefore, tint
the rule can be invoked in
the present appeal. Moreover there
is a reservation in the judgment which
I have quoted, that the representation
should be consistent which the probabi-
lities and circumstances of the case. It
appears to me thab the passages which
I have quoted from the judgments of
the two Courts below indicate that no
recitals as to legal necessity could be
sustained in the present, in view of the
facts and circumstances which have been
arrived at.
There is only one question remaining
whether the mesne profits which have
been awarded should have been awarded
and whether a right time has been fixed.
In both cases the claim has been de-
ore°d. In Suit No. 222 it is obvious that
the reversigner is entitled, if he succeeds
in avoiding the sale to the defendant,
to tnesne profits from the date of suit,
In Suit No. 223 masne profits have been
awarded from the date of the deposit
purporting to have been made under
S/83 of the Transfer of Property Act.
I have found that the whole dues under
the mortgage, namely, Rs. 98 were in
fact deposited, so that there was a com-
pliance with the terms of the section.
The consequence of the deposit under
8. 83 is shewn inS. 84 which provides
that
when the mortgagor or such other person aa
aforesaid has tendered or deposited in Court
under S. 83 the amount remaining due on the
mortgage, interest on the principal money shall
eeasa from the data of the tender or as soon aa
the. mortgagor or such other person as aforesaid
has done all that has to be done by him to
enable the mortgagee to take such amount out
of Oouit, as the case may bx
Now, the interest due on the advance
of Rs. 98 « which has been found to-have
been made ceased when the deposit was
niide under S. 83. That interest con-
sisted under the contract between the
parties, in the usufruct of the land
granted under the zarpeshgi. It follows
from this that the mesne profits are
finally taken from -the date of the depo-
sit under S. 83. The terms of S. 84 which
I have quoted would indicate that pos-
sibly a week or two would be deducted
for the purpose of serving notice on the
mortgagee, but we are dealing with land
which has its seasonable crops and it
does not seom necassary to consider such
a small matter as that. In my opinion
mesne profits have been rightly awarded
and the right time has been fixed in the
two cases. I would dismiss both these
appeals with costs,
Dwson Miller, C. J.— I agree.
Appeals dimissed.
A. I, R. 1926 Patn* 493
ROSS AND KCTLWANT SAHA.Y, JJ.
Naiihak Sio— *Ac3used — Petitioner,
v.
King -Emperor — Opposite Party.
Criminal Revision No. 143 of 1926,
Decided on 10 sh Miroh 1926, against an
order of the S, J., Patna, D/- 2nd Feb-
ruary 1926.
(a) Peml Code, S. 361— Offence (s complete a*
.soon as mfyior Is actually taken from tlie lawful
guardianship.
The offence of kidnapping from lawful guar-
dianship is complete when the minor IB actually
frikyi from the lawful guardianship. It is not
an offence continuing so long as he is kept out of
such guardianship ; 2 C. W. N. 81 : 27 Cal. 1041
and 26 Mad. 454, Foil. [P 494 C 2]
(6) Penal Code, 8. Wl— Whether kidnapping
from lawful guardianship In complete Is a question
of fact.
The question whether, the act of taking th*
girl out of the keeping of her lawful "guardian
is complete is one of fact and must in each" case
bs decjded upon the particular evidence of each
particular casa. 27 Cal. iQil, Foil [P 494 C 2]
Kk-ursh aid Husnain and J. Hussain —
for Petitioner.
H . L. Nand Kcolyai — for the Crown.
491 Patna
NANHAK SAO v. KING-EMPEROR (Kulwant Sahay, 3.)
1926
Kulwant Sahay, J.— %The petitioner
was convicted by a First Class Magistrate
of Patna for an offence under S. 363/114
of the Indian Penal Code and sentenced
to nine months' rigorous imprisonment.
The conviction and sentence have been
upheld by the learned Sessions Judge on
appeal.
The only question of law raised in the
case is as to whether the accused abetted
the commission of the offence or whether
ho was merely an accessory after the
act. The girl Sudamia, a minor of ele-
ven years of age, was kidnapped from tho
lawful custody of Bazari Sao, who was
appointed her guardian by the District
Judge, on the 29th of June 1925, at about
3 A. M. The actual kidnapping of the
girl was made by Sri Bhagi*wan, a ne-
phew of Bazari Sao, who took the girl
from Bazari's house. Sri Bhagawan was
tried of an offence under S. 363, I. P. C,,
and convicted and sentenced to one
year's rigorous imprisonment. In the
course of the trial it appeared from the
evidence that the present petitioner
Nanhak also took part in the removal
of the girl. lie was, therefore, placed
upon his trial and convicted and senten-
ced as stated above.
The evidence as found by the learned
Sessions Judge is that Sri Bhagawan,
who was a nephew of Bazari Sao, took
the girl out of the house of Bazari Sao.
They went to a place near the house
of tho petitioner where an ekka was
standing. Nanhak»and Sri Bhagawan
helped the girl on to the ekka and Sri
Bhagawan took her away. The petition-
er Nanhak followed them sometime after
on a bicycle. The petitioner was found
near the Patna junction Railway Station
at the time when Sri Bhagawan and the
girl were getting down from the ekka.
The learned Sessions Judge finds upon
tho evidence that the ekka was kept at
Nanhak's door, that Nannak was stand-
ing near the ekka from before the arrival
of Sri Bhagawan and Sudamia, that he
helped Sudamia on the ekka, that he
followed on a bicycle, and that he was
seen with the eloping party near Patna
junction Bail way Station. The question
is whether thefact of kidnapping was com-
plete the moment the girl was brought out
of the house of Sri Bhagawan, or it was
^continuing when the petitioner helped
the girl on to the ekka.
A number of cases have been cited by
the learned advocate for the petitioner
to show that the offence of kidnapping
is not a continuing offence and that it is
complete the moment the minor is remo-
ved from the keeping of the lawful guar-
dian. In Rakhal Nikari v. Queen Empress
(1) it was held that the offence of kid-
napping a person is complete when he
is actually taken out of the custody of
the lawful guardian. In Nemai Chatto*
raj v. Queen-<Em press (2) the Full Bench
of the Calcutta High Court held that the
offence of kidnapping from lawful guar-
dianship is complete when the minor is
actually taken from the lawful guardian-
ship. It is not an offence continuing so
long as he is kept out of such guardian-
ship. The same view was taken in
Gliekutti v. Emperor (3). There can
therefore be no doubt that the act of
kidnapping would be complete as soon
as the minor was taken out of the keep-
ing of the lawful guardianship. The
question is whether the act of taking the
girl Sudamia out of the keeping of her
lawful guardian was complefe before she
was taken to the place wheye the ekka
was standing in front of the petitioner's
house. In the case of Nemai Bhattoraj
v. Queen-Empress (2) just referred tc
the learned Chief Justice observed that
the question is one of fact and must in
each case be decided upon the particular
evidence of each case. In all the cases
cited on behalf of the petitioner there
was an interval of time and distance,
so far as the place was concerned, bet-
ween the actual removal of the girl
and the abetment by the accused persons
or taking part in the offence by the
accused persons in those cases : In the
present case the finding is that the
accused took part in the actual removal
of the girl immediately after she was
taken out of the house of her guardian
It appears from the evidence that the
place where the ekka was standing was a
short distance from tho house of Bazavi
Sao, only a few houses intervening bet-
ween that place and Bazari's house. As
I have said, the question is one of fact
and the learned Sessions Judge as well
as the Magistrate have both come to the
finding, on a consideration of the evi-
(1) [1897] 2 C. W. N. 81.
(2) [1900] 27 Oal 1041=4 0. W. N. 645 (P.B.)
(3) [1903] 26 Mad. 454.
1926 DINDAYAL SINGH v. RAJ KESHWAR (Dawson-Miller, C. J.) Patna
dence, that the act of kidnapping was not
complete at the time when the petition-
er helpedthe girl on to the ekka. Under
these circumstances, the conviction under
S. 363/114, I, P.O., appears to be cor-
rect.
The question, however, remains as to
whether a sentence of nine months'
rigorous imprisonment is an appropriate
sentence. The actual culprit, Sri Bhaga-
wan, was given one year's rigorous .impri-
sonment. The present petitioner Nan-
hak does not appear to have had any
sinister motive so far as the girl was
concerned. It appears from the evidence
that Bdtzari Sio wanted to give the girl
in raarriaga to a certain person which
was objected to by the near relation of the
girl, Nanhak appears to be one of the party
who objected to the marriage proposed
by Bazari Sao. Under the circumstances,
I think a sentence of three months' rigor*
ous imprisonment would meet the ends
of justice. The conviction is, therefore,
upheld and the sentence passed on the
petitioner is reduced to one of three mon-
ths' rigorous imprisonment.
R088, J,— I
agree.
Sentence reduced.
A. I. R. 1926 Patna 495
DAWSON-MILLKR, C. J., AND FOSTER, J.
Dindayal Singh anrl others — Plain-
tiffs— Appellants.
v.
Raj Keshwar Narayan and others —
Defendants — Respondents,
Letters Patent Appeal No. 29 of 1926,
Decided on 18th June 1926, from a judg-
ment of Adami, J., D/- 10th February
1926.
<a] Bsngal Tenancy Act, S. 70 (4)— No fresh
notice need be given under sub-S, (4).
If sufficient tioaa is given aft3r service of notic6
and before the Collector passes his final orders, to
.-enable tenants to come forward and make their
objections, that is a proper compliance with the
provisions of sub-S. (4) and no further notice is
required upon the tanants to enable them to
conie and make their objections. [P 496 G 2]
(b) Bengal Tenancy Act, S. 70 (ty—Notlcfi
served by Amln— Person aHeglng absence of
notice must prove it.
If the Amin 000133 to tha villag3 and gives
notice to all and sundry either by informing them
personally or by leaving notices at their houses,
then that is prim a facie compliance with the
section. If that is done, then it lies upon those
who are complaining that the section is not com-
plied with to come forward and give evidence
that they in fact had no notice.
[P 496 C 2 P 497 C 1]
(c) Ctvtl P. C. S. 100— Question as to notice
is one of law.
The question whether certain -facts found
amounted to giving notice within S. 70, Bengal
Tenancy Act, or not, is a question of law ,
[P 497 C 2]
S. N. Rai — for Appellant,
S. Dayal—tor Respondents.
Dawson- Miller, C. J. — This is an
appeal under the Letters Patent from a
decision of Mr. Justice Adami, overrul-
ing the decree of the lower appellate
Court.
The suit was brought by the appel-
lants who were the tenants of mauza
Rampur Uber against their landlords
claiming a declaration that a decree
passed under S. 69 of the Bengal Tenancy
Act, dated the 12th January 1920, in
favour of the Defendants Nos. 1 to 3 by
the Sub-Divisional Officer of Jahanabad
was quite fraudulent, and fit to be set
aside and that the defendant had no
right to realize the amount covered by
such a fraudulant decree. The decree
which is complained of in the plaint is
one passed under S. 70 of the Bengal
Tenancy Act and not under S. 69 as
stated in the plaint. Both these sections,
however, have reference to the same sub-
ject-matter and relate to appraisement
of produce rents at the instance of either
the landlord or the tenant in certain
cases. I may say at the outset that the
case of fraud set up by the plaintiffs was
not established and their evidence in
this respect was not accepted by either
the trial Court or the Subordinate Judge
in appeal. The case, however, upon which
they succeeded in the trial Court and in
the Court of appeal was that no notice
had been served up on the plaintiffs who
constitute some of the tenants in the
village under the provisions of S. 70 of
the Bengal Tenancy Act. That section
provides in effect that the Collector may
appoint an officer giving him certain di-
rections as to the making of an appraise-
ment referred to in S. 69 of the Act, and
sub-S. (2), S. 70 says that of
the officer shall before making an appraise-
ment or division, give notice to the landlord and
tenant of the time and place at which the
appraisement or division will be made : but if
either the landlord or the tenant fails to attend
either personally or by agent, he may proceed ex
parte.
496 Patna DINDAYAL SINGH v. RAJ KBSHWAR (Dawson-Miller, C. J.) 1926
Then under the remaining provisions
of the section the officer having made his
appraisement; must submit it to the Col-
lector and by sub-S. (II the Collector
shall consider the reporb and, afber giving
the parties an opportunity of being
heard and making such enquiry (if any)
as he may think necessary, shall pass
such order thereon as he thinks just.
The cage apparently set up by fche
plaintiffs before the trial Court was that
they or some of them had not been per-
sonally served wifch any notice under the
provisions of sub-S. (2) of S. 70. The
facts found by the Munsif in tbe trial
Court wore that in some cases the notice
had been served personally; in other
cases the tenants had refused to accept
the notice and in some cases the tenants
could not be found personally ; bub where
they were nob personally served the
nobices were affixed ab their houses
whioh is a well-known form of service
when persons cannot bs found. It was
also found that some of the tenants who
were apparently either tho jeth raiyats
or important tenants in the village ap-
pointed a man called Jit Narain to be
their salis and look afber the inberests of
the tenants in the appraisement.
Tho Munsif finally came to this con-
clusion that he bhoughb bhat the plain-
tiffs had full knowledge of the proceed-
ings ; in other words, he considered that
they had been served either personally
or by affixing the notices upon bhoir
houses and thab in facb they had full
knowledge of the proceeding* He con-
sidered , however, that, although pro-
per notice was given within the meaning
of sub-S. ((2) nevertheless, under sub-S. (4)
they were not given any notice so as
to give them an opporbuniby of being
heard upon the amin's reporb. The rea-
son why the Munsif arrived at the con-
clusion that the plaintiffs had nob been
given an opportunity of being heird be-
fore the Collector in objection to the
amin's report appears to have been that
there was nothing in the order-sheet to
show that any notice had been served
upon them to appear before the Collector
and take objection, if bhey thought fit, to
the amin's report. What the Collector in
faob did was, afber receiving the report
he kept his final order pending for a week
to enable the parties, if they had any ob-
jection, to come forward and represent
it before him, and in my opinion this be-
ing, I think, a mixed question of fact and
law it seem* to ma bhat bhat was quite
sufficient compliance with the provisions
of S. 70, sub-S. (4), because, assuming that-
proper notice is given under sub-S. (2),
then the parties know exactly what has
been done' by thaamin when he made his
report. They do in practice appoint a
person to represent them known as a
salis. He and the amin together between
them discuss, and possibly dispute* as to
the amount of the produce in each of the
fields and between them they eventually
arrive at the proper amount of produce.
At all events the tenants have that op-
portunity of knowing exactly what is
contained in the amin's reporb long be-
fore ib goes bo the Col loo tor. Therefore
if they have any objection to make and
if sufficient time is given before the
Collector passes his final orders to enable
them to come forward and make their
objections, that is in my opinion, a pro-
per compliance with the provisions of
sub-sec. (4) and no further notice is re-
qtiired upon the tenants to enable them
to come and make thoir objections.
Wlion the case went to the Sub-
ordinate Judge on appeal he did nob in
terms find any facts contrary to those
found by the Munsif. He seems to have
been of opinion thab the service of notice
und^er sub-S. (2) in the manner in which
I have just described was not a proper
compliance with that sub-section, and
that in the cases whore personal-service
was not made the plaintiffs were entitled
to nave the desree set aside. This appears
to me to be taking a highly technical
view of the meaning of sub-S. (2). I may
point out that there is nothing in sub-
S. (2) about serving notice personally
upon the parties and although to comply
with that section it is I think essential
that the parties should in one manner or
another be given nobice of the fact that
the amin is about to make an appraise-
ment, still no method of serving notice is
prescribed in the Act, and the words
used in the Act are not "serve" notice
but "give" notice and it seems to me that
if the amin comes to the village and
gives notice to all and sundry either by
informing them personally or by leaving
notices at thoir houses then that is prima
facie a compliance with the section. If that
is done, then I think it lies upon those
who are complaining that the section is
n ot co ID pi led with to come for-ward and
1926
BIBI UMA HABIBA v. MT. BASOOGAN (Foster. J.)
Pataw 497
give evidence that they in fact had no
notice. That was nob done in this case.
The plaintiffs seem to have thought that
the defendants would have some diffi-
culty in proving personal service on each
of the plaintiffs and one of the most im-
portant of the tanants at all events al-
though he appears to have been in Court
was not called as a witness. The others
in so far as they stated that they had no
notice, were not believed by the Munsif
who came to the conclusion that they
had full knowledge of the proceedings.
The learned Subordinate Judge hav-
ing arrived at the conclusion that the
serving of notice* in'the manner which
I have described was not a proper com-
pliance with sub-S. (2) further went on
and said :
There Wc»s therefore no opportunity given to
these persons to object to the .report of the
amin, and in my opinion this makes the decree
against them void under S. 70. ol. (4) as interpre-
ted, in the ruling cited by the lower Court.
If in fact the plaintiffs had no notice
under sub-S. (2) and nothing more was
done, I quite agree with the learned
Subordinate Judge that they had no op-
portunity of objecting to the Collector's
report under sub-S. (4), but if, on the
other hand, the mode of giving the
notices as found by the Munsif in this
casa was a proper mode, then it seems
plear that the parties had an opportunity
under sub-S. (4) because the Collector
postponed the final orders passed by him
for a week and that could only be for the
purpose of giving the parties an oppor-
tunity of coming forward and making
their objections.
When the case came on second ap-
peal to the learned Judge of this Court
he came to the CDnclusion that there was
service of notice even if it be gran-
ted that it was irregular as against some
of the plaintiffs. He then went on and
said that the Court below also found that
an opportunity was given to the plain-
tiffs under S. 70, sub-S. (4) of the Bengal
Tenancy Act, but in that respect either
he had an imperfect copy of the judg-
ment before him or there is some slip,
because the actual finding of the Sub-
ordinate Judge was not that an oppor-
tunity was given under sub-S. (4) but
that no opportunity was given. That,
However, is not a matter of any impor-
tance in the view I take of this case for,
although this is a question of fact, still
1926 P/63 & 64
the question whether certain facts found
amounted to' giving notice within thfr
meaning of the section or not is a ques-
tion of law. We know what the facts*
found were and upon those facts it seems
to me that proper notice was given
within the meaning of sub-S. (2) of S. 70
and in these circumstances all was done
that was necessary to make the* Collector's
decree final and binding.
This appeal must be dismissed with
cost P.
Foster, J.— I agree.
Appeal dismissed*
# A.I. R. 1926 PatnA 497
DAS AND FOSTER, JJ»
Bibi Uma Habiba — Appellant,
v.
Mt. Rasoolan and another — Respon-
dents.
Appeal No. 113 of 1925, Decided on
27th January 1926, from the original
order of the Sub-J., Darbhanga, D/- 17th
April 1925.
# Civil P. C., S. IS—Another decree-holder
applying for distribution — First decree- holder
alleging his decree to be collusive and applying for
judicial enquiry — Application should not be
entertained.
The aot of distribution under B. 73 is a minis-
terial act <vnd therefore where the first decree-
holler objects to rateable distribution on the
ground that second decree-holder's decree was
collusive and urges for judicial decision on the
point.
Held : that his pray or should be disallowed :
23 All. 313 P. C., Foil. .[P 498 0 1]
Khurshaid Ilusnain, Ali Khan and
S. M. Wasi — for Appellant.
S. M. Mullick and Rajeswar Prasad —
for Respondents.
Foster, J.— The appellant held »
money decree for her dower, her deceased
husband being one Manzoorul Haq. In
the course of the execution, after reali-
zation of certain assets, the respondent
Bibi Easoolan put in a claim for rateable
distribution under S. 73 of the Code of
Civil Procedure. Thereupon the decree"
holder Bibi Uma Habiba made objection
to this intrusion in the course of her
execution on the ground that the decree
of Bibi Easoolan was obtained in collu-
sion with the judgment-debtors. She
therefore asked the Court to hold an
498 Patna
HIUA LAL v. SAUABJIT KAMKAR (Ross, J.)
1926,
enquiry into the uutter wifch a view to a
decision whether Bibi Rasoolan was in
possession of a bona fide decree, and whe-
ther she sihould nob be excluded from the
rateable distribution. The learned Sub-
ordinate Judge quoted a number of cases
ending in Shankar Samp \.Mejo MaZ(l).
In this last case their Lordships of the
Judicial Committee remarked :
" The 29oth section " (that is the sec-
tion which corresponds to the present
8. 73) :
While providing that the Judge under whoso
authority the sale takes place shall distribute the
proceeds, provides also that if all or any of such
assets ba paid to a person not entitled to receive
the same, any person so entitled may sue such
person to compel him to refund the asset* . .
„ . . . The scheme of S. 295 is r.tther to
enable the Judge as matter of administration to
distribute the price according to what seem at
the time to ba the rights of parties without this
distribution importing a conclusive adjudication
on those rights, which may bo subsequently
read juste 1 by a suit such as tlie present.
The learned Subordinate Judge, relying
on this and other cases several of which
are expressly opposite, found that the
objection could not be made tho occasion
of a judicial enquiry whether (hero was
a right to rateable distribution by virtue
of the decree exhibited. It seems to me
that the learned Subordinate Judge took
a correct attitude in this matter. The
aeotion-itself specifically states that when
there are assets in tho Court, they may
be rateably distributed between the
claimants money decree-holders ; and
whete all or any of the assets liable to
be rateably distributed under this section
are paid to a person not entitled to
receive tho same, any person so entitled
may sue such person to compel him to
refund tho assets. It appears to mo
therefore that the remedy indicated in
the seoond clause cf S. 73 is the only
remedy. '* The expression of one thing
is the exclusion of the other. "
It was urged that the matter really
was under S. 47, but it seems to me that
the Privy Council decision must be
deferred to, and this matter must be
rega'rded as a purely ministerial act which
has no element of a judicial decision.
I would therefore dismiss this appeal
without coats and the Civil Revision is
also dismissed.
Appeal and Revision dismissed.
73 (PfC.)
AH, 318=28 I. A. 203=8 Sar.
A, I. R. 1926 Patni 498
Boss, J.
Ilira Lai — Plaintiff — Appellant,
v.
Sfirabjit Kamkar and another — Defen»
dants — Respondents.
Appeals Nos. 1176 and 1 1 77 of 1923, De-
cided on 1st June 1920, from the appellate
decrees of the Sub- J., Motihari, D/- 5th
October 1923.
Landlord and tenant — Tenant cannot deny
landlord's title at the time of demise — Tenant can
sh^w that subsequent to the demise landlord's title
had expired.
A plea cannot be set up by a tenant of whioh
the necessary effect is to impeach the title of the
parson who gave the possession, that is, his title
at the time of the demise. Subject to this re-
quirement being satisfied the title, both before
and after that time, may be disputed, i. e., it is
always opon to the tenaut to show, either as
against the person from whom the possession
was obtained, or as against anyone claiming
under him, that tho title cf such person has ex-
pired or bacorne defeated at a period subsequent
to the demise. [P 499, C 1]
N. C. Sink a and Harihar Prasad
Sinha — for Appellant.
L. N. Siiif/h and Bliaywan Prasad —
for Respondents.
Judgment —The short point in this
caso is whether a tenant is entitled to
show that his landlord's title has ex-
pired. The defendants who are respon-
dents took a settlement from Mt. Nand-,
raji Kuer, the widow of Dhunraj Dubey
in 1918. In 1922 their lessor executed
a Kurpeshgi deed in favour of the present
plaintiff after having married a Muham-
madan and, therefore, forfeited her
interest in her husband's estate. The
question is whether the defendants who
had boon put into possession by her were
entitled to show that her title had
ceased. Reference was made to Bigelow
on Estoppel, at page 562, where it is said
that
it is well settled that a tenant in possession
cannot, even after the expiration of his lease,
deny his landlord's title without : (1) actually
and openly surrendering possession to him ; or
(JJ) being evicted by the title paramount or at-
torning thereto ; or (3) at least giving notice to
his landlord that he shall claim under another
and a valid title.
To the same effect are the decisions
in Bhaiganti Bewa v. Himmat Bidyakar
(1) and Devalraju v. Mahamed Jaffer
Sahebjty, .This statement of the law,
(1)" [1916] 2* C. L.J. 108=85 I. C. 7~=20
C. W. N. 1835.
(2J [1913J 3J .Mad. $3=49 1. C. 555.
1926
Nmsu NARAYAN v. KIKG-EMPEROR (Rose, J.)
Patna 499
however, does nob contain the whole
rule on the subject of the tenant's
estoppel*
Nor cau A plea be set up of which the neces-
sary effect is to impeach the title of the person
who gave the possession, that is, his title at the
tfime of the demise, for, subject to this require-
ment being satisfied the title, both before and
after that time, may be disputed. The latter
principle is expressed by saying that it is always
open to the tenant to show,. either as against
the person from whom the possession was ob-
tained, or as against anyone claiming under
him, that the title of such parson has expired
or bdcotne defeated at a period subsequent to
the demise : 'Foa's Landlord and Tenant, 6th
Edition, page 524.
Woodfall in his "Landlord and Tenant",
Twenty-first Edition, at page 264, says :
*'The tenant may, however, show that
his landlord's title has expired."
No other point was raised in the ap-
peal which must be dismissed with
ooats.
This judgment will govern S. A.
No. 1177 of 1923 also.
Appeals dismissed.
* * A. 1. R. 1926 Patna 499
Ross AND KULWANT SAHAY, JJ.
Nirvu Ndrai/au Shiha — Accused— Peti-
tioner.
v.
The Kin</- Kniperor — Opposite Patty.
Criminal Revision No. 505 of 1926»
Decided on 12th August 1926, from tliu
order of the S. J, Saran, D'- 30th July
1.926.
# # (a) Penal Code, S. 499— Statement* made by
advocate duriny profewloniJ work are privileged
— Privilege £« qualified— Prowttilon 7ia? to prove
express motive.
The liability of a pleader charged with defama-
tion in respect of words spoken or written in the
performance of his professional duty depends on
S. 499 and the Court would presume good faith
unless there is cogent proof to the contrary. The
privilege is not absolute but qualified, and the
burden is cast upon the prosecution to prove
absence of good faith, [P 500 C 1, 2j
Where express malice is absent the Court,
having due regard to public policy, would be
extremely cautious before it deprives the Advo-
cate of the protection of Exception 9. The Court
ought to presume his good e faith and not hold
him criminally liable unless there is satisfactory
evidence of actual malice and u a less there is
cogent proof that unfair advantage was taken of
his position as pleader for an indirect purpose, 19
Bom, 840, FOU. [P 560 C 2]
# (b) P*nd Code. S. lGl->Penal Code, S, 499
Statement that Government servant worked
for money in favour of a candidate at an election
is not charging him with bribery as such work
is not in discharge of his official duty. It is on
the contrary prohibited. [lj 501 C 1]
# (c) Penal Code, S, 499— Advocate— Liability
— English Common Law principles do not apply
In India (Kulwant Sahay, J,)
Under the Common Law of England an advo-
cate can claim an absolute privilge for words
uttered in the course of his duty as an advocate.
But an advocate in India is not entitled to au
absolute privilege, and in cases of prosecution
for defamation his liability must; be determined
on reference to the provisions of S. 499.
[P 502 C 1/2]
$ Id) Criminal P, \\, S. W9-~Queitlon of
proof of malice Is one of law —Penal Code, S. 499
(Kulwant Hahay, t/.).
The question whether upon the facts found or
proved, malice has been established is a question
of law. [P 503 C:2]
S. Sinha, S. K. Banerji. Harnarain
Prasad, Sambhu Saran, B P. Sinha and
Saranydhar Sinha — for Petitioner.
Sultan Aliened II. L. Nandkeolyar and
Bankim Chandra Milker jee — for the
Crown.
Ross, J. — In 192JJ there was an elec-
tion for the .Bihar Legislative Council.
Two of the rival candidates were Nirsu
Narain Singh, the petitioner, and Kai
Bahadur Chandraketu Narain Singh.
The latter was successful ; and the
former disputed the validity of the elec-
tion on various grounds. One of these
grounds was that Zainuddin Khan, the
Sub- Inspector of Police of Masrake
Thana had used undue influence in pro-
curing the votes of the chowkidari presi-
dents of his thana, for Chandraketu
Narain Singh. An enquiry was held by
Commissioners ; and in that enquiry one
Badhakant Prasad a president gave evi-
dence for the petitioner to the effect
that at the thana the head constable
gave them a message l-from the Sub- In-
spect or to say that they were to support
the candidature of Chandraketu Narain
Singh. The Commissioners found that
the charge of undue influence was
untrue.
In December 1925 Zainuddin Khan
prosecuted one Sheomangal Bari, a
servant of Beni Prasad, a brother of
Badhakant Prasad for an offence tinder
the Arms Act. The petitioner who is
an advocate of this Court, defended the
accused in that case. Part of the «^-
dence was that the Sub-Inspector h&d In
old grudge against Badhakant Prasad
500 Patn*
NIBSU NARATAN v KING-EMPEROR (Ross, J.)
1920
and therefore had concocted a false case
against his brother's servant. Zainuddin
Khan was cross-examined on the subject
of the election and Badhakant Prasad
gave evidence for the defence stating that
he gave his vote as desired by the Daroga
to Chandraketu Narain Singh, but that
he advised his tenants to vote for the
petitioner. He also said that he had
given evidence for the petitioner in the
case about the election. During his
argument in that case the petitioner said
that
the Sub-Inspector might have been given silver
tonic iu the matter of election between him and
Bai Bahadur Chandraketu Narain Singh to side
the Litter,
The Sub-Inspector then laid a com-
plaint of defamation against the peti-
tioner on these words. The petitioner
was convicted by the Deputy Magistrate
of Obapra and sentenced to one week's
simple imprisonment and a fine of
Es. 1.000 under S. 500 of the I. P. 0.
An appeal against the conviction
was dismissed by the Sessions Judge of
Saran. The present application in revi-
sion is directed against that conviction.
The law on the subject has been fully
discussed by a Special Bench of the
Calcutta High Court in Satish Chandia
Ghakravarty v. Bam Dayal De (l). That
was not a case about the position of an
advocate in defending a client : but all
the cases on this subject were referred to.
It was held that if a party to a judicial
proceeding is prosecuted for defamation
in respect of statements made therein on
oath or otherwise, his liability must be
determined by a reference to the provi-
sions of S. 4D9 of the I. P. C. that
the question must be solved by the
application of the provision of the I
P. C. and not otherwise • that the Court
cannot engraft thereupon exceptions
derived from the Common law of England
or based on grounds of public policy.
Consequently a person in such a position
is entitled to the benefit of the qualified
privilege mentioned in S. 499 of the
I. P, C. The case dealing with
advocates were also referred to as ruling
that the liability of a pleader charged
with' defamation in respect of words
spoken or written in the performance of
his professional duty depends on the
previsions of S. 499 of the L P. C. and
that the Court would presume good faith
unless there is cogent proof to the con-
trary. The privilege is not absolute
but qualified ; no doubt the burden is cast
upon the prosecution to prove absence of
good faith. In re Nagarji Trikamji (2)
which was followed in Upendra Natk
Bagchi v. Emperor (3) their Lordships,
without deciding whether Advocates have
or have not an unqualified privilege from
criminal prosecution, said.
In considering whether there was good faith,
that is under S. 52, due care and attention of the
person making imputation must be taken into
consideration. That of aa advocate is well
expressed by the Master of the Bolls in the pass-
age cited above [i. e. Munster v. Lamb (4)]. He
speaks from instructions , he reasons from facts,
sometimes true, sometimes false. He draws
inferences from these facts sometimes correct,
sometimes fallacious. He does not express his-
own inferences, his own opinions or his own
sentiments, but those which he desires the
tribunal, before which he appears, to adopt,
This duty the law allows, almost compels him to
perform. Such being his duty it » seems to us
that where express malice is absent (and it oughtt
not to be presumed) the Court, having due regard
to public policy, would be extremely cautiou»
before it deprived theadvocate of ihe protection
of Exception 9.
In, U 'pencil a Nath Bagclu's ca^e (3>
their Lordships referred to Empeinr v.
Purshottom Dass Banchoddas (5) where
it was said that; •
when a pleader is charged with defamation in
respect of words spoken or written while per-
forming duty as a pleader, the Court ought tc
presume his good faith and not hold him crimi
nally liable unless there is satisfactory evidence
of actual malice and unless there is cogent
proof that unfair advantage was taken of hit
position as pleader for a'n indirect purpose.
This decision was followed in Nikunja-
Behari Sen v. Harendia Chandra Sinha
(6) where it was held that a pleader is-
entitled to the presumption of good faith
and that, to rebut that presumption,
there must be convincing evidence that
the pleader was actuated by improper
motives personal to himself and not by a
desire to protect or further the interests
of his client's case. These were referred
to without being dissented from in the
decision of the Special Bench. The law
therefoie is this : that while a case of
defamation against an advocate IB gov
erned by S. 499 of the Indian Penal
ha9 _ to be presumed in
_
(2) [1896] 19~Bom. 840. ~~
(S) [1909] 36 Cal. 375—13 C. W. N, 840= 1 I.
C. 147=9 C. L. J. 259.
(4) [1883] 11 Q. B.D. 688=49 L.T. 252=32 W
B. 248=47 J. P. 805=52 L. J, Q. B. 726,
(5) [1907] 9 Bom. L. B. 1287=6 Cr. L. J. 887.
(6) [19141 41 Cal. 514 = 201. 0. 1008 = 18-
C. W. N. 424,
1926
NIRSU NARAYAN v. KIKG EMPEROR (Boss, J.)
CGI
his favour ; and it is for the prosecution
to prove that he was actuated by malice
and by* indirect motives personal to
himself.
That the words which form the sub-
ject of the charge were used by the
petitioner is not disputed. It was argued
on his behalf that the prosecution ought
to have shown the context in which the
words were used. It seems to me that
if the defence relied upon the context as
minimizing the effect of the words, that
ought to have been established by the
defence. The first question for decision
is whether the words are defamatory.
The meaning of the words is plain,
although it is not expressed grammati-
cally. The words mean that the Sub-
Inspector actively supported the candi-
dature of Ghandraketu Narain Singh
and that he might have been doing this
for money. Both the Courts below have
interpreted this as meaning that the
Sub-Inspector was bribed. If this means
that the Sub-Inspector was taking a
gratification in the sense of S. 161 of the
Indian Penal Code, then the construc-
tion is certainly wrong, because it is
not suggested that anything that he did
in the matter of the election, was doing
or forbearing to do, was an official act or
in the exercise of official functions. On
the contrary, as the Magistrate has
pointed out, Government servants are
strictly prohibited under their rules from
helping candidates in elections. The
words therefore come to this that the
Sub>Inspector was acting as an election
agent for Cbandraketu Narain Singh
and might have been paid for his work.
Used of a private person, such language
would not be defamatory, but it is said
that inasmuch as Government servants
are prohibited from taking an active part
in elections, these statements would have
:got the Sub- Inspector into trouble with
his superiors. But the mere statements
that he canvassed for a candidate would
also have had this effect, and as has been
shown above, there was evidence on the
record to justify the advocate in making
that statement at all events. The argu-
ment of the petitioner in the case under
the Arms Act appears to have been this
that the Sub-Inspector was acting on
behalf of Ghandraketu Narayan Singh in
the election and that Badhakant Prasad
had not carried out his directions ; and
therefore, the Sub-Inspector had got up
a false case against a servant of his
brother, it was suggested as a link in the
chain of reasoning that the Sub-Inspec*
tor might have had a pecuniary interest
in the matter.
This leads to the consideration of the
main question in the case, viz., whether
the petitioner in advancing this argu-
ment was actuated by malice and in-
direct motives of his own. His own
statement was that whatever he suggested
in cross-examination of the prosecution
witnesses and commented in argument
was based upon instructions he received
from his client and on the record of the
case ; and that statement is supported
by the evidence of one of his colleagues,
Bai Bahadur Birendra Nath Ghakravarti,
an advocate who was examined in the
trial as a prosecution witness. It was
objected that no suggestion was made
to the Sub-Inspector either in the trial
of the case under the Arms Act or in
the present trial or to Badhakant Prasad
that the Sub-Inspector had been paid
and that no such suggestion was made
before they Commissioners in the election
case. As the Sub- Inspector denied
throughout that he had acted at all for
Ghandraketu Narain Singh, it is not
clear that anything would have been
gained by putting any further question.
Neither side thought fit to put the ques-
tion to Mr. Chakravarti. But it is not
clear that it was for the petitioner to
put the question when he made the
statement that the petitoner acted and
said everything on instructions, while
it was for the prosecution to establish
malice by positive evidence.
The prosecution mainly relies on the
relations between the Sub-Inspector and
the petitioner arising out of the election.
The Sub- Inspector says that the peti-
tioner's impression was that Bai Bahadur
Chandraketu Narain Singh had suc-
ceeded through his efforts and hence the
malice of the accused against him. It
is not clear from what his knowledge of
this impression was derived and it seems
in the last degree improbable that the
petitioner should have thought anything
of the kind : he himself denies that this
was his impression. It is also said 'that,
after the decision of the Commissioners,
this statement must have been malicious,
and that is the ground upon which both
the Courts below have proceeded. But the
question before the Commissioners was as
502 Patha Nmsu NARAYAN v. KING-EMPEROR (Kulwant Sahay, Jj
to the exercise of undue influence over the
chankiclari presidents by the Sub-Inspec-
tor in his official position. The present
statement has no connexion with any
such idea. In fact the trial Court based
its finding entirely on the result of the
election petition. The learned Sessions
Judge seems to have deduced malice
from the absence of instructions on this
particular point and from the fact that
the Commissioners had decided in favour
of the Sub- Inspector. But even if it he
t*ae that in making his comments on
the evidence the petitioner went beyond
his instructions, thi > would not in itself
amount to proof of malice ; and the
decision on the election petition is wholly
immaterial. Consequently I am unable
to find any evidence that fcho petitioner
was actuated by malice or indirect
motives of his own in arguing as he did,
an 1 would therefore hold that he is enti-
tled to the benefit of the'ninth excep-
tion. It follow-* that the conviction and
the sentence must bo set aside and the
petitioner must be acquitted and released
from bail.
Kulwant Sah*y, J.— [agree. Learn-
ed counsel for the petitioner commenced
his argument by referring to the Com-
mon Law of England that no action,
civil or criminal, lies against Judges,
oonnsel, witness*, or parties for words
spoken in the ordinary course of any
proceeding before any Court or tribunal
recognized by law, and a reference was
made to Mtinster v. Fjcimb (4).
Now under the Common Law of Eng-
land an advocate can claim an absolute
privilege for words uttered in the course
of hU duty as an Advocate. But this
law is nob applicable to this country,
;The question was considered at great
length by a Special Bench of the Cal-
cutta High Court in Satish Chandra
Chakravarty v. Bam Dayal De (l) where
it was held that if a party to a judi-
cial proceeding is prosecuted for defa-
mation in respect of a statement made
therein on oath or otherwise, his liability
must be determined by reference to the
provisions of S. 499 of the Indian Penal
Code1. The Court cannot engraft there*
upon axceptions derived from the Com-
mon Law of England, or based upon
grounds of public policy* Consequently
a person in suoh a position is entitled
only to the benefit of the qualified pri-
vilege mentioned in S. 499 of the Indian
Penal Code.
This was a case of a party to a judicial
proceeding and not of an advocate. But
the case of an advocate does not stan<J
on a different footing, and all the
authorities bearing on the subject were
cited in the decision of the Special Bench
referred to above. We must therefore
accept the proposition that an advocate
in this country is not entitled to an
absolute privilege ; and in cases of prose-
cution for defamation his liability must
be determined on reference to the
provisions of S. 499 of the Indian Penal
Code. The Madras High Court h as-
taken a different view. In Sullivan v
Norton (7) a Full Bench of that Court
held that an advocate in India cannot be
proceeded against civilly or criminally
for words uttered in his office as advocate..
In In re P. Venkata Rcddij (8) a similar
view was expressed as regards the Com*
mon Law doctrine of absolute privilege.
But all the other Courts are agreed in
holding that this doctrine is not applica-
ble to this country. Mr. Sinba, although
he begin by a reference to this doctrine
of the Common Law of England, subse-
quently accepted that the law laid down
by the Special Bench of the Calcutta
High Court was the correct law. We
have, therefore, to consider whether the
petitioner is entitled to take protection
under the ninth exception to S. 499 of
the Indian Penal Codo.
Mr. Sinha has raised four points in
defence of his client : first, that the%peti-
tioner was acting on instructions : se-
condly, that the words uttered by the
petitioner and forming the subject-matter
of the charge detached from the context
do not convey any adequate idea of the
meaning of the expression used by the
petitioner, and they are not in them-
selves such as to make the petitioner
liable on a charge of defamation ; thirdly
the meaning to be attached to the words
used by the petitioner does not necessa-
rily amount to defamation ; and lastly
that there was a presumption of born*
fides in favour of the petitioner, and it
was for fche prosecution to prove malice,
and that they have failed to do 30.
It has been held by the learned Ses-
sions Judge that in using the expression
(7)~ [i«87Tlo"Mad. aefTFT B7). ~~
(8) [1912]86 Mad. 216-28 M. L. 3T. 89=14
I. C. 659^(1912) M. W, N. 476 (F. B.).
1926
DURGA SINCH v. MT. RAM DASI KCTAR
Patna 503
forming the subject-matter of the charge
the petitioner was not acting on instruc-
tions. Learned counsel for the petitioner
draws our attention to the deposition of
Rai Bahadur Birendra Nath Chakravarty
an advocate of this Court, practising in
the Courts at Chapra, who was examined
as Prosecution Witness No. 4. This wit-
cess was the colleague of the petitioner
in the case against Sheoiuangal Bari and
he stated in his deposition : "My col-
league Nirsu Bahu acted and said every-
thing on instruction." The petitioner,
when examined under S. 342 of the
Criminal Procedure Code, stated that
whatever comment ho made in the course
of the argument was based upon instruc-
tions received from his client. It is
contended by the learned Government
Advocate that if the petitioner wanted
to escape liability on the ground of his
uttering the words forming the subject-
matter of the charge upon instructions
received from his client it was incum-
bent upon him to prove such in-
structions.
The learned Sessions Judge observes
that the Prosecution Witness No. 4 was
not specifically asked whether Nirsu
Narayan Singh had instructions regard-
ing the "silver tonic." It is contended
by Mr. Sinha that it was not for the
petitioner to cross-examine the witness
upon this point but it was for the prose-
cution to do so and he refers to S. 126 of
the Indian Evidence Act. I am of opin-
ion that having regard to the nature of
the charge against the petitioner, the
answer elicited from the Prosecution
Witness No. 4 in cross-examination as
quoted above discharged the onus that
lay upon the accused and the evidence
of the Prosecution Witness No. 4 that the
petitioner said everything on instruction
must be held to refer to the charge
brought against the petitioner. It is
contended that there was no suggestion
in the examination of the Sub-Inspector
as a witness in the Arms Act case as
regards his taking any remuneration for
his taking the side of Rai Bahadur
Chandraketu Naraian Singh in the
election matter and therefore the peti-
tioner could have no instruction upon
the point. The mere faot that no ques-
tion was put to the effect would not
necessarily lead to the conclusion that
the petitioner bad DO instructions. The
petitioner had elicited the point in the
cross-examination of the prosecution
witness and it was no 6 necessary for
him to adduce any, further evidence up-
on the point. The question however
as to whether he was acticg under in-
structions or not is of importance in.
connexion with the question as to
whether the petitioner was actuated by
malice a d this is the really important
question to be decided in this case.
It is conceded by the learned Govern*
ment Advocate that the onus lies on the?
prosecution to prove malice in the case
of advocates. The learned Magistrate
also placed the onus upon the prosecu~
tion. He, however, found that malice
had 'been proved. It is contended that
this is a finding of fact, which cannot
be interfered with in revision. I am oi
opinion that the question whether upon
the facts found or proved, malice has
been established is a question of law.
The only evidence of malice consists of
the deposition of the Sub-Inspector Zain-
uddin Khan. He stated :
Habu Nirsu Narayan Singh's impression was
that Rai Bahadur Chandraketu Naraian Singh
had succeeded through my efforts and hence the
accused's malice against me.
I fail to see how he could speak of
what the impression of the accused was.
The evidence is that he never met the
accused after the Election dispute. The
Election dispute had ended about IB
months previously. I am of opinion that
the prosecution lave failed to prove
malice and the petitioner is entitled to
acquittal. I would however desire to
observe that advocates in discharge of
their onerous and sacred duties must be
very careful not to give rise to the faint-
est suspicion of a personal element in
their speech or action as advocates.
Rule made absolute*
A. 1. R. 1926 Patna 503
BOSS AND KULWANT SAHAY, JJ,
Durga Singh — Appellant,
v.
Mt. Bam Dasi Kuar and others~*'&e*-
pondents.
Appeal No. 254 of 1923, Decided on
10th June 1926, from the appellate
Decree of the Sub-J., Gaya, DA 21 Bt
December 1922.
S04 Patn*
KESHO PRASAD v. SHAMNANDAN BAI
1926
Bengal Tenancy Act (1882), & 158B (2)— Sale
without notice Is not a nullity but a mere Irre-
•gu larlty — Effect.
The notice under S. 158B (2) is not essential
to the validity of the sale and omission to serve
the notice is a mere irregularity. The effect of
such a sale is at least that of a sale in execu:
4km of a decree for money. [P 504 C 2]
A. N. Lai and B. N. Mitter—lor Appel-
lant.
S. N. Ray — for Respondents.
Ross, J. — This is an appeal by defend-
ant in a suifc brought by the plaintiff
who was a tenant. The defendant is a
co-sharer landlord who obtained a dec-
ree for rent under S. 148A of the Bengal
Tenancy Act and sold the holding of the
plaintiff and purchased ifc himself. The
plaintiff sought to recover the holding
on the 'ground that the rent-decree was
fraudulent and that the execution was
defective by reason of sappression of
the processes.
The Courts below decided against the
plaintiff on the merits of the case, but
decreed the suit in his favour on the
ground that notice to the co-sharer land-
lords under S. 158B. 01. (2) of the Bengal
Tenancy Act had not been given, The
learned Subordinate Judge relied on the
decision of this Court in Ghanshyam
Chaudhury v. Basdeb Jha (l). The
earliest decision on the point is Sarip
Hochna v. Tillattama Debi (2) where it
•was decided that the provisions of S. 158
B (2) are mandatory and not merely
directory, and that a sale without notice
under that section is invalid. The next
oase was Ahamad Biswas v. Benoy Bhum
san Gupta (3) where that earlier decision
was followed, and it was further held
that the effect of a sale without this
notice was that the purchaser was in
the position of an ordinary purchaser
under a decree for money. This view
was again taken in Norendra Bhusan
Boy v. Jotindra Natk Roy (4) where it
was laid down that the sale was not a
nullity but had the effect of a sale
under a decree for money.
In the latest decision in Rajani Kanta
Ohcse v. Rahaman Qazi (6) it was held
that the omission fco serve this notice
does not nullify the sale and does not
even 'alter its character to that of a sale
(i) [1921] 60 Lalistfc
(SI) [1918] 43 I. 0. 3.
(8) [1919] 23 0. W. N. 931=53 I C, 535,
(4) [1920 J 55 L C. 402.
<5) A. I. B. 1024 CaK 408.
held in execution of a decree for money
if the co-sharer landlord has knowledge
of the sale and acquiesces therein. The
provision for notice to the co-sharer
landlords is for the benefit of the co-
sharer landlords, and the notice is not
essential to the validity of the sale and
omission to serve the notice is a mere
irregularity. In the decision of this
Court referred to by the learned Sub-
ordinate Judge these cases were not con-
sidered, and it seems to have been as-
sumed without discussion that the sale
was void. The weight of authority is
that the effect of such a sale is at least
that of a sale in execution of a decree
for money. This is sufficient to give the
defendant a valid defence and the suit
must be dismissed.
It is said that the plaintiff filed the
suit on the strength of the decision of
this Court and that he ought now to be
allowed to prove that the sale wa*
irregular under O. 21, E. 90. But the
fourth issue was whether the processes
in Execution Case No. 476 of 19S.O were
properly served and whether the plain-
tiff had knowledge of them. Evidence
on this issue was gone into and it was
decided in favour of the defendant.
Nothing further could have been done
on an application under O. 21, E. 90.
The result is that the appeai.must be
decreed and the suit dismissed but, in,
view of the conflict in the decisions,
without costs in any Court.
Kulwant Sahay, J.— I agree.
Appeal decreed.
A. I. R. 1926 Patna 504
DAS AND ADAMI, JJ.
Kesho Prasad Singh — Defendant —
Appellant.
Shamnandan Rai and others — Plain-
tiffs— Respondents.
Appeal No. 1013 of 1922, Decided on
3rd November 1925, from the appellate
decree of the Dist. Jt| Shahabad, D/-
26th June 1922.
fa) Landlord and tenant— Rent decree—$ome
defendants dead at the date of decree— Whole
decree Is not nullity— Decree can be executed
against living defendant* only as mo&ft decree*
Where a landlord obtained a deoree formal
against certain tenants, some of whom were dea4
at the date of deoree.
1926
KESHO PRASAD v. SHAMNANDAN BAI (Das, J.)
Patatt 505
Seld : that decree against all tenants was not
a nullity as it in open to the landlord to bring a
suit for rent against all or any of the tenants,
though a decree against some of the tenants
cannot be executed as a rent decree and can only
be executed as a money decree : 11 C. W. N. 1026;
1§ C. W. N. 170 ; 83 Cal 580 ; 34 All. 604 and
A. I. R. 1925 Patna 434, Appr. [P. 505, C. 2]
(6) Decree.
Decree against a dead person is a nullity : 4 P.
L. J. 240 (F. B.), Foil. [P. 505, 0. a]
L. N. Singh and N. N. Sinha—toT
Appellant.
P. Deyal and C. S. Banerji — for Res-
pondents.
Das, J. — At some date not very
relevant to this case, the Maharaja of
Dumraon who is the appellant in this
Court brought a rent suit against the
present plaintiffs, the present Defendants
Nos. 4-10 and seven other persona who
were dead at the date of the institution
of the suit. The Maharaja was made
aVare of the face that seven of the
defendants were already dead and it
appears that he filed a petition in the
Oourt asking the Court not to pass any
•decree against the dead persons. He
recovered judgment as against those
-tenants who are living, but in the decree
the names of the dead persons were
included. The judgment was pronounced
on the 26th April 1919. In due
course the Maharaja took out execution
and the holding was purchased by the
present Defendants Nos. 2 and 3. It is
alleged by the present plaintiffs that
Defendants Nos. 2 and 3 are the benami-
dars of the Maharaja. The present
plaintiffs applied for setting aside the
sale under the provisions of O. 21, E. 90
of the Code and that application was
rejected on the 8th May 1920. On the
17th July 1920 Defendants Nos. 2 and
3 took delivery of possession of the
"holding. On the 18th August 1920
the suit out of which the appeal arises
<was instituted by the plaintiffs-respon-
dents for setting aside the decree of the
26th April 1919 on the ground of fraud.
Various allegations were made in the
plaint so as to raise a case of fraud from
start to finish. These allegations have
<not been examined either by the primary
Oourt or by the lower appellate Court.
The Courts below have decreed the suit
on the ground that the decree of the
26th April 1919 obtained by the Maha-
raja was a nullity inasmuch as it was ob-
tained against dead persons. It should
be mentioned that the holding purchased
by Defendants Nos. 2 and 3 comprises
an area of 14*55 acres and that the
plaintiffs in this suit claim to recover
6'36 acres as their share in the holding.
It is not open to doubt that a decree
against a dead person is a nullity. This
was laid down in Jangli Lai v. Laddu
Ram Marwari (l), but the question
whether the whole decree is a nullity
must depend on the question whether
the failure on the part of the landlord
to bring* the representatives in interest of
the deceased tenants on the record
affected his right to proceed with the
suit. This again must depend on the
question whether the tenants who are
properly sued could take the plea that the
suit could not proceed until the repre-
sentatives in interest of the deceased
tenants were brought on the record.
Now on this question it seems to me that
only one answer is possible. Under
S. 43 of the Indian Contract Act the
liability of the joint promisor is joint
and several and that section excludes
the right of the joint contractor to be
sued along with his co-contractors. It
was in my opinion open to the landlord
to bring a suit for rent against all or any
of the tenants, though it may he con-
ceded that a decree against spme of the
tenants cannot he executed as a rent
decree and can only be executed as a
money decree. This view has been
affirmed in cases far too numerous to
mention. In Ananda Kumar Naskar v.
Hari Das Haider (2) a decree was ob-
tained in a suit for rent against some
only of the tenants. It was held that
the sale did not pass the entire jama,
but that only the right, title and in-
terest of the judgment-debtors passed,
In Jogendra Nath Hoy v. Nagendra
Narain Nandi (3) it was held that a
suit for rant against some of several
joint tenants i s maintainable, as joint
tenants are jointly and severally liable.
In Chandra Nath Tewari v. Protap Udai
Nath Sahi (4) it was held that a decree
obtained against some of the tenants
cannot be executed as a decree for rent
but that is open to the landlord to treat
the decree as a decree for money *nd to
(1) [1919] 4 Pat. L, J. 240=50 I. C. 5^9=
(1919) P. H. C. 0. 105 (F. B,).
(2) [1900] 27 Cal. 545=4 0. W. N. 608.
(3) [1907] 11 C. W. N. 1026.
(4) [1913] 18 C. W. N. 170=23 I. C. 105.
506 Patna
DESHI SUGAR MILL v. TUPSI KAHAK
192ft
execute ifc as such. In Joy Gobind Lpha
T. Manmotho Nath Banerji (5) the ques-
tion arose whether the whole appeal had
abated because one of the tenants had
died and no legal representative of the
deceased had been brought on the record.
It was held that the liability of the ten-
ants being joint and several the death of
one of the tenants without his legal
representative being substituted in his
place did not have the effect of exoner-
ating the other defendants from the
liability. This ca?e was followed in
Abdul Aziz v. tiasdeo Kiwjh (6). I find
that a siiuilar view has been taken in
this Court in Nathuni Narayan Singh
v. M ah an tli Arjun Gir (7),
Now this being the position, it is
quite clear that the entire decree ob-
tained by the Maharaja on the 26th
April 1919 cannot be regarded as a
nullity. It is quite true that the hold-
ing did not pass at the execution sale
which followed the decree of the 26th
April 1919 and it is also true that the
interests of these tenants who were dead
before the institution of the suit did not
pass at the sale. But the present plain-
titt's were parties to the suit and their
interests undoubtedly passed at the
sale. In my opinion the Courts below
were wrong in decreeing the claim of
the plaintiffs on the ground that the
decree of the 26th April 1919 was a
nullity.
But the questions which were raised
by the plaintiffs have not boon investi-
gated by the Courts below and I should
like to point out that the courne adop-
ted by the learned Additional Subor-
dinate Judge was wrong. It may be that
he was confident that his decision on
the point of law was a correct decision,
but it is at least conceivable that a
superior Court may differ from him as
to his decision on the point of law and
in my opinion the learned Additional
Subordinate Judge should have tried all
the issues that arose in the oase. This
would have had the effect of not only
shortening the litigation, but of saving
of costs to the parties.
I would allow the appeal, set aside
the judgment and the decrees passed by
the Courts below and remand the oase
(5) [1906] 38 Oal. 580.
(C) [191SI] 84 All. 604 ^17 I. C. 89^10 A. 1, J.
188.
(7) A, I. R. 1925 Patua 434-4 Pat. 167.
to the lower appellate Court with in-
structions that it should remand the
case to the Court of first instance for de-
cision of the questions of facts raised in
the case. The appellant is entitled to the
costs both of this Court and in the
Courts below. The costs incurred in
the first Court will abide the result and
will be disposed of by the learned Sub-
ordinate Judge.
We are informed that one of the
plaintiffs is the repressntative in interest
of one of the dead persons. If that be
so, his interest has not passed by the
execution sale. The learned Subordi-
nate Judge in dealing with the case will
bear this in mind.
Adami, J. — I agree.
Appeal alloiccd.
% A. I. R. 1926 Patna 506
MULLICK AND BlTCKNILL, J-T.
Deahi Sugar Mill — Petitioner.
Tupsi Kahttr and others — Opposite
Party.
Criminal Revisions isos. 534 and ooO
of 19i>4, Decided on 28th January 1925,
from the order of the 2nd Cl. Sub-Dy.
Mag., Siwan, D/- 2-jfcli July 192-1.
$ Criminal P. C., S. 133 (I}— Discharge Into
river of an effluent from a factory Is cucered —
There must be definite, scientific and convincing
evidence agaimt the accused.
The second paragraph of the Sub 8. (l)of S. 133
gives ample power to make an order pro-
hibiting the discharge from a factory into a
river of an effluent which might be injurious to
the health of the community which has rights
to the use of the water in suoh stream.
In law it is not admissible for a tribunal te
assume the attitude that, even, if a nuisance is
proved but not against any particular party
complained of as causing it, an order prohibiting
such nuisance can be issued against all parties
against whom complaints are made. It would
be necessary to prove substantially, before an
order could be made against any of the parties-
that the effluent from its factory was noxious.
ITo doubt it must be recognised by every one
that it is of the u tin oat importance that sources
of public water supply must be maintained pure
and free from pollution by industrial factories,
but such pollution must be convincingly proved
by means of scientific enquiry against a wrong-
doer before any order can be passed against him.
The matter calls for scientific enquiry and can-
not be decided merely because a number of
persona, when the river is very low and hardly
flowing, think that the stagnation and impurity
1926
DESIH SUGAR MILL v. TUPSI KAHAR (Backnill, J.)
Patna 50T
of the wat* ., an outbreak of illness or the loss of
seme sattlp may be due to the presence »eir of
the factory 4n question. [P 507, 0 2. P 608, C 1, 2]
S. Hasan Imam Akbari and Sultan-
uddin Husain — for Petitioner.
• S. P. Varma and Hareshwar Prasad
Sinha — for Opposite Party.
Bucknill, J. — In this matter there
were two applications in criminal rovi*
sioual jurisdiction. They have been
substantially heard together ; they bo Mi
raise substantially the same poinu. Ap-
plication No. 534 of 1924 is made by me
Manager of the New Sugar Mill, Siwan ;
Application No. 550 of 1924 is made by
the Manager of the Dashi Sugar Factory,
Siwan. Both these sugar factories or
mills are situated on the bank of the
river Daha ; the New Sugar Mill is a
good deal (some few miles) lower down
the river than the Doshi Sugar Factory
and the former has only been in existence
some four years ; tho latter is an older
institution. In April of last year a peti-
tion was filed before the Sul^-Divisional
Officer of Siwan which is in the Sarna
district by nearly a hundred persons
living in the neighbourhood of the river
complaining that the river had been
polluted by the Mills' effluents ; they
alleged that some cattle had died as a
result, so they thought, of drinking the
river water ; they stated that they were
afraid that there ini^ht be an outbreak
of disease and they prayed that action
might be taken against the two Mills
under the provisions of S. 133 of the
Criminal Procedure Code. The Sub"
divisional Officer thought fit to refer the
matter to an Honorary Magistrate for a
report; and this gentleman reported that
he thought that there had been some
contamination of the rive* by rofuse
matter which had been allowed to be
discharged from the Mills, but that it
was difficult fco say which of the Sub-
divisional Officers ordered on the 10th of
May that notice should be issued on the
Managers of both Mills to appear before
him to show cause why they should not
be prohibited under S. 133 of the Cri-
minal Procedure Code from polluting tha
water of the river by discharging into it
noxious and dirty water from their
factories. Both parties eventually ap-
peared ; and an order was passed direct-
ing the Managers under what purported
to be Sub-S. (l) of S. 133 ' of the
Criminal Procedure Code bo discontinue,
prior to the 28th of May last, draining,
into the river dirty or noxious water and
to abate the nuisance thus caused on that
account. It was further ordered in the
alternative that the applicants should
move the Sub-Deputy Magistrate of
Siwan to have the orderset aside or modi*
tied. The applicants did appear before
the Sub-Deputy Magistrate and evidence
was heard on both sides. As a result the
Sub-Deputy Magistrate made the orders
absolute. The applicants then moved
the Sessions Judge against this order,
but the Sessions Judge refused to refer
the matter to the High Court and re-
jected the application.
Now it is true that certain small
legal points wore raised before tho
Sessions Judge, but they have not been
seriously pressed before this Court, tho
applicants preferring to rely upon a more
cogent argument. It was, however,
pointed out that under the provisions of
S. 133 (1) of the Criminal Procedure Code
the first paragraph regarding the removal
of a nuisance from 'a river was, perhaps,
hardly applicable to the case of the
pollution of a river by an effluent from a
factory. It is not now very material
whether that is so or not ; for it is quite
clear that the second paragraph of the
sub-section in question gives ample
power to make an order prohibiting the
discharge into a river of an effluent which
might be injurious to the health of the
community which has rights to the use
of the water in such stream. What,
however, is now urged on behalf in parti-
cular of the New Sugar Mill is that there
was no evidence whatever of any real
value that there had in fact been any
contamination of the water of the river
by any effluent from tho factory ; but
that, on the other hand, there was over-
whelming and soientfic evidence on the
part of the New Sugar Mill to show that
tha' Mill discharged nothing noxious into
the stream.
The Deshi Sugar Factory, which ob-
serving that no complaint had ever been
taken against their factory, or as to the
condition of the stieam prior to the
appearance on the bank of the New
Sugar Mill, pointed out that no attempt
bad been mado to prove that any dis-
charge from their (the Deshi) factory,,
was noxiom.
Tbe concisions are clear : firstly that
if examination of the watere of the river
50S Patoa
MT. BAZIA BEGUM v. MD. DAUD
1926
below the New Sugar Mill showed no
contamination, the Doahi Factory, which
is rather higher upstream, was not a
culprit any more than the new Sugar
Mill. Secondly that in law it is not
admissible for a tribunal to assume the
ittitude that, even if a nuisance is
proved but not as against any particular
party complained of as causing it, an
3rder prohibiting such nuisance can be
issued against all parties against whom
somplaints are made. To illustrate this
principle in this case : even if it had been
shown (which, incidentally on the evi-
lence docs not appear to have been the
sase) that a nuisance existed due to
contamination of the water of the river
Sy what was a noxious effluent from the
Sugar Mills, it would he necessary to prove
mbstantially, before an order could be
made against either or both of the Mills,
ihat the effluent from either or both was
noxious. Unless this is done it is obvious
ihat a totally illegal and unjust order
might be made against one or other of
the Mills which may have done abso-
lutely nothing wrong.
It need hardly be said that it must be
recognized by every one that it is of the
utmost importance that sources of public
water supply must be maintained pure
*nd free from pollution by industrial
factories ; but such pollution must be
aonvincingly proved against a wrongdoer
before any order can be passed against
him.
There is no evidence which Mill con-
taminated the water and the evidence of
contamination by effluent from Sugar
Factories at all was in my opinion not
supported by any adequate testimony.
(The judgment then examined the evi-
dence and continued). The Civil Sur-
geon and the Chemist think pollution
of the river (if there is any deter-
ioration) is due to vegetable growth,
little flow at certain seasons and other
incidental causes. Whilst, as I have
occasion to repeat, it is most im-
portant to preserve sources of water
supply pure, it is necessary, if charges of
pollution are to be successfully prosecuted
against parties alleged to be contaminat-
ing such sources, that convincing proof
of such pollution be brought home to
their doors.
This has certainly not been done here ;
the complaints and evidence in support
thereof do not even purport to ,do so
against either Mill individually, nor in
my opinion on the evidence do they in
fact do so against either or both.
But there is nothing to prevent further
steps being taken but the evidence
should be properly prepared ; samples of
the effluents actually flowing from any
industrial concern suspected of con-
taminating the river should be taken and
analyzed and, if it then be found that
these samples contain matter which
(taking into perspective the volume of
the effluent and the volume of the river)
would be deleterious to the water of the
river when utilized for domestic purposes,
the case is clear.
But the matter is, it must be em-
phasized, one which calls for scientific
enquiry and cannot bo decided merely
because a number of persons, in April or
May when the river is very low and
hardly flowing, think that the stagnation
and impurity of the water, an outbreak
of illness or the loss of some oattle may
be due to the presence near of two sugar
mills.
I«have no hesitation in coming to the
conclusion that the orders must in both
these cases he quashed firstly because ifc
is not competent to make orders of the
kind made against two parties simply
because it is thought that either (or per-
haps both) may be in fault : and secondly
because the scientific evidence (which 13
all that matters in these cases) in my
view is at present overwhelmingly in
favour of the applicants.
Mullick, J. — I agree.
Order quashed.
* A. 1. R. 1926 Patna 508
DAWSON-MILLER, 0. J., AND FOSTER, J
Mt. Razia Begum — Defendant — Appel-
lant.
Muhammad Daud — Plaintiff — Bes-
pondent.
Letters Patent Appeal No. 2 of 1926,
Decided on 28th June 1926, from the
judgment of Boss, J., D/- 9th December
1925.
Tran&fer of Property Act, S. 107 — English doc-
trine that tenant, unless put In possession cannot
sue for Infringement of rights based on actual
possession, apples to Indian leases for a term of
years — In India lessee or sub-lessee can sue for
1926
MT. RAZIA BEGUM v. MD. DAUD (Dawson-Miller, 0. J.) Patn* 509
damages for being kept out of possession — Land-
lord and tenant — Tenant's rights.
In India under 8. 107 a lease can be created by
tbe mere registration of the deed, without deli-
very of possession, and therefore a lessee or sub-
lessee can maintain an action against .the lessor
fof mesne profits as damages for keeping the
lessee out of possession.
The English Common Law doetrine that a lessee
is not regarded a tenant for certain purposes un-
less he is actually put in possession of -the de-
mised property, and so he cannot, unless he is so
put in possession, maintain any action for an in-
fringement uf his rights based upon actual
possession applies only 'to leases for a term of
years. [P 511 C 1 & 2]
Dawson- Miller, C. J. — This is an ap-
peal under the Letters Patent from a
decision of Mr. Justice Boss overruling
the decision of the District Judge of
Muzaffarpur and remanding the case to
the trial Court to ascertain the amount
of mesne profits due to the plaintiff from
the surviving defendant in the suit. The
question for determination in the appeal
is whether the plaintiff who obtained a
lease of certain property but was not put
in possession by his lessor can maintain
a suit against the defendant for mesne
profits by way of damages for keeping him
out of possession of the property. Learned
counsel for the appellant, the surviving
defendant in the suit, contends that the
demise without possession merely gave
the lessee a right of entry or, as it is
known in English Law, an interesso ter-
mini, which is not sufficient to found a
suit in trespass which, he contends, is the
cause of action in this case.
The circumstances under which this
litigation arises are as follows : Mouza
Kothia Hussain situate in theCharaparan
district of this Province formed part of
the estate of the late Saiyid Hussain Ali
Khan, otherwise known as Saiyid Mu-
hammad Nawab, a well-to-do Muham-
madan whodied'in March 1914, leaving a
daughter, Mt. Razia Begum, by a deceased
wife arrd a widow, Mt. Azizunnissa alias
Bibi Bakridan. Before his death he had
expressed his intention of granting a
mukarrari lease of the said village to his
wife*, Bibi Bakridan, by way of mainten-
ance and in lieu of her dower-debt. A
deed was drafted and approved by him ;
but before it could be executed he died
and his property devolved upon his
daughter Mt. Razia Begum as his heir
under the Shia Law. About a month
after his death in April 1914, Mt. Razia
Begum in pursuance of her late father's
wish executed a mukarrari patta of
Mouza Kothia Hussain in favour of her
stop mother for her life at a nominal
rental of one rupee per annum 'and took
from her a kabuliyat. Bibi Bakridan's
name was subsequently recorded in the
Revisional Survey Record of Rights as
mukarraridar of the village and she ap-
pointed an agent, one Babujan, to collect
the rents on her behalf.
Disputes arose between them and early
in 1917 she sued Babujan for an account
but failed on the ground that she had
never in fact acquired possession over the
property which had remained in the pos-
session of her step-daughter Razia Be-
gum. It appears that Razia Begum re-
fused to give up possession to her step-
mother 011 the ground that the latter had
not remained chaste after her husband's
death. The execution of the mukarrari"
lease is not disputed by Razia Begum and*
it contains no condition as to defeasance
in the event of the lessee ceasing to re-
main chaste. Bibi Bakridan finding her
attempts to get possession unsuccessful
executed a sub-lease of her life-interest
in the mouza in favour of the plaintiff,
Shaikh Muhammad Daud, dated the 25th
July 1917, reserving an annual 'rent of
Rs. 875. By this document the right to
the arrears of rent for the three preced-
ing years was also transferred. The
plaintiff on attempting to take possession-
and collect the rents was opposed by Mt..
Razia Begum and proceedings were in-
stituted under S. 145 of the Criminal P..
0., in which the possession of Razia Be-
gum was upheld. The plaintiff accord-
ingly instituted the suit out of which-
this appeal arises on the 1st February
1921, impleading Mt. Razia Begum as
principal defendant and Bibi Bakridan
as the defendant, second party. In hi»
plaint he prayed for (l) a declaration of
his title and the title of his lessor to the
property in suit and possession thereof,
(2) mesne profits for the three years
preceding the suit and 'until recovery
of possession, and, (S) costs and interest.
Bibi Bakridan by her written statement
admitted the plaintiff's 'claim but repu-
diated liability for his failure to get pos-
session. Mt. Razia Begum contested the
suit. She admitted that she executed
the mukarrari patta of April 1914, in
favour of Bibi Bakridan but denied that
the latter ever got possession, although
she made several attempts to do so. She
510 Patna
MT. RAZIA BEGUM v. Mo. DAUD (Dawson-Miller, C. J.)
1926
alleged that the patta of July 1917,
granted by Bibi Bakridan to the plaintiff
was fraudulent, collusive and nominal,
and pleaded that as her stepmother
shortly after her father's death turned
immoral which she came to know after
the execution of the mukarrari. " She
did not allow it to take effect" and did
not put her lessee in possession but had
herself remained in possession ever
since her father's death. She does not
plead that there was any condition
attached to the grant rendering it
defeasible in the event of the lessee's
unohastity.
The Subordinate Judge at the trial
found that neither the plaintiff nor Bibi
Bakridan ever tfot possession over the
mouza in spite of their efforts to do so,
and that Mt. Razia Begum had all along
been in possession, and from this he de-
duces that the mukarrari patta was not
given effect to He did not determine
whether the aspersions against the
character of Bibi Bakridan were true or
not, considering it immaterial as the
mukarrari was an unconditional grant.
He based his decision on the ground that
the plaintiff's lessor had not acquired a
perfect title as the mukarrari was not
given effect to. Exactly what he means
by this expression he does not explain.
He also thought that the plaintiff's lease
was of a speculative nature and, there-
fore, gave the transferee no right to re-
tain possession. In support of this con-
clusion he cites the case of Kalidas Mul-
lick v. Kanhai/a Lai Pundit (l), which
does not appear to support the proposi-
tion. He also thought that the mukar-
rari lease was more in the nature of a
gift than a lease, as a nominal rental only
was reserved and without possession it
was not perfected.
On appeal the District Judge agreed
with the finding of the trial Court that
possession never passed to the plaintiff or
laia lessor. He further held, with regard
to the mukarrari patta of 1014, that
there was a separate oral agreement con-
stituting a condition precedent to the
attaching of an obligation under the con-
tract. What the exact terms of the oral
agreement were he does not very clearly
specify, but it may be gathered from the
context that what he meant was an oral
agreement amounting to a condition
~~~| U Cal7i~2l==U LA. ^
which would have the effect of divesting
the property if the lessee afterwards be-
came unchaste, for, he adds :
The doourneut itseJf does not make any condi-
tion about Bakridau's future conduct; but such a
condition is usual, and Razia has given evidence
that her father included such a condition, in his
instructions to her. Bakridau herself was not
put in the witness-box. The karpardaz of Razia
(Witness No. 8 for the defendant) has corrobo-
ated the aspersions cast by Razia on Bakridan' s
character.
The learned District Judge appears to
have had no very clear conception of the
difference between a condition precedent
which would prevent the instrument
from taking effect and a condition which
would operate as a defeasance after the
interest had vested. The result of his
judgment is summed up finally in the
following words at the end :
it appears that effect was never given to the
mukarrari patta, and that Muhammad Daud has
come into the affair merely as a speculator. I
agree with the Subordinate Judge's finding that
the plaintiff failed to establish his title to or p&-
vious possession of the disputed village.
The plaintiff preferred a second appeal
to the High Court which was heard by
Ross, J. The learned Judge pointed out
that the oral agreement; referred to by
the lower appellate Court was not
pleaded in the written statement by
either defendant and that it was not open
to the learned District Judge to find that
there was any such oral agreement. In
any view he considered that the oral
agreement which the lower appellate
Court found to have been proved did not
amount to a condition precedent to the
attaching of an obligation under the con-
tract within the meaning of the third
proviso to S. 9V2 of the Evidence Act, and
if there was any oral agreement, ib
amounted to a condition that the estate
vested in the lessee should divest on her
becoming unchaste, and evidence of such
an oral agreement was not permissible,
being in conflict with the written con-
tract which was an unconditional grant
for life.
In my opinion Ross, J., took the correct
view upon this part of the case. He was
also of opinion that the suit could not
fail on the ground that the plaintiff's
lease was speculative. Here, again, I
entirely agree with the learned Judge's
view. There was nothing to show that
the lease was not a genuine transaction
and a substantial rent was reserved. Nor
did the fact that the lessor was out of
possession prevent her from transferring
1926
MT. RAZIA BEGUM v. Mn. DAUD (Dawson-Miller, G. J.) Patna 511
her right to her lessee. The learned
Judge further held that the finding that
the mukairari lease was not given effect
to, if it had any meaning at all, must
mean that neither party considered it
binding, hut such a view was contrary to
all the (acts of the case as it had been
found that Bibi Bakridan did her best to
obtain possession and to make the instru-
ment effective. Pending the appeal to
Mr. Justice Boss and before it came on
for hearing, Bibi Bakridan died and the
plaintfif's term expired. He was, there-
fore, no longer entitled to possession.
The learned Judge, however, held that
this did not prevent the plainfcit! from
recovery of damages by way 'of mesne
profits from the first defendant, Mt. Kazia
Begum, for wrongfully keeping the plain-
tiff out of possession. He accordingly
allowed the appeal upon that part of the
claim, set aside the decree of the District
Judge and remanded the case to the trial.
Court to ascertain the amount of mesno
profits due from the 1st February 1918
to the death of the defendant second
party.
From that decision the defendant first
party has preferred fche present appeal
under the Letters Patent. The only
•question argued before us is that the suit
is not maintainable, being confined, since
the death of Bibi Bakridan, to a claim
foj* damages for keeping the plaintiff out
of possession of the demised lands. This
argument is based upon the English Com-
mon L%w doctrine that a demiso of land
without delivery of possession passes only
-a right of entry, or an interest in the
term, known as an interesse termini, and
• such an interest is nofe sufficient to entitle
the lessee to maintain an action in tres-
pass, since actions of this nature are
founded on the actual possession of the
plaintiff which is interfered with by the
trespasser. I had some doubfc whether it
was open, to the appellant to raise the
question at this stage, as the plea is not
specifically taken in the written state-
ment and was not argued in the Courts
below ; but as it was alleged that the
ojukarrari was not acted on and as all
the facts necessary to determine the
point are before us, I propose to deal
with the legal argument.
The Common Law doctrine, so far as I
a,m aware, applies only to a lease for a
term of years and is based upon the law
relating to English leases of this nature
which, for some purposes, regards the
lessee before actual entry as not being a
tenant. He has, however, a right of
entry, a vested interest, which is assign-
able and which, if he dies, passes to his
representatives. He may maintain an.
action against third parties for injury to
the property, Oillard v. Cheshire Dines
Committee (2). He may sue his lessor for
not putting him in possession, Cot v.
Clay (3). Wallis v. Hands (4), and he
may sue in ejectment: Doe v. Day (5). In
fact, it would appear that ho has a re-
medy f 3r any infringement of his rights
except such rights as arise out of actual
possession. But in any event the present
claim is hardly one in the nature of an
action for trespass. It is one for damages
against the appellant for keeping the
plaintiff out of possession. The plaintiff's
lessor could undoubtedly have sued thei
appellant for damages for failing to put
her in 'possession. The plaintiff by the
sub-lease took an interest in the whole
term winch is equivalent to an assign-
ment and could, therefore, in my opinion,
maintain an action against the appellant
for damages for failing to put him in
possession. Moreover, 1 doubt whether
the English doctrine would apply to a
case liko the present where the lease is
not one fov a term of years. It is rather
in the nature of a freehold lease: see
Ecclesiastical Commissioners v. Treemer
(G).
But, whether the view just expressed
be right or not, I do nofc consider that"
the Common Law doctrine in England
which is founded on the view that before
actual entry by fche lessee he is to be
regarded for some purposes as not a ten-
ant, livery of seisin being necessary tc
complete his title, can be applied tc
leases in this country which are governed
by the Transfer of Property Act. Under
that Act, as pointed out by Das, J., in
Midnaponr Zemindary Co. Ltd. v. Bam
Kanai Singh Deo (7) certain leases in-
cluding those reserving a yearly rent
which includes the present case, can be
(2) [1884] 32 W.R. 948.
(:j) [1829] 5 Bing. 440-7 L.J. C,P. 16'2~130
E.R. 113U:3 Moo. & P, 57.
(4) [1893] 2 Ch. 75—62 L,J. Ch. 586=68 L.T.
428—41 W.R. 471.
(5) [1842] 2 Q.B. 147-^12 L.J. Q.B. 86-1U
E.R. 58—2 G, & D. 757.
(6) [1893] 1 Ch. 166-=62 L,J. Ch. 119=68 L.T.
11—41 W.E, 166.
(7) A J.R. 1926 Pat. 130=5 Pat. 80,
512 Patna
DINANATH EAI v. KAMA BAI (Boss, J.)
192*
made only by a registered instrument
whilst all other leases of immovable
property may be made either by a regis-
tered instrument, or by oral agreement
accompanied by delivery of possession.
Under this Act delivery of possession is
essential to the vesting of the interest
only where the lease is made by oral
agreement, and a lease by oral agreement
cannot be made where a yearly rent is
reserved. Delivery of possession was,
therefore, not necessary for the vesting of
the interest in the lessee in the present
case, and I can Bee no reason why we
should apply a .doctrine applicable to
certain kinds of English leases to those
governed in this country, not by the
English Common law, but by the Trans-
fer of Property Act. In my opinion this
appeal fails and should be dismissed with
costs.
Foster, J.— I agree.
Appeal dismissed.
A. I. R. 1926 Patna 512
Ross AND MACPHERSON, JJ.
Dinanath Rai — Defendant — Appellant,
v.
Rama Rai — Plaintiff — Respondent.
Appeal No. 12 of 1921, Decided on
29th June 1926, from the appellate
decree of Sub.JJ. Saran 1-10-1923.
(a) Evidence Act, S. 6G, Proviso— Redemption
suit — Mortgagee denying esistence of mortgage
deed — Notice Is not necessary.
Where in a suit for redemption the defendant
mortgagee denied that there was or ever had
been a mortgage deed at all [P 512, 0 2]
Held ; that it w.is not necessary for the
plaintiff to give notice to the defendant to pro-
due ) the original to entitle plaintiff to give
beoondary evidence. 6 Gal. 720 (P. C.) and 14
Cal. 486 (P. C.J, Dlst. [P 613, C 1]
(6) Transfer of Property Act, S. 60— Tender of
mortgage money Is not condition precedent to
suit for redemption.— T. P. Act. 8. 83.
Soot ion. 60 only defines the right to redeem and
does not lay down that tender of the mortgage
money is a condition precedent to the institu-
tion of a suit for redemption, 4 '3 A//. 638 fF. B.),
Mel. on. [P 518, 0 1]
(c) Advene possession— Mortgagee cannot
acquire.
A mortgagee canoot acquire a title by adverse
possession against his mortgagor.
Sarhbhu Saran— tor Appellant.
Hareskwur Prasad Sin/la—for Bespon-
dent.
Ross, J. — This was a suit for redemp-
tion of some land which had been
mortgaged by the grandfather of the
plaintiff to the grandfather of the
defendant in 1891. The defence was
that the land was the ancestral kashfr
land of the Defendant and that he was
in possession as zerpeshgidar. Ha
denied that there had been any peshgi
money or that he had ever been in pos-
session by virtue of any zerpeshgi deed.
The suit was decreed by the Subordinate
Judge on appeal.
Three points have been taken in se-
cond appeal. In the first place it is
contended that the trial Court erred in
admitting in evidence a certified copy of
the mortgage bond, on the ground that
uo notice had been given to the defen-
dant to produce the original as "required
by S. 66 of the Evidence Act. I doubt
whether this point is open in second
appeal as there is no reference to it in-
line judgment of the lower appellate
Court. But in any case there is a
proviso to S. 66 that no notice shall bej
required in any case in which the Court
thinks fit to dispense with it ; and in
the present case it must be taken that
the Court dispensed with the notice for
the sufficient reason that the defendant
denied that there was or ever had been
a mortgage deed at all. In view of the
pleadings it was idle for the plaintiff to
give notice to the defendant to
produce a document the existence of
which he denied.
The learned advocate for the appel"
lant referred to the decision in Maung
Po Ni v. Ma Shwe Kyi (l) which to
some extent supports his contention.
But that decision, so far as the present
point is concerned, seems to be based on
a decision of the Judicial Commissioner
which is not an authority for this Court.
Two decisions of the Judicial Committee
were also quoted [Bhubaneshwari Debi
v. Harisaran Sarmci Moitra (2) and
Krishna Kisliori Chaodlirani v. Kishori-
lal Roy (3),] in which secondary evidence
was rejected where the parties failed to
account for the nonproduction of the
original. But these decisions are not
in point. The only question is, whether
this was a proper case for the Court to
dispense with notice. In my opinion
(1) A. I.R. 1925 Rang. 7=2. Rang. 397.
(2) [1881] 6 Gal. 720=8 C. L. B. 337 (P. 0.).
(8) [1887] 14 Cal. 486=14 I. A. 71=5 Bar. IS
(P. C.).
1926 JAGAT NARAIN»V. TITLSI GHAMAE (Kulwant Sahay, J.) Patna 513
in view of the pleading?, notice was
altogether unnecessary and was properly
dispensed* with.
The second contention was that as the
mortgage was redeemable at the end of
Jeth each year "and, according to the
plaintiff's case, tender was made in
Baisakh, the tender was not valid and,
therefore, in the absence of valid tender
no suit for redemption would lie.
The learned advocate for the appellant
relied on the decision in Mahomed Aii
v. Baldeo Pande (4) which does support
that propostion. But that decision has
been clearly overruled by the Full Bench
of the Allahabad High Court in Baghu-
nandan Bai v, Raghunandan^Pande 16),
where that case among others is referred
to and it is pointed out that S. 60 of
the Transfer of Property Act only
defines the right to redeem and does not
lay down that tender of the mortgage
mtmey is a condition precedent to the
institution of a suit for redemption. I
fail to see how tender can be necessary
before a suit can be instituted which is
itself necessary in order that the amount
payble by the plaintiff for redemption
may itself be ascertained.
The third point taken was that as the
defendant wag recorded as kaahtkar in
the record-of-rights, and in the batwara
proceedings to the knowledge of the
plaintiff's ancestor, he must bo taken to
have acquired title by adverse possession.
This argument that a mortgagee can
acquire a title by adverse possession
against his mortgagor luns counter to
the elementary principle governing
mortgages.
The appeal must be dismissed with
costs.
Macpherson, J.-— I agree.
^ Appeal dismissed.
14) [1916J 38 All. 148—34 I. C. 183=14 A.
L. J. 55.
[1921] 43 All. 638=61 I, C. 812=19 A. L.
J. 573 (F. B.).
(5)
A.I. R. 1926 Patna 513
KULWANT SAHAY, J.
Jagat Narain Singh and others — Ap-
pellants.
v.
Tulsi Chamar and anothei — Respon-
dents.
Appeal No. 1142 of 1923, Decided on
17th June 1926, from the appellate
decree of Sub-J., Monghyr, D/- 30th June
1923.
1926 P/65 <fc fi6
Landlord and tenant—Rent— Tenant disposses-
sed of a portion— Right to claim possession barred
by lapse of time— Tenant can still withhold entire
rent.
A landlord is bound to keep his tenant in
peaceful enjoyment and possession of the hold-
ing. If he disturbs the possession of the tenant
he is not entitled to recover rent from the
tenant. The tenant's claim for recovery of
possession may be barred by lapse of time, but
he can still compel the landlord to 'restore -pos-
session of the holding or the portion thereof
from which he has been dispossessed by the
landlord by withholding payment of rent for
the entire area. [p. 514> a ^
Bam Prasad for Jagannath Prasad —
for Appellants.
Murari Prasad— tor Respondents,
Judgment.— This is an appeal by
the plaintiffs and it arises out of a suit
for apportionment of renfe and for recov-
ery of arrears of rent for the years
1325 to the 12 annas kist of 1328. The
original holding of defendants consisted
of 2 bighas 11 kathas and 1 dhur with
a rental of Rs. 13-3-6. The plaintiffs'
case was that out of this area the
tenant-defendants surrendered 8 kafchas
in favour of the plaintiffs, an'd they
remained in possession of the remainder.
The plaintiffs, therefore, alleged that
they were entitled to recover Rs.
11-7-7* with cesses as fche rent for the
land now held by the tenant-defendants.
They accordingly brought the present
suit for apportionment of rent and
for recovery of arrears.
The defence of the tenant-defendants
was that there was no surrender but
forcible dispossession by the plaintiffs as
regards 8 kathas out of the holding,
and they pleaded that so long as the
dispossession lasted there was a suspen-
sion of the entire rent and the plaintiffs
were not entitled to recover any rent
so long as they kept the defendants out
of possession of the eight kathas.
The learned Munsif held that the
story of surrender had nofc been proved
and that the defendants' story of forci-
ble dispossession had also not been
proved. The plaintiffs were, however,
admittedly in possession of eight kathas
and the tenants continued in possession
of the remaining area. The Munsif was
of opinion that it would be highly un-
fair and inequitable to hold that the
tenants should possess the remaining
land and enjoy the usufructs thereof
and still withhold the rend therefor. He
accordingly made a decree apportioning
the rent and making a Decree for the
5UPatna
LAL v. PA TEH MAHTON (Dawson-Miller, C. J.) 1026
years in suit. On appeal the learned
Subordinate Judge has set aside the
decree of the Munsif and ha? held that
so long as the dispossession lasts the
plaintiffs are nob entitled to recover any
rent. He has accordingly dismissed the
suit. The plaintiffs appeal against this
decision.
A number of rulings were cited on
behalf of the defendants-respondents to
the effect that when there is a dispos-
session by the landlord either of the
whole or of a portion of the holding,
the tenant was entitled to withhold the
entire rent so long a<* possession was not
restored to the tenant. The propoaition
of law is not disputed on behalf of the
appellants ; but it is contended that
under the facts of the pre30nt case the
defendants are not entitled to with-
hold tho entire rent ? The contention
is that the dispossession, according to
the finding of the Munsif, took place in
1915, and therefore a claim for posses- •
sion by the tenant-defendants would bo
barred by two years' limitation under
Sch. Ill of the Bengal Tenancy Act and
the plaintiffs cannot, therefore, bo com-
pelled to restore possession of the eight
kathas inasmuch as they have acquired
an indefeasible title by lapse of tima. The
appellants contend that the holding of
the defendants must therefore bo taken
to consist of the area now in their pos-
seisicn and a fair rent ought to bo
settled therefor.
There is some force in this contention
and it does appear inequitable as obser-
ved by the Munsif, that the tenant
should take no steps to recover posses-
sion of the portion of the holding from
which he has been dispossessed, should
retain possession of the remainder of the
holding, and yet should withhold the
entire rent. The policy of the law,
however, seems to be that a landlord
is bound to koep his tenant in peaceful
anjoyrnent and possession of the holding.
If he disturbs the possession of the tenant
he is not entitled to recover rent from
the tenant. Tho tenant's claim for
recovery of possession may be barred by
lap.se of time, but he can still compel
the landlord to restore possession of the
holding or the portion thereof from
which he has been dispossessed by the
landlord by withholding payment of rent
for the entire area.
It is not necessary to retar to'the re-
ported Ceases where it has been held that
a tenant is entitled to withhold payment
of entire rent if he is dispossessed by the
landlord from the whole or a portion of
the holding ; this proposition is admitted
on behalf of the appellants, and the only
circumstance relied upon by them, viz.,
the fact of the tenants' claim to recover
possession being barred by limitation is
not sufficient to entitle the plaintiffs-
landlords to re cover any portion of the
rent. In my opinion, the decision of
the learned S ubordinate Judge is correct
and must be a fifirmed.
The app3ai is disoaisjad with costs.
Appeal dismissed.
* A. I. R. 1926 Patn* 514
DAWSON-MELLER, 0. J., AND POSTER, J.
Jawahir Lai — Defendant — Appellant.
v.
* Fateh M ah ton, and others — Plaintiffs —
Respondents.
Second Appaals Nos. 547 to 550 of
1923, Decided on 4th June 1926, from a
decree of the Dist.-J., Gaya, D/- 2nd
February 1923.
* Civil P. C., O. 41, jR. %3—Rule applies if
whole suit Is remanded — When remand lson&
portion of suit it Is not under 2i. 23, and no qp~
peal lies.
Rule 23, applies ouly to casas whore the whole
suit has been determined upon a preliminary
point, and not to c.isjs where a port iou only of
tho suit has b36Q so decided and reversed on
appeal.
Where, therefore, a case is remanded not for
tho whole claim but only as to a portion, the
remand is not one under R. 23, and is not
appealable. [P- 515, C. 2]
W. H. Akbari — for Appellant.
S. G. Mullick, S. Diyal and S, N»
Base — for .Respondents.
Dawson-Miller, C, J. — In these cases
fche landlord sued for rent against vari-
ous tenants. Four suits in all were
brought with which we are concerned in
these appeals. The suits were brought
for recovery of arrears of renfc for the
years 1325 to 1328 P. inclusive. With
regard to the year 1328 F. the defence
was that for that year proceedings had
taken place under Ss. 69 and 70 of the
Bengal Tenancy Aot and the landlord's
share had been ascertained. With re-
gard to the years 1325 to 1327 the dis-
pute was. as to the amount of the crop
1926
JAWAHIR LAL v. FATEH MAHTON (Dawson-Miller, 0. J.) Patna 515
grown in those years, the rent being
bhaoli rent recoverable under the batai
-system ; but it appears, according to the
findings of both the Munsif and the
District Judgp on appeal that there had
oeen an appraisement with the consent
of tho pirties for the years 1325 to 1327
as to the amount of the crop grown in
those years.
Thesa appeUs arise out of two suits
numbered 76 and 77 of 1922. There
was an appeal in each of those suits to
the District Judge by the landlord and
there was also an appeal in each of the
suits by the tenants or some of them.
The landlord's appeals succeeded and the
tenants' appeals failed, and the remit is
that we have before us to-day four ap-
peals arising out of the two suits in each
of which the same tenant is the appellant.
In Appeals Nos. 547 and 549, which relate
<jnly to the year 1328, the only question
is whether the proceedings under 8s. 69
and 70 of the-Bangal Tenancy Act were
regular and determined the amount of
the tenants' liability for that 'year. The
Munsif found that those proceedings were
regular and decreed the suit upon that
basis in so far as that year was con-
cerned. That, however, was only one of
the years for which rent was claimed in
the suit.
Ou appeal the District Judge overruled
t*hat decision of the Munsif as to the
year 1328 finding that the proceedings
which purported to have been taken
under S. 70 of the Bengal Tenancy Act
were irregular and ultra vire=? and not
binding upon the landlord. He accord-
ingly allowed the appeal to that extent
and directed that the case should be
remanded to the Munsif to ascertain the
amount of the produce in the year 1328.
A preliminary point has been taken
in regard to these two appeals that this
bei'ng an order of remand only no appeal
lies from such an order. The appellant,
on the other hand, contends that the
order of remand was really one made
under O. 41, K. 23 of ttfe Code of Civil
Procedure, the point upon which the
learned Munsif had decided the case
being really a preliminary point, the
decision of which made it necessary for
him to enter into any of the other ques-
tion raised in the suit with regard to
that particular year. In this respect I
think that he is right, but at the same
time as the remand was not made with
regard to the whole of the suit, but only
with regard to a portion of it, that is to
say, with regard to the rent of one only
out of four years' rent which was claimed,
it does not appear to me to come within
the provisions of O. 41, R. 23.
The rale provides that
where the Court from whose decree an appeal
is preferred has disposed of the suifc upon a preli-
minary point, and the decre3 is reversed in ap-
peal, the appellate Court may, if it thinks fit,
by order remind the case, and may further
direct what is*ue or issues shall be tried in the
case so remanded
and so on. It has been held .in the
High Courts of Allahabad and Madras,
and I think rightly, that this rule applies
only to cases where the whole suit has
been determined upon a preliminary
point, and not to ?ases where a portion
only of the suit has been so decided and
reversed on appeal. I think further that
there is wisdom in the rule which pre-
vents appeals from orders of remand
when they do not affect the whole case ;
for an appeal is always allowable
after the questions for the determination
of which the case was remanded have in
fact been determined. Then, when the
case comes up again on appeal after that
the whole question can be gone into in
that^appeal, but it is certainly undesir-
able that oises should be heard on appeal
piecemeal, and that every order of re-
mand which is made should be subject to
appeal to a higher tribunal, when after
the matters to be decided on remand
have been decided the whole case may
then come on appeal to the higher tribu-
nal. I consider therefore that in so far
as Second Appeals Nos. 547 and 549 are
concerned, they must be dismissed on
the ground that no appeal lies at this
stage.
With regard to the other appeals
Nos. 548 and 550, they relate to the rent
of the previous years. The Munsif who
tried the case, and the District Judge
who affirmed his decision on appeal, have
both accepted the evidence ot the plain-
tiff as to the actual outturn during the
years in question and have rejected the
evidence of the defendant and have
passed a decree based upon the plaintiff's
evidence. The only questions urged be-
fore us are that, although it was alleged
in the plaint that the system was the
batai system, the evidence in the case
produced b.y the landlord is based upon
an appraisement made between the land-
516 Patna
JAGESHAB JHA v. MAHTAP SINGH
1926
lord and the tenants during the years
in question ; and as the defendants had
pleaded in their written statement that
no custom of appraisement existed the
Court ought to have decided whether
such a custom existed or not. It is not
accurate to say that the plaintiff in his
plaint relied upon any custom of appraise-
ment but what he said was
that tho system of batai is prevalent in res-
pect of tho bhaoli product) of the said takhta and
appraisement is made with the consent of the
landlord and the tenants, the landlord's share
bdng the half of the produce.
It is quite obvious that what is alleged
there is not a custom of appraisement.
What is alleged is that the system is
batai, but where the landlord and the
tenants consent then appraisement is
made. Ifc is quite obvious that anything
can be done by consent between the
parties, and there is no suggestion in the
plaint that a custom of appraisement
exists. It was unnecessary therefore for
the Courts to enter into the question
whether any custom of appraisement ex-
isted in this case. The evidence given
on behalf of the plaintiff shows that in
fact an appraisement was made during
the years in question and it was upon
that basis that the Court assessed the
value of the rent payable to the pjain-
tiff. The appellant has contended that
evidence ought to have been given not
merely of the appraisement made in the
years in suit but of the value of the
crops or the actual outturn of the crops
during tho previous years. It seems to
me that the best evidence possible as to
the value of the crop during the years in
suit was the evidence of actual appraise-
ment made at the particular time for
which the rents are claimed. TJhis part
of the appeal also fails.
In the result these appeals are in each
case dismissed with costs.
Foster, J. — I agree.
Appeals dismissed.
A. I. R. 1926 Patna 516
DAS AND ADAMI, JJ.
D. Jageshar 7/iaand another — Plaintiffs
— Appellants.
v.
Mahtap Singh and others — Defendants
— Respondents.
Appeal No. 999 of 1923, Decided on
7th May 1926, from the appellate decree
of the Sub-J., Muzaffarpur, D/- 30th May
1923.
Ctoll P. C., S. 151 and 0. 41, E. 23— Remand-
on the ground that suit was not properly tried —
#o appeal lies where remand is under S. 151 and
not 0. 41, B. 23.
Where the suit has not been disposed of by the
Court of first instance upon a preliminary point,.
and where remand is ordered on the ground tha'fc
the case was not properly decided by the lower
Court, ii^is a remand under the inherent juris-
diction of the Court and there is no right of
appeal. [P. 51G, C. 2]
L. N. Singh and Eagliunandan Prasad
— for Appellants.
L. K. Jha and B. N. Mittei — for Bes-
pondents.
Das, J. — In my opinion no appeal
lies. The Court of first instance decided
all tho issues in the case. The matter
went up in appeal to the learned Sub-
ordinate Judge. He took the view that
the case was not properly decided by the
learned Munsif and he set aside the judg-
ment and remanded the case for re-trial
and gave liberty to the parties to adduce
certain additional evidence. An appeal
has now been brought to this Court
against the order of the learned Sub-
ordinate Judge.
It is quite clear that the remand was
not under the provisions of O. 41, B. 23
of the Code. The Civil P. C. gives the
aggrieved party the right to appeal from
an order of remand under 0, 41, B. 23 but,
as I have said, the suit not having been
disposed of by the Court of first instancjB
upon a preliminary point, the remand
cannot be regarded as a remand under
0. 41, B. 23 of the Code. It was obvi-
ously a remand under the inherent juris-
diction of the Court, and it follows that
there is no right of appeal to this Court.
Tho appellant is, however, not prejudi-
ced. He will have the right to challenge
this order when the matter again goes
before the learned Subordinate Judge
and if the learned Subordinate Judge
decides against him and passes a decree
in accordance with his judgment . he will
have the right to challenge the order of
remand in this Court hereafter.
The appeal jg dismissed with costs.
Adami, J.— -I agree.
Appeal dismissed*
1926
HIT NARAYAN SINGH v, BMPEROB (Sen, J.)
Patna 517
* A. I. R. 1926 Patna 517
SEN, J.
Hit tfarayan Singh — Accused— Peti-
tioner.
v.
Emperor — Opposite Party.
Criminal Revision No. 322 of 1925,
Decided on 24th July 1925, from a
decision of the S. J., Pabna D/- 18bh
May 1925.
Penal Code, S. 193 — Wittiest wWidrawlng his
previous statement in same deposition as being
Jalse — No offence Is committed.
A witness should 09 given a locus pjnitontiao
and an opportunity to correct hhnsalf, aud if ho
corrects himself i;nmddiately afterwards, or on
a sacond thought in the s,imo deposition, a
prosscution for parjury would not lie. The
essoncj of the ofEenco of perjury consists in an
-attempt to mislead and deceive the Court:
126 Mai. 55, DM. [P 517 C 2, P 518 G 1]
P. E. Lai and Chandeshwar Prasad —
fpr Petitioner.
S. N. S'lhay for Asst. Govt. Advocate —
for the Crown.
Judgment. — The petitioner is a civil
Court peon and in that capacity effected
dakhaldehani of a certain plot of land on
the 21st September 1924, to one Karu
Gorain, the auction-purchasar of that
property in execution of a rent-decree.
Subsequently a criminal casa arose as
between the judgment-debtor in the
civil case to whom tho property be-
longed and Karu Gorain, and the crop
of the fields of which delivery of posses-
sion had been given was cut and removed
by the judgment-debtor. In this case
the petitioner wa* cilled a<* a witness
and he was giving evidence as to the
delivery of possession which he had
effected in 'September 1924. In the
course of his deposition ho made a
statement .as follows :
I sent Ganesh Ohaukidar to call the men
of Mts. Raj Kuer and Shewnandan Kuer at the
field after I had delivered possession of the
property.
Soon afterwards, in course of cross*
jex* mi nation he said : —
My statement just now that I sant Ganesh
chaukidar to call the men of the Mussamats is
false.
On this ground the Deputy Magistrate
of Bihar, Mr. Ozair, who tried the case,
preferred a complaint against the peti-
tioner under S. 476 of the Criminal P. 0.
for an offence under S. 193 of the Indian
Penal Code. The learned counsel for
petitioner urges that the petitioner
as a witness had a right to withdraw a
statement which he had made in the
previous part of his deposition when he
became aware that it was not correct,
and that on that ground his two conflict-
ing statements taken together would not
amount to an offence under S. 193 of the
Indian Penal Code. I think there is a
great deal of force in his contention. If
the second statement had been recorded
in a slightly different form, that is, if
instead of the word " false " the word
' incorrect " had been recorded, I think
it would obviously not have come under
S. 193 of the Indian Penal Code. The
point of the whole objection is that he
admitted that his first statement made
in his deposition was " false. " It is
very difficult to say whether the witness
• really intended to say that the state-
ment previously made was " false " or
whether his intention was rather to say
that it was " incorrect. " When a
witness is under cross-examination and
the question is put to him by the cross-
examining counsel as to whether a state-
ment previously made by him is false
or not he may assent to it or dissent
from it and his ' yes " or " no " would
be in due course recorded in a narrative
form. In these circumstances I have
very great doubt as to whether this
would be a fit case for prosecution under
S. 193, Indian Penal Code.
Moreover, the principle has baen laid
down in various judicial decisions that a
witness should be given a locus peni-
tentiae and an opportunity to correct him-
solf.and if he corrects himself immediately
afterwards, or on a second thought in the
same deposition, a prosecution for per-
jury would not ' lie. This proposition is
supported by rulings in the oases of
Lachhmi Narain v. Emperor (l) ; Mahara)
Prasad v. Emperor (2) and In re Pandu
Namaji Qavande (3). In the last men-
tioned case the learned Judge went into
the principle in some datail and observed
that
a deposition must be read as a whole and a
wiUiess must always be given aa opportunity of
correcting any answer given by him, The pre-
sent case does not, I think, in law substantially
difiar from a case of more frequent occurrence
where a witness, having made a false statement,
is cautioned by the trying Judge and is informed
(1) [19i3j 16 O. 0. 81—19 I. G. 712=
14 Cr. L. J. 280.
(2) A. I. E. 1924 All. 83.
(3) [1917] 19 Bom. L. R. 61=39 I. C, 320=
18 Cr. L. J. 480.
518Patna JCTOAL KISHOBE v. MT. SONABATI KOMABI (Boss, J.).
1926
ot various circumstances which seem to esta-
blish the falsehood of that statement, and the
witness, after such caution, acknowledges that
his earlier statement was false and corrects it.
In such circumstances, speaking within my own
experience, I have not known any case where any
Judge has thought it desirable to subject such a
witness to a prosecution for perjury. And that
i Judge should refrain from such directions
ieems to me not unreasonable, when it is re-
membered that the essence of the offence of
perjury consists, as I take it, in an attempt to
mislead and deceive the Court. In such a case*
is we have have here, it cannot be truly said
that the opponent left the Court under the lie
with which he began by attempting to deceive
it. On the contrary, before 1m deposition was
fiinished, he withdrew the lie and left the
Couit under the impression oi the truth. It
may well be, and in this case, I think, is, the
fact that 1m motive in thus withdrawing his lie
was a motive which docs him no credit. That,
however, i* not, it Kjems to me, a decisive con-
sideration upon thin question of discretion.
The facts in the present case are much
more favourable to the accused than the
facts in the last-mentioned case. Here,
as I have observed, it does not appear
clearly that the accused deliberately
meant to perpetrate a fraud upon public,
justice He said no doubt that he had sent
a man to the Mussamats' but soon after-
wards in cross-examination he said that
his previous statement was false. The
mpression, therefore, left in the mind of
the Court was clearly that he had not sent
a man to the Mussamats as he had previ-
ously deposed.
It is urged, on the other hand, that
the case reported as In the matter of
Palani Palawan (4) should apply to the
present case and that, therefore, this
Oourt should not interfere in the matter.
The facts of that case seem to be some-
what different. In that case a witness
had given his evidence before a Court ;
the evidence had been read over to him
and signed by him, and thereafter he
was again called to the box and he made
certain statements in cross-examination.
It was found vthat his statements made
in the first piece of deposition were in
conflict with the statements made in
the second and the question arose as to
whether it was a proper case for prosecu-
tion in the circumstances. This case
appears to have been also referred to in
a later decision reported Girdharimal
v. Emperor (5). The question whether
conflict of statements made in one and
the same deposition can be the subject-
matter of a prosecution under S. 193
appears to have been the subject-matter
of conflicting decisions. That question
does not arise in the present case be-
cause, as I have observed, it is not at all
clear from the facts of this case as to
whether the witness in question had a
dishonest intention in making the state-
ments that he did and from which ho
resiled later. That being so, I am of
opinion that the prosecution against
the petitioner should be withdrawn.
The order of the learned Sessions
Judge is, therefore, set aside,
Order set aside.
(5) [1916] 9 S. L. R. 202-34 I. 0. 656=
1J Or. L. J. 240.
A. I. R. 1926 Patna 518
DAS AND Ross, JJ.
Jugal Kishore and another — Appel-
lants.
v.
Mt. Sonabati Kumari — Respondent.
Misc llaneous Appeal No. 260 of 1925,.
Decided on 6fch July 1926, from an order
of the Sub^J., Dumka, D/~ 5fch August
1925.
Land Tenure — Ghaiwall — Produce of tmpar-
tlble estate Is not necessarily accretion, — No dis-
tinction between realized and unrealized rents —
Unrealized rents are liable to attachment in exe-
cution— Hindu Law — Impartible estate.
The produce of an impartible estate does no^
necessarily belong to aud form an accretion t°
the original property, aud there is no distinc-
tion between realized rout and unrealized rout-
In the absence of any intention on the pj,rt of
tbo Lite ghatwal to treat the produce of the
estate as an accretion to the ghatwali estate,
the unrealized ronts are liable in ex*»?utlon to
attachment and sale. [P 519 C 1]
S. Sinha, C. M. Aqarwala and A'. I.\
Sukul - for Appellants.
Sultan Ahmed and Nirod Ch. Ron —
for Respondent.
•Ross, J. — This is an appeal against
an order passed by the Subordinate Judge
of Dumka striking off an application
for execution. As the decree is still
capable of execution there is no merit
in the appeal against the order striking
off the execution petition because an-
other execution petition can be brought ;
and in this view the appeal must be
dismissed. The learned counsel for the
appellant has referred to an order passed
on the 17th of July dealing with the
question of the decree-holder's right to.
1926
SA.TYADEVA v. MT. JHAMEL KUER (Bucknill, J.)
Patna 51 9
proceed against rents accruing due in
the time of the late ghatwal judgment-
debtor, but unrealized. It is conceded
by the learned counsel for the respon-
dent that the question did not properly
arise for decision, inasmuch as the appli-
cation for execution wa^ an application
for attachment of the immovable proper-
ty and for the appointment of a receiver
to collect the rents. The decision, there-
fore, cannot be res judicata. But, as/ the
matter has been discussed, we think it
right to express opinion upon the ques-
tion raised.
The learned Subordinate Judge said
that as the ghatwali property, the rents
of which are in question, is inalienable
and impartible the unrealized rents of
the villages formed the corpus of the
ghatwali property and could not be at-
tached and alienated. This question has
been dealt with by this Court in
Aparna Dehi v. Sree Shiba Prashad
Singh (l) where, with reference to the
decision of the Judicial Committee in
Rani Jagdamba Kumar i v, Wazir
Narain Singh (2) ifc was observed that it
had been held by the Judicial Committee
that the produce of an impartible estate
does not necessarily belong to and form
an accretion to the original property.
It was pointed out in the case now quoted
that there was no evidence that the late
Raja treated the produce of the estate
as an accretion. With regard to the
'listinction which was sought to be drawn
between realised and unrealized rents,
it was pointed out that rent which had
become due was produce of the imparti-
ble estate, whether the produce had
actually come into the hands of the
owner or cot, and that there was no
jdistinotion between realized rent and
unrealized rent in this respect. This
decision was followed by the Calouota
High Court in Prayag Kumari v. Siva
Prasad (3).
Learned counsel for the respondents
contends that a distinction must be
drawn between an ordinary impartible
estate and a ghatwali, because an ordi-
nary impartible estate is alienable
whereas a ghatwali is inalienable ; and
he argues that the rents and profits of a
ghatwali estate would be subject to
different incidents. But there is nothing
(1) A. I. R. 1924 Patna 451~3 Pat. 867
(2) A. I. R. 1923 P. C. 59=2 Pat. 819.
|8) A, I. R, 1926 Oal. 1.
in the special ghatwali law of inalien-
ability to affect the question whether
these unrealized rents are corpus of the
estate or not. Consequently it would
appear that the decision of the Subordi-
nate Judge on this question is erroneous ;
but this matter only arises incidentally
in the present appeal because the ques-
tion discussed by the Subordinate Judge
did not properly arise on the application
then made and ought not to have been
dealt with.
With these observations the appeal
is dismissed with costs.
Da«, J. — I agree.
Appeal dismissed.
A. 1. R. 1926 Patna 519
BUCKNILL, J.
Satyadeva Sahay and others— -Plain-
tiffs— Petitioners,
v.
Mt. Jhamel Kuer and others — Defen-
dants— Opposite Party.
Civil Revision No. 70 of 1925, Decided
on 4th June 1925, from an order of the
2nd Munsif, Gaya, D/- 28th January
1925.
Civil P. C., 0. 1, R. I—Rent suit.
A parson who alleges to bo transferee from a
co-sharer landlord, but who in not recogni/ed us
such by the plaintiffs-proprietors, oar not be
joiued in a rent suit against the wishes of the
plaintiffs. [P 520 0 1]
S. M. Mnllick, N. C. Sinha, S. N. Roy,
Shiveshivar Dayal and B. K. Prasad —
for Petitioners.
Jalgobind Prasad Sinha — for Opposite
Party.
Bucknill, J. — This is an application
in civil revisional jurisdiction made
under simple circumstances.
Some of the applicants are proprietors
of a certain property and brought a rent
suit in the Court of the 2nd Munsif,
Gaya, against the first of the opposite
party for arrears of rent. They im-
pleaded all the members of the opposite
party (with the exception of the second
opposity party) as being co-sharer land-
lords, as defendants, purporting to act
under S. 148A of the Bengal Tenancy
Act. So far no difficulty had arisen ;
but in January last it would seem that
one Mosaheb Singh applied to the
520 Patna
JEOBARAN SlKGH V. RAMKISHUN LAL
1,926
Munsif to be made a co-defendant; ; he
alleged that the first opposite party had
sold a portion of the property of which
he was a holder to one Ohamo Singh
and that Chamo Singh had sold in his
turn to this Mosaheb Singh. He, there-
fore, asked to be made a co defendant
alleging that he had some sorfc of interest
in the suit. To this, however, the applr
cants not unnaturally object. They
state that they had no knowledge of the
transfer alleged to have been made and
that he, Mosaheb Singh, had no loous
standi. However, on the 24th cf January
last, the Munsif ordered that Mosaheb
Singh should bo made a co-defendant.
It is against this order that this applica-
tion has now come before this Court.
It is difficult to understand how it is
possible for the Munsif to have acceded
to the application of this Mosaheb Singh
to be joined as a co-defendant. It is
quite clear from the case of Oananath
Sat path y v. Harihar Pandhi (l)
decided by their Lordships the Chief
Justice and Mr. Justice Mullick of this
Court, that, so far as the plaintiff
is concerned here in this suit, he was
in no way bound to implead this Mosaheb
Singh as a co-defendant. If he was not
bound to implead him as a co-defendant,
it is quite clear that he is not within
fcho meaning of the law a necessary party
to these proceedings ; and, if he was not
* necessary party to the proceedings, it
*eerns to me to have been quite irregular
for the Munsif to have acceded to his
request that he should be made a co-
defendant.
It is true that he, Mosaheb Singh,
states in his counter-affidavit that he
has got; some sort of interest in the
holding whic'i was held by the first
defendant in the suit. He states that
the origin il holding whi^h was in the
name of the fint defendant wa* sold in
1922 tj on3 Gi*mo Singh so far as a
portion of the holding is concerned and
that this Chamo Singh came into posses-
sion of it. He also alleges that some of
the co-sharer landlord? did in fact recog-
nize the transfer to Ghaoao Singh as being
a tenant and thit some rent receipts were
given. by some of the co-sharer landlords
to this Chamo Singh. He further sug-
gests that this portion of the holding of
the first defendant, which was purdhasod
(1) [1918] P. H. 0. C. '289—48 I. 0. 359-5
L. W. 232.
by Chamo Singh and which subsequently
passed into his (Mosaheb Singh's) posses-
sion, came to be recognized as an entire
holding. Even supposing all his state-
ments were correct, this would not affect
his locus standi in this suit. The casq
to which I have referred shows quite
clearly that none of the facts were ma-
terial for the necessity for'the impleading
of this Mosaheb Singh as a defendant
by the plaintiff. The converse appears
to be equally the case ; if he is not a
necessary party he has no locus standi
and need not be joined.
In these circumstances I think the
order of the Munsif must be set aside and
that Mosaheb Singh cannot properly be
joined as a party to these proceedings.
The applicants will have their costs.
Application allowed.
A. I. R. 1926 Patna 520
ADAMI, J.
Jeobaran Singh and others-
Petitioners.
-Accused —
v.
Ramkishun Lai — Opposite Party.
Criminal Eevision No. 38 of ^926,
Decided on 3rd June 1926, from an
order of the & J., Patna, D/- 15th.
January 1926.
(a) Bengal Ferries Act (1885), S. 16— Limits
of the ferry should be known.
For the purposes of a prosecution under S. 16
read with S. 28, it is important that the limits
of each ferry should ba kaown. [P. 522, 0, 2]
(6) Bengal Ferries Act (1885), Ss. 18 and 1G—
Plying along one bank is no offence*
The plying of a boat for hire along the one
bank of the river would be no offence.
[P. 523, C. 1]
(c) Bengal Ferries Act (1885), Ss. 16 and 6 —
Public Ferry Is one declared to be so under S. 6
or Regulation 6 of 1819, or Bengal Act 1 of
1866.
No ferry is a public ferry unless there has
baen a notification to that effect under 8. 6 with
regard to it, or unless the ferry has previous to
1885 been determined or declared to be a public
ferry under Regulation 4 of 1819 or Bengal
Act 1 of 1866. [P. 522, C. 2]'
(d) Bengal Ferries Act (1885), Ss. 28 and 16—
Person rraintaintng ferry and carrying persons
for hire is guilty and not his servants.
The person intended to ba punished by the
section primarily is the person who maintains
a ferry in contravention of S. 16 and who, in
working such ferry, conveys for hire any pas-
sangers, animal, vehicle or other thing. His
servants or other persons helping him can not be
192$
JEOBARAN SINGH v. RAMKISHON LAL (Adami, J.)
Patna 521
said to be doing so for hire because the hire
does not belong to them, nor can they be said
to contravene the provisions of 8. 16, the ferry
not being thai ntained by them but only by the
former. [P 523, C 2]
K. B. Dutt, N. N. Sinha and B. K.
Prasad — for Petitioners.
M. Yunus, Bhagwat Prasad and 0. N.
Mukerjee — for Opposite Party.
Asst. Govt. Advocate — for the Crown.
Judgment. — The petitioners have
been convicted under S. 28 read with
S. 16 of the Bengal Perries Act (1 of
1885) and sentenced to pay a fine of
Us. 40 each. There are five ferries con-
necting the southern or Patna bank of
the Ganges with the northern, or
Chapra side and they are the following
given in order from west to east :
Dighaghat to Paleza (Thana Sone-
pur) :
Mahendru to Sahalpur and Kalis-
than (Thana Sonepur).
• Banighat and Pathri fco Konhara
(Thana Hajipur).
Khajekalan to Barabanki ; and
Maroofganj (Adrak) Datnriahi and
Jathuli (Thana Fathua), on the south
bank of the Ganges, to Latiahi on the
north bank.
They are collectively known as the
Patna-Ginges Ferry but in fact each
ferry is an independent ferry and they
have generally beau all held together
under one kabuliyab, The petitioners,
Jeobaran Singh and Ring Singh, were
lessees of these ferries up fco the 31st
of Mirch'1924 when their lease expired.
In 1924, a notice was issued by the
Magistrate of the Patna district that the
above ferries would be re-settled under
S. 9 of the Bengal Ferries Act on the
24th March 1924. In that notice it
was remarked :
All these ghats will include the rights to ply
both ways ; the five ferries are independent, and
the lease of these does not give the lessee the
right to ply between a point included in an-
other ferry, nor does it give the right to ply
between two points on the same bank.
It appears that Bhagwat Narain Singh
asked permission of the Magistrate to
bid on behalf of Jeobaran and Bang
Singh but the Magistrate refused to allow
either of these two petitioners to take
lease of the ferry, since during the term
of their late lease they had mismanaged
the ferry. There was a keen contest at
the auction and the highest bid was
made by Eai Bahadur Chandra Khetu
Siugh and Bhagwafc Narain Singh who
together bid for the lease and it was
knocked down to them. These two
gentlemen then executed a kabuliyat
which was registered. Under the terms
of that kabuliyat, the lessees undertook
not to sublet or transfer the lease to any
other person. It appears that Bhagwat
from the first had intended to represent
Jeobaran and Bang Singh, and after he
had obtained the lease he executed a
sublease in favour of Jeobaran and Rang
Singh but, when these two sought to
have the sub-lease registered, Bhagwat
Narain refused to register it, and there-
upon there was an application for com-
pulsory registration, which I believe, led
to an application to this Court against
the order of the registration officer and
this Court directed its registration.
Jeobaran and Rang Singh were natu-
rally disappointed at their failure to
obtain a lease of the ferries, and were on
bad terms with Rai Bahadur Chandra
Khetu Singh and Bhagwat Narain be-
cause they had obtained the lease and
because Bhagwat refused to register the
sub-lease. They know that they had no
right to miintain a ferry. They had on
their hands two steamers, the "Trout"
and the "Phlox", which they had used
during the term of their lease and, when
the Sonepur fair came on, they conceived
the idea of utilizing these steamers in
carrying visitors to the fair across the
Ganges. From the 9th to the 12th
November, daring the Sonepur fair, it is
alleged by the prosecution that they
carried passengers from the Maroofganj
ghat to Sabalpur calling at other places
on the way. Rai Bahadur Ohandra Khetu
Singh finding out what was going on in-
formed the authorities. A drummer who
was proclaiming on behalf of Jeobaran
that steamers would carry passengers to
Sonepur was stopped by the police, and
also orders were passed under S. 144 re-
straining Jeobaran and Rang Singh from
maintaining the ferry.
After that Rai Bahadur Chandra Khetu
Singh, through his servant, filed 24 com-
plaints at Patna and 11 at Chapra. The
complaints stated that Jeobaran and
Rang Singh had carried passengers from
Maroofganj to Sabalpur. I may mention
that Sabalpur is the ghat for Sonepur.
The petitioners then put in a protest
against the tiling of so many as ^ com-
plaints, asserting that the offence, if
committed, was a continuing offence and
522 Patn*
JEOBARAN SINGH v. R \MKISHUN LAL (Adami, J.)
1926
that there could not be 24 separate trials
each relating to one crossing. In that
same petition if was objected that the
ferries were not public ferries and, there-
fore, no offence could have been com-
mitted. The matter came up to this
Court and Jwala ^rasad, J.. in the case
of Jeobaran Kingh v. Ram Kishun Lal(\)
held that each trip on which passengers
were conveyed for hire would constitute
a separate transaction, and that there
could be a separate trial for each, but
that the Magistrate should try at one
time only three of these transactions.
Consequently the petitioners were put
on trial with regard to three trips only
which were alleged to have been made
on the llth November, one starting at
11-30 a. m. another at 5 p. m. and an-
other at 9 p. m.
In the complaints it was stated that
the petitioners had carried passengers
for hire from Maroofganj to Sabalpur,
that is, from or»e end of the line of fer-
ries to the other ; but evidence was pro-
duced to thow that the steamer which
the petitioners were plying stopped at
Khajekalan, Pathri and Banighat, each
of which was the starting place of a
ferry. As a matter of fact the judgment
shows that only one of the prosecution
witnesses mentioned these three places,
the others mentioned only that the
steamer stopped at some places but they
did not know their names. The evi-
dence showed that Jeobaran Singh and
Rang Singh were on the boats and were
superintending the collection of fares.
The learned Magistrate found that, by
their action, the petitioners had con-
travened the provisions of S. 16 and were
guilty under S. 28. An application was
then made to the Sessions Judge to make
a reference to this Court, but the Ses-
sions Judge refused to interfere.
Section 16 of the Bengal Perries Act
runs as follows :
No person shall, except with the sanction of
the Magistrate of the District, maintain a ferry
to or from any point within a distance of two
milef from the limits of a public ferry : Pro-
vided that in the case of any specified public
ferry, the Lieutenant Governor may, by notifica-
tion, reduce or increase the said distance of two
miles to such extent as he thinks fit : Provided
also tliat nothing hereinbefore contained shall
prevent persons keeping boats to ply between
two place?, one of which is without, and one
within, the said limits, when the distance bet-
ween such places is not less than three miles,
or J?*!^ I apply to boats which the Magistrate _of
" (lj A, I. R. 19*25 Patnar623=4 Pat. 508. . "
the District expressly exempts from the opera-
tion of this section.
Section 28 runs :
Whoever conveys for hire any passenger
animal, vehicle or other thing in contravention
of the provisions of S. 16 shall be punished with
fine which may extend to Rs, 50.
^*o obtain a conviction under S. 28 ifc
is necessary to show that the ferry is a
public ferry. S. 6 of the Act requires
a declaration by notification in the
Official Gazette of what ferries shall be
fleemed to be public ferries, and no ferry
is a public ferry unless there has been
a notification to that effect under- S. 6
with regard to it, or unless the ferry
has previous to 1885 been determined
or declared to be a public ferry under
Regulation VI of 1819 or Bengal Act I
of 1866. In this latter case under S.'3
of the Act such determination or de-
claration shall be held to be equivalent-
to a notification under S. 6. S. 6 also
enables the Government to define the
limits of a public ferry by notification.
The point is taken before me that these
ferries are not public ferries, (The judg-
ment dealt 'with evidence and proceeded).
Though it has been assumed that these
ferries are public ferries, there is no cer-
tain evidence that they are public ferries,
and the prosecution have not attempted
to prove them to be such. I am inclined
to think that the petitioners are enti-.
tied to take advantage of any shadow of
doubt that there may be on the subject.
It would be well, if the quesbron were
put beyond all doubt by the issue of a>
notification under S. 6.
(a) For the purposes of a prosecution
under S. 1G read with S. 28, it is impor-
tant that the limits of each ferry should
be known. There is nothing to show
what the limit of each of the five inde-
pendent ferries is and there has been no
notification under S. 6. The learned
Magistrate held, that, because the peti-
tioners had not pleaded that the spot at
which they landed passengers was more,
than three miles from Ranighat and had'
in fact pleaded that they never plied a
steamer at all, it was unnecessary for
him to take into consideration the
proviso to S. 16 ; but, in my opinion, in
this case it was very necessary to find
out whether in fact the accused were
committing any offence by plying from
Banighat, which is the starting point of
the ferry to Konhara, to Sabalpur
1926
JEOBARAN SINGH v. RAMKRISHUN LAL (Adami, J.)
Patna 523
which is the ghat of the ferry between
Sabalpur and Mahendru. If the distance
between the Ranighat ferry and the part
of Sfcbalpur at which the steamer landed
its passengers is more tha,n three miles
it. would appear that the petitioners were
entitled to the benefit of the proviso to
S. 16.
It has to be borne in mind that these
five ferries do not form a combined ferry,
but according to the nobico issued an-
nouncing the auction sale each ferry is
an independent forry. If a steamer
started from Ranighat and proceeded to a
point which is beyond three miles the
limits of the Ranighat ferry, the offence
under S. 23 read with S. 16 would not
be committed even assuming that the
Ranighat ferry and the Mahendru,
Sabalpur ferries are both public ones.
The prosecution have taken no pains
either to show what the iimits of the
various ferries are or what the distance
between Ranighat and Sabalpur is. It
would seem, however, that the distance
is well over three miles. Prosecution
witness No. 3 states that Sabalpur is four
or five kos, that is to say, eight or ten
miles, from Khajekalan ghat, and it
would appear that Khajekalan is only a
mile or two from Ranighat. It has to be
borne in mind that each of the ferries is
independent, though leased under a
combined kabuliyat, and wo have to
consider them from the point of view of
each being under a separate lessee.
The plying of a boat for hire along
the one bank of the river would be no
offence. The Ganges is a navigable
river and is a highway, and the taking
of a steamer from Maroofganj right
along the southern bank and stopping at
Khajekalan, Mahendru and Digha would
not make the petitioners liable to any
punishment ; they would have a right to
take a boat along the Ganges. The
question, is one only of ferrying across
the Ganges from one bank to the other.
It being somewhat uncertain whether all
tfhese ferries are public ferries, and it
ffeing more doubtful still whether the
Ranighat to Konhara ferry was ever
considered a public ferry previous to the
passing of the Act of 1885, and there being
also nothing to show what are the limits
of the various ferries or whether the dis-
tance between Ranighat and Sabalpur
was less lhan three miles, I think it
should be found that the petitioners have
not been satisfactorily proved to have
committed an offence under the Aot.
With regard to the claim put for-
ward by the petitioners that under their
sub-leaso they had a right to ply a ferry
it is quite clear that the contention can-
not be supported. Only those persons
have a right to ply a ferry who have a
lease from the District Magistrate ana
the petitioners had no such lease. Any
arrangement they came to with
Bhagwat Narain could not avail them
at all.
There is another point which has.
not been considered by the lower Courts,
The petitioners other than .Teobaran and
Ring Singh can hardly bo said to have
been maintaining a ferry and to have
been conveying for hire the passengers,
for they were mere servants of the other
two petitioners. In the case of Sheosahai
Singh v. Cheta Narain Singh, which
was a case similar to the present one-
Bannerjeo and Stevens, JJ., of the
Calcutta High Court stated that
Section 28 quoted above makes it penal for
any one to convey for hire any passenger,
animal, vehicle or other thing in contra veutiou
of the provisions of S. 10, and S. 10 is contra-
vened when a ferry is maintained without
the sanction of the District Magistrate to or
from any point within a distance of two miles
of a public ferry. The way in which the offence
is denned by S. 28, which refers to S. 10, as con-
taining one of the essential elements necessary to
constitute the offence proved, goes to show that
the person intended to bo punished by the sec-
tion primarily is the person who maintained a
ferry in contravention of S. 16 and who, in work-
ing such ferry, conveys for hire any passengers,
animal, vehicle or other thing. His servant? or
other persons helping him cannot be said to be
doing so for hire because the hire does not belong
to them, nor can they be said to have con-
travened the provisions of S. 10, the ferry not
being maintained by them but only by tht
former.
There is not suflicient material to
show that these other petitioners were
cognizant of the fact that Jeobaran and
Bang Singh were maintaining the ferry
in contravention of S. 16 so as to make
them liable as abettors. The conviction,
therefore, of the petitioners other than
Jeobaran and Rang Singh would have to
be set aside in any oase.
Jeobaran Singh and Bang Singh are-
said each to have had a steamer » the
"Trout" belonging to Jeobaran Singh
and the "Phlox" belonging to Rang
Singh, but neither the judgment
nor the evidence shows clearly whioh of
these steamers was travelled on by the
o24 Patna
BALAK SINGH v. SRIKANTA (Ross, J.)
1926
witnesses who give evidence as to their
conveyance. It would seem that it was
the "Trouti" because one witness said that
he saw from another steamer the "Trout"
plying on that day. But it is quite
uncertain which steamer really was used
or whether it was the same steamer in
each of the three cases. As a result, in
my opinion, the prosecution has failed
to show that the petitioners committed
an offence under S. 28, and I would,
therefore, direct their acquittal. The
fines, if paid will he refunded.
Revision allowed.
A. I. R. 1926 Patna 524
Boss, J.
Balak Singh Bhumij and others —
Plaintiffs — Appellants.
v.
Srikanta Manjhi — Defendant — Respon-
dent.
Appeal No. 553 of 1923, Decided on
05th May 1926, from the appellate dec-
ree of the Sub-J., Purulia, D/- 22nd
March 1923.
Chota Naypur Encumbered Estates Act (G of
1876), 5s. 3 and 2 — Usufructuary mortgage by
proprietor — Decree for rent against tenant* —
Estate vcstfd In manager — Decree cannot be exe-
cuted.
Whore the proprietor of tho encumbered estate
grants a usufructuary mortgage and tho rent
due by the tenants is taken by tho mortgagee in
lieu of interest on the loan.
Held : that in recovering a decree for rent against
the tenants, the mortgagee is only recovering
interest against his debtor and it is a debt or
liability of the proprietor of the encumbered
estate ; and, that consequently, no proceedings
in execution of tho decree can be taken aftec tho
estate has vested in the manager. [P 524 C 2]
A.K. Roy — for Appellants,
A. B. Mukherji and B. B. Mukherji —
Cor Respondent.
Judgment.— This is an appeal by tho
plaintiffs in a suit to cancel the sale of a
holding in execution of a decree for rent
on the ground that it was fraudulent and
without jurisdiction, and for confirma-
tion or recovery of possession. The suit
was decreed by the Munsif and his deci-
sion was affirmed by the Subordinate
Judge ; but the appeal was remanded by
this Court on the ground that there had
not been a proper finding on the question
of fraud, and the Subordinate Judge has
now dismissed the suit.
Mr. A, K. Roy on behalf of the appel-
lants, frankly admitting that the finding
on the question of fraud was conclusive
against him, advanced a new and ingeni-
ous argument based upon S. 3 of the
Chota Nagpur Encumbered Estates Act.
1876. In order to understand this argu-
ment it is necessary to state certain
facts.
The plaintiffs were the tenants of the
zemindar of Barabhum who, in 1911,
gave a usufructuary mortgage to the
zemindar of Dumra, and he, in his turn,
in the same year, assigned the mortgage
to the Midnapur Zemindari Oompanv,
Defendant No. 2. The Company brought
Bent Suit No. 612 of 1913 against
the plaintiffs for rent from 1319 to the
12-annas kist of 1320 and obtained an ex-
parte decree on the 20bh of September
1913. In 1914, the estate came under
management under the provisions of the
Encumbered Estates Act and the man-
ager brought Rent Suit No. 1514 of 1915
against the present plaintiffs for rent
from 1319 to the 12-annas ktet of 1322.
That suit was decreed and the amount
of the decree was deposited by the plain-
tiffs on the 24th October 1916. In that
year the Midnapur Zemindary Company
took out execution of their rent'decree in
Execution Case No. 560 of 1916 ; and, on
the 4th of December 1916, the plaintiffs'
holding was sold at auction and purcha-
sed by Defendant No. 1. When the auc-
tion-purchaser took possession on tho
17th of June 1917, the plaintiffs alleged
that they came to know of the ex parte
decree and applied to the revenue Court
and got the ex parte decree set aside and
the suit dismissed on the loth of Decem-
ber 1917. They then applied to have
the sale set aside, but failed and, there*
fore, they instituted this suit alleging
that the sale was fraudulent and with-
out jurisdiction.
The argument is that as the proprietor
of the encumbered estate had granted a
usufructuary mortgage, the rent due by
the tenants was taken by the mortgagee
in lieu of interest on the loan, and, that
in recovering a decree for rent against
the tenants the mortgagee was only re-
covering interest against his debtor and
that this was a debt or liability of the
proprietor of the encumbered estate ;
and, consequently, no proceedings in exe-
cution of the decree could be taken after
1914. It was for the manager of the
1926
MAHABI DHANGAB v. BALDEO NABAIN
525
estate to realize rents from the tenants
and to apply the income in the manner
directed by the Act : and it was not open
to any individual creditor to proceed by
way of execution on his own account.
It was contended that all that the Mid-
napur Zernindary Company could do,
after the estate came under management
was to file their decree before the man-
ager. In reply to this argument, it is
contended that S. 3 contemplated the
stay of proceedings pending in Court
with regard to the property of the pro-
prietor of tho encumbered estate and
that the object of the rule is the protec-
tion of the estate. But here no proceed-
ings were taken against the estaie, but
the Midnapur Zernindary "Company was
only executing a decree against the
tenants.
It is further contended that when the
decree was passed, tho tenants' liability
to pay and the zemindar's right to rea-
lize the rent were merged in tho decree
and the debt was no longer a contrac-
tual debt ; and that such a debt is not
contemplated by S. 3 of the Act.
It is to be noticed that the manager
sued the tenants for the rent of the years
for which the Midnapur Zemindary Com-
pany had already brought a suit, and
realized the rent from them. As the ex-
parte decree of the Midnapur Zemindary
Company was set aside, it must be taken
that the tenants, and consequently, the
manager had no notice that proceedings
for recovery of this rent had been taken
by the usufructuary mortgagee before
the date when the estate came under
management. The manager, finding ar-
rears outstanding was bound to take
steps to realize the rent and the hard-
ship of the procedure adopted by the
Zemindary Company is apparent, as the
tenants have paid the rent for these years
and have satisfied the decree, while their
holdings have been taken from them in
execution of another decree for the samo
years. A state of things like this could
•only happen because of the existence of
an encumbrance and the claim of the
mortgagee although directly against the
tenant, is substantially a claim against
the proprietor for interest on his mort-
gage. I am, therefore, inclined to think
on the whole that the argument on be-
half of the appellants is sound and that
the procedure adopted by the Midnapur
Zemindary Company in executing their
decree after the estate had come under
management was contrary to law ; and
the sale in execution was without juris-
diction and must be set aside.
Two other points were taken on behalf
of the appellants. The first was with
regard to Jehur Singh, one of the record-
ed tenants. The learned Subordinate-
Judge found that; he was not dead at the
time of the decree as had been alleged
by the plaintiffs ; but, it is argued that,
if he was dead at the time of the execu-
tion, the sale was void unless his repre-
sentative was brought on the record. But
there is nothing to show, and no finding,
that he was dead at the time of tho
execution. The second point was that
the trial Court found that ono Udhah»
the son of one of the recprded tenants,
Bidai Bhumij, was not brought on the
record and, therefore, the decree was not
a rent-decree ; and that this point has
not been dealt with by the Subordinate
Judge. The point is not specifically dealt
with, but the learned Subordinate Judge
sjiys that it appears from the khatian and
the decree that all the persons named in
the khatian or their heirs were sued.
But on the first ground the appellants,
are entitled to succeed and the appeal
must be decreed with costs and the dec-
ree of the Subordinate Judga set aside
and the plaintiffs' suit decreed with costs.
throughout.
Decree set aside.
A. I. R. 1926 Patna 525
SEN, J.
Maharl Dhangar — Petitioner.
Baldeo Narain — Opposite Party.
Criminal Revision No. 51 of 19'2o,
Decided on 27th July 1925, referred by
the S. J. Purneah.
Criminal P. C., S. 192— Complaint under
S. 420 — Police ordered to report — Police report-
Ing the case to be false and Instituting prosecu-
tion under S, 211 — Complaint by complainant
praying for judicial enquiry — Case transferred
'to another Magistrate — Transfer Is one. under
,S. 192.
O.i a complaint baing filed before the Sub-
Divisional Officer, the complainant was examined
and police was ordered to submit a report. Tho
police submitted a final report stating that tho
case was maliciously false and filed
a complaint lor the prosecution of tho
526 Patn*
MAHAR DHANGAR v. BALDEO NARAIN (Sen, J.)
1926
complainant under S. 211 of the Indian
Peual Code. The Sub-Divisional Officer
did not take cognizance of the case under
S. '211, but merely asked the accused to show
cause why he should not DJ prosacuted. At
the same time tho complainant put in a petition
impugning the police report and praying for an
enquiry by a Judicial Officer. The complainant
was directed to adduce evidence. His witnesses,
however, wcro not present on the day fixad and
he praye 1 for time. The cass was thereupon
adjourned, but on the adjournment dite the
following order was passed : "Witnesses wore
present. To Mr. Q. (a Deputy Magistrate) for
disposal." Mr. Q. did not examine anyof the
witnesses being of opinion that ib would bo a
•waste of time to do so. But on looking into the
police report and hearing the pleader of the
complainant he directed the investigating officer
to submit a charge-sheet in the case. Subse-
quently the Sub-Divisional Oftleer purported to
re-call the case from the file of the Deputy
Magistrate and make it over to another Deputy
Magistrate with certain instructions as to how
lie should proceed. Held : the order transferring
the case to the Deputy Magntrata was under
S. 192 and the whole case was transferred. The
Deputy Magistrate had full seisin of the case
and the Sub-Divisional Olfioer could not recall
the case for the reasons shown in his order or
transfer it to another Deputy Magistrata, much
less with instructions as to how ho should deal
with the cisj. The order of the Sub-Divisional
Officer transferring the case to another Magis-
trate as well as the order of the Deputy Magis-
trate asking for a ohir^e-sheat from the police
should bo set asido. [P. 526 C. 1, 2; P. 527 C. 1]
B. P. Jamuar — for Petitioner.
S'. Saran — for Opposite Party.
Judgment. — This is a Reference by
the learned Sessions Judge of Purneah.
It appears that on the 3rd December
1924 one Mahari Dhangar filed a com-
plaint before the SuVDivisional Officer
of Furnoah in respaot of an offence under
S. 420 of fche Indian Penal Code. The
Sub-Divisional Officer examined the
oomplainanb and pissed an order in
bhese terms : Examined complainant,
The offence disclosed is cognizable. Sub-
Inspecfcor, Kazanchi Hat P. S. to investi-
gate and report/ by 17th December 1924."
The police submitted a final report
stating that the case was maliciously
false and filed a complaint for the pro-
secution of the complainant under S. 211
of the Indian Penal Code. It is to be noted
that the Sub-Divisional Officer did not
take cognizance of the case under S. 211
of the Indian Penal Code, but merely
asked the accused to shew cause on the
27th January 1925 why he should not
so prosecuted.
At the same time the complainant in
the case under S. 420 of the Indian
Penal Code put in a petition impugning
the police report and praying for an en-
quiry by a Judicial Officer. This peti-
tion is under the law a complaint. The
complainant was directed to adduce
evidence on the 10th February 1925.
His witnesses however were not present
on that day and he prayed for time. The
case was thereupon adjourned to the
I9bh February 19:45, on which date Seven
of the witnesses were present. The Sub-
Divisional Officer on that day passad the
following order :
"Seven witnesses were present, To
M. Fakhrul Hussan Qadri for disposal."
Mr, Qadri did nob examine any of the
witnesses being of opinion that it would
be a waste of time to do so. But on
looking into the police report and hear-
ing the pleader for the complainant he
directed the investigating officer to
submit a charge-sheet in the case on the
12th March 1925.
On the 12th March 1925 the Sub-
Divisional Officer passed the order which
has been recommended for revision by
this Court. By that order the Sub-Divi-
sional Officer purported to recall the
case from the file of the Deputy Magis-
trate, Mr. Qadri, and make it over to
another Deputy Magistrate, Mr. Duff,
with certain instructions as to how he
should proceed. The order of the
Deputy Magistrate, Mr. Qa*dri, directing
the police to submit a charge-sheet, is
also recommended for revision. The
ground upon which such recommenda-
tion is made is that by his order, dated
the 12bh March 1925, transferring "the
case" bo Mr. Qadri for disposal the
whole case under S. 420 of the Indian
Penal Code was transferred for disposal,
and the transfer must be deemed to have
been made under S. 192. In that view
the Deputy Magistrate, Mr. Qadri, had
full seisin of the case, and if he found
that there was a priraa facie case he
had the right to issue summons against
the accused. As regards the order of the
Deputy Magistrate upon the police to
submit a charge-sheet it is stated that
the Deputy Magisbrate was not com-
petent to make such an order and,
therefore, it is recommended that this
order too should be set aside.
It is, however, contended by learned
counsel appearing against the letter of
reference that the Sub-Divisional Officer's
explanation should be accepted to the
effect that all that Mr. Qadri was asked
1926
PRATAP UDAINATH v. LAL GOBIND NATH (Das, J.) Pa to a 527
to do was to enquire and report; as to
whether the police report that the com-
plaint wag maliciously false was true or
not." The substantive case under S. 420
of the Indian Penal Code reouined on
the file of the Sub-Divisional Officer and
was not transferred to Mr. Qadri at all.
Various arguments have been advanced
on this theory, but it is unnecessary to
ontor into a consideration of the
arguments as the, meaning of the order,
datel the 12th March, is quite plain on
the faca of it. It is not proper to decide
this matter on the explanation sub-
mitted by the Sub-Divisional Officer and
specially in view of the fact that the
terms of the order itself are quite clear.
They show that the order was under
S. 192 and that the whole case was
transferred. Mr. Qadri, therefore, had
full seisin of the case and the Sub-Divi-
sional Officer could not recall the case
tor tha reasons shown in
the order or transfer it to another
Deputy Magistrate, much less with in-
structions as to how he should deal
with the case. In my opinion the view
taken by the learned Sessions Judge is
sound. The reference is accepted and
the order of the Sub-Divisional Officer
dated the 12th March 1925, as well as
the order of the Deputy Magistrate
asking far a charge-sheet from the police,
are set aside.
Reference accepted.
A. I. R. 1926 Patna 527
DAS AND ADAMI, JJ.
Maharaja Pratap Udainath Salt Deo-
Plaintiff — Appellant;.
. Lai Gobind Nath Sah Deo — Defen-
dant—Respondent.
First Appeal No. 62 of 1923, Decided
on 27fch April 1926, from a decision of the
Dy. Collector, Ranchi, D/- 31st March
1923.
(a) Chota Nagpur Tenancy Act (4B.C. of
1903), 6'. 139 (2)~ Person sued need not be rat-
yat—Rent payable must be In respect of agricul-
tural land.
A suit agaiasb a parson who is not a raiyat but
a tanure-holder, and is collectiug rent in respect
of agricultural Uad for the determination of the
rent piyabla by him oornes expressly under tha
provision of S. 139. In order that 8. 139. 01. (2).
may apply, it is not necessary that the defen-
dant should be an agricultural raiyat, but it is
necessary that the rent should be payable for
agricultural land. [P 527 0 2]
(b) Chota Nagpur Tenancy Act— Definition of
agricultural land appears purposely omitted.
Agricultural l<uid has not been denned in the
Act, and it would appear that this omission is
intentional. [P 527 C 2]
S. M. Mullick and B. C. De— for Ap-
pellant.
.4. K. Bay — for Respondent.
Das, J. — The learned Deputy Collec-
tor was right in saying that there was
no contract between the landlord and
the tenants in this case to pay any defi-
nite rent for the disputed land ; but ho
was wrong in dismissing the suit on the
ground that he had no jurisdiction to
apportion the rent in a case of this na-
ture. S. 139, 01. (2) of the Ohota Nagpur
Tenancy Act provides that all suits and
applications for the determination of the
rent payable by any tenant for agricul-
tural land shall be cognizable by the
Deputy Commissioner and shall be ins-
tituted'and tried or heard under the pro-
visions cf the Choca Nagpur Tenancy Act
and shall not be cognizable in any other
Court, except as otherwise provided in
the Act.
The defendant, it is true, is not a
raiyat but he is a tenure-holder, and if
he is collecting rent in the respect of
agricultural land, then clearly a suit for
the determination of the rent payable by
him comes expressly under the provision
of S. 139 of the Chota Nagpur Tenancy
Act. In order that S. 139, 01. (2) may
apply, it is not necessary that the defen-
dant should be an agricultural raiyat,
but it is necessary that the rent should
be payable for agricultural land.
Now the learned Deputy Collector
does not say that the land in respect of
which the apportionment of rent is
claimed is not agricultural land. Agri-
cultural land has nob been defined in the1
Chota Nagpur Tenancy Act, and it would
appear that this omission is intentio-
nal.
It is pointed out by Mr. Eampini in
his well known work on the Bengal Te-
nancy Act that the question of determi-
ning to what classes of land the Act
should be applicable was felt to be a
difficult one and so it was left to the
Courts to overcome the difficulties invol-
ved in its solution.
528 Patna
RAJ GOPAL v. UPENDRA (Boss, J.)
1026
We are informed that the record of
rights shows that there are numerous
raiyats in these villages from whom the
defendant collects rent. If that be so,
clearly the land is agricultural land. At
all events, if it is land to which the
Ghota Nagpur Act applies, there is no
reason to take the view that it is not
agricultural land.
I would allow the appeal, set aside the
order of the learned Deputy Collector,
and remand the case to him for dispo-
sal according to law.
Adami, J. — I agree.
Case remanded.
A. I. R, 1926 Patna 528
Ross AND MACPHERSON, JJ.
Raj Gopal Acharjya Goswami — Defen-
dant— Appellant.
v.
Upendra Acharjya Goswami — Plain-
tiff— Respondent.
Appeal No. 1117 of 1923, Decided on
31st May 1926, from the appellate decree
of the Dist. J., Manbhuui Sambalpur,
DMlth August 1923.
(a) Decree — Setting aside — Fraud — Minor is
equally bound by a decree as a major — Decree
against minor properly represented — Fraud or
collusion is the only ground for setting aside.
An infant is bound by judgment as much as
if he was of full age, unless gross laches or fraud
and collusion appear in the prochein ami. In
India the procedure in cases of gross laches is to
apply for a review or, if tho decree was ex parts
to get the ex-parte decree Ret aside. If it be
sought to set aside a decree obtained against an
infant, properly made a party and properly
represented in the case, and if it be sought *to do
this by a separate suit, then the plaintiff in such
a suit can succeed only upon proof of fraud or
collusion. [P. 529, 0. 1, a]
(b) Chota Nagpur Tenancy Act, S. 258— Fraud
t$ the only ground to remove the bar.
Under S. 258 fraud and gross laches are not
identical ; and it is fraud, not gross laches,
which removes the bar impcsed by that section,
i. e , so loog aa fraud, aa distinct from gross
negligence, is not esrablishod. S. 258 is a bar :
12 Cal. 69, Eel on. [P. 529, 0. 2]
S. M. MMick and S. N. Palit—tor
Appellant.
S. C. Majumdai — for Respondent.
Ross, J. — The appellant contends that
this suit was barred by the provisions of
S. 25b of the Chota Nagpur Tenancy
Act. The plaintiff-respondent brought
the suit for a declaration that an ex-
parte rent decree which had been ob-
tained against him under the guardian-
ship of his maternal uncle was invalid
and inoperative. The ground on which
the suit was brought was that there4
was a good defence open which was not
taken, namely, that the holding was renfc
free and on the findings arrived at by the
Courts below it must be taken that that
was so. But S. 258 imposes an absolute
bar against suits of this kind unless they
are founded on fraud or want of jurisdic-
tion. The question is whether it has
been properly found that the ex-parte
rent decree was obtained by fraud.
The findings of the Munsif were that
the maternal uncle of the plaintiff was
his lawfully constituted guardian and
that he was not guilty of fraud or collu-
sion, but that he was guilty of gross
laches in conducting the defence. Deal-
ing with S. 258 of the Act the Munsif
said that ' that the law herein enacted
contemplated that the judgment was
obtained in an action, fought out ad-
versely between two litigants, sui juris
and at arm's length, ' and that these
elements were lacking in the exparte
order in question. I do not know what
authority the learned Munsif had for
this statement : and tho learned District
Judge did not proceed on this ground.
The learned Munsif further found that
there was no reasonable distinction
between the case of fraud and gross negli-
gence since it equally jeopardized the
interest of the minor. Finding the plain-
tiff's case established on the merits, he
passed a decree in his favour.
The learned District Judge dealing
with the plaintiff's allegation that his
uncle was guilty of such gross negligence
as amounted to fraud, said that his
contention had been accepted by the
learned Munsif and was the first point
raised in the appeal. He then referred
to certain decisions and followed those in
Lalla Slieo Churn Lai v. Ramnandan
Diibey (l) and Punnayyah v. Raj am
Viranna (2) in which it was held that,
gross negligence in not defending where
a valid defence is available amounts to
fraud. He is of opinion that he should
follow these rulings and hold that gross
negligence amounts to fraud ; and, deal-
ing with the case itself, he found that
~(1) "[1895] 22 Gal. 8.
(2) A. I. B. 1922 Mad. 278=45 Mad. 425.
1926
THIRATHMAN JHA v. MT. GUNJESWARI KUER
Patna 529
bhere was gross negligence and that the
plaintiff was entitled to succeed on the
merits. ,
The contention on behalf of the ap-
pellant is that there is no finding here
that the ex-parte decree was obtained by
fraud. I think this contention is sound.
It can hardly be said that the District
Judge has come to a finding of fact that
there was fraud. It is true that the
negligence may be so gross as to be evi-
dence of fraud ; and, if the District Judge
had found that that was the case here
he might have come to a positive finding
that there had been fraud, although, in
doing so, he would have had to set aside
the finding of the Munsif that there was
no fraud in the matter : that finding has
not been dealt with at all. But in fact
the learned District Judge has not taken
this course. He has followed a decision
which he thinks entitles him to say that
gross negligence amounts to fraud. This
is therefore, not a finding of fact.
Ifc 13 difficult to see how negligence,
however gross, could amount to a fraud.
' Negligence and fraud are in truth
mutually exclusive conceptions ; al-
though fcho same facts may be evidence
either of one or of the other '. The
reason why gross negligence came to be
treated as evidence of fraud or even
equivalent fco fraud was the historical
season that at first the Court of Chan-
cery did not claim to deal with legal
titles except in cases of trust, fraud and
accident ; anl on the question of notice,
they had to hold that while mere negli-
gence would not affect the conscience,
yet, acts of negligence were sometimes so
gross and culpable that it could be in-
ferred that the person concerned was
deliberately shutting his eyes. In the
circumstances, therefore, he was affected
with notice of what he ought to have
seen on the ground of fraud. Now, none
of these- considerations are present here.
The question is a question of procedure.
The learned DistricwJudge has followed
the decision in Lalla Sheo Churn Lai v.
'flambandan Dubey (l) where it was held
that there was no res judioita where the
next friend of a minor plaintiff has been
guilty of gross negligence in the original
suit. Now this decision is not inconsis-
tent with the law laid down in Baghu-
bar Dayal Sahu v. Bhikya Lai Mi$ser(3)
where the question of procedure has been
(*) [ISbttJ 12 Ca.l 69.
1926 P/67 & 68
explicitly dealt with. Their Lordships
there laid down that an infant is bound
by judgment as much as if he was of full
age, unless gross laches or fraud and
collusion appear in the prochein ami ;
then the infant might open it by a new
bill according to the Chancery practice ;
while in India the procedure in cases ol
gross laches was to apply for a review or,
if the decree was ex-parte, to get the
ex-parte decree set aside. Their Lord-
ships distinctly laid down that if it be
sought to set aside a decree obtained
against an infant, properly made a party
and properly represented in tho case-
and if it be sought to do this by a sepa-
rate suit, I apprehend that the plaintiti
in such a suit can succeed only upon
proof of fraud or collusion. In this
matter, therefore, fraud and gross laches,
are not identical ; and it is fraud, not
gross laches, which removes the bar
imposed by S. 258. It is argued on be-
half of the respondent that where the in-
fant has lost a valuabe property through
the gross negligence of his guardian, he
is entitled to bring a suit ; but, in my
opinion, the proper procedure was laid
down in the decision in Eaghubar Dayal
v. Bhikya Lal(S) and so long as fraud, as
distinct from gross negligence, is not
established (and it has not been estab-
lished or found as a fact in this case),
S. 258 of the Chota Nagpur Tenancy Act
is a bar.
I would, therefore, allow this appeal
with costs and dismiss the plaintiff's suit
with costs throughout.
Macpherson, J. — I agree.
Appeal allowed.
A. I. R. 1926 Patna 52 9
DAWSON MILLER, 0. J., AND FOSTER, J
Thirathman Jha and others — Plain-
tiffs— Appellants.
v.
Mt. Gunjeswari Kuer and others — De-
fendants— Respondents.
Second Appeal No. 52 of 1924, Decided
on 10th June 1926, from a decree of the
Dist. J., Darbhanga, D/- 4th October 1923.
Pardanashin lady — Liability under a deed exe-
cuted by her — Execution by and 'explanation of
document to her must be proved — When $}ie ?s
already aware of Us nature, deed need not be ex-
plained to her.
Persons seeking to charge with liability under
a deed pardanashin ladies have to prove not
merely that they executed the document sued
i f Hca.vrrivUN JHA v MT.
upon, but also that they understood and appre-
ciated the nature of the transaction which they
were purporting to enter into; hut it is not
necessary in all caae* to show that at the time
whon the document was executed the explana-
tion was then given. Although it is usual and
necessary that it should be read over to her at
that time, it is certainly unnecessary that it
«hould be explained to her when she is already
well aware of the nature of the document.
[P 580 C 2; P53LC 1]
(,. C. h^s and Murari Prasad — for Ap-
pellant.
,Sf. Dai/aL B. K. Prasad and //. P. Sinha
— for Itespomlents.
Dawson-Miiler, C. J. — The plaintiffs
sued in this case to enforce a mortgage-
bond executed on the 15th August 1907,
by two brothers Burat Lil Das and Laoh-
human Lil Das and the wife of a third
brother, namely, Mt. Gunjeswari 'Kuer.
The property mortgiged, it appears, was
registerel ia the name of these three
persons. The loan to secure which the
mortgage was executed was a sum of Es.
025 borrowed, it was said to piy off cer-
tain debts of one of the brothers and for
the purposes of the family needs. The
case of the plaintiffs was that at that
time the two male executants of the
bond and their brother, the husband of
the female executant, were joint in estate
and that this property which they mort-
gaged was presumably a part of the joint
family property. The female defendant,
Me. Gunjeswari Kuari, entered a separate
written statement in the suit and con-
tended, amongst other thing*, that she
never executed the bond at all ; that she
never borrowed any money from the
plaintiffs nor was she in need of borrow-
ing, and she claimed that her share in
the property mortgaged, namely, one-
third, was at all events not 'liable for
the debt covered by the bond. Her case
was that the parties were separate in
estate at the date when the mortgage-
bond was executed and that -she, not be-
ing in need of money or in debt, had
no necessity to join in the mortgage-
bDnd hypothecating her interest in the
property.
The Munsif before whom the case came
for trial found in favour of the plaintiffs
and ' passed a decree in their favour
against each of the defendants and or-
dered the sale of the interest of each of
them in the property. Prom that deci-
sion Mt. Gunjeswari appealed,\ and the
main point urged before the .District
Judge pn appeal was that, even accepting
(Dawson -Miller, C. J.) 1926
the plaintiff*' evidence, tbere was nothing
to show that this mortgage-bond had been
explained to the lady at the time when
she executed it, or to show that she was
aware of and thoroughly understood and
appreciated its contents. Upon this part
of the case the learned District Judge
dealt with the evidence on behalf of the
plaintiffs and came to the conclusion
that there was no evidence on the plain-
tiffs' side that the bond was explained
to the lady or that she understood that
she was mortgaging her property. We
have been referred to the evidence of the
first witness for the plaintiffs and, the
statement of the learned District Judge
which I have just referred to hardly ap-
pears to be borne out by the evidence
given by that witness.
The learned Judge in criticising his
evidence went so far as to • say that in
examination-in-chief this witness safd
nothing about the reading over of the
bond. This is obviously a slip, because
on looking at the witness' evidence it
appears, at the end of his examination in
chief, that he distinctly states that the
bond was read out to the defendants and
then adds : " The contesting Mt. was
not fraudulently asked to sign tha secu-
rity bond." That, however, is a small
matter because it is not disputed that in
bis cross-examination he dealt very much
more fully with this question. But the
main criticism of the learned Judge's
finding is that it is based •almost entirely
upon a misapprehension of the real nature
of the evidence given by the plaintiffs'
witness and it is not correct to say that
there is no evidence on the plaintiffs'
side, that the lady /understood that she
was mortgaging her property. The
learned District Judge seems to have as-
sumed that unless it could be shown
when the mortgage was actually exe-
cuted, that it had not only been read
over to the female executant but it had
also been explained £ her at that time,
then she would not be liable under the
mortgage. It is quite true that person's
seeking to charge with liability under
deeds of this sort, pardanashin ladies,
have to prove, not merely that they exe-
outed the document sued upon, but also
that they understood and appreciated the
nature of the transaction which they
were then purporting to enter into ; hut
it is not necessary in all cases to show
that at the time when the document was
192)5 THIRATHMAN JHA v. MT. GONJESWARI (Dawson-Miller, C. J.) Patna 531
executed the explanation was then given,
for it is obvious that in many cases, for
example, where the lady herself has been
instrumental in bringing about the trans-
action which is given effect to subse-
quently by the execution of the docu-
ment, she tnay be perfectly well aware of
the contents of the docimdnt before she
executes it and if she is, although it is
usual and necessary that ifc should be
read over to her at that time, it is
certainly unnecessary that it should be
explained to her when she is already
well aware of the nature of the document.
Turning to the evidence in the present
case, it appears from that of the first
witness for the plaintiffs that he himself,
if his evidence is accepted, had an inter-
view with this lady on two occasions
before the document was executed. The
first occasion was about four days before
tjie execution of the deed and the second
oceasion was the day before, and she told
him at those interviews that she was in
need of money and he asked her 'to regis-
ter a mortgage-bond. She told him what
the nature of her requirements was. She
had to pay up a lo.in, she said, of Rs. 150
to repair her house and had to find
money for cultivation and for other pur-
poses. If this evidence is accepted it
seems fairly clear that the laiy knew
Before she actually signed the bond ex-
actly what the nature of it was. The
oase put forward on her behalf at the
trial was that when she executed this
bond she did not know that it was a
mortgage at all. She thought that she
was merely executing some security
bond. That sfcory was not accepted in
the trial Court and the learned 'District
Judge says nothing about it 'but merely
decided the case upon the ground that
the plaintiffs had failed to produce suffi-
cient evidence, or indeed any evidence, to
show that this lady at the time when she
executed the bond had it explained to her.
The result is that the learned Judge
Jjas arrived at his conclusion by omitting
tp consider the evidence which was given
as to the lady's knowledge of the nature
of the transaction under the misappre-
hension that no such evidence existed.
I am not suggesting that the mere fact
that he did not in terms refer to this
evidence would be sufficient for sending
it back for re-hearing, but in the present
instance he has gone very much further
than that; for he has stated tnat there is
no evidence on the plaintiffs' side that
this lady understood that she was mort-
gaging her property. Of course, if he
thought that, it was clear that he was
entitled to arrive at the conclusion at
which he did, namely, that the bond was
not valid as agiinst her ; and that finding
on his part, based as it was upon a mis-
apprehension, for there was evidence on
the plaintiffs' side to the fact which he
mentions, was really the whole found-
ation of his judgment. For these reasons,
it seems to me that the judgment cannct
stand and must go back for further con-
sideration and the Court will consider
whether, in fact this lady first of all
executed the bond at all, and, secondly,
whether assuming she did execute it,
she was aware of the nature of the
transaction.
In remanding this case it must not be
understood that this Court is necessarily
taking a different view of the aotual
result which ought to be arrived at from
that determined by the learned District
Judge. It may be that the appellate
Court when the case goes back to it may
find many features in the evidence and
in the document in the case which indi-
cate that this lady did not really under-
stand the nature of this document. It
may be that he may find that she never
executed it at all but all these are
matters which must depend upon a re-
view of the evidence before him.
We are not in a position to determine
any of these questions: There are un-
doubtedly many suspicious facts appear-
ing in connexion with this transaction if
the other findings of the learned District
Judge are to be accepted. At the same
time the whole matter will be open to
the lower appellate Court upon the re-
hearing of the appeal. Perhaps, I ought
to add that in considering these questions
the principles upon which the Courts in
India ought to act are laid down at some
length in the judgment of the Judicial
Committee in the recent case of Farid-
un-nism v. Mukhtar Ahmad (1). The
decision appealed from is set aside, and
the case will be sent back to the Court
of the District Judge for reconsideration
upon the facts. The costs of this appeal
will abide the result of the re-hearing.
Foster, J. — I agree.
Case sent back.
(1)
. 1925 P.O. 201=47 All. 7C8.
532 Patna JUNG SINGH v. DULABCHAKD (Kulwanfc Sahay, J.)
A, I. R. 1926 Patna 532
KULWANT SAHAY, J.
Jung Singh and others — Plaintiffs —
Appellants.
v.
Dularchand Mali to and others — Defen-
dants— Respondents.
Appeal No. 1161 of 1923, Decided on
17th June 1926, from the appellate
decree of the Addl. Dist. J., Patna, D/-
15th June 1923.
Bengal Tenancy Act, S. GO — Registered and un-
registered Thekadars — Claim by registered theka-
dar — Tenant cannot plead payment to unregis-
tered thekadar.
Where the question arisen between two sets of
thekadara one of whom is registered and the
other is not registered, it is not open to tho
tenant to plead payment to the unregistered
thekadar in defence to a claim by the registered
thekadar: 6 P. L. J. 658, Rel. on. [P 533 G 1]
Mohammad Hasan Jan — for Appellant.
N. C. Sinha and B. C. Sink a— -tor Res-
pondents.
Judgment. — This is an appeal by the
plaintiffs and it arises out of a suit for
rent.
Tho rent was claimed for tho period
from 1326 to the 8-annas kist of 1328
E. S. The plaintiffs claim under a
registered theca patta dated the 17th
May 1919, executed hy the 16 annas
landlord who was the pro forma defen-
dant in the suit, tho theca b,eing for a
period from 1327 to 1335 P. S. This
tbeca was preceded hy an amal dastak
dated the 15th of Asm 1326, granted by
the 16 annas proprietor to the plaintiff
No. 1 alone for 'the year 1326. Tho
defence of the defendant-tenant was that
the plaintiffs had no title as landlords ;
that one Shujait AH held the village in
which the holding in dispute is situated
under a lease dated the llth November
1914, granted by the proprietors for the
years 1322-1330 ; that Shujait AH was
dead and his heirs were in possession ;
and that the rent for the years in suit
had £een paid to the heirs of Shujait Ali.
The proprietor entered appearance and
stated that Shujait Ali surrendered his
lease in 1325, and thereafter the amal
dastak and the theca patta were granted
to the plaintiffs. The learned Munsif
decreed that suit. On appeal the
learned Subordinate Judge has set aside
that decree and has dismissed the suit on
the sole ground that tho plaintiffs had
failed to make out their title to sue.
On second appeal by the plaintiffs ifc
is contended that the plaintiffs stand
recorded in the Collectorate in Register
D, and that under S. 60 of the Bengal
Tenancy Act the tenant is not entitled
to plead in defence to the claim of the
plaintiffs, who have been registered
under the Land Registration Act?, that
the rent is due not to the plaintiffs but
to a third person.
In my opinion this contention is sound:
and ought to prevail. The learned
Munsif referred to the fact that the-
plaintiffs' names appear in Register D.
The learned Subordinate Judge makes
absolutely no reference to this fact ; he
merely considers the question of the-
surrender by Shujait Ali and concludes
that the plaintiffs had failed to prove
the alleged surrender and, that, therefore*
the theca of Shujait Ali still continues
and that the lease to the plaintiffs was
suspicious and could not, in any events,
prevail against the lease granted to
Shujait.
Having regard to the provisions of
S. 60 of the Bengal Tenancy Act, I am
of opinion that it was not open to the
tenants to plead that the rent was not
due to the plaintiffs but to the heirs of
Shujait. On behalf of the respondents
reliance has been placed upon Durya
Dax Ilazra v, Samash Akon (l) and
G Irish Chandra Chongdar v. Satish
Chandra Sarltar (2). Both- of theso
decisions were, however, considered by
this Court in Nand Kuer v. Jodhan
Mdhton (3), The decision in Durga 'Das
Ha.zra v. Samasn, Ahon (l) was not
followed, and the decision in Girish
Chandra Chondar v. Satish Chandra
Sarkar (2) was distinguished, and it was
held by this Court that a person regis-
tered under the Land Registration Act
was entitled to recover rent from the
tenants without any further proof of
title, and that the tenants were not en-
titled to plead that the registered pro-
prietor was not in fact the proprietor
and that the rent was due to a third^
person.
It is contended on behalf of the res-
pondents that a theoadar is not required
under the provisions of the Bengal Land
Registration Act to have his name regis-
(1) [1900] 4 0. W. N. 606.
(2) [1907] 120. W. N. 622.
(3) [1921] 6 P. L, J. 658~(1921) P, H, 0, C. £0*
=61 I. 0. 386~2 P. L. T. 337.
1926
v. JANESWAR (Adami, J.)
Patna 533
tared, and that Shujait Ali as theoadar
could recover rent from the tenants even
if he wai nob registered under the Land
Registration Act, and that the proprietor
who was registered and who had granted
^he theca to Shuja.it Ali could not be
heard to say that payment of rent by
•the tenant to Shujaifc Ali was not a pay-
ment which he was bound to recognize
inasmuch as Shujait Aii was not recorded.
In my opinion this contention has no
force. It Is true that a thecadar is not
required to have his name registered
under the Land Registration Act ; but if
a thecidar gets his name registered, it is
not open to the tenant to plead that the
rent is payable to another thecadar who
has not got his name registered. The
registered proprietor assigns his right to
recover rent from tenants to the theca-
<3ar, and a payment of rent to the theca-
£ar is in effect a payment to the pro-
prietor and, therefore although a tenant
ca.n successfully plead that a payment of
orent to the thecadar of the proprietor
was a good payment, yet when the ques-
tion arises between two sets of thecadars
one of whom is registered and the other
is not registered, I am of opinion that it
is not open to the tenant to plead pay-
ment to the unregistered thecadar in
defence to a claim by the registered
thecadar.
As 1 nave said the learned Subordi-
nate Judge has not considered the effect,
of the registration of the plaintiffs '
names in Register D. The parties do
not agree as to the date when the
plaintiffs were registered. According to
the plaintiff-appellants they were regis-
tered on the 21st March 1920, which
corresponded to the 16th of Ohait 1327,
and payment is aMeged to have been
made to the heirs of Shujait Ali under a
compromise in August 1920. It is,
therefore, necessary to find as to when
the plaintiffs were registered in the
Golieotorate under the Land Ragistra-
tion Act, and also as to whether any
payment was made by the defendants to
trhe heirs of Shujait for any portion of
the year in suit prior to the registration
of the plaintiffs' names in the Collector-
ate.
The decree of the learned Subordi-
nate Judge must, therefore, be set aside
and the caie remanded to him for re-
hearing. He must consider the question
as to whether the plaintiffs are recorded
under the Land Registration Act, and if
so when they were recorded, and whe-
ther any payment was made by the
^defendants to the heirs of Shujait for
"any of the years in suit before the date
of such registration. A decree will be
made in favour of the plaintiffs for such
arrears of rent as were not paid to the
heirs of Shujait before the date of the
registration of the plaintiffs. Coats will
abide the result.
Case remanded.
# A.I R. 1926 Patm 533
ADAMI AND KULWANT SAHAY, JJ.
Bhupendra Narain Mandw — Appel-
lant .
v.
Janeswar Mander and another — Res-
pondent
Misc. Appeal No. 17 of 1925, Decided
on 1st July 1925, from an order of the
Dist. J., Bhagalpur, D/- 23rd December
1924.
# Civil P.C., 0. 21, R. 11— Heading and column
8 blavk — No correct entry In column 6 — No list
of properties — Sheet No. 2 blank— No copy of
decree attached — Names of decree-holders not
given — Application on last day of limitation —
Time given for supplying defects- -Application Is
barred.
Where an execution application was defeotiv0
in very many ways, that is, the heading wa8
blank and so was column 8, column 6 was not
correctly entered and no list of the propertie8
sought to ba sold was given ; Sheet No. 2 wa8
blank and there was no copy of the decree at"
tached to the application, column 10 did not
show a clear statement of the petition, the names
of » the decree-holders were not given, and time
was given to the applicant for supplying the
defects without fixing any datj and when the
defects were supplied, it was found that the
original application was made on the last day of
limitation.
Held : that tha application was time-barred
[P. 534 C.1J
A. P. Upadhaya — for Applicant.
S. C. Mazumdar and Nawadwip Ch.
Ghose — for Respondents,
Adami, J. — This is an appeal from
an order of the District Judge of Bhagal-
pur, setting aside the order of the Munsif
of Madhipura, rejecting an application
for execution of a decree. It appears
that the decree of which execution was
sought was passed on the 28th October
1911, and time, therefore, would expire
on the 28th October 1923. On the 13th
534 Patna
BHCJPENDRA v. JANESWAR (Adami, J.)
1926
November 1923, the application was filed.
It would be in time on that date because
that date was the first date after the
civil Court vacation, The application,
however, was defective in very rnanyt
ways ; the heading was blank and so was
column 8, column 6 was not correctly
entered and no list of the properties
sought to be sold was given ; Sheet No. 2
was blank and there was no copy of the
decree attached to the application ;
column 10 did not show a clear state-
ment of the petition, the names of the
decree- holders were not given. The
Munsif passed an order on the 13th
November 19.3 : * Petition returned for
compliance of the omissions pointed out."
No date was given for compliance. On
the 19th November, the application was
put in again, but it was found that all
the defects noted had not been removed,
and the Munsif passed an order on that
date that the decree-holder must remove
all tho errors by the 4th of December.
On the 7th December, the order sheet
shows that the number and date of the
previous execution proceedings had not
been correctly given ; it was footed that
the decree appeared to he time- barred,
that is to say, I suppose, that the appli-
cation was time-barred. Tho Munsif
ordered that the decree-holder should
show cause lsy petition why the applica-
tion should not be rejected, and, if he
failed, the petition would stand time"
barred. The application was returned
for compliance by the 17th December.
The next order on the order sheet is not
dated, but it is to the effect that the
order of the 7th December must bo com-
plied with by the 17th of January, and
it seems that some objection, was taken
that notice ot the order of the 7th Jan-
uary had not been given to the pleader.
No petition was put in on the 17th
January 1924, but on tho 18th January,
the decree-holder filed a petition showing
cause why the application should not be
found to be time- barred and excused his
failure to file the application on the 17th
on the ground that he could not get any
stamp on that date. The next order on
the order-sheet is dated the 23th January
1924 and is "register the petition/' This
entry was made by a clerk without
orders from the Muusif, and the Munsif
paid no attention to' it. He found that
the application was beyond time and
time-barred.
An appeal was made to the District
Judge and he held that, as the Munsif
had given no date on the 13th November
1923, for complianee with his order but
on the 19th l^ovenjber gave time till the
4th December for compliance, it must be
held that he had allowed time till the
4th of December ard thus had saved the
application from being time-barred. The
learned District Judge admits that, even
on the 4th December, the application was
still defective, but he decided, on the
basis of various rulings which he citecU
that the defects on the 4th December
were not material defects and, therefote^
it must be held that time had been ex-
tended and the order had been complied
with by the 4th December. He, there*
fore, admitted the application.
In my opinion, the application should
be held to bo time-barred. It is clear
that at the last moment the decree-
holder put in a piece of paper with cer-
tain facts written on it and certain
prayers, but that application was not an
application for execution such as is
required by law. It was very flagrantly
defective ; it was treated as being of no
avail and it was returned to the decree-
holder to be completed in proper form.
At that time the question whether the
application was time-barred could not be
considered, because tho facts stated in
the application did not afford the neces-
sary information : it was in fact £reatecl
as no application at all. On the 19th
November time was given until the 4th
December and it was then first noticed
that the application appeared to be time-
barred and the decree- holder was called
upon to point out any reasons why ib
should not be condemned as time- barred.
In the case of Salimulla Bahadur \\
Sainaddi Sarkar (\4, a decree-holder
applied for execution of his decree and,
before the period of limitation had ar-
rived, he applied to the Court under
p. 21, R. 17 to be allowed to file a list of
immovable properties. The Courfc
simply made the order ' permitted" and
did not fix any time within which tha1
list was to be filed. The list was sub-
sequently filed after the period of li-
mitation had already run. It was there
held that fhe proceedings in execution
were barred by limitation inasmuch a*
the provisions ol 0. 21, B. 17 8tib-K. (i)
were not complied with and the
(1) [1914] 18 0. U J. 588—22 1. C- 337.
1926,
EMPEROR v. GOVIND SINGH (Kulwant Sahay, J.) Fatna 53o
sary formalities were not carried out
within the time prescribed by law. In
that case AS in this caae it was not
brought to the notice of the Court at the
time the application was made that there
was any question of limitation. The
failure to file a lisc *of properties was a
material defect and by the time that the
order was passed on the 19th November
tha application WAS already time-barred.
The learned District Judga has cited
various cases whsra various defects were
held fcj be individually nob material.
Bit in tho present case, the application
was defective in nearly every way and
miay of -the defeats were material. The
decree-holder in the later stages seems
to hava continued to delay and his excuse
that he could not file the petition on
the 17th January, because he could not
gab tho sfetmp, vvn not a good one. I
can 383 no good reason for considering
that it cm ba held that an application
for exesution was miia 'within time and
in my opinion the application should he
held to be time- barred.
Thoappaal should be allowed with coat^,
the order of the learned District Judge
set aside and that of the Munsif restored.
Kul\VJint Sahay, J. — I agree.
Appeal allowed.
* A, I. R. 1926 Patni 535
Ross AND KULWANT SAHAY, JJ.
Emperor
v.
Goiind Si vyh — Accused.
Jury Reference No. 2 of 1926, Decided
on 2nd March 1920, made by tho S. J.,
Patna, on 20bh January 1926.
•» (a) Penal Cole, S. I >±- Antedating docu-
ment ts not necessarily forgery.
Mrera antedating of tho document would not
neoessariiy m.ik-> it a f*U3 dooatieab unless it
operates or could operate to prejudioa anyone.
[P 533 0 1]
(6) Criminal P. C., 8. Ml— Verdict of jury
wGl not be upset unless it is unsupported by
evidence.
The High Court will not interfere in a rofereucj
under S. 8J7 against thi verdict of the jury,
unless it is of opinion that the verdict of the jury
could not 63 supported by the evidence on tha
record. [P 536 C 2]
H. L. Nandkeolyar — for the Grown.
Hasan Imam and R. V. Prawl — for
Accused.
Kulwant Sahay, J.-— This is a refer-
ence made by the Sessions Judge of Patna
under S. 307 of the Code of Criminal
Procedure on a disagreement with the
verdict of the majority of the jury find-
ing the accused not guilty.
The charge against tho accused was of
using a forged document in a Civil litiga-
tion under S. 471 read with S. 467 of tha
Indian Penal Code. The document
alleged to have been forged was a hand-
note executed by one Urnrao Singh in
favour of the accused Gobind Singh for
a sum of Rs. 500 bearing date the 20th
of Chait 1329, which corresponds with
the 2nd of April 1922, Gobind Singh
instituted a suit on the basis of this
hand-note in the Court of the Munsif ab
Barh on the 17th of May 1924, and tho
hand-note WAS filed along with the plaint.
The defendant Urtrao Singh filed a
written statement wherein he denied
his liability under the hand -note, and
denied the execution thereof. It appears
that upon an application of the defen-
dant, Umrao Singh the hand-note was
sent to the stamp oftioo at Calcutta for
information as to whether the paper
upon which the hand-note was executed
had been issued on or before the 2nd of
April 1922. The stamp office gave a
reply saying that the paper upon which
the hand-note was written had not been
issued on that date. The plaintiff, how-
ever, appears to have taken no steps in
tae suit, and the suit was dismissed for
default on the llth of May 1925. The
learned Munsif, on the same day made
a complaint against the plaintiff, Gobind
Singh, under S. 476 of tho Code of Cri-
minal Procedure. After the dismissal of
the suit, Gobind Singh filed a petition for
restoration of the suit on the allegation
that there had been a compromise
between him and Umrao Singh ; and, in
accordance with that compromise, Umrao
Singh had executed a fresh hand-note
for a sum of R$ 696-8-0, and the agree-
ment bBtween the parties was that nono
of them would take any steps in- the suit
and allow it to be dismissed for default.
Gobind Singh produced this second hand-
note alleged to have been executed by
Umrao Singh. An expert was examined
and his evidence was that tne thumb-
impression upon the second hand-note as
well as that upon the original hand-note
of the 20th Chaifc, 1329, were both the
thumb-impressions of Umrao Singh, The
536
EMPEROR v. GOVIND SINGH (Ross, J.)
1926
ieirned Munaif, however, dismissed the
application for restoration, and Gobind
Singh was prosecuted for an offence
under 8.471 read with 8. 467 of the
Indian Penal Code.
At the trial the only evidence given
was that of the head-assistant of the
stamp office, who proved that the paper
upon which the hand-note had been
written had nob been issued in April
1922 ; of the pleader, Babu Kandji Sahai,
who filed the plaint and application for
restoration of the suit on behalf of
Gobind Singh ; and of Gouri Dj,yal, a
clerk of the pleader Kandji Sahai, who
proved that he had written the plaint.
The prosecution story is that the hand-
note bears the genuine thumb-mark of
Umrao Singh but that the paper was a
blank papar upon which Umrao §ingh
had put his thumb impression and had
made it over to Kashi Singh in order to
obtain from him settlement of certain,
diara lands. Kashi Singh is the karpar-
daz of Gobind Singh ; and Gobind Singh's
case is that the loan was advanced to
Umrao on the intervention of Kashi
Singh and that tho money was actually
advanced on the 20th of Chait 1329, but
that the hand-note was executed on a
subsequent date as Umrao Singh failed
to repay the loan of Ks. 500 which had
been advanced to him ; and that although
the hand-note was executed on a sub-
sequent date, yet the date of the original
loan was entered therein so that he
might no!; lose tho interest on his money.
Now there is absolutely no evidence
to show that a blank paper bearing the
thumb-impression of Umrao Singh had
baen made over by him to Kashi Singh.
Tnere is evidence in the case to show
that the hand-note in question bears
the genuine-thumb impression of Umrao
Singh. The presumption mu^t therefore
be that the hand-note was a hand-note
executed by Urnrao Singh. The only
thing that is certain upon the evidence
is that the document had been ante-
tlated ; but this antedating of the docu-
ment would not necessvrily make it a
false document. There is a total want
Df evidence in the present case to show
that the antedating was done by Gobind
Singh with the object of making any
wrongful gain to himself or causing
wrongful Joss to Umrao Singh, The
element of dishonesty is wanting in the
present case. Moveover the fact of the
second hand-note having been given by
Umrao Singh goes to show that the
previous hand-note had been executed by
him. In any event, upon the evidence
as it stands, it cannot be said that the
view taken by the majority of the jury
was a view which was incompatible with
the evidence in the case ; and it is clear
that this Court will not interfere in a
reference under S. 307 of the Code of
Criminal Procedure against the verdict
of the jury, unless, this Court is oi
opinion that the verdict of the jury
could not be supported by the evidence
on the record. In the present case the
evidence is, as I have said, such that the
view taken by the jury cannot be said
to be an unreasonable view of the case.
In these circumstances, I am unable to
accept the reference, which must be dis-
charged ; the verdict of the jury will be
accepted, and the accused must be acquit-
ted and released.
Ross, J. — I agree that this reference
should be discharged. It is admitted
that tho document bears the thumb im-
pression of Umrao Singh, the debtor, and
therefore, in the absence of evidence to
explain this fact, the hand-note must be
taken to have been executed by him. It
bears date the 20fch of Chait, 1329, that
is, the 2nd of April 1922. It is proved
that the paper on which it was written*
was not in existence then ; and it follows
that the creditor antedated this hand-
note. The question is, whether this is
forgery. In my opinion, it is not. The
conditions under which the antedating of
a document by its executant will be
forgery are discussed in Reg v. Ritson (l).
There the Judges referred to the defini-
tion of forgery in Bacon's Abridgment
where it was said :
The notion of forgery doth not so much consist
in tho counterfeiting of a man's hand and seal,
which may often be done innocently, but in the
endeavouring to give an appearance of truth to a
mere deceit and falsity ; and either to impose
that upon the world as the solemn act of another
which he is in no way privy to, or, at least, to
make a man's own act appear to be done at.a
time when it was not do*je, and by force of such
a falsity to give it an operation which in truth
and in justice it ought not to have.
That was a case where a conveyance
executed subsequently to an equitable
mortgage and an assignment of the same
(11 [1869] 1 0. C. 200=89 L. J. M, 0. 10=21
L, T. 437=18 W. B. 73=11 Cox, 0. C.
352.
1926 BASHIST NARAYAN v. BINDESHWARY PRASAD (Das, J.)
Patna 537
property was made to bear a date ante*
rior to these transactions in order to give
it prjorit'y over them. This was held to
be forgery on the ground that by this
antedating of the document a false opera-
tion was given to it. Blackburn, J., in
his judgment said :
la this case the false statement is in the date
which, in ordinary cases, would not be material;
bnt here, hy extrinsic evidence, the false date was
shown to ba very material, and the forged deed
would have passed the estate to another person
than tha prosecutor if the deed had baen execu-
ted on the day it bears date.
Their Lordships relied upon an old
decision, Salway v. Wale (2), which was
a similar case ; but in that decision it
was added that antedating is not forgery
if there is not a mesne interest in any
fcbird parson who is prejudiced thereby.
In the present case there is nothing to
show that the antedating of this doou-
niant had, or could have had, any opera-
tion to the prejudice of any one. The
necessary element of fraud or dishonesty
is, therefore, wanting.
I, therefore, think that the deoision of
the juryAas correct and that the priso-
ner mulBe acquitted and released.
_ _-
(2) [15W-1621J Moo.lt. B. 655^7'2 E, R. 819.
# A. I. R. 1926 Patna 537
DAS AND ADAMI, JJ.
Bashist Narayan Singh — Defendant —
Appellant.
v.
Bindeshwary Prasad Singh and others
— Plaintiffs — Kespondents.
First Appeal No. 49 of 1926, Decided
on 7th July 1926, from a decision of
the Sub-J.. Darbhanga, D/- 18th February
1925.
# Hindu Law — Partition — Mother takes equal
to sons, but only half as much If she /tas got Income
producing stridhan.
According to all the leading authorities of the
Mitaksnara Sshool, both mothers and step-
mothers are equal sharers with the sons : 8 Col.
537 and 47 I. C. 204, Foil. ; 16 Cal 758 P. C.t not
Foil. She is, however, entitled to only half as
much if she has got stridhan, but it cannot be
said that when the text-writers lay down that
the possession of stridhan should by itself reduce
the claim of the widow to one-half, they meant
to include ornaments within the term. A share
given to a widow on partition is in lieu of main-
tenance, and it is dittloult to understand how a
widow can possibly maintain herself out of orna-
ments. Stridhan in the text clearly means
stridhan capable of producing an income.
[P. 538, C. 1 <fe 2-]
Sultan Ahmed, K. P. Jayaswal and
Janak Kishore — for Appellant.
N. N. Sinha and B. P. Sinha— for Res-
pondents.
Daa, J. — This appeal arises out of a
suit for partition instituted by the res-
pondents against the appellant. One
Parmeswar Narain Singh died in Janu-
ary 1923, leaving one son by his deceased
wife and a widow and three minor sons
by her. The plaintiffs are the sons of
Parmeshwar by his second wife, who is
Defendant No. 2 in this suit. His son by
his deceased wife is the defendant-appel-
lant. The plaintiffs are the minor sons
and 'are represented in the record of this
suit by their maternal uncle as their next
friend.
Three material points were taken in
the written statement : first, that the suit
is not for the benefit of the minor plain-
tiffs ; secondly, that the parties origi-
nally came from Oudh and that according
to custom
partition takes place on the bisis of Patni
Bhag and as such the defendant is entitled to a
share equal to half of the whole property, and the
other. half should go to the plaintiffs and their
mother ;
and, thirdly, that the widow of the
deceased is not entitled to a share out of
the whole estate. The learned Subordi-
nate Judge has decided all these points
against the defendant and has given the
plaintiffs a decree substantially as claim-
ed by them. He has also held that
Defendant No. 2 is entitled to a share
equal to that of each of the sons.
So far as the first point is concerned, I
have.no doubt whatever that the suit is
for the benefit of the minors. The defen-
dant is actually in possession of the
entire estate and he has put forward a
title to a moiety of the estate. As I shall
presently show, there is not the slightest
foundation for the claim put forward on
behalf of the defendant. The parties are
not on good terms and I have no doubt
whatever that the plaintiffs will suffer
considerable loss if the estate is left in
the hands of Defendant No. 1.
So far as the second point is concerned
the case of the defendant appears to be
that under some custom he takes a
moiety of the estate being the only son of
one of the wives of the deceased and that*
the plaintiffs being the sons of the other
538 Patna
BASHIST NARAYAN v. BINDESHWARY PBASAD (Das, J.)
wife as between them take a moiety of
the estate. The defendant seems to base
his case on some cmtDcn reoagnized in
Oudh ; but no such ciutom has -been
established. The learned Subordinate
Judge has dealt with this matter and, in
my opinion, tho conclusion at which he
hv* arrived is right and must b3 affirmed.
The last point raised on behalf of
the defendant in the written statement
is settled by authorities which are bind-
ing on this Court. The contention of tho
appellant is that the m)ther on partition
H entitled to a share only out of her
own son's share. This is no doubt the
law in families governed by the Bangui
School of Hindu fnw : See Hemanyini
Duvi v. Kedarnath Ktindti Ghaudhury (l).
It was contended before us that although
that case was a case of Diyabhaga, still
the dooision of tho Judicial Committee is
of general application and applies to
Mitakshara family. I am unable to
accept this contention as well founded.
In doiling with the case tho Judicial
Committee expressly referred to the texts
which aro binding in tho Bengil School
of Hindu Law. They did not deal with
Mitakshara text* and I am unable to hold
that tint decision should govern a case
under tho Mitakshara L\w.
The lea ling o iso applies \'.)le to Mitak-
shara is that of Dtimo^Inr Mister v.
tiefubitity M twain (2). The dasision was
based on tho Mitakshara, Chapter 1, S. 7,
verse 1, where it is said that
of hair-* dividing after the death of tin father
let tho mother also tako an oquii slurv,
It w«vs conceded that tho text left it in
doubt whether the term 'mother' included
'step-mother' ; but Mr. Justice Mitter
who had a profound knowledge of tho
Hindu L%w, examined the various texts
which are of authority in the country
governed by the Benares School of Hindu
biw and came to the conclusion that
according to all the loading authorities of the
Mitikshara School, b>th mothers and step-
nothers are equal sharers with tho sous.
The decision of Mr. Justice Mitter has
been consistently followed: soe Damo-
darda* Maneklal v. Uttamram Maneklal
(3) ; Mathura Prasad v. Droka (4) ; liar-
ndrain v. Biihavihhar Nith ($) : Snha
(1) [1880) IGCAl. 75S-U5 I. A. 115-5 Sir-
874 (P. 0.).
(2) [1882] 8 Oal. 537.
<8) f 1890] 17 Bom. sl71.
(4) f 1890] A. W. N. 124.
(5) [1916] 38 A1J, 83^31 1. C. 907 ^13 A, L. J,
1129.
1926
it v. Mania Rautuin (6). The last
mentioned decision is of this Oourt and
is binding on us. I hold that the deci-
sion of the learned Subordinate Judge i*
right and must be affirmed.
A new point was taken before us and
is to the o.fect that as the widow has
already roceived stridhan from her bus-'
band her share should bo reduced to half;
tho share of the son. The argument is
founied on the text of Mitakshara as
csntained in Chapter 1, Section 7, verse 2,
which is a? follows :
Of heirs making a pirtition aftjr the decent
of the father, tha mother shall take a share equal
to that of her son ; provided no stridhan had been
given to her. But, if any had been received by
her, she is entitled to half a share, as will be
explained.
The point was, however, not taken in
the written statement and no issue was
framed on this point by the learned
Subordinate Judge. Mr. Jayaswal, how
ever, relies upon the finding of the learn-
ed Subordinate Judge to the effect that
there aro ornaments belonging to the
widow which cinnot bo the subject-
matter of the partition. Ifc appears that
the defendant claimed that ttt orna-
ments should bo partitioned betBien the
parties. The learned SubordiniB Judge
held that those ornaments wre the
personal properties, namely stridhan of
Defendant No. '2 and could not bo held
to bo joint family properties. I am
willing" to accept that the widow is in
possession of certain ornaments which
were given to her by her husband. The
value of the^o ornaments has not been
as3ertainod and wo aro unable to say,
what their value is. But apart from any
other consideration, I do not think that
when the text-writers lay down that the
possession of stridhan should ^ by itself
reduce the claim of the widow to one-
half, they meant to include ornaments
within the term. A share given to a
widow on partition is in lieu of main-
tenance and it is difficult to understand
how a widow can possi'bly maintain her-
self out of ornaments. Stridhan in the
text clearly means stridhan capable, of
producing an income. I am accordingly
of opinion that the contention of
Mr. Jayaswal must be overruled.
I would dismiss this appeal with costs.
Adami, J.— I agree.
Appeal dismissed.
(<5j [1918J 47 I. c. aoi,"
1926
KOKIL GHAND RAM v. BANBAHADUR SINGH (Das, J.)
Pata* 530
A. I. R. 1926 Patna 539
DAS AND ADAMI, JJ,
Kokil Chand Ram and others— Plain-
tiffs— Appellants.
v.
Banbakadnr Singh and others — Defen"
dants — Respondents.
Appeal No. 165 of 1924, Decided on
21st May 1926, from the original deoree
of the Addl. Sub-J , Hazaribugh, D/- 30th
J,une 1924. *
(a) Contract AM, S. l»~Complelcd contract-
Setting wide-- Inadequate consideration amount-
ing to fraud is ground for setting aside— Con-
tract.
A Court will set aside a completed transaction
if it is shown that the consideration wan so in-
adequate as to lead to the inference of'fr.iudor
undue influence, biit the inadequacy of conside-
ration must be apparent and must not be
left to be spelled out by dexterous arguments
as to value. In other words, in order to enable
t\e Court to set aside a completed transaction,
the thing must speak for itself. [P. 542, C. 1J
(b) Contract -Act, S*. 1G and IT— Inadequate
consideration may lead to inference of fraud or
undue Influence,
The fact that a transaction was at an under-
value i? evidence from which it may bo inferred
that the party thereby bone fi ted was guilty of
fraud or undue influence. [P. -VU, 0. 42j
(c\ Specific performance --nf He f of specific
performance It discretionary with Court, but Gout t
hai no discretion to refuse relief based on com-
pleted contract.
The Court may refuse to enforce specific per-
formance of a contract at suit of a party who
has innocently made a representation to the
other in cases where the party misled would
have no right to rescind the contract. But the
position is entirely different where a party
comes to Court and seeks relief on completed
transactions. There is no longer any discretion
in the Court to refuse to give the plaintiff the
appropriate relief unless it is established that at
Jaw he is not entitled to the relief. [P. 541, C. 2]
P. C. Mauuk and D. C. Da— for Appel-
lants.
Haiatt, I?nim, Sukti Kh'inta, Bhatti-
ct\arji> S. N. Base and Dht/an Chandra—
for Respondents.
Das, J. — This appeal arises out of a
suit instituted by the appellants for re-
covery of possession of certain proper-
ties on the footing of certain-deeds exe-
cuted by Defendant No. 1 in favour of
tbe plaintiffs, and for delivery of those
deeds. The deeds referred to are (l) a
ticca patta executed by Defendant; No. 1
in favour of the plaintiffs on the 20th
June 1920 ; and (2) 'a usufructuary mort-
gage bond executed by the game defen-
dant in favour of the plaintiffs on the
:JOth June 1920. The execution of bho
documents was admitted, but the suit
was resisted on the ground that there
was undue influence and fraud exercised
on the defendant by the plaintiffs. The
learned Subordinate Judge rejected fcho
case of undue influence and fraud, but
he dismissed the plaintiffs' suit on the
ground that Defendant No. 1 was in
some way misled into entering into the
transactions in question and that he
made a bad bargain. The plaintiff*
being dissatisfied with the judgment of
the learned Subordinate Judge have Ap-
pealed to this Court.
In order to understand the case it i*
necessary to deal with certain antece-
dent transactions. Defendant No. 1 is
the Raja of Palganj, Defendant No. VJ is.
his wife : Defendant No. 3 is his son and
Defendant No. 4 is a junior member of
the family, in possession of certain khor-
posh properties which were the suhjeot-
matter of certain transactions between
him and the plaintiffs. There were two
sets of antecedent transactions which ib
was the object of the transactions in
suit to extinguish : first, transactions het-
ween the:plaintiffs and Defendant No. 2 :
and, secondly, transactions between
plaintiffs and Defendant No. 4. On the
iiist March 1910, Defendant No. 2 bor-
rowed Rs. 2,000 from the plaintiffs and
executed a hand-note in their favour. Oa
the Gbh May 1910, she borrowed another
sum of R-J. 200 from them and executed
another hand-note in their favour. On
14th January 19rJ, she executed two
mortgages in favour of the plaintiffs; one
for Rs. 5,000 and the other for Rs. 1,500.
The mortgage for Rs. 3,000 was to pay
off the principal and interest duo to tho
plaintiffs on the two hand-notes. The
mortgage for Rs. 1 ,oOO was for cash ad-
vance made that day. These were all
the transactions 'between the plaintiffs
arid Defendant No. 2. As between tho
plaintiffs and 'Defendant No. 4 there were
the following transactions: On the 1st
April 1916, Defendant No. 4 borrowed
Rs. 11,898 from the plaintiffs and execu-
ted a mortgage in their favour in respect
of his khorposh properties. On tho 30tK
April 1917, he borrowed Rs, 4,800 from
the plaintiffs and executed another mort-
gage-bond in their favour. The execu-
tion of the documents in respect of these
antecedent transactions was admitted ia
540 Patna KOKIL CHAND RAM v. BANBAHADUB SINGH. (Das, J.)
^1926
the written statement, but it was con-
tended that the full consideration was
<not paid by the pUintiffs. It is to be
noted that the defendants did not say in
their respective written statements how
£auch WAS actually received in respect of
tho^e trans vctions and they did not ven-
ture to come to the witness-box to con-
tradict the case of the plaintiffs. The
learned Subordinate Judge has found that
the full consideration was paid in res-
pect of all those transactions ; and the
finding of the learned Subordinate Judge
on this point has not been challenged
before us.
In order to wipe out all the transac-
tions jusb narrated, a fresh arrangement
was coine to between the parties It
appears that over Bs. < 25,000 was due to
the plaintiffs from Defendant No, 4 on
the mortgage-bonds of the 1st April
1915, and the 30th April 1917. The
plaintiffs assigned these mortgage-bonds
to Defendant No. 3 for a consideration
of Bs. 25,000. The case of the plaintiffs
on this point is that Defendant No. 1
who, as I have said, is the Bija of Pal-
ganj, was anxious to secure the proper-
ties covered by the transactions of the
1st April 1915, and the 30bh April 1917,
for his son, and he accordingly took an
assignment of these mortgages for the
benefit of his son, Defendant No. 3. He
was, however, un%ble to pay the sum of
B*. 25,000 to the plaintiffs. There was
also a large sum of money due to the
plaintiffs from Defendant No. 2 on the
two transactions of the 14th January,
1912. To discharge the liability of
Defendant No. 2 and also to satisfy the
olaim of the plaintiffs for Bs. 25,000 as
the consideration for the deed of assign-
ment in respect of the mortgages by
Defendant No. 4 in favour of the plain-
tiffs, the Dafendant No. 1 executed two
documents in favour of the plaintiffs ;
tirat, a ticca lea*e of 10 villages for 30
years; and,' sesondly, a usufructuary
mortgage-bond in respect of his Tight to
the rents in regard to 22 villages from
1921 — 1933. The fciooa lease was execu-
ted on the 20bh June 1920. The pre-
mium payable by the plaintiffs was
Hs. 8,500 and the rent fixed in the lease
was Bs. 925-15-0 payable in instalments
with interest at 2 par cent, per month on
all arrears. The sum of Ba. 8,500 paya-
ble by the plaintiffs was in fact not paid,
and was sat off against the claim of the
plaintiffs as agiinst Defendant No. 2
whose liability was assumed by Defen-
dant No. 1. The usufructuary 'morjjgage-
bond was executed on the 30th June
1920. The consideration for this mort-
gage-bond was Bs. 25,000 which was ntfo
paid by the plaintiffs but was set off
against what was due by Defendant
No. 1 to the plaintiffs on the deed of
assignment of the 30th June 1920. The
result of the transactions of the 20th
Juna 1930, and the 30th June 1920, res-
pectively was as follows :
(1) Defendant No. 4 was no longer
liable to the plaintiffs but became liable
to Defendant No. 3 on the mortgage-bonds
executed by him on the 1st April 1915
and the 30th April 19l7, respectively.
(2) Dafendant No. 3 was liable to pay
Bg. 25,000 to the plaintiffs on the deed
of assignment of the 30th June 1920 but
that liability 'was discharged by Defen-
dant No. 1 giving a usufructuary mort-
gage of certain villages to the plaintiffs.
(3) Defendant No. 2 was discharged
from her liability to the plaintiffs in
respect of her mortgages, the claim of
the plaintiffs being satisfied by the exe-
cution of the ticca lease of the 20th
June 1920.
Although the documents were executed
on the 20th June 1920, and the 30th
June 1920 respectively they were not
registered till the 14th August 1920. It
appears that pending the registration of
the documents, an account was submitted
by the plaintiffs to the defendant show-
ing how the matter stood as between
them and the defendants. This account
is Ex. 15 and is printed at page 57, part
3 of the paper-book. It shows that
Bs. 39,674-8-0 was due to the plaintiffs
on the earlier transactions to which was
added the sum of Bs. 1,000 for costs of
stamps, etc. making a total of Bs. 40,874-
8-0. Bupees 5,000 was wholly given up
by the plaintiffs and Bs. 8,500 was shown
as realized on account of the premium on
the ticca lease of the 20th June 1920,
and Bs. 26,700 was shown as realized oil
the usufructuary mortgage-bond of fch'e
30bh June 1920, though «as a matter of
fact Bs. 25,000 and not Bi. 26,700 was
payable by the plaintiffs to the defend-
ant as the premium on the usufructuary
mortgage bond. In other words, the
plaintiffs gave up another sum of
Bi. 1,700. They showed Ks, 40,200. as
having baan realized by the ticca leas a
192Q
KOKIL CHAKD BAM v. BAKBAHADUR SIKGH (Das. J.) Palna
and usufructuary mortgage-bonds as
against the sum of Rs. 40,874-8-0 due by
the defendant to the plaintiffs. There
was still a balance of Bs. 674-8-0 which
Defendant No. 1 agreed to pay later on.
TChis aooount sheet waa signed by the
defendant on the 13th August 1920 and
thereafter on the 14th August 1920. All
these documents, namely, the ticca lease
of the 20fch June 1920 the deed of
assignment of the cOth June 1920 and
the usufructuary mortgage-bond of the
30th June 1920 were registered in ac-
cordance with law. Defendant No. 1 how-
ever, refused to make over these registered
documents to the plaintiffs, and declined
to make over possession of the proper-
ties covered by those documents. The
plaintiffs, therefore, brought the suit out
of which this appeal arises for possession
of the properties on the completed
transactions on the 20th June 1920, and
on the 30th June respectively.
The learned Subordinate Judge entirely
misunderstood the scope of the suit. He
thought that the suit was one for specific
performance of a contract and he took
the view that he had a discretion to re-
fuse specific performance, if he conside-
red that the defendant had made a bad
bargain. He found that consideration
passed in respect of the earlier transac-
tions; he found that no undue influence
*vas proved in respect of the earlier
transactions into which Defendant No. '2
entered ; but he thought
it was not at all a goo:l bargain for tho defen-
dant to make provision for his son by encum-
bering his otherwise encumbered estate.
He took the view that Defendant
No. 1 did not understand the account,
Ex. 15, and he says that
it is not unreasonable to suppose that the
Defendant No. 1 was misled into executing those
documents,
It may be pointed out that Defendant
No. 1 did not venture to come to the
witness-box and in the absence of any
explanation by him, «it was not open to
the learned Subordinate Judge to 'take
this view of the evidence, His final view
i$ that.
it is impossible to conceive of a better exa-
mple of one sided affair and very bad.bargain
for the Defendant No. 1.
In thir view he thought that it was
open to him to refuse specific perfor-
mance of the contract. As I have al-
ready said, the learned 'Subordinate
Judge has misconceived the nature of
the plaintiffs' suit which is not for
specific performance of a contract but
for relief on the footing of completed
transactions. It i> quite true that any
misrepresentation whether fraudulent or
innocent which is sufficient to avoid a
transaction is a good defence to proceed-
ings, against a party misled for the
specific performance of the contract. It
is also true that the Court may refuse to
enforce specific performance of a contract;
at suit of a party who has innocently
made a representation to the other in,
cases where the party misled would have!
no right to rescind the contrcct. But
this is owing to the discretionary nature
of the relief of ordering specific per-
formance, and to tbe fact that, in grant-
ing or withholding this remedy, the
Court may have regard to considerations*
of unfairness or hardship, and as to the
party's conduct which would have no
weight at law. But the position is
entirely different where a party come?
te Court and seeks relief on completed
transactions. There is no longer any
discretion in the Court to refuse to give
the plaintiff the appropriate relief unless
it bo established that at law he is not
entitled to the relief. Fraud and
undue influence and fraudulent misre-
presentations, if established, are good
grounds for refusing the plaintiff the ap-
propriate relief even where the matter
has passed from the domain of contract,
to that of conveyance. But it is conced-
ed thafc^no such case has been established
by the ' defendants. Mr. Hasan Imam,
however, contends that there is such
inadequacy of consideration in this case,
that although there is no positive evid-
ence of fraud, the Court will presume
that the transactions were the result of
an imposition on the defendant. It is
well established ' that the fact that a
transaction was at an undervalue is evi-
dence from which it may be inferred
that tho party thereby benefited was
guilty of fraud or undue influence and
that where it is sought to set aside a
sale on these grounds the inadequacy of
the consideration given may possibly be
so gross as to leave room for no other
inference than that 'the bargain • was
obtained by undue influence or fraud.
Mr. Hasan Imam who has argued this
case on behalf of the respondents with
conspicuous fairness has put his whole
case on this 'basis. He contends that.
Palm MT. SUKORATNI \. MUNSHI LALL (Macpherson, J.) 1926
this Court "and in the Court below as
against Defendant No. 1.
Adami, J.—I agree.
Appeal allowed.
the consideration is so grossly inade-
quate that we ought to presume that the
transactions were the result of undue
influence exerted by the plaintiffs on
Defendant No. 1.
I now prooeed to consider whether the
consideration is so grossly inadequate as
to give rise to 'the inference of fraud o.*
undue influence. In considering this
matter we have to distinguish between
transactions of Defendant No. 2 and
those of Defendant No. 4. (His Lordship
the discussed the evidence and proceeded)
The position, therefore, is that on the
!30lh June 1920, the date of the ticca
patta, Defendant No. 2 had a complete
title to the property which was the
subject-matter of her mortgage. It is
quite true that at tho date of her
mortgage? she had only a lease for a
number of years, but she represented to
the plaintiffs that she was authorized to
transfer the village to them and pro-
fessed to transfer it for consideration.
That being so, such a transfer would
oparate on the interest which Defendant
I No. 2 acquired in such property sub-
'sequently. It is not necessary to refer
to the authorities on the point : it is
sufficient to say that S. 43 of the Trans-
fer of Property Act embodies the prin-
ciple which has been accepted in deci-
sions far too numerous to mention. Then
dealing with the transactions of Defen-
dant No. 4 his Lordship continued. I
entirely agree that a Court will set aside
> completed transaction if it is shown
ihat the consideration was so inadequate
bS to lead to the inference of fraud or
indue influence, but the inadequacy .of
lonsideration musk be apparent and must
lot be left to be spelled out by dexter-
ras 'arguments as to value. In other
vords, in order to enable the Court to
jet aside a completed transaction, the
hing must speak for itself. I am of
opinion that it has not been shown in
ihis cise that there is suoh inadequacy
of consideration a* to lead to the infer-
ence of fraud or undue influence.
I hold that there is no defence to the
suit which should have been decreed by
the learned Subordinate Judge. I would
allow the appeal, set aside the judgment
*nd the deoree passed by the Court
below and give the plaintiffs a decree in
berma of .prayers 1—5. The plaintiffs
Eire also entitled to their costs bo6h in
A I.R. 1926Patna 542
ADAMI AND MACPHERSON, JJ.
Mt, Sheirat/ti
Appellant,
Defendant No. 2—
v.
Munshi Lall— Plaintiff— Respondent.
Second Appaal No. 31 of 1924, Decided
on 8bh July 1926, fro:D a decision of the
gub-J., Patna, D/- 5bh October 1923.
(a) Muhimmaian Law— Pre-emption— Owner
of plot can pre-empt though not residing on the
plot.
Owner of a plot on homestead can pre-empt
the sale ot adjoining land though the owner does
not reside therein. « [£. 543, 0. 2]
(6) Muhammaian Law— Pre-emption — '* Halt "
Includes small enclosure or plot of homestead
land.
The word "ho.it" is not adequately represented
by tha English word '* garden," probably not
even literally, and cjrfcainly not in the sense in
whioh "hait" is liable to pre-emption. In the
latter contingency uhiit" includes if nof'zayut"
in tho sanse of any fiald, arable or pastoral, cer-
tainly a small enclosure in the snaps of a plot
of ho'nostaad land, which has been and is to be
utilizid as a sits for a house, especially when it
is situatad in a thickly populated area of a large
town : 6 £, L. R. 41 ; 2 W. R. 261 and 2 B.
L. R. A. C. 63, Rel. on, [P. 544, 0. 1]
N. C. Sink a and iV. C. Ghose— for Ap-
pellant.
A* B. Maker ji and B. B. Mukerji — for
Respondent.
Macpherson, J.—Tbe plaintiff sued
for pre-emption of a house in Mahalla
Gudri in Patna Oity which the appel-
lant had purchased from the owner.
Defendant No. 1. The suit was decreed
and the appeal of the vendee having
been dismissed, she has preferred this
second appeal.
The plaintiff claimed the right of pre-
emption on the ground of vicinage as
owner of a plot of homestead land ad-
joining the house brought by appellant,
All the points raised in the Courts
1926
MT. SHEORATNI v. MUNSHI LALL (Macpherson, J.)
Patna 543
below have been determined in his favour
and in t second appeal Mr. Naresh
Chandra Sinha. on behalf of the appel-
lant rais3S oaly one point. It is that
the right of pre-emption on the ground
of vicinaga does not extend to the case
of a person like the plaintiff whose pro-
perty contiguous to the subject of pre-
emption is oaly a plot of land on which
no house stands, and which is not alleged
to be a girden or walled enclosure.
The findings of fact are that the
plot; of the plaintiff is homestead land,
that there are on it the remains of a
house though these remains cannot at
present be described as a house, and that
the plaintiff intends to build upon it.
His present dwalling-house is sixteen
houses distant. It was conceded in the
trial Court on behalf of the defendant
appellant that the owner of the house in
Jsuit would have a right of pre-emption
in respect of, plaintiff's plot.
^
The learned advocate for the appel-
lant contends that only the owner of a
house or a garden contiguous to the
subject of pre-emption has right of pre-
emption on the ground of vicinage. In
support of this contention he refers first
to the fact thab the object of the right is
the exclusion of one who might be a
disagreeable neighbour. But obviously it
may be as desirable to ward off a dis-
agreeable individual from proximity to
the plaintiff's building site as from
proximity to his garden and for the same
reasons. He then cites paragraph 539 of
Tyabji's ' Principles of Muhammadan
Law ' first as showing that ' akar ' or
land alone can validly ba the subject
of pre-emption, and then for the state-
ment (l) that 'akar' a ccording to the
Fatwa Alamgiri strictly means " space
covered with buildings " and (2) that
The Prophet ha? said that there is no shoofa
except in a rub,* or mansion, and a halt or
garden.
Now all these statements are based on
Bailie's Digest and the portions relied
up3n give, to say the least, an inadequate
idea of the original. At p. 472 we have.
The thing sold must ba 'akar', or what comes
within the meaning of it, whether the 'akar' be
divisible or indivisible, as a bith or well, or a
small house.
.To this statement in the test there is
a foot-note 2.
2. The strict meaning of the word is '* a
space covered with buildings",, so that properly
speaking the term ia not applicable to a 2uynt
(Fufc. Ai. Vol. Ill, p. COS). " But according to the
Kifayah (Vol. IV. p. 940). and the Inayah (Vol.
IV, p. 263), 'akar', in the sanae in which it is
liable to pre-emptiou, includes a Zuyufc.
According to Freytag, Zuyut is afield, whether
arable or pasture.
Again at page 473 we have the follow-
ing in the text :
Oar masters h-ive said that movaables are not
directly or by themselves proper object? for the
right of pre-emption, but that they are BO as
accessories to akar ; and that ukar, such as
mansions, vineyards, and other kinds of land
(literally " aud the rest from among lands") are
diiectly th 3 objects of the right. There is no
pre-emption in moveables, because the Prophet
has said, there is no shoofa except in a rub* or
mansion, aud a hatt or garden.
There B a footnote to this statement
1. Hidayah, and Kifayah, Vol. IV, p. 94o.
Hait means properly a wall, or that which
surrounds, though applied elliptically to the
enclosure (Freytag). Comparing this with note
8, p. 471, and note 2, p. 472, it would seem thab
the right of shoofa is, strictly speaking, appli-
cable only to houses and small enclosures of
land. It has been held, however, to extend to a
whole maussa or village : S. D. A. Calcutta
Imports, Vol. lit. p. 85.
As to shoofa, Baillie says :
In law it is a right to take possession of a pur-
chased parcel of land, (bukut a " piece or frag-
ment of land " Note 3 p. 471).
Clearly, therefore, the argument finds
no support from the quotations when
they are read in their context. It is
obvious that akar, in the sense in which
it is liable to pre-emption, has an ex-
tended moaning. It is not confined to land
covered with building*. It may ba a
well or a bath, no less than a house. It
need not be a garden in our sense of thab
term, but may be a vineyard and if not
all, at least certain other lands besides
the site of a house, well or bath and a
vineyard, at least if the land is a small
enclosure. It is difficult to see what
'other lands' could be more suitable sub-
jects of shoofa than such as the plot now
in controversy, which is less than one
katha in are i or nther rmre than the
site of the house in suit which extends
to half a katha.
It may be observed that the author of
fche text-book referred to sets out that
the 'Jar* or neighbour who may be a
pre-emptor " is the owner of property
adjoining the subject of pre-emption,"
and he appears to consider that the pro-
perty may be 'neighbouring land' of any
544 Patna MT. SHEORATNI v. MUNSHI LALL (Macpheraon, J.)
1926
kind. No doubt the view expressed in
Wilson's Digest of Anglo-Muhammadan
Law is fchat pre-emption can only be
claimed on the ground of mere vicinage
as between continuous houses and gar-
dens. But the only reference given,
Mahomed Hassein v. Saha Mohsin Ali
(1), does not support the proposition as
it is stated. As will presently be indi-
cated, the view which obtained in that
case was that a neighbour's rights extend
...only to houses, gardens and small
plots of land. Mr Ameer Ali in his
11 Muhammadan Law" appears to
approve of that view. In my judgment
the word "hait" in the saying of the Pro-
phet is not adequately represented by the
(English word ' garden,' probably not
even literally and certainly not in the
sense in which hait is liable to pre-
emption. In the latter contingency hait
includes if not Zuyut in the sense of any
field arable or pastoral, certainly a
?mall enclosure in the shape of a plot of
homestead land, which has been and is
bo be utilised as a site for a house, es-
pecially when it is situated in a thickly
populated area of a large town.
Support is obtained for this view in
the observations made in the judgment
in Mahomed Hossciii v. Shaw Mohsiti
Ali (1) and in casos there cited. The
decision was indeed that a neighbour
cannot claim the right of pre-emption
on the ground of vicinage in respect of
a mauxa or a large estate ; but in deli-
vering the judgment of the Full Bench,
Couch, C. J., remarked that
that the better opinion might be that akar
should be construed to mean houses and small
enclosures of land. But we rely rather on the
uniform aeries of decisions, which very clearly
recognize that the right of pre-emption, on the
ground of vicinage, does not extend to estates of
large magnitude, but only to houses, gardens,
and small parcels of land.
The same question had in 1856 been
stated by the Judges of the Agra Sadar
Court as
whether entire mahals or estates were inten-
ded, or merely parcels of lands, gardens, and
the like.
the latter view being supported by the
saying of the Prophet already quoted.
In Ejnash Koer v. Sheikh Amzudally (2)
the principle is considered to be that,
when either houses or small holdings of land
make parties, in fact, such, near neighbours as
(if [r87ojGRL.Br4l!
(2) [1865] * W. R. 261.
to give a claim on the ground for convenience
and mutual servience, the claim in right of pre-
emption will lie.
Itx Abdul Azim v.'Khandkar Hamid
Ali (3) it was remarked that
the law was intended to prevent vexation to
holders of small plots of land who might be
annoyed by the introduction of a stranger
among them.
It would seem clear, therefore that
the Courts even when referring to the
saying of the Prophet never contem-
plated that the word 'hait' there used
was restricted to a garden as ordinarily
understood ; and any small enclosure of
land is included at least if it is of the
nature of homestead land or what we
may call compound land, where the con-
venience of the owner would be impaired
by a distasteful neighbour.
On behalf of the respondent it is fur-
ther pointed out that the doctrine o-f
pre-emption is based upon reciprocity
and the appellant having admitted thai)
the owner of the house in dispute would
have been entitled to claim pre-emptioft
of the plaintiff's homestead plot, it
follows that the plaintiff is entitled to
claim pre-emption of the appellant's
house and site. The contention has
force ; but I prefer to rest the decision
in this case upon the view that the plot
of plaintiff is akar and that 'hait' does
not merely mean 'garden' but includes
also other land among which the plain-
tiff's plot is certainly included.
Upon this view this appeal is without
merits and I would dismiss it with costs
Adami, J. — I agree,
Appeal dismissed.
(8) [1868] 2 B. L, R. A. 0. 63-10 W. B. 866.
1926
RAGUUNANDAN v, MAHABIR (Dawson Miller, C. J.)
Fata*
A. I. R. 192$ Patna 545
DAWSON-MILLEU, C. J., AND POSTER, J.
Rayh u,najfliin Prawl — Appellant,
v.
Mahabir Mahton and another — Res"
pondents.
Second Appeal No. 1265 of 1923, De-
cided on Hth May 19£6, from a decree
of the Disb.-J., Patna, D/- 23rdfcJuly 1923.
(a) Hindu Law —Par tit ton,— Ascertainment of
share* thdt would fall to different members in
the event nf partlt Ion doe* mt awunt to parti-
tion— Intention to divide £« necessary.
The mere fact that the shares which co -par-
ceners would ba entitled to in the event of
partition had baan ascartainel doos not neces-
sarily am mat to any intention to separate. In
order to effect a partition, although it is not
necessary that the property should actually be
divided by metas aad bounds, still it is necessary
that there should ba a clear and unequivocal ex-
pression of intention on thy part of one or more
of the co-oarconera to sap irate from tha rest of
$he joint fa nily and t-> hold his or thuir share or
shares separately. Even the fact that a suit has
been brought for a partition, if the suit is
subsequently withdrawn, is not in itself conclu-
sive'evidence that there ever was an effective
partition bv the partv who instituted the suit :
A. I. R. 1925 P. C. 49, Rel on. [P 540 C 1
(b) Civil P. C.. O. 10, R. I— Application at a
late stage to send for Ohaukidar Register from
Deputy Commissioner I and admit It in evidence
— Application should not be refined.
Where on the day bo fore the casa had been
fixed for final hearing a party applied to the
Court t;> send a Court pa-m with an order to the
Collector either to sand his servant with the
Chaukldari Ttegister to b2 admitted in. evidence
or to deliver it over to the Court poon.
Held : that thare was no raason why eyan at a
late stage the application should not have been
complied with. [P 5i7 C 1]
K. P. Jayaswal and /?, G, Sink a —
for Appellant.
S. Sultin Ahmad and Hasan Jan — for
Respondents. ^
Dawson-Miller, C. J. — This is an ap-
peal on behalf of Raghunandan Prasad,
tfhe Defendant No. 2 in the suit, from a
decision of tho Additional District Judge
of Patna affirming a decree of the Munsif .
The suit was instituted in May 1920, by
'Mahabir Mahfcon and his son, to set
aside a deed of sale executed by his
deceased brother's widow, Sakli Kuer, in
favour of the appellant Raghunandan.
The property which was transferred by
the widow to Raghunandan consisted of
about 17 bighas of land which she claim-
ad to have inherited from her husband
Bishun Mahton, the brother of the plain-
1926 P/69 & 70
tiff. The plaintiff, on the othet hand,
contends that he and his brother Bishun
were joint in estate and remained joint
up to the time of the latter's death in
the year 1918.
Both the trial Court and the lower
appellate Court have found that the two
brothers were joint and that the widow
of Bishun had no interest in the property
which she could transfer to the appel-
lant Raghunandan, From that decision
the appellant has preferred a second
appeal to this Couri. The only ques-
tion for determination in this appeal is
whether the two brothers were or were
not joint in estate at the date of
Bishun's death in 1918. The question is
essentially one of fact. Both the Courts
below have considered the evidence in
the case and have drawn inferences from
that evidence and both have arrived at
the conclusion that the brothers were
joint and, in my opinion, they have not
committed any error of law in arriving
a!; that conclusion and their findings are
binding upon this Court in second
appeal.
The appellant, however, has laid great
stress upon the fact that in para. 4 of
the plaint there is an allegation which
he contends amounts to an admission of
a separation of the two brothers. It
appears that in the year 1911 a Record
of Rights was finally published in which-
the property owned by the two brothers-
was entered in the Survey Khatian-
showing about 22 bighas held by Bishun
Mahton and about 10 or 11 bighas held
by the plaintiff Mahabir, In 1914 some
question arose as to the correctness of
the entry in the Record of Rights.
Apparently one, if not both of fche
brothers were contending that the entry-
did not show that the property was held
by them separately in the proportions
which would appear from the Record of
Rights. It is not very clear whether at
that time the deceased brother Bishun
acquiesced in the position taken up by the
plaintiff, but however fchafc may be, the
matter was referred to a panchayat and
the result of their decision is stated in
para. 4 of the plaint in these terms :
Thereafter, owing to the bai teuapor of defen-
dant No. 1, a dispute aros*» between plaintiff
No. 1 and the said Bishun Ohand Mahtan decean-
ed and the entire kasht land WAS divided by the
panchayab between Plaintiff No. 1 and the said
Bishun. Chand Mahton under an ekrarnama
dated the 17th Pas 1821. But the said doed
546 Patna RAGHETNANDAN v. MAHABIR (Dawson-Miller, C. J.)
1926
never came into forca. Although tha above
measures were adopted, yet only Defendant No. 1
(that is the wife of Bishun Gha,nd MahtDn) con-
tinued to have a separate mesa of her own,
whereas plaintiffs and Bishun Chand Mahton
Plaintiff No. 1's full brother continued to live
jointly and on friendly terms all ^long.
It is contended that the allegations,
there made are an admission by the
plaintiffs of a separation, that the matter
was referred to the panehayat and the
panchayat gave a decision on the ques-
tion, and that the parties having express-
ed an intention to have the property
divided, that intention was finally carried
out by the decision of the panehayat. A
great deal of evidence was given at the
trial, and it appears from the decision of
the learned Munsif that it was the plain-
tiffs' case that what the panchas really
settled was that the entry in the Survey
Khatian was wrong and that it would
not affect the right of either brother in
the joint family property and that they
merely declared that the shares of each
brother had been ascertained, each being
entitled, if he should wish to separate,
to a moiety. It can hardly be contended
that the mere fact that the shares which
oo-parceners would be entitled to in the
event of partition had been ascertained
necessarily amounts to a partition of the
property. It does not necessarily
amount to any intention to separate. In
order to effect a partition although it
is not necessary that the property should
actually be divided by metes and bounds
still it is necessary that there should be
a clear and unequivocal expression of
intention on the part of one or more of
the oo- parceners to separate from the
rest of the joint family and to hold his
or their share or shares separately.
Even the fact that a suit has been
brought for a partition, if the suit is
subsequently withdrawn is not in itself
conclusive evidence that there ever was
an effective partition by the party who
instituted the suit. This would appear
from the decision of their Lordships of
the Judicial Committee in the case of
Palani Atnmal v. Muthuvenkatachala '
Moniagar (l) affirming the decision of the
Madras High Court.
It seems to me that in each of the
cases the question is purely one of fact
and of the proper inferences to be
drawn from the facts proved in the case,
(1) A.I. lTl925 P. 0. 49=48 Mad, 254.
and although para. 4 of the plaint is
worded in such a way that it might?
perhaps at first sight appear to
indicate a state of separation still
it is qualified by the succeeding
words, which show that the deed never
came into force, and it is further quali-
fied by the evidence given at the trials
which was to the effect that what the
panchas really had to deal with was the
question whether the Kecord of Eights
recorded the position of the two brothers
with regard to the property which be-
longed to them. The panchas merely
decided if the evidence of the plaintiffs is
accepted, and it was accepted by both
the trial Court and the lower appellate
Court, that there never really was any
express intention to partition the • pro-
perty between them, but merely that
the brothers really were joint and being
only two of them they were each enti-
tled on partition, if that event shoulcj
in the future take place, to a moiety of
the property. It seems to me that the
lower Courts were perfectly entitled to
take into consideration not merely the
statement in the plaint, which might be
of ambiguous import but also the evi-
dence given by the parties in the case,
and the lowet appellate Court was the
ultimate tribunal for deciding the facts.
In these circumtances it seems to me
that this appeal on that part of the case
must fail.
The only other question which was
raised was that certain evidence was im-
properly shut out by the trial Court, and
we are asked on that accuunt to remand
the case in order that the evidence shut
out should be taken and the whole of the
questions considered again in the light of
that evidence. What happened was that
the defendants obtained a certified copy
of an entry in the Chaukidari Begister of
the village in which this property is
situated. That was filed on the 13th
July 192i. This document, however, the
Court was apparently never asked to
admit in evidence. On the 3rd
August 1921, the day before the case had
been fixed for final hearing, the defen-
dants applied to the Court to call for the
original Chaukidari Begister containing
the entry, a copy of which had already
been filed. They apparently asked that
a messenger should be sent to the
Collector to ask him to produce the book
or send it to Oourt for fche purpose4 of
1926
TIKARI MUNICIPALITY, v, ALAM ARA BEGUM
Patna 547
having it pUcec! on the record. The
Munsif said that it was too late to make
an application of that sort then, and
that he was not going to adjourn the
trial for any such purpose. I should
^joint out, however, that it would not
.have heen necessary to adjourn the trial,
because the defendants merely asked that
a messenger should be sent at their own
risk.'and if the register was not produced
in time, then, of course, it could not be
put in evidence. The Court, however,
refused the application and it is con-
tended that thereby valuable evidence
was shut out which the Court ought to
have admitted. I think that there is
some force in this contention as to the
duty of the Court to have granted the
application. By O. 16, E. 1 of the Civil
P. G, it is provided that
At auy time after the suit is instituted, the
parties may obtain, on application to the Court
or^o such officer as ifc appoints in this behalf,
summonses to persons whose attendance is re-
quired either to. give evidence or to produce
documents.
It is true that the Court was not asked
for a summons upon any person to pro-
duce a document in Court, but the Court
was asked to do something very like it,
that is, send a Court peon with an order
to the Collector either to send his ser-
vant with the book, or bo deliver it over
to the Court peon, and I sse no reason
why even at a late stage the application
should not have been complied with.
But even assuming that we should be of
opinion that the trial Court failed in its
duty in granting the application, still it
seems to me that that is no reason in the
present case why we should remand the
case for a further hearing. We have
seen the copy which was filed with the
record in this case and all that appears
from that copy is that at one time
shortly before Bishun Mahton's death in
1918, both parties, that is to say, Bishun
Mahton a'nd the plaintiffs, were ente red
in the Chaukidari Begister in respect to
& separate Chaukidari tax, one of them
itf respect of one portion of the property
and the other, in respect of the other.
Bub the later Chaukidari receipts, which
have been put in evidence on behalf of
the plaintiffs, show thai; after Bishun's
death the whole of the Chaukidari tax
was paid by the plaintiffs and not by
the widow who claims to have succeeded
to Bishun's portion of the property after
bis death. There was a great, deal of
evidence, documentary and otherwise
produced on behalf of the plaintiffs to
show that these two brothers were joint
right up to the date of Bishun's death
and that the plaintiffs dealt with the
property afterwards, that is to say, they
paid taxes and carried out the duties
that one would expect an owner to do.
In these circumstances, therefore, it
seems to me that it is a case clearly fall'
ing within the provisions of S. 167 of
the Indian Evidence Act. (Here the
section was quoted.) Having regard
to the mass of evidence there was
on the side of the plaintiffs, I cannot
find that the admission of this Chauki-
dari Register, assuming it to show what
appears in the copy, would have made
the slightest difference to the decision
either of the trial Court or of the
District Judge on appeal.
For these reasons I think that this
appeal must be dismissed with costs.
Foster, J.— I agree.
Appeal dismissed.
A. I. R. 1926 Patna 547
BOSS AND KUTjWANT SAHAY, JJ.
Chairman of the Tikari Municipality
— Defendant — Appellant,
v.
Alain Am Beywn — Plaintiff — Respon-
dent.
Appeal No. 1121 of 1923, Decided on
9th June 1926, from the appellate de"
cree of the Addl. Sub-J., Gaya, D/-
16th May 1923.
(a) Bengal Municipal Act (1884), Ss. 114 and
113 — Objection to assessment Disposed of
without reference under S. 114— Disposal is
ultra vires — Subsequent proceedings regarding
assessment and collection are also ultra vires.
Where an application objecting to the assess-
ment is not referred to Commissioners as provi-
ded by S. 114, all the subsequent proceedings
with regard to assessment .and realization of
taxes are ultra vires and the applicant is en-
titled to relief in respect thereof.
The Municipal Authority After acting ultra
vires in not disposing of the objection to th <
original assessment under S. 113, oanno pro-
tect themselves by making a fresh assessment
leaving the original objection to the afsessa-
bility of the holding undisposed of. The two
assessments cannot be treated independently. '
[P. 648. 0.2]
(b) Bengal Municipal Act (1884J, 8. 368—
Assessment paid under protest, proceedings beinp
ultra vires— Suit /or recovery need not be filed
within three months. < •
Where demand is made irom a tAxe- payer
and he pays the taxes under 'protest, that is to
548 Patna TLKABI MUNICIPALITY, v. ALAM ARA BKGUM (Ross, J.) |926
in rejecting this application without
referring the matter to * the Com-
missioners, acted ultr.a vires, apart
altogether from the further consideration
that it does not appear what authority
he had to override the order passed byv
his predecessor referring the matter to
the Commissioners for consideration.
The case, therefore, stands thus that an
application was made according to law
under S. 113 and it • was not disposed of
in the manner provided by law. Gonse-
quently all tho proceedings with regard
to assessment and realization of taxes
for these holdings subsequent to this
infringement of 'the statute were ultra
vires , and tho plaintiff is entitled tc
relief in respect thereof.
It was contended by the learned vakil
for tho appellant, the Chairman, that the
application under S. 113 was made
against the original assessment* bat that
subsequently another assessment was
made in November 1920, .under which
taxes were realized and to which the
plaintiff made no objection. He con-
tends Uiat this later assessment stands
hy itself independent of the earlier
assessment, and as long as no objection
was taken under S. 113, it was a valid
assessment and taxes were lawfully
collected under it, In my opinion the
Municipal Authority, after acting ultra
vires in not disposing of the objection to
the original assessment under S. 113,
cannot protect themselves by making a
fresh assessment leaving the original ob-
jection to tho assessabHity of the hold*
ing undisposed of. The two assessments
cannot bo treated independently, the
plaintiff was under no obligation to go
on objecting when her original objection
remained undisposed of according to law.
There ought not to have been any further
assessment after that objection until ife
had been decided.
The second point taken was that the
plaintiff was not entitled to any refuncj.
of the taxes already collected from tjer
under protest, by reason of the provisions
of S. 363 of the Act, inasmuch as the
suit was not brought within three months
of the cause of action, the last payment
having been made on the 12th of
January 1922 and the suit being brought
on the, 24th of April 1922. This matter,
however, is concluded by the authority
of the deoision in Ambika Churn Mozum-;
say. ou an understanding that he would be en-
titled to a refund if his contention that the
demand \va» ultra virefl \va» correct a suit for
the recovery of such taxes need not be filed
withiu three months • 2 C. W. N. 089, Foil
[P. 549, C. 1]
Nawal Kishore Prasad No. II — for
Appellant.
Hasan Jan and Saii/id Ali Khan — for
Respondent.
Ross, J. — The plaintiff brought this
suit for a declaration that the assessment
of taxes made on premises Nos. 50, 53, 5i
and 55, situated within the Tikari
Municipality, was illegal and without
jurisdiction and that she was not liable
to pay the said taxes ; and thatHhe
defendant, the Ohairmau of the said
Municipality, had wrongfully realized
from her the sum of Rs. 256-3-0 ; and
for refund of that sum with interest and
for an injunction on tho defendant res-
training him from realizing subsequent
Municipal taxes for tho said premises.
In her plaint she stated that the hold-
ings wore in a ruined condition, but
nevertheless were assessed with taxes
and, thereupon, her servant made an
application before the Municipal Com-
missioners for remission of the taxes of
the said holdings and for exemption of
the plaintiff from payment thereof. She
further alleged that the Acting Vioe-
Chairman inspected tho holdings after
this application was made and reported
that they were ruined and that the
taxes might be remitted and that the
matter should be put up at the next
meeting ; but, without putting up the
matter at tho meeting the Vice-Chair-
man, Babu Matukdhari Singh, rejected
tho application without assigning any
reason for the same. All that was pleaded
in the defence on this part of tho case
was that the plaintiff was not entitled
to occupy the holdings free of tax, be-
cause she did not keep them in repair
and that Babu , Matukdhari Singh, the
then Vice-Chairman, \fraa justified in
rejecting the plaintiff's petition, Now
on these pleadings it must be taken that
this petition by the plaintiff was a
petition under S. 113 of the Bengal
Municipal Aot disputing liability to
assessment. S. 114 requires that every
sueh application shall be heard and
determined by not less than three Com-
missioners who shall be appointed in
that behalf by the Commissioners at a
meeting. The Vioe-Chairman, therefore,
1926
KINT v. K\sm N.vrrf (Kulwanfc Sahay, J.)
Pataa 549
dar v. Sati3h Chunder Sen (l), where
substantially the same point was taken.
We are asked to differ from that decision
on the ground that the act of the Chair-
man in realising the taxes was tortious
and not an act arising upon a contractual
or quasi -confcraetual basis. But it
seems to me that the decision is perfectly
correct. There was no question of tort.
Demand was made from the plaintiff
,and the plaintiff paid the taxes under
protest, that is to say, on an understand-
ing that she would be entitled to a refund
if her contention that the demand \vas
ultra vires was correct.
On both points, therefore, the ap-
peal fails and must bo dismissed with
costs.
Kulwant Sahay, J.— I agree.
Appeal dismissed.
(1) [1898] 2 0. W. N. 689.
A, I. R. 1926 Patna 549
ADAMI AND KULWANT SAHAY, JJ.
Shama Kant Lai and another — Plain*
'tiffs— Appellants.
•V.
>7 «
ottars-
Hlants-Bespondents.
First Appeals Nos. 287 of 1922 and 108
of 1923, Decided on 2nd March 1(J2(>,
f rom decisions of SutrJ. and 1st Sub-J.,
Gaya,D/" 16th September 1922 and 17th
March 1923, respectively.
(a) Bengal Land A***™* Sales Ad (11 of
The liability of an eatate to **» under the Act
depmdsoa three dates. The first is the date
on which the instalment of revenue is payable
under the tetms of the Settlement. If it is not
of tha following month which Is the second date
and though the unpaid sum has become an
-arrear of revenue, the estate is not liable to sale
fixod by the Board of Raveuue under
Aot. This is the third date : 22 C.
(b) Bengal Land
S. 3 of the
N. 709,
Revenue Sales Act (U «/
tid +****"*
bandi dates as provided for by S. 2, but* the
latest dates of payment fixed by the Board of
Kevenue under S. 3 of the Act. [P. 655, C. 2)
(c) Bengal Land Revenue Xaia Act (11 of
1859)— Register D kept by Collector erroneous —
Full description of the estate not given — Notifica-
tion describing estate correctly — Sola cannot be
set aside.
There is no direction either in the Aot or in
the rules framed by the Board of Revenue that
the description of the estate in the sale notifi-
cation should bo on reference to the registers
A, C or D which the Collector has to keep un-
der the provisions of the Land B^gistration Act,
and if the register D and the other registers kept
by the Collector be erroneous, and do not give a
full description of the estate, that is no ground
for setting aside the sale of an estate if the noti-
fication of sale contains a correct description of
the estate. [P. 657, C. }, 2]
(d) Bengal Land Revenue Sales Act (11 of
l859)—Sale under— All proprietors need not 6*
mentioned In the proclamation.
There is nothing in the law or in the rules
framed under the Revenue Sales Law prescribing
that when there are a large number of pro-
prtetors the names of all of them should be
given in the notification. [P. 558, 0. 2)
Manuk, II. L. Nandkeolyar and S. N.
Rai — for Appellants.
Mehdi Imam, Gr. S. Prasad, Raghur
n&ndan Prasad and Kailaspati — tor
Respondents.
Kulwant Sahay, J.— These two ap^
peals were argued at great length, and"
after the completion of the arguments.
judgment was reserved, and when notioe
Jwjgiven to fche rfcie9 aboub the dali.
very Q{ judgm0nfc they intimated that
fche mattor was going to be settled out of
Courfc am] asko(1 ug to p09tpone the deli-
very of judgment. They have this day
filed fc wo petitions of compromise. By
this compromise Appeal No. 287 is to be
digmigged and Appeal No. 108 is to be
Thi,isPPertly the decision
had arrived at but the terms of
the compromise are that, although the
title of the auction* purchaser at the
revenue sale is confirmed, he agrees to
property on reoeipb of a
sum of money to the plaintilis*
appellants in Appeal No. 287. The
ofcher respondents in the appeal are not
***»*> tho -^Promise, and Appeal
^O. 108 cannot be decreed on com-
promise so far as the persons other than
ihose joining the compromise are eon*
Wned. It is, therefore, necessary ta
write out a judgment in the appeals.
8uife3
. Theso ppalg arisa out
«Whl by two sets oe proprietors of a
th.e fatest dates fixad uader 8.3 are populwly revenue paying estate, named Bar*
,kaown as th« kist d*to«. They *r* not the kist; iodhway. beating Touzi No. 8CHO in the
550 Patni
SHAMA, KANT v. KASHI NATH (Kulwant Sahay, J.)
Gaya Collectorate for setting aside the
sale of the estate for arrears of Govern-
ment revenue held under the provisions
of Act XI of 1859. The sale took place
on the Gfch of January 1919 for an alleged
arrear of Bs. (rll-0 on account of
what is known as the kist September
1918. The Defendant No. 1 in both the
suits, Rai .Bahadur Kashi Nath Singh,
was the ostensible purchaser. The two
sets o plaintiffs preferred two appeals b<5-
fore tho Divisional Commissioner which
were both dismissed on the Ulst March
1919. Thereupon Babu Radha Kant
Lai, ono of tho proprietors, instituted
Suit No. 177 of 1919 in the Second Court
of tho Subordinate) Judge of Gaya on
tho lath of April 1919. Another set of
proprietors, Babu Basudeo Narain and
others, instituted a separate suit in the
said Court of the Second Subordinate
Judge afc Gaya on the 14th February
1920, and this suit was registered as
No. 25 of 1920. Suit No. 177 of 1919 was
tried by the Additional Subordinate Judge
of Gaya and dismissed by his decision,
'dated the 16th September 1922. Suit
No. 25 of 1920 was tried by another
Subordinate Judge of Gaya who by his
decision, dated feho 17fch March 1923,
decreed the suit and set aside tho sale.
Appeal No. 287 of 1922 is by the heirs
of Babu Radha Kant Lall, who is now
dead, and arises out of Suit No. 177 of
1919. Appeal No. 108 of 1923 is by Rai
Bahadur Kashi Nath Singh and others,
the purchasers at tho revenue sale, and
arises out of Suit No. 25 of 1920.
The two appeals have been heard con-
secutively one after the other. Some of
the points are common to both the
appeals while there are some points
which are not common.
The allegations contained in the plaint
in the suit out of which Appeal No. 287
of 1922, viz., the appeal by tho heirs of
Babu Radha Kant Lai, arises, are shortly
these :
Mahal Bara Lodhway bearing Touzi
No. 3040 and sadr jama or Government
revenue of Rs. 202-11-7 was held in pro-
prietary interest by the plaintiff and
Defendants Nos. 2 to 20. The mahal
consisted of three villages, viz., Houza
Bara, Mouza Bazida and Mouza Pipra.
The different proprietors held different
shares in these three villages. Some of
them had shares in all^he three villages,
while others had shares in two of them
and some in only one of them. The
shares held by the different proprietbrs
are set out in Schedule A annexed to the
plaint. The case of the plaintiff is0 that
Defendant No. 2, Babu Matukdhari Singb,
who, along with the members of hia
family, held a 2-annas 13-dams 6-kauri
10-bauris share in each of the Mouzas
Bara and Bazida, and 5-annas 2-dams
13-kauris 10-bauris share in Mouza
Pipra, was heavily indebted and bis
share was heavily mortgaged and in
order to get rid of the mortgage he
fraudulently made default in payment of
the Government revenue with a view to
have the whole estate sold for arrears of
Government revenue and to purchase the
same in the benaoji of some one, there-
by avoiding the encumbrance under the-
provisions of Act XI of 1859.
It ia alleged in the plaint that the
plaintiff regularly paid his share of the-
Government revenue, but that Matukr
dhari Singh deliberately made default in
payment of his share so chat in the
instalment of September 1918 there
was an arrear of Rs. 6-11-0, and on
account of this arrear the estate was pub
up for sale at auction and was actually
sold on tho 6th January 1919. It i&
alleged that the manager and tahsildar
of the plaintiff, viz., Ramashankar
Bhattacharji and Jawahir Singh, were
aware of the existence of the arrear and.-
of the fact of the estate being put up for
sale ; but in collusion with Matukdhari
Sin^h they refrained from taking any
action to prevent the sale by payment of
the arrears, and that Matukdhari Singh
himself made the purchase in the farzi
name of his relation, Rai Bahadur Kashi
Nath Singh, Defendant No. 1 in the suit.
It is alleged in tho first place that
the sale was without jurisdiction and a.
nullity inasmuch as there was no arrear
of revenue as contemplated by Act XI of
1859 on the date the estate was actually
sold by the Collector. It is next alleged
that the sale was bad on account of cer-
tain illegalities and irregularities in the;
conduct of the sale, as set out in para. 17;
of the plaint. Next, it is alleged that
the sale was brought about fraudulently
by Matukdhari Singh and he was the
real purchaser, Defendant No. 1 Rai
Bahadur Kashi Nath Singb being a mere
. benamidar for him, and that under the
circumstances of the case the plaintiff
was entitled to a, re-conveyajcce ol his*
1926
SHAMA KANT v. KASHI NATH (Kulwant Sahay, J.) Patna 551-
share if the sale be held to be a valid
sale. Lastly, it is alleged that what was
sold -was only Mouza Bara having an
area of 120 acres 1 r. 32 p. and not the
remaining two Mouzas Bazida and Pipra,
the entire area of all the three mouzas
being much more than 120 acres odd.
The prayers in the plaint were : first,
for fa declaration that the sale held on
the 6th of January 1919 was invalid
and void and without jurisdiction;
secondly, that the sale be set aside on
account of illegalities and irregularities
in the conduct of the sale ; thirdly, that
if the sale cannot be set aside then a
decree may be made directing a re-con-
veyance to the plaintiff of his share in v
the estate as set out in Schedule A to the
plaint, and lastly, that, in any event, it
may be declared that what passed by the
sale was an area of 120 acres 1 r. 32 p.
cxut of the estate bearing Touzi No. 3040.
In the second suit, viz., Suit No. 25
of 1920 giving rise to Appeal No. 108 of
1923, Defendants No*. 1 to 4 are Bai
Bahadur Kashi Nath Singh the purchaser
at the revenue sale and the members of
his family ; Defendants Nos. o to 15 are
Matukdhari Singh and the members of
his family. Defendants Nos. 39 to 42
are Babu Eaclha Kant Lai, the plaintiff
in the first suit, and the members of his
family, and the other defendants are the
remaining co-sharers of the estate. In
this suit the allegations as regards the
points of law are the same as in the first
suit, viz., that the sale was null and void
on account of there being no arrears of
revenue on the date of sale, and that the
sale was bad on account of illegalities
and irregularities in the conduct of the
sale,
The allegation of fraud, however, as
made in the plaint in this suit was
different from that made by Babu Eadha
Kant L^l in his suit. It was alleged in
this suit that the arrear of Bs. 6-11-7
falling due in the instalment of Septem-
ber 1918, was due not only from Matuk-
dnari Singh and the members of his
family bub also from Badha Kant Lai
and other co-sharers and that the sale
was brought about by the said co-sharers
who intentionally made default in paying
their quota of the Government revenue
in collusion and in conspiracy with one
another for the purposes of depriving the
plaintiffs of their share of the estate and
of the heavy mortgage lien they had over
the share of Matukdhari Singh in the
estate. It was alleged that the Defen-
dants Nos. 1 to 4, viz., Bai Bahadur
Kashi Nath and the members of his
family actively or inactively joined the
other co-proprietors in the conspiracy to
deprive the plaintiffs of their property.
It was alleged in this suit also that the
real purchaser at the revenue sale was
not Bai Bahadur Kashi Nath Singh and
the members of his family but Matuk-
dhari Singh and that Bai Bahadur Kashi
Nath Singh was a mere benamidar for
him. The prayer in this suit was for a
declaration that the sale was illegal, null
and void or at least bad in law on account
of material irregularities and illegalities
in the conduct of the sale, and that,
therefore, the same may be set aside.
There was a prayer in the alternative for
a re-conveyance to the plaintiffs of their
share in the estate as set out in the
schedule annexed to the plaint. There
was no prayer in this jrtaint for a decla-
ration that what passed by the sale was
merely an area of 120 acres and odd as
alleged in the plaint of Badha Kant Lai.
It will appear from the above statement
of the allegations of the plaintiffs in the
two suits that the sale was sought to be
set aside on the grounds, first, that it.
was without jurisdiction as there was no
arrear on the date of sale; secondly, that
the sale was bad in law on account of
illegalities in the conduct of the sale;
thirdly, that the sale was brought about
by fraud of the co-sharers to which the
auction-purchaser was alleged to be a
party, and that what passed by the sale
was only an area of 120 acres odd. The
first two points are common to both the
suits and may be considered together
The question of fraud has to be consi-
dered separately as also the question as
regards what passed- by the sale.
The learned Subordinate Judge who
decided the suit of Badha Kant Lai held
that the sale was not null and void on the
ground of there being no arrears 011 the
date of the sale, while the learned Subordi-
nate Judge who tried the second suit
held that the sale was without jurisdic-
tion inasmuch as there was no arrear on
the date of sale, I shall first proceed to
consider this question which is common
to both the suits.
Section 2 of Act XI of 1859 provides
that if the whole or a portion of a kist or
instalment of any month of the era
652 Patni
SHAMA KANT v. KASHI NATH (Kulwant S*ha,y, J)
1426
according to which the Settlement and
kistbandi of any mahal have been regula-
ted be unpaid on the first of the follow-
ing month of such era, the sum so re-
maining unpaid shall be considered an
arrear of revenue. 8. 3 of the Act pro-
vides that 'the Board of Revenue shall
determine upon what dates all arrears
of revenue and all payments which by
the Regulations and Acts in force are
directed to bo realized in the same man-
ner as arrears of revenue shall be paid
up in each district in default of which
payment the estates in arrear in those
districts shall be sold at public auction
to the highest bidder. It will, therefore,
be noticed as pointed out in Amrita Lai
Hoy v. Secretary of State (l) in the judg-
ment of Newbould, J., that the liability
3f an estate to sale under the Act dep-
snds on three 'dates. The first is the
iato on which the instalment of revenue
is payable under the terms of the Settle-
Rent. If it is \ot paid on this date
under S. 2 of the Act it does not become
in arrear of revenue until tho first of
bbe following month which is the second
iate and though the unpaid sum has
become an arrear of revenue, the estate
is not liable to sale under the Act unless
ihis arrear of revenue remains unpaid on
bhe latest day of payment as fixed by the
Board of Revenue under 8. 3 of the Act.
Phis is the third date.
The allegation of the plaintiffs in the
two suits in the present case is that there
was no arrear of Government revenue as
defined by S. 2 of the Act on tho 6th of
January 1919, when the estate was sold.
Their case is that there was default in
the September kist of 1918 and that ac-
cordingly under S. 2 of the Act it did not
become an arrear until the Isc of October
1918, and the latest date of payment
thereof as fixed by the Board of Revenue
under S. 3 of the Act was the 12th of
January 1919, up to which date the pro-
prietors were entitled to pay up the arre-
ars and that, therefore, the sale held
before the 12th of January 1919, was
void and without jurisdiction. It has
been contended on the other hand by the
auction- par chaser that what is called as
the kist of September 1918, was not the
kist or instalment contemplated by S. 2
of the Act, but the latest date of pay-
ment as contemplated by S. 8 of the Act
(D [19*8] arc. W;N. 7tw=*« 1.0." 447=28
0. Iv J. 51.
and that the estate had already fallen
into arrears before tho instalment of
September 1918, for which the latest
date of payment was the 28th of Septem-
ber 1918, and that, therefore, the sale
held after fthe 28fch of September was a
valid and legal sale.
The question of importance, therefore,
for decision in the present case is as to
when the estate fell into arrears. No
evidence has been adduced in these suits
as regards the original Settlement and
kistbandi of the mahal in dispute. It is
in evidence that all the records relating
to the original Settlement of the mahals
in the district of Gaya were destroyed
during the Mutiny of the year 1857. It
appears from the evidence that the
estate bearing Touzi No. 3040 was con-
stituted into a separate estate under a
Collecfcorate partition effected under the
provisions of Act VIII (B. 0.) of 1876
which was completed in the year 1887*88
Under S. 123 of the Bengal' Act, VIII of
1H76, the Collector is required to serve
a notice on every recorded proprietor of
a separate estate informing him that
from the date specified in such notice
the separate estate assigned to him will
be deemed to be separated from the
parent estate and to be separately liable
for tho amount of land revenue specified
in such notice and calling upon him to <
enter into a separate engagement for the
payment of such revenue.
There is no evidence in the present
case of any such engagement as is pro-
vided for in S. 123 having been entered
into by the proprietors of the separate
estate Touzi No. 3010. Indeed evidence
has been produced in the present case to
show that there is no such document- in
the record room of the Collector of Gaya.
S. 125 of Act VIII of 1876 provides
that
from the date specified in tho notice referred to
in 8. 123 each separate estate shall be borne on
the Revenue Boll and General Register of the
Collector as a distinct estate teparately liable for
the amount of land revenue assessed upon it
under this Act, and shall be so liable, whether"
the proprietor has executed an agreement for the
payment of the amount of land revenue so asses-
sed upon the said estate, or whether he shall
have failed to execute such agreement.
Therefore, we have got no evide-
nce at all in the present
case as regards the kists contemplated
by S. 2 of Act XI of 1859 either of the
original Settlement or of the engagement
entered into by the proprietors after the
192*
SHAMA KANT v. KASHI NATH (Kulwanfc Sahay, J.)
Patna 553
partition completed in the year 1888.
The Board of Revenue has, however,
fixed* the latest dates of payment under
S. 3 of Act XI of 1859. These dates, so
far as the estate in dispute is concerned,
are the 7th June, 28th September, 12th
January and 28th March. These dates
a,re commonly known as the June kist,
the September kist, the January kist and
the March kist. These dates are not the
kist dates of the original Settlement as
contemplated by S. 2 of the Act. Refer-
ence has been made on behalf of the
appellants to the touzi Ledger which is
Ex. 4 in Radha Kant's suit and Ex. 18
in the other suit. It appears on refer-
ence to this touzi Ledger of 1918 that
in the first kist, which is the June
kist of 1918, a sum of Rs. 5-3-4 is shown
3.8 arrear which was paid on the 6th
June 1918.
• Various other sums were paid on the
7th of June on account of the current
demand. The lower portion in the same
ledger for the first kist shows a demand
of Rs. o-3-4 on account of arrear and of
Rs. 38 as current demand, and the pay-
ments as shown therein are Rs. 5-3-4 on
account of arrear and of Rs. 44-13-0 on
account of current demand leaving an
-excess at the end of the kist of Rs. 6-13-0.
In the second kist which is the Sepfcem-
» her kist of 1918, we tind that there was
no arrear of demand and the excess
payment of the previous kist of Ra. 6-13-0
is brought forward in this kist. There
was a demand of Rs. 63-10-0 on account
of the current revenue for this second
3dst, and a sum of Rs. 50-2-0 only was
paid in this kist which, together with
the Rs. 6-13-0 excess payment of the
previous kist, made up Rs. 56-15-0.
Deducting this sum of Rs. 56-15-0 from
the current demand of Rs. 63-10-0 a sum
of Rs. 6-11-0 remained due at the end of
the fcist which is shown there as the
balance at the end of the kist. It was
for this arrear that the sale was held.
. It is contended by the learned counsel
for the appellants tbat the sum of
fts. 5-3-4, shown as arrear in the first
kist was the sum which became an arrear
in June and not in the previous kist of
March, and that similarly the sum of
80. 6-11-0, shown as the balance at the
end of the second kist did not become
an arrear until the first of they following
month, vis., Ocfcobdf 1918. This argu-
ment is based on the supjfosition that
the. kisfe dates in June, September, Janu-
ary and March are the kist dates of the
original kistbandi as contemplated by
S. 2 of the Act. But, as I have already
remarked, there is nothing to show what
were the original kiatbandi dates under
S. 2 of the Act. According to the defen-
dants, fctiese dates are the latest dates of
payment under S. 3 of the Act, the
original kistbandi dates fixei under, S. 2
being unknown and forgotten. The pre-
sumption of law is that the Collector
acted properly in holding the sale. It
lies on the plaintiffs to prove that the
sale was brought about improperly, and
that the Collector had no jurisdiction to
effect the sale. The plaintiffs have to
prove that the dates in June, September
January and March are the dates con-
templated by S. 2 of the Act, otherwise
the presumption would be that they are
the lastest dates of payment, and every-
thing in connexion with the sale was
regularly done.
Under the provisions of 8. 3 of Act
XI of 1859, the Board of Revenue has
iixed the latest dates of payments, and
they are to be found in the rules made
by the Board of Revenue under the
Revenue Sale Law and printed at page
152 of the Revenue and Patni Sale
Manual published under the authority of
the Board of Revenue, Bihar and Orissa.,
The sum of Rs. 5-3-4, shown as arrear in
the touzi Ledger, is clearly the balance
due before the previous kist of the 28th
of March, the latest date of payment
whereof was the 28th of March, and the
estate might have been sold for this
arrear after the 28th of March. The
touzi Ledger is prepared under rules
framed by the Board of Revenue, and on
a reference to R. 5, S, 18 of the Board's
Rules, printed at page 58 of the Board's
Touzi Manual, 1923, it would appear
that the word " demand " occurring in
the touzi Ledger means
sums due from proprietor, fanners or raiyats
for the recovery of which ijgil steps can at once
be takau on the day immediately following the
latest day of payment.
The foot-note on pages 94-95 in Par,t
III of the paper-book in Appeal No, 108
of 1923 shows that the dates 7th. June,
28th September, 12th Jan. and 28th.
March, which are shown there as the
first, second, third and fourth kists, are
the latest dates of payment. The heading
is " Annual demand of the land revenue"
and according to the definition of
554 Patna SHAMA KANT v. KASHI NATH (Kulwant Sahay, J.)
1926
demand " as contained in R. 5 of
the Touzi .Manual just mentioned,
it would mean the latest date
of payment and nofc the kist dates as
contemplated by S. 2 of Act XI of 1859.
The word "kist" is defined in Chap. I,
R. 5 of the Touzi Manual as indicating
the period "between one latest day of
payment of arrears of revenue and the
next" and has not the restricted meaning
assigned to it in S. 2 of Act XI of 1859.
Therefore, no argument in favonr of the
plaintiffs can be based on the use of the
words "kisfc'1 and "demand" in the touzi
ledger.
Reference has been made on behalf of
the appellants in Appeal No. 287 to a
document marked as Ex. 17 in th-at case
and printed at pages 124-25 of Part III
of the paper-book in that appeal. This
is an extract from the revenue roll and
it gives at the top the revenue as divi-
ded into instalments according, to the
months of the fasli year. In the lower
part of this extract is given the land
revenue Touzi Roll prepared under the
Touzi Manual, Appendix P, and
in this the instalments of the revenue
aro shown as payable on the 7th June,
28th September, 12th Jan. and 28th
March, and from this it is argued that
these are the kist dates as contemplated
by S. 2 of Act XI of 1859 as fixed after
the partition. But, on a reference to
the Toufli Manual, it appears that this is
not so. Chapter II, S. 1, R. 1 of the
Touzi Manual states that the touzi roll
of a district is a list of the estates from
which the land and police revenue of the
district is collected showing the revenue
assessed upon each estate divided into
amounts due on each latest day of pay-
ment. It is clear, therefore, that the
dates given in this revenue roll as the
instilments in June, September, January
and March are the latest dates of pay-
'ment.
Reliance has been placed by the ap-
pellants in Appeal No. 108 upon the
deposition of their witness, Saiyid Abdul
Ghani, who says that after confirmation
of the batwara the kists payable for
revenue were told to the maliks, they
were the same four kisfes which existed
from the Permanent Settlement, and
that the maliks were also informed that
in case of default of one kist the amount
might be paid in the next kist. It is
olear that this witness is not a compe-
tent witness to speak of the kists settled
at the time of the Permanent Settlement.
Moreover, from his cross-examination, it
appears that this witness wants to ma e
out that there was a regular proceeding.
before the Collector under which the
kistbandi of the mahal was settled ; but
no such proceeding has been proved in
the present case. This witness is nofc a
reliable witness, and it cannot be held
upon his testimony that the dates in
June, September, January and March are
the dates of the kistbandi under the
Settlement as contemplated by S. 2 of
the Act.
Reliance has been placed on behalf of
the appellants upon a number of deci-
sions, most of which have nothing to do
with the facts of the present case. I
propose to deal with the decision which
have some bearing on the present case.
In the case of Ilaji Buksh Ilaki v. Dm
lav Chandra Kar (2) the appellant waa
the holder of a Government tenure in
Dihi Panchanagram under a kabuliyafc<
executed by his predecessor-in-title in the
year 1874. The kabuliyat provided for
payment of the jama in the Collectorate
within the 28th day of June every year.
The precisions of Act XI of 1859 were
made applicable to such tenures by Act
VII of 1868. The revenue authorities
treated the 28th of June as the latest
date of payment. It was held by
the Privy Council that by S. 2
of Act XI, the revenue became an arrear
on the 1st of July following. The Board
of Revenue by a notification under S. 3
of the Act had fixed 28th June of each
year as the latest date of payment. The
default was made on the 2ttth of June*
1902 ; it therefore, became an arrear on
1st of July 1902, and the estate was not
liable bo sale until the 28th of July of
the following year. Therefore, the sale
which was held in March 1903 was held
to be an invalid sale held without juris-
diction. In that case the original kist-
bandi under S. 2 of the Act was known^
and the Privy Council held that the
revenue did not become an arrear until
the first of the following month. In the
present case the original kistbandi under
S. 2 is not known, and this case is of no*
help to the appellant.
Reliance has next been placed by the
learned counsel for the appellants upon
177 (P. U).
SHAMA KAKT v. KASHI NATH (Kulwant Sahay, J,)
Patna 555
a decision of a Division Bench of this
Court in Chhakowri v. Secretary of State
(3). This case, no doubt, lends a certain
amount of support to the argument advan-
ced on behalf of the plaintiffs-appellants,
but no distinction was drawn there bet-
ween the dates fixed under 8. 2 and those
under S. 3 of the Kevenue Sale Law.
The same dates were taken as fixed under
both the sections. There was, however,
nothing to show that the two dates con-
templated by Ss. 2 and 3 coincided.
Eeliance was placed by the learned Judges
for their decision upon the case of
HarJchoo Singh v. Bunsidhur Singh (4).
On an examination of that case, it is
evident that it does not support the
decision in Chhakowri' s case (3J. In the
case of Harkhoo Sinyh v. Bunsidhur
Singh (4) the original Settlement and
the kists fixed after partition, were
known, the March kisfc, as fixed after the
partition, was not paid, and, therefore, it
became an arrear on the 1st of April, and
the latest day of payment thereof was
the 28th of June. The sale which was
held after the 28th of March and before
the 28th of June was hold to be without
jurisdiction. The dates of the original
kistbandi being knowu thoro was no
difficulty in finding out when it became
an arrear and what was the latest date
of payment thereof. Mr. Justice Das
who was one of the Judges who decided
the case of Chhakowri Singh has ex-
pressed a different view in a recent case
in Suraji Narayan Chaudhury v. Sara-
swati Bahuria (5), which is in accordance
with the view contended for by the
learned counsel for the defendants.
Keliance has also been placed upon the
decision of this Court in Bhirukhi Ojha
v. llajbansi Kuer (6). In that case there
was a default in the June instalment of
1911. The sale was held on the 21st of
September 1911. The Subordinate Judge
had held that the revenue did not become
an arrear until the 1st of July, and the
latest date of payment thereof was the
£8th of September 1911, and so the sale
held before that date was ab initio void.
In the High Court, papers were produced
to show what the original instalments
were. This Court made a remand to find
(3)
(4)
(5)
(6)
[1920] 5 Pat. LJ. 66=52 1C. 990~(1920)
P.H.C.O. 1.
[1898] 25 Cal. 876=2 C. W, N. 360.
A. I. R. 1925 Patna 750.
[1917] 2 Pat. L. W, 31=40 I. 0. 688,
out upon evidence what were the kists of
the original Settlement and what were
the latest dates of payment thereof. This
case, therefore, is of no help to the
plaintiffs-appellants.
In Amrit Lai Boy v. Secretary of State
for India (1) the estate was sold for
arrears of January instalment of 1908.
The sale was held on the 25th of March
1908. The sale proved abortive on ac-
count of the purchaser's failure to pay
the purchase-money, and there was a re-
sale on the 25th June 1908. The
original kistbandi of the mahal, as fixed
under S. 2 of the Act, was not known,and
the arguments advanced in that case were
similar to the arguments advanced by
the plaintiffs in the present case. Mr.
Justice Chatterjea held that tho sale
was without jurisdiction. Mr. Justice
Newbould, however, held that the sale
was a valid sale. Newbould, J., observed
as follows :
As tho proprietor is safe, provided ho pays his
revenue before tho latent day of payment, the
earlier date on which it is payable under the
terms of Settlement has been lost sight of in
practice and the later dato on which the kist
must be paid is called the kist date. That is to
say, the kist referred to as the January lust itf
not the kidt payable in January under the kist-
bandi but the kist for which the latest day of
payment falls iu January.
Chitty, J., observed as follows ;
In the papers to which Mr. Justice Chatterjea>
has referred, no doubt, tho kist is » referred to
as the 'January kist' or 'January talab.1 This
may bo due to tho fact that tho original duo
dates of payment have been lost sight of, and
the four latest dates for payment fixed by the
Board of Revenue under S/3, namely, 12th
January, 28th March, 28th Juno and 28th Sep-
tember have been carelessly taken to give name&
to the several kists, which were really payable
before those dates but payment of which might
be received up to those dates.
These observations apply to the facts
of the present case. It is clear that the
original kistbandi under S. 2 of the Kev-
enue Sales Act being unknown and for-
gotten, the latest dates fixed under S. 3
are popularly known as the kist dates,
They are clearly not the kistbandi dates
as provided for by S. 2, but the latest
dates of payment as fixed by the Board
of Kevenue under S. 3 of the Act.
On a consideration, therefore, of the*
evidence and the circumstances of t he-
case and the clear terms of Ss. 2 and 3
of the Bengal Kevenue Sale Law, it is
clear that in the present case 28th of
September, 1918, was the latest date of
payment, and that the sum of Bs. 6 odd
556 Patns SHAMA KANT v. KASHI NATH (Kulwanfc Sahay, J,)
19C6
was in arrear for which the sale could
legally be held before the 12th of
January 1919, and the sale, therefore,
held on the 6th of January was not with-
out jurisdiction.
The next point is as regards the irregu-
larities in the conduct of the sale.
These are set out in para. 17 of the
plaint in the suit of Bad ha Kant Lai,
and in para. 20 of the plaint in the suit
of Basudoo Narain Singh. The learned
Subordinate Judge who decided the suit
of Bad ha Kant Lai has dealt with the
irregularities urged before him and has
3ome to the conclusion that there was
no irregularity in the sale. The learned
Subordinate Judge who decided the suit
of Easudeo Narain Singh having held
that the sale was void did not think
it necessary to dilate upon the alleged
irregularities resulting in the sale. He
refers only to one point, namely, that
the revenue assessed on the estate was
Bs. 202-11-7, but the notification under
8. 0 of the Act showed the revenue to
be Bs. 202-12-0. He does not refer to
-any other irregularity in the course of
his judgment ; but the finding that he
comes to is that the sale was vitiated
with irregularities and illegalities and
was iifc to be set aside. Before us the
irregularity mainly pressed by the learned
counsel for the plaintiffs-appellants
was that the notification under 8. G of
Act XI of 1859 was nob properly drawn
up inasmuch as the description of the
property was incomplete, the sadr jama
stated therein was incorrect, and that
the names of the proprietors of the
estate were not set out.
The notification under S. 6 of Act XI
of 1859 issued by the Collector is Ex,
G-l and is printed on page 45 of tho
Piper-book, Part III, Appeal No. 287 of
ii!J2. Tho second column gives tho
name of the mahal which was going to
te sold as Bara Lodhsvay, Perganna
Maher. Reference has been made by
the learned counsel to register D of
Bara Lodhway (Exs. 5 to 52) printed on
pages 90 to 93 of the paper-hook in the'
said appeal, in which the area of the
estate is shown as 120 acres 1 r» 32 p.
Now, this, as a matter of fact,"" is the
area of only one of the villages coin*
prising the estate Bara Lodhway, Touzi
No. 3040, namely, of Mouza Bara alone.
Phe other two villages, Baaida and Pipra,
ire not shown anywhere in this reg?*ter
D. Exhibit 6 contains extracts from
register A, and the serial No. 831 is of
the estate Bara Lodhway Perganna
Maher, bearing Touzi No. 3040, and the
specifications of mouzas in Col. 5 contains
the name of Mouza Bara Lodhway bear-
ing No. 618 in the Mouzawar Begister
and having an area of 120 acres 1 r. 32
p. with a Government revenue of Rupees
202-12-0. Exhibits 7 to 73 are extracts
from register C, namely, the Mouzawar
register kept by the Collector. In this
register we get the names of four mouzas:
Bara Lodhway bearing No. 636 ; Bazida
bearing No. 637 ; Pipra bearing No. 648
and Dhaneta (wrongly printed as Diha)
bearing No. 198. The areas of the four
mouzas are given in the third column,
and the 5th column gives the numbers
borne by these mouzas in the General
Begister A* In this register the area of
120 acres is shown as against the fourth
village. It is further to be noticed that
while in the register A (Ex. 6) Bara
Lodhway is said to correspond to No. 648
in the Mouzawar Begister ; in the Mouza-
war Begister (Ex. 7) No, 648 is Mouza
Pipra and not Bara Lodhway which has
got a different number, viz., No. 636.
The areas also do not agree, and the
number in Col. 5 of the register C does
not correspond with the number in tho
register A.
Exhibit 8 is the Mahalwar register of
Bara Lodhway, and in this register the
jama (revenue) is shown as Bs. 392-8-5
in respect of Bara Lodhway. The
learned counsel for the plaintiffs-appel-
lants refers to those registers kept by
the Collector and contends that the
description of the property as given in
the notification of sale under S. 6 was
misleading, and that the intending bid-
ders were misled as regards the property
which was going to be sold. He refers
to the deposition of Mr. Yaqub who was
one of the bidders at the sale who says
that in bidding at the revenue sale he
generally makes inquiries from Begister
D, that he had referred to register D
about Bara Lodhway, and he found that
only one mouza was on sale and the area
thereof was 120 acres. Ha Accordingly
offered bids up to Bs. 4,800. If the area
had been more, he would have bid ' much-
higher. Another x bidder at fehe sale,
Bipat Bam, also states that he ascer-
tained from register D the area of the
estate which he found to be 120 acres.
SHAM A KANT v. KASHI NATH (Kulwamt Sahay, J.) Patna 557
YcnuC, another bidder, states
that Bipat told him that the area of the
estate going to be sold was 120 acres or
125r acires ; and it is argued that, from
this evidence, it is clear that the descrip-
tion of the property was not a sufficient
description to enable the intending bid-
ders to know as to what was actually
going to be sold. His contention is that
all the three villages coin prised in the
estate ought to have been named in the
sale notification.
Now, the short answer to this argument
given by the learned counsel for the de-
fendants-respondents is that the Collector
does not sell an estate under the Bengal
Revenue Sale Law- with reference to
the registers which he has to keep under
the various enactments ; nor does Act XI
of 1859 refer in any shapa or form to
those registers. Revenue sales are held
under the Revenue Sale Liw, and all
that is necessary for the validity of the
sale is a strict compliance with the pro-
visions of the Revenue Sale Law alone.
Now, the Revenue Sale Law distinctly
lays down what is to be done when an
estate has to be sold for realization of
arrears of revenue. Section 5, 6, 7 and
13 of Act XI of 1859 prescribe the noti-
fications which the Collector has to issue
before holding the sale of an estate. In
the present case it is conceded that noti-
fication under S. 5 was not necessary.
It is also conceded that notification
under S. 7 was duly issued and served.
The only complaint is as regards the
notification under S. 6. Section 13 re-
lates to the sales of 'shares of an estate
and has no application to the present
case which was a sale of an entire estate.
The form of notification under S. 6, as
approved by the Government is given on
page 168 of the Revenue Sale Manual
published under authority of the Board
•of Revenue ; and R. 2 of S. 5 of the rules
made by the Board says that the said
form should be followed by Collectors as
far as possible in notifying estates and
shares for sale. The 2nd column of the
form of notification contains the heading,
names of mahal and parganna. It leaves
it to the Collector to determine in each
particular case what description should
be given of the estate in order to notify
to the public the estate intended
sold. There is no direction eith<
Act or in the rules framed by tl
•of Revenue that the description
estate in the sale notification should be<
on reference to the registers A.CorD
which the Collector 'lias to keep under
the provisions of the Land Registration
Act, and if the register D and the other
registers kept by the Collector be er-
roneous and do not give a full description
of the estate, that is no ground » for
setting aside the sale of an estate, if the
notification of sale contains a correct
description of the estate.
No doubt, some of the witnesses speak
of having referred to register P in order
to find out the area of the estate ; but
the purchaser at the revenue sale has
nothing at all to do with register D.
What was put up to sale was the estate
bearing Touzi No. 3Q40 and named as
Mahal Bara Lodhway. Register D has
nothing to do with the area of the estate.
The Collector is required to prepare and
keep four kinds of registers under S. 4
of Bengal Act VII of 1876 which are
known as Registers A, B, C and D.
Register D is an intermediate register
of charges affecting the entries in the
general and Mouzawar Registers which
are registers A and 0. Section 18 of the
Act' prescribes what are the particulars
which the register .D should contain. It
nowhere prescribes the area of the estate
to be entered in this register. The form
of register D as prescribed by the Board
of Revenue is printed at pagps 86 and 87
of the Bengal Land Registration Manual
published under the authority of the
Board of Revenue, and this form does not
contain any provision for entering the
area of the estate in the register. There
is no reason why the bidders, if they
were really bona fide bidders and wanted
to know the area of the estate going fco
be sold, went to look into the register
D kept by the Collector for the area and
not the Record of Rights of the bstato
prepared under Chap. X of the Bengal
Tenancy Act and kept in the Collector's
office.
The khewat of the estate would have
given a correct idea of the area con-
tained in the estate. It seems, there-
fore, hard to believe that the witnesses
referred to by the learned counsel ,for the
plaintiffs did really make inquiries as
058 Patm SFUMA KANT v. KASHI NATH (Kulwant Sahay, I. )
1926
^provisions of the Land Registration Act
and did form an incorrect idea of the
area of the estate, that, in my opinion,
is no ground for setting aside the sale if
the description as given in the sale noti-
fication was a correct description of the
estato. The plaintiff, if he cin prove
thatMie has sustained any damage on
account of the Collector's keeping the
registers incorrectly, may perhaps have
his remedy in a suit for damages, hut
that will not entitle him to set aside the
revenue sale. Moreover, although some
of the witnesses say that they were
misled as regards the area on a reference
to the register D, none of them s*ys that
he was misled on a reference to the
(reneral Register A or the Mouzawar
Register C. Under ^>s. 7 and 15 of the
Land Registration Act theso registers
have to contain a statement as regards
the area ; and none of them says that
Tie was misled on a reference to these
registers. As a general rule, an intending
purchaser will not care so much for the
area of the eitato as for tlio income
which he will derive from the estate,
and this he can easily ascertain on a
reference to the Settlement papers of
the Record of Rights of the mahal.
The khewats (Exs. M and M2) give the
(area of both cultivated and uncultivated
land and the Government revenue of the
estate, and are sufficient to enable in-
tending bidcfers to form an idea of the
value of the estate put up for sale.
Moreover, one does not find anything in
the plaint of the two suits to suggest
that the confusion in the registers kept
by the Collector had misled anyone at
the time of the sale ; nor was this taken '
as a ground for setting aside the sale in
the grounds of appeal presented by the
plaintiffs before the Commissioner of
the Division, a copy whereof has been
filed and marked as Ex. C in the case of
Radha Kant Lai. One does not find any
suggestion in the grounds before the
Commissioner to the effect that the
wrong area misled any bidder at the
time of the sale.
The next misdescription alleged in the
sale notification was as regards the
amount of the Government revenue,
which was stated therein as Rs. 202-12-0
where as the real revenue was
Rs. 202-11-7. No doubt, there is this
slight difference in the statement of the
•Government revenue ; but there is abso-.
lutely no evidence to show that this error
did in any way misled any one or affec-
ted the sale in any way. This point was
taken before the Commissioner, and in
dealing with it the Commissioner in his
judgment (Ex. A in Radha Kant's suit)
observed that Rs. 202-12-0 was the
correct demand as shown in the revenue
roll and touzi ledger and on the ap-
pellant's own showing this was the
revenue recorded as payable by the
estate for more than 30 years. This
raisdescription cannot be urged as a
ground for setting aside the revenue sale.
The next misdescription in the sale
notification pointed out by the learned
counsel for fcho plaintiffs was, that the
name of Bhagwat Prasad alone appeared
in the sale notification as the proprietor
of the estate with the words ' and
others," and it is contended that the
names of all the proprietors ought to
have been set out. There is, in my
opinion, no substance in this contention.
On reference to register D of the Collec-
tor, already referred to, it appears that
Bhagwat Prasad's was the first name
in that register, the other names before
his having been struck out on account of
mutations of names, and his name was
given in the notification with the addi-
tion of the word "and others." There is
nothing in- the law or in the rules framed
under the Revenue Sales Law prescrib-
ing that when there are a large number
of proprietors the names of all of them
should be given in the notification. It
is sufficient to give the name of any one
of the proprietors. There is no ovidence
to show that the absence of the names
of all the proprietors from the sale noti-
fication did in any way affect the sale ;
and the sale cannot ba set aside on this
ground,
These are all the irregularities com-
plained of, and none of these is an irre-
gularity which would affect the validity
of the sale Reference was made by the
learned counsel for the appellants to
the decision of the Privy Oounoil in
Bavaneshwar Prasad Singh v. Baijnath
Bam Goenka (7). That was a case relat-
ing to the sale of a 15-annas 6-dams
ijmali share of Mahal Bisthazari bearing
Touzi No. 336. This share consisted of
360 villages and there were 148 separate
account s opened in favour of transferees
(7) [1915] 42 Gal. 897=28 I. 0. 699=42 L A.
79 (P. 0.)..
1926
SHAMA KANT v. KASHI NATH (Kulwant Sahay, J.)
Patna 559
or purchasers of the interest of indivi-
dual co-sharers in specific villages or
groups of villages. In the notification
of sale was the specification of the share
to be sold in these terms
ijmali sharo which cannot ba specified, ex-
cluding the separate accounts No
Then followed a long list of the 148
separata acoDunbs and at the end the
following woris occurred
all obh3r share* basidas that spacified are e.x-
oluded from the sale.
Their Lordships of the Privy Council,
having regard to the circumsbances of
that particular case, held that this was
nob a proper description of the property
sought to be sold. At page 910 of the
report, however, we find that their Lord-
ships observed as follows :
The object of the law as well as ot the Board's
Rules requiring specification of the properties to
ba sold is clearly to enable likaly purchasers
among the public to know exactly what was
gping to ba sold, and to ensure thereby reason-
able competition. When an estate is advertised
for sale, it is . not difficult to spaoify it ;
in the case of shares of estates the. work of
fioecifioation requires care and attention. No
hard and fast rule can b? laid down in regard
to its sufficiency ; for it must vary according to
the fact? of each particular case.
In the present case, having regard to
the nature of the property advertised for
sale, which was an entire estate, it is
clear that there was no misdescripbion
^)f the estate, and the specification given
was sufficient to enable the intending
purchasers to know exacbly what was
going to be sold. In my 'opinion, there-
fore, the sale cannot be sab aside on the
ground of irregularities.
The next question Is a question of
fraud which would entitle the plaintiffs
to a reconveyance of their shares in the
estate. Now, the two sets of plaintiffs
make different cases of fraud in the
jjlaint^ Bidha Kant Lai alleges fraud
against Matukdhari Singh and the pur-
chaser Bai Bahadur Kashi Nath Singh.
Basudeo Narain Singh and others in
their plaint impute fraud to all the
'Remaining cosharers including Badha
Kant Lai. In fact their case is a case
of 'conspiracy to deprive the 'plaintiffs in
that suit of the heavy mortgage lien
which they had upon the share of
Mafeukdhari Singh. It is, no doubt, true
that Matukhdhari Singh's share was
heavily mortgaged. The mortgages are
the Ex. 13 series in Badha Kant's
suit, They come to a total amount of
Bs. 30,000 and odd and what was mort-
gaged was the share of Matukhdhari Singh
and the members of his family in Bara
Lodhway. According to the plaint of
Badha Kant Lai, Matukdhari Singh deli-
berately made a default in payment of
Government revenue with a view to
avoid the mortgages and to purchase the
property himself in the benami of some
one else. According to him the real
purchaser at the sale is not Kashi Nath
Singh, but Matukdhari Singh himself ;
and, if Matukdhari brought about the
sale fraudulently and purchased it him-
self, it is contended that the plaintiff is
entitled bo a re-conveyance. It is, as I
have said, true that Matukdhari's share
was heavily encumbered. It also ap-
pears that Kashi Nath Singh is a near
relation of his, being his pwn sister's
husband. The question is whether the
evidence is sufficient to establish fraud
and a benami purchase by Matukdhari
Singh so as to entitle the plaintiff to a
re-conveyance. (His Lordship then pro-
ceeded to examine the allegations of
fraud and the evidence on the point and
concluded as follows :) The utmost that
can be said in the present case is that
the matter is suspicious ; but the specific
fraud alleged in either of the plaints has
not been established. I am, therefore,
of opinion, that neither plainfciff is
entitled to succeed on the point of fraud
and is not entitled to a re-conveyance
of the property. (His Lordship then dis-
cussed the question as to what passed by
the sale, and concluded as follows.). Irr
ray opinion there is no justification for
this contention. There is no doubt that
the entire estate, Touzi No. 3040, was
sold and the whole estate consists of 852
bighas lying in the three villages, Bara,
Bazida and Pipra. This contention also
must fail.
As I have said above, the appellants
and some of the respondents in the two
appeals have filed petitions of compro-
mise. Some of the parties to the com-
promise are minors. One, of them is.
Srikant Lai who is one of the appellants
in Appeal No. 287. He .is represented
by his elder brother, Shama Kant Lai,
who is also an appellant in his own
right. Having regard to the findings
come to by us, the compromise is clearly
for the benefit! of the minor, Srikant Lai.
There are other minors in Appeal No. 287,
but they are not parties to the oompro-
560 Patna
BAMPBIT AHIR v. KING-BMPEBOE (Buoknill, J.)
1926
mise and so far as fehey are concerned
the appeal will stand dismissed.
In Appeal No. 108 the Appellants
Nos. 8 and 4 are minors ; they are the
sons of Rai Bahadur Kashi Nath Singh
and Dwarka Singh, who are Appellants
Nos. 1 and 2, respectively. The compro-
mise is also for their benefit inasmuch
as the sale is confirmed and they get the
full price of the property. Mr. Nand-
keolyar admits having received the sum
of Rs. 38,000 for his clients-appellants
in Appeal No, 108. In Appeal No. 108
the Respondent No. 2, Raj Kumar Prasad
Singh, is a minor ; he is represented by
his father, Respondent No. 1, Basdeo
Narain Singh. It is clear that the
terms of the compromise aro for the
benefit of this minor inasmuch as he
has got a chance of taking a re-convey-
ance of the properOy if the proportionate
share of the price is paid by him or his
guardian.
We are satisfied that the compromise
is for the benefit of the minors concerned
in both the appeals.
As regards the respondents in Appeal
No. 287, the appeal will stand dismissed
in terms of the petition of compromise.
As regards Appeal No. 108, a decree will
be drawn up in terms of the petition of
compromise so far as the parties to the
compromise are concerned .-and the appeal
will be decreed so far as the other res-
pondents aro concerned.
Adami, J.— -I agree.
Appeal No. 287 dismissed :
A pineal No. 108 allowed.
# A. I. R. 1926 Patna 560
BUCKNILL, J.
Ramprit Ahir and osiers— Accused—
Petitioners. ,
v.
Kiny Emperor — Opposite Party.
Criminal Revision No. 240 of 1925,
Decided on 12th June 1925, from an
order of the S. J., Shahabad, D/- 24th
April 1925,
$ Penal Code, S. 147— Bacawss certain persons
are In a certain place, at a certain time dots not
malce them liable for arrest — Resistance to arrest
is not rlotlng~~ Criminal P. 0., S. 64.
The detention and arrest of members of the
public aro not matters of caprice, but are
governed by and must be conducted upoft cer-
tain rules and principles which 'the law clearly
lays down. To arrest parsons without any
justification is one of the most serious encroach-
ments upon the liberty of the subject .which can
well be contemplated.
The fact that because a party of parsons are
in a certain place at a certain timo it cannot ba
said Him ply from these circumstances that they
are about to engage in a criminal act, and there-
fore there is uo legal justification-tor the arrest of
those persona by the police, and they are not
guilty of rioting if they opposa their arrest.
[P. 561, C. 11
P. C. Munuk and B. P. Varma — for
petitioners.
H. fj. Nandk&olyai — for the Grown.
Judgment. — This was an application*
in criminal vrevisional 'jurisdiction made
by six men. They were tried before an*
Honorary Magistrate of the First Class-
at Arrah and were convicted by him of
an offence punishable under S. 147,
Indian Penal Code, and sentenced • eacb
to undergo rigorous imprisonment for six
months. The applicants appealed to the-
Sessions Judge of Shahabad, who on thi*
2ith of April last dismissed their appeal
and upheld the convictions and sentences.
The matter has now come up before me-
a rule having been issued by a Bench of
this Court on the 14th May last. The
circumstances in the case are very simple
although somewhat unusual.
It would seem that some police
received some sort of information
that it was likely that if they, the
police, went to a certain place along the*
railway line they would discover some
people there who, it was said, were pro*
bably about to try to rob a train. Witl>
commendable zeal a party of police
acting upon this information, proceeded
to the locality indicated and there sura
enough they found the applicants and
some other men who were, so far as
one can gather, sitting or roaming about
somewhere near the railway line. It i^
qaid that some or perhaps all of *them
had actually encroached within th^
fencing or wire which usually runs
along the side of the railway marking
what I suppose is the railway property,
but even if this was so it hardly con-
stitutes an offence for which one would
suppose^ that it was possible for the
police rightly to arrest such individuals.
There is no doubt; as to what actually
took place, when the police arrived afr
the place, and I m%y say that it was
night, they immediartely caught hojd of
these persons who were standing there
and endeavoured to arrest them.
1926
OHOTE LAL v. TULA SINGH (Adami, J,)
Patna 561
The applicants and their friends or the
persons with whom they put up a fight ;
they did . not see why they should be
arrested, it seems doubtful indeed whe-
ther the police were in uniform, and
from what I gather they appear to
have been in mufti ; when the applicants
were seized by the police, they fought;
it is perhaps not surprising that they did.
At any rate the applicants and others
were eventually secured and taken to the
police station. They were then charged
with the offence which I have indicated
and were convicted and sentenced in the
manner to which I have referred.
Now tha learned counsel who has ap-
peared for the applicants points out that
it does not seem that the police had any
right to arrest these persons and the
learned Assistant Government Advocate
who has appeared in support of the con-
fictions has not been able to disclose any
clear indications to the powers under
which it might be suggested that the
police had the right, under the circum-
stances to which I have referred, to
arrest these individuals. It may possi-
bly be, although we cannot say with
certainty, that the applicants and their
friends were at the locality whera they
were found for some purpose of a crimi-
nal nature, on t=he other hand, we have
no authority for assuming that because a
party of persons are in a certain place
at a certain -time they are simply
from those circumstances about to enago
in a criminal act. I must confers that
I can aee no legal justification for the
arrest of these persona, by the police.
Whilst I support and phall continue to
support to the best of my ability the
maintenance of law and order and the
powers exercised by the police when
they, are properly exercised, I, at the
same time, have the utmost respect for
the rights of the subject. The detention
and arrest of members of the public are
,not mattery of caprice but are governed
by and must be conducted upon certain
rules and principles which the law
clearly lays down* Tu arrest persons
without any justification is perhaps one
af the most serious encroachments upon
bhe liberty of the subject which can well
be contemplated. In this case, therefore,
I have come to the conclusion without
the least hesitation that there was no
good ground shown for arresting these
1926 P/71 & 72
persons and that the convictions and
sentences are bad and must be quashed.
Convictions quashed.
A. I. R. 1926 Patna 561
ADAMI AKD BUCKNILL, JJ.
Chote Lai Nand Kishore Nath Shak
Deo — Defendant — Appellant.
v.
Tula Singh and others— Plzinti ft* —
Respondents.
Appeal No. 1067 of 1925, Decided on
13th July 1926, from the appellate
decree of the J. G., Ghota Nagpur, D/~
24th June 1925.
(a) Chota Nagpur Tenancy Act <190S), Ss. 71
139 and 189-4— Amending Act (1920) was not
Intended to take away vested right* under old Act.
—Bihar and Orlssa Act, 0 of 19^0, Ss. 88 and 39.
The amending Act of 1920 was not intended or
expressed to have, i^t respective effect ; that is to
say, it was not intended to take away rights of
action which had already vested.
A suit for possession hy tenant against his
landlord in 1921 the cause of action for which
arose in 1919 was held to be cognisable by civil
Court. [P 563, C.
(6) Interpretation of statutes — Repealing Act —
Vested rights under old Act are not taken away
unless expressly provlded~~New procedure applies
to further action.
When an enactment changes or takes away
rights, it is nofc to be construed as retrospective
unless there are express words to that effect, but
when it only changes the mode of procedure it
is to be applied to furtker actions. [P. 563, 01]
(c) Chota Nagpur Tenancy A$t (1908), 5s. 71
and 139 — Suit for possession by tenant against
landlord — Question of tenant's status ts im-
material.
This question of the status of the tenant make»
ns difference in determining whether a suit is a
suit by a tenant to recover possession from hia
landlord. [P. 564, 0. Ij
Sultan Ahmad, K. P. Jayaswal*
8. Saran and M urari Prasad—tor Appel-
lanb.
S. K. Mitra — for Bespondents.
Adami, J.— The only question which
has been raised before ua in this second
appeal is the question whether the suifc
was maintainable by the civil Court.
It is not necessary for the purposes of
this second appeal to give in any 'detail
the facts ; it is sufficient to say that the
plaintiff's case was that the Maharaja
of Ohota Nagpur had granted a jagir of
village Ghunsera to his remote ancestor
Kalyan Singh. In his family there was
662 Patn*
GHOTE LAL v. TULA SIKGH (Adami, J.)
1926
a custom of lineal primogeniture and
the jagir descended from Kalyan Singh
downwards to the eldest member of the
senior branch of the family. It thus
descended to Kalo Eaut, then Jairam
Singh, then Ram Singh and then to Baro
Bam. Baro Bam had five sons, the eldest
of whom was Jhingtu, and the second
Hathi Singh. Jhingtu Bam succeeded
to the jagir and was followed by his son
Asman Singh who died childless, leav-
ing a widow Mt. Budhan Kuer.
On Asman's death, Hathi Singh's son
Tula Singh, Hati Singh being dead,
claimed to succeed to the jagir ad being
the eldest member of the eldest branch
after the death of Asman Singh.
Mt. Budhan Kuer resisted his claim, and
the result was that a settlement was
arrived at through the assistance of
one Bodh Singh. This Bodh Singh was
the descendant of a person to whom the
Maharaja of Chota Nagpur had granted
an ijara thika of the lot Borokera in
tfhich Mauza Ghunsera was situated.
According to the settlement arrived afc.
Budhan Kuer was to remain in posses-
sion of the jagir during her lifetime
and Tula Singh was to succeed her.
Budhan Kuer died in 1918, and there-
upon Tula Singh entered into possession
of the village and granted half the
village in mokurrari to Plaintiffs Nos. 3
to 13. Defendant No. 1 is the son of
the Maharaja of Chota Nagpur. He had
purchased the rights of the ijara thika-
dars who were the sons of Bodh Singh,
and also the Maharaja of Chota Nagpur
gave him the lot Jiorekera as khorposh,
and thus Defendant No. 1 was the land-
lord of tho village. Soon after Tula
Singh had entered into possession he
was dispossessed by Defendant No. 1 and
thereupon proceedings were taken under
S. 145 of the Criminal P. C., the result
being that Defendant No. 1 was found
to be in possession on the 21st August
1919. The suit was instituted on the
8th September 1921.
The defence case was that the village
Ghunsera had been granted in thika a
very long time ago to two persons Mohan
Singh and Bam Singh. Mohan Singh
was succeeded by his son Sobran Singh
whose sister married Jhingtu Bam. Out
of regard for the relationship, and for the
purpose of supporting Sobran's sister's
family, Sobran Singh and Bam Singh
gave a jagir of village Ghunsera, cutting
it out of lot Borekera to Jhingtu Bam
Jhingtu Bam held the jagir and was suc-
ceeded by his son Asman who died issue-
less and on his death the jagir 'came to
an end. The grantors of the jagir,
however, allowed Asman's widow
Mt. Budhan Kuer to remain in posses-
sion for her lifetime, and after her
death Defendant No. 1 claimed that he
had a right to resume the jagir.
It is clear then that Defendant No. 1
is admittedly the landlord of the jagir,
and the question arises whether in view
of the provisions of the Chota Nagpur
Tenancy Act the suit by the tenant to
recover possession of the jagir, from
which he complained he had been un-
lawfully ejected by his landlord or any
person claiming under or through his
landlord, could be maintainable in the
civil Court.
The cause of action arose on the 21st
of August 1919 and at that time the
Plaintiff No. 1 under^Ghe provisions of
the Chota Nagpur Tenancy Act, as it
then stood, had a choice of making an
application to the Deputy Commissioner
under S. 71 of the Act to be put back in
possession or to biing a suit in the civil
Court and such suit in the civil Court
could be brought at any time within
three years from the 21st of August 1919.
Under S. 139, 01. (5) of the Act, as ifc
then stood, an application to recover
possession by a tenant against his land-
lord could only be brought before the
Deputy Commissioner. In 1920 the
Chota Nagpur Tenancy Act was amended.
The Bihar and Orissa Act VI of 1920,
S. 38, amended S. 139 of the Act of 1908
and in 01. (5) of S. 139 forjihe words
11 all applications " the words " all suits
and applications " were substituted,
but this amendment made by S. 38 of
the Act of 19:20 did not come into force4
till the 1st March 1924 ; thus when the
present suit was instituted, S. 139 stood
in its original form. By S. 39, however,
of the Act of 1920 a new S. 139-A was
inserted in the Act and unde'r that sec-
tion it was provided that
no Court shall entertain any suit concern-
ing any matter in respect of which an applica-
tion is cognizable by the Deputy Commissioner
under S. 139, and the decision of the Deputy
Commissioner on any such application shall,
subject to tho provisions of this aot relating to
an appeal, be iinal.
That new S. 139-A came into effect
in Chota Nagpur on the 5th of Novem-
L926
CHOTE LAL v. TULA SINGH (Adami, J.)
Patna 563
ber 1920 se that at the time the present
auit was instituted that provision had
been in force for about a year. Now the
recovery *of possession by a tenant from
the landlord by whom he has been un-
lawfully dispossessed is a matter in
respect of which an application is cog-
nizable by the Deputy Commissioner ;
S. 71 and 3. 139, Gi. (8), show this and,
therefore, ordinarily, • under S. 139-A
the present suit would not be cog-
nizable by a civil Court. At the time
that this amendment came into force
more than a year had elapased since the
date of tho cause of action and, therefore,
no application could bo made to the
Deputy Commissioner under S. 71
Furthermore, before 1924, when*S. 38 of
the Act of 1920 came into force, there
was no provision for the trial of a suit
of the nature of the present one by the
Deputy Commissioner. Therefore, from
the 5th of November 1920 up to the 20th
of August 1922, when tho present suit
would be barred, it was not possible for
the present plaintiff to bring a suit in
&ny Court, for under S. 139-A a suit in
the civil Court was barred and there
was no provision for the bringing of a
suit in the Court of the Deputy Commis-
sioner. The question then arises whe-
ther the Act of 1920 was intended or
expressed to have retrospective effect,
that is to Siy, whether it was intended
to take away tho rights of action which
had already vested. S. 6 of Act X of
1897, the General Clauses Act and the
corresponding section of the Bihar and
Orissa General Clauses Act lay down
that where those Acts or any Act made
after the commencqment of these Acts
repealed any enactment hitherto made
or hereafter to be made, then unless a
different intention appears the repeal
•shall not (a) .... (b) ... (c)
afltfct any right, privilege, obligation, or lia-
bility, acquired accrued or incurred under any
enactment so repealed, or ... (c) affect any
investigation, legal proceeding or remedy in res-
pect of any such right, privilege, obligation,
liability, penalty, forfeiture or punishment as
pforesaid, and any such investigation, legal -pro-
ceeding, or remedy may be instituted, continued
Or enforced as if the repealing
Act or Eegulation had not been passed.
The general rule of interpretation is
that when an enactment changes or
takes away rights, it is not to be con-
strued as retrospective unless there are
express words to that effect, but when it
only changes trre mode of procedure it i3
'to be applied to further actions. The
Courts are very careful to protect a
vested right and in several c.ises Judges'
have refused to allow suits to have
retrospective effect although tho lan-
guage seems to imply that such was the
intention of the Legislature, because, if
the statute had been so construed, vested
rights would have been defeated.
In the present case it is not a ques-
tion of change of procedure, it is a ques-
tion whether the right which the plain-
tiff had previous to the amendment of
the Act to bring a suit on his cause of
action can be taken away by tho amen-
ding Act. It is more than a matter of
procedure, it touches a right which was
in existence at the time of the passing
of the amending Act. The direction
that suits of a certain kind shall be
tried in a certain Court and not in
another Court may be a matter of pro-
cedure, but the amendment in this case,
if insisted on, would take away from the
plaintiff his vested right to bring an
action, and the Courts will be very slow
to allow such a right to be taken away
by the Amending Act. It may ho said
that since the suit was instituted after
the passing of'the Amending Act, it is
not a question of retrospective effect
But, however that may be, the fact re-
mains that the Amending Act has
deprived the plaintiff of a vested right
and it is certain that it was not intended
by the Legislature that such a right
should be taken away. In my opinion,
it was quite right that the civil Court
should in tho circumstances entertain
the suit.
In the »case of Manijhoori Bibi v.
Alcel Mahamud (1) and Oopeshwar Pal
v. Jiban Chandra (2) the question was
whether an Act amending the provisions
of the law with regard to a period of
limitation has retrospective effect. * In
the former case, Mookerjee, J., after
consideration of the English case-law on
the point stated :
It has been repeatedly laid down that in the
absence of clear words to that effect a statute
will not be {construed as taking away a vested
right of action acquired before it was passed.
Eurther he remarked :
To hold that this < amended provision applies
to suits in respect of dispossession which has
~ (1) [19l3] 17 C. W. N. 889=19 I.~~C. "793=17
0. L. J. 316.
(2) [1914] 41 Cal. 1125=18 C, W. N, 804=
2 I. C. 37=19 0. L, J. 549
$64 Patna
MINA MAHTO v. DOMAN MAHTo(Kulwant Sahay, J.)
.^k^n rlace more than two years before the en-
actment of tho new law is to maintain the posi-
tion that tho Legislature intended the litigant
to accomplish what is impossible, in the nature
of things, for him to do, in other words, to pre-
Hcribe that his right are forthwith extinguished
without previous notice and without opportunity
afforded to him to escape the operation of the
new law. To put the matter briefly, if this
view is to bo supported, we must hold that the
LegiHlature acted in a mont unreasonable manner
i. e., that tho legiHiatiire intended to penalise all
ttnder-raiyats who had been dispossessed by
their landlords more than two years before the
oommonceinent of tho new statute because they
wanted to enforce their rights in a Court of
Justice within the period of limitation allowed
at that time by the Legislature.
In tho second of the two oases above
cited, it was pointed out that a right of
suit is a vested right, and that where in
accordance with tho provisions of the
amending Act, a suit could bo brought
after the passing of the amendment the
amendment would apply to the suit, bub
where it could not be brought after the
amendment the amendment would have
no application.
In any case, though the plaint shows
that the plaintiff claims to be a tenant
seeking recovery of possession from his
landlord who has dispossessed him, there
are indications in the plaint that tho
real questions between the parties was
whether tho plaintiff was entitled to
succeed as jngirdar to the property. The
plaintiff asked for a declaration of the
title but this mere relief, when asked
for, need not always take away the
jurisdiction of the Deputy Commissioner.
In a case decided lately by mo (Second
Appeal No. 669 of 1923) tho question
between tho parties was whether the
tenant was an occupancy tenant or a
non-occupancy tenant so that fche ques-
tion of fche status of the tenant made no
difference in determining whether the
mifc was a suit by a tenant to recover
possession from bis landlord.
As I have said fche whole question de"
pendecl on the decision of the question
whether "Thingtu's jagir had come down
to him from his direct ancestors or
whether it had been granted to Jhingtu
for fche first time. If it was granted to
Jhingtu for the first time, then fche plain-
tiff would have no claim, for on Asman's
death fcho landlord would be entitled to
resume. On the ground that there was
a substantial question of title to be de-
cided and on the ground also that fche
vested right of the plaint iff, could not
frell be taken away by the Amending
1926
r
Act, I acn of opinion that the suit ^va?
properly triable by fche civil Court and
fchat there is no reason to interfere.
I would dismiss the appeal with -costs
Bucknill, J.— I agree.
Appeal dismissed,
A I. R 1926Patna 565
KULWANT SAHAY, J.
Mina Mdhto and others —Defendants —
Petitioners.
v.
Doman Mahto and others — Plaintiffs —
Opposite Party.
Civil Revision No. 169 of 1926, Decid-
ed on 9bh July 19^6, from an order of
the Addl. SulrJ., Hazaribagh, D/- itffch
March 19^6.
Civil P. C., &. LSI— Amendment -'of decree— A^
original guardian of minors dying before appeal
from preliminary decree — B appointed as- guar-
dian In appeal — Final decree mentioning A to be
guardian — Amendment to substitute B for A
should be allowed.
A preliminary decree was passoil against some
minors represented by A as guardian. In appeal
from that decree B was appointed guardiau of
tho minors, A having died, B's namo appeared
as guardian of the minors in the appellate
decree. In tho final decree passed by tho trial
Court A's name appeared as guardian by mistake.
In execution the mistake having been discovered
an application for amendment of the guardian's
name was made.
Held : that the decree passed on appeal from
the preliminary decree became the preliminary
decree in the suit and B continued to be the
guardian till the final disposal of the suit. It
was not necessary either for defendants or plain-
tiffs to apply f>r appointment of B as guardian
and therefore amendment should be allowed.
[P 565 0 2]
A. K. Roy and 8. S. Prasad Singh —
for Petitioners. ^
B. G. De — for Opposite Party.
Judgment. — Tho petitioners • were
Defendants Nos. 13, 14 and 15 in a parti-
tion suit instituted by the plaintiffs in
the Court of the 'Subordinate Judge of
Hazaribagh. They were minors and
were represented by their father Teka
Mahto, who was himself a defendant
(No. 2) in the suit. A preliminary deoree
was made in September 1915. Against
this deoree the defendants preferred an
appeal to the High Court. The present
petitioners were also appellants and were
represented by their father Teka Mahto.
1926 MINA MAHTO v. DOMAN MAHTO (Kulwant Sahay, J.)
Patna 565
Mahto died in 1917 and Ramdayal
Mahto, another defendant in the suit,
applied to be appointed as the next
iriend and guardian of the present? peti-
tioners in the appeal in the High
Court and he was so appointed by this
Court. The appeal was finally dismis-
sed. b# this Court on the 28th May 1918
and in the decree prepared by this Court,
the present petitioners were described
«s minors represented by Bamdayal
Mahfco.
After the dismissal of the appeal, the
matter went back to the Court below
and a final decree was made on the 4th
October 1920, the decree being prepared
and signed on the 18th January 1922.
In this final decree Teka Mahto is named
as Defendant No. 2 and the present peti-
tioners, Defendants Nos. 13 to 15, were
described as minors represented by Teka
M^fchto. The description was apparently
taken from the preliminary decree pre-
pared by the Subordinate Judge in Sep-
tember 1915, ignoring the description of
'the parties as given in the decree of the
High Court. The plaintiff filed an
appeal against this final deoreeo to this
Court which was First Appeal No. 112 of
1921. In the memorandum of appeal
Teka Mihto was stated to be one of the
respondents and the present petitioners
vere also m-i.de respondents and were
stated to be under the guardianship of
Teka Mahto. The description in the
memorandum of appeal was apparently
taken from the final decree prepared in
January 1921. Notice of the appeal be-
ing issuei, the peon reported 'that Teka
•Mahto and Ramdayal Mihto were dead.
*Hhe Court ordered that the Deputy
Kegistrar might bo appointed guardian
ad litem of the present petitioners. The
appellants paid the guardian's cost and
the Deputy\Begistrar was so appointed.
The appeal was, however, finally dismis-
sed by this Court for non-payment of the
printing costs in April 1922. The plain-
tiffs then applied for delivery of posses-
sion in execution of the final decree made
by the Subordinate Judge. Thereupon
the present petitioners made an objec-
tion to the effect that the final decree
was not binding upon them inasmuch as
they were shown in the final decree as
represented by Taki, Mahto and that
Teka Mahto was dead long before the
final decree. As soon as this objection
was made, the plaintiffs made an appli-
cation for amendment of the final decree
by describing the present petitioners as
minors represented by Kamdayal Mahto
as their guardian. The learned Subordi-
nate Judge has allowed this amendment
and the petitioners have come in revision
against this order.
It is clear that; the amendment made
by the learned Subordinate Judge is cor-
rect. It is contended on behalf of the
petitioners that it was the duty of the
plaintiffs to make an application before
the Subordinate Judge after the disposal
of the appeal against the preliminary
decree to appoint a guardian for the
present petitioners in place of Teka
Mahto. In ray opinion it was not neces-
sary for the plaintiffs to make any suoh
application. In the appeal pending in
the High Court an application had
already been made for the appointment of
a guardian of the present petitioners and
Bamdayal was appointed guardian and
in the decree made by this Court in the
appeal against thxa preliminary decree the
name of Bamdayal Mahto appeared as
guardian of the present petitioners.
That decree was the preliminary decree
, in the suit. The learned Subordinate
Judge seems to be of opinion that it was
the duty of B-irndayai to make an appli-
cation again in the Court of the SubordH
nate Judge before the final decree wad
made for his appointment as guardian of'
the minors.
I think it was neither the duty of the
plaintiffs, njr of the defendants, to make
any such application. An application
had already been made in the High Court
and an order had been made appointing
Bamdayal as guardian of the minor.
This appoincment continued until tao
disposal of the suit. Bimdayal died
after the final decree was prepared by
the Subordinate Judge. The appointment
of the Deputy Bogisfcrar as guardian ad
litem in the appeal filed by the plaintiffs
against the final decree is of no conse-
quence so far as the matter of the
amendment of the decree is concerned.
The Deputy Registrar was appointed
guardiaa ad litem after the death of
Bamdayal and ab that time there was
properly speaking no guardian of the
present petitioners. The appointment oa*
the Deputy Registrar in the appeal
against the tiaal decree will in no way
affect the order of amendment made by
the learned Subordinate Judge.
£66 Patna
EMPEROR v. ZAHIB HAIDER (Mullick,
1929
3n my opinion there is no substance in
this application. The application is dis-
missed with costs, one gold mohur.
Application dismissed.
A, I. R.I 926 Patna 566
DAWSON-MIL&KK, C. J., AND MULLICK, J.
Emperoi — Petitioner.
v.
Zahir Haider Qilgrami and another —
Opposite Party.
Jury Reference No. 5 of 1925, Decided
on llth December 1925, made by the S.
J., Patna on Oth September 1925.
(a) Criminal trial — Written statement by ac-
cused is not le'/al.
There H no provision in l;v\v for thft accused
filing a writttm stit.;mcnt. [P 5GS.C 1]
(6) Criminal l\ Ct, ti. 307 — Two inference^
possible <>n evidence, — Court of Jleferenee will not
Interfere unless inference drawn by jury Is incon-
sistent irlth evidence,
Whom OTIO of two inferences is possible upon
tlio evidence tho Court of Reference will not in-
torfore >vith tho finding of tho jury even though
the Court is c f opinion that it would havo drawn
the uth«r inforeunu if it had beiai -a Court of ap-
peal. But whuro the inference drawn by tho
jury. is manifestly 'inconsistent -with tho docu-
mentary evidence and with tho conduct of tho
parties, tho law makes it obligatory on tho Court
to- interfere.
In .1 rv fere nne under S. ;X)7 it is not su Hi clout
to show th.it another jury might have formed a
different opinion : what tho prosecution has to
show is that no reasonable bodv of men would
have returned the verdict complained of : A. I. K.
1923 Patna 470, if oil. [P 5(>H C 1, 2]
(c) Criminal l\ C.t S. 414 — Ch. 33 does not
apply to complaint 6.7 public servant on orders of
Government .
Where a public servant makes a complaint
under the ojdors of Government, as such public
eehrant, Ch, 33 do^a not apply. [P 5(>8 C 2]
(d) Criminal?. C.f S. 41 i— Powers of High
Court on reference are not co-extcnsira with those
wider S. 419.
S. 444 does not enact that tho powers of the
High Court in the matter of a reference are
cn-rtxtonsivo with thosa in an appeal under S.
449. [P 568 C 2]
Asst. Government Adcocate — for the
Grown. , k
Abdul Azi.:, Naimatullah , S. A. Mail"
zar, Yusnf Russaiut Noor-ud-din, Gholam
Mohammad and Syed All Khan — for Op-
posite Party.
DawsonMiller, C. J.— I have had
no pportunity of perusing the judgment
about1 to be delivered by myt learned
brother and I agree with the conclusions
at which he has arrived. ' ^
Mullick, J.-~This case arises out of
the trial of Maulavi Saiyid Zahir Haider
Bilgrami and Saiyid Alimuddin alias
Ansar Husain alias Allan and ha'3 been
referred under S. 307 of the Criminal P.
G. to the High Court by the Sessions
Judge of Patna.
Maulavi Saiyid Zahir Haider Bilgrarni'
is 34 years of age and 'lias been 12 years'
in the service of Government as a mem-
ber of the Provincial Civil1 Service. In or
about 1922 lie was transferred in the
course of his official duties to the Dis-
trict of Darbhanga'of which Mr. King
was then tho .District Magistrate tind'
Collector. Mr. King deposes that he
found Bilgraini to bo a good and loyal'
officer and that ho was mentioned for his
revenue work in tho Administration Re-
port for tho year 1923. In L9iM an Ex-
hibition was held at Laheriascrai which'
is tho head-quarters ot the District of
Darbhanga and out of tho funds collected
for the same there remained in July 1923
an unexpended balance of Es. 3,073-2-9
at the credit of the Exhibition Gom-'
•mitfcee. On tho 10th July 1923, a meet-
ing of the Exhibition Committee was,
held at Laheriaserai under tlio presidency
of Mr. King and a proposal way m/de by
the Maharaja Kumar of Darblianga thai;
this balance should bo devoted to the
construction of a rest houso rear the
Courts for tho use of litigants and that,
others.
Khan Sahib Saiyid Mahbub Hasan
otherwise known as Pearey Sahib who
was tho loaal Sub-Registrar and a man of
sotne position moved an amendment that
a public park should be laid out and a
reading room constructed therein, and
after some discussion the amendment was'
carried. Thereafter a Park'Commi.tteo
was formed and a President, two Vice-
Presidents, a Treasurer and an Exeoutivo
Committee of 21 wore elected on the 31st
August. Bilgrami was elected Honorary
Secretary and throe 'other gentlemen,,
namely, Babu Madhusudan Prasad Singh,
Khan Sahib Saiyid Mahbub 'Hasan, Babir
Kumar Kaljran Lai were appointed Joint
Secretaries. It was fuither decided that
the park should be called the " King-
Park " in honour of Mr. King who had,
successfully administered the Darbhangrv
District during his term of office and was.
about to leave the district. On the 27tiv
1926
EMPEROR v. ZAHIR HAIDER (Mullick, J.)
Patna 567
September 1923, an account was opened
with the.Muzaftarpur branch of the Im-
perial Bank of India by Bilgrami as
Secretary of the Park Committee and the
whole balance at the credit of the Exhi-
bition Committee, namely, Rs. 3,073-2-9
was transferred to his account. The cask
book of the Park Committee which was
written up at first by Bilgrami himself
and subsequently under his orders by his
clerk Badri does not seem to have been
opened till the llth December 1923,
and shows on that date a credit of
Rs. ?,202-15-11. The collection of subs-
criptions was then rapidly pushed on and
we find that by the 5th April 1924
the receipts had amounted to a sum of
Rs. 12,690-5-11. Out of this sum a total
sum of Rs. 260-2-9 had boon expended on
establishment and on contingencies leav-
ing a balance of Rs. 12,430-3-G which was
giade up as follows :
(1) Rs. 8,173-2-9 in tlio Bank : (2)
Rs. 3,500 shown as deposited in the Bank
but not in fact deposited, (:>) Rs. 200 in
the hands of the treasurer, (4) Rs. 232-0-5
in the hand-? of the Secretary, and (5) an
uncashed cheque for Rs. 25 on the Alli-
ance Bank.
It is admitted that on the 8th April
1924, Bilgrami as Honorary Secretary
drew a cheque in favour of Saiyid Ali-
mucldin for a sum of Rs 1,300 which was
cashed by the accused Alimuddin on the
Oth April at the Bank's branch at Muxaf-
farpur. This sum was not onteved in the
cash-book till July and it it alleged that
it was never spent for the purposes of
the Park Committee and that Bilgrami
criminally misappropriated it. The cash-
book again shows that on the 14th June
Bilgrami drew a cheque in favour of
Alimuddin for a sum of 11 ; 406. The
"Bandpass book shows that this cheque
was cashed on the same date by the
payee Alimuddin whose allegation is that
he paid this morfey as well as the
Rs. 1,300 not to Bilgrami but to Pearey
Sahib. In respect of these two sums
Bilgrami has been charged with offences
under 3. 406, Indian Penal Code, (crimi-
nal breach of trust), S. 465, Indian Penal
Code, (forgery of the cash-book), and
S. 477A, Indian Penal Code, (falsification
of accounts). Alimuddin alias Ansar
Husain alias Allan has been charged
with abetting Bilgrami in respect of
Abe offence under S. 406, Indian Penal
Code.
There is also another sum of Rs. 10 in
respect of which charges under Ss. 406,
465 and 477A, Indian Penal Code, have
been preferred against Bilgrami. Thafc
sum is alleged to have been drawn by
Bilgrami out of the park funds on the
30th July 1924. The allegation is that
on that date a man named Jaiil was col-
lecting subscriptions for an Imambara at
Darbhanga and that Bilgrami ordered his
clerk Badri to pay to Jalil Rs, 10 on his
account from the park funds. That
money was never refunded by Bilgrami
and he is charged with having committed
criminal breach of trust under S. 406 in
respect of it. A receipt was given by
Jalil to Badri for this sum and it is
alleged that subsequently under Bil-
graini's orders Badri on the 4th August
1924, inserted words in the receipt indi-
cating that the payment had been made
on behalf of Khun Sahib Mahbuh Hasan.
It is alleged that an entry in the cash
book was made on frlio 4th August under
Bilgyimi's orders by Badri showing that
a payment of Rs. 50 plus' Rs. 10 had been
made on the 30bh .July to Khan Sahib
Mahbub Hasan to meet the expenses for
registering conveyances relating to the
purchase of lands for tho park and that
so far as the entry relates to the sum of
Rs. 10 it is lal n and that tho money was
never receive ! bv the. Khan Sahib. Bil-
grami, therefore, has been charged with
an oi'fenc * und'-r Ss. 4()o and 477 A in res-
pect of 'chi* o:iir; in tho cash-book of the
4th August I'j^i. (Then the judgment
discussed the uvid<nee and proceeded.)
On 19th Jinj.iry 1925, Mr. King, in
accordance wit an order made by tho
Government of Bihar and Orissa under
the provisions of S. i: 7 of the Criminal
P. C., lodged a I > rual complaint charging
Bilgrami with timiial breach of tsust
as a public servant.
Bilgrami and Alimuddin were there-
upon placed upon their trial but before
any witnesses could be examined at La-
heriaserai, the cise was, upon the appli-
cation of Bilgrami, transferred to the file
of Mr. Owen, the District Magistrate of
Patna, who in duo course committed the
case for trial to tho Court of Session- at
Patna.
In Mr. Owen's Court Bilgrami did not
offer any explanation of the evidence
against him, nor had he appeared in
person before Babu Rukhdeo Narain, In
the Sessions Court he submitted a long
568 Patna
EMPEROR v, ZAHIR HAIDER (Mullick, J.)
1926
written statement which was accepted
though Mtrictly speaking there is no pro-
vision in law for such a procedure.
Alirauddin had made a statement on
the 17th November before Babu Sukhdeo
Narain. There he modified the state-
ment which he had made on the 15th
November before Mr. King and he said
that he had cashed the cheques for
Rs, 1,300 and Rs. 406 and paid the money
Pearey Sahib.
It was contended before the Sessions
Judge on behalf of Bilgrami that Bam
Babu and Pearey Sahib had conspired to
ruin Bilgrami, that Ram Babu had falsely
denied payment of the sum of Rs. 1,706
and that Alimuddin was in fact repre-
sented to Bilgrami by Run Babu as being
Rarn Babu's creditor. Alimuddin's de-
fence iu the Sessions Oourt was that he
had afc Poarey Sahib's request made over
the money to Pearey Sahib and that he
had falsely stated before Mr. King on the
15th November that he was Ram Babu's
creditor. lie denied that he had taken
the money for himself. The jurors were
divided, four being of opinion that tho
accused were not guilfcy of any of the
-charges and one being of opinion that
both were guilty of all the charge*.
The learned Sessions Judge is of
opinion that the verdict of the majority
is perverse and he has referred the
<sase to us under S. 307 of the Criminal
P. 0. (Then the judgment dealt with
evidence as to the time when exca-
vation of tank began and other matters
relating to the ohargp and held that
the inferences which ought to be
drawn from Bilgrami's letter are so
irresistible that the jury should have
•considered themselves bound to find in
favour of the version put forward by the
prosecution.) It is true that where one
of two inferences is possible upon the
evidence the Oourt of reference will not
interfere with the finding of the jury
even though the Oourt is of opinion that
it would have drawn the other inference
if it had been a Oourt of appeal. But
where as in this case the inference drawn
by the jury is manifestly inconsistent
with the documentary evidence and with
the conduct of the parties, I think the
law makes it obligatory on the Oourt to
interfere. In a reference under S. 307
of the Criminal P. 0. it is not sufficient
feo show that another jury might have
formed a different opinion; what "the
prosecution has to show" is that no reason1
able body of men would have returnee
the verdict complained of. This was thi
view taken in this Court in Emperor v
Ali Hyder (l) and we think it is in
accordance with law.
The learned Assistant Government Ad-
vocate who has submitted the evidence
to a careful and scrupulously fair analysis
also contends that as Mr. King, the com-
plainant, was a European British subject
the trial was held under the provisions
of Oh. 33 of the Criminal P. C.,
and that if the Judge had, accepting the
majority verdict of the jury, acquitted
the accusod he would under S. 449,
Criminal P. C., have been entitled to
appeal to the High Court on the facts.
He argues that in a reference under S. 307
in suoh a case the High Court has a
similar power to revise the findings of
fact. The answer to this is firstly, that
S. 411: enacts that where a public servant?
makes a complaint under the orders of
Govornraent, as such public servant,]
Oh. 33 does nob apply and, secondly,!
that the Code does not enact that the
powers of tho High Court in the matter
of a reference are co-extensive with those
in an appeal under S. 449. There is a
difference and though it may not be
justifiable on principle yet the Code
remains and must be strictly followed.
I think, therefore, that the ordinary rule
with regard to references must be followed
and that we ought nob to interfere unless
we are sitisfied that the verdict was not
reasonable.
The result is that after giving due
weight to the verdict of the jury and the
opinion of the learned Sessions Judge,
and af ier considering the enfcire evidence,
we must disagree with the verdict o{ the
majority of the jury and hold that the
accused Bilgrarai committed criminal
breach of trust on the 8th April in respect
of a sum of Rs. 1,300 and on the 14th
June in respect of the sum of Rs. 406,
that he committed the offence of falsifica-
tion of accounts on or about the 10th and
14th June by making false entries in the
cash-book, and that he also committed
the offence of forgery in respect of these
entries.
Bilgrami is, therefore, guilty of an
offence under Ss. 406, 477A and 465 of
the Indian Penal Code respectively. As
for Alimuddin be clearly assisted Bil-
"(1) A. J* R: 1923 Patina 474.
1926
BAMBIBICH v. KING-EMPEROR
Patna 569
grami in committing the offence of
•criminal broach of trust and he is guilty
of abetment of an offence under S. 406
read with S. 109, Indian Penal Code.
His defence that the sums were made
over to Pearey Sahib is proved to be
false, and having regard to the circum-
stances the inference is irresistible that
he made over the money to Bilgrami and
that he knew that Bilgrami intended to
misappropriate it. (Then his Lordship
discussed evidence as to the sum of Es. 10
and held that; the finding of the majority
of the jury should not be disturbed
and proceeded). I, therefore, think vthat
whatever our own opinion may be the
verdict of the majority of the jury should
not be disturbed in regard to the charge
tinder S. 406 of the Indian Penal Oode
tinder this head.
The alteration of the receipt was cer-
tainly wrong and Bilgrami should not
have ordered Badri to make in the body
of it an interpolation purporting to have
been made in the handwriting of Abdul
Jalil. But if the money was in fact paid
for Pearey Sahib it cannot be said that
the interpolation was made with a
fraudulent or dishonest purpose.
The same considerations apply to the
charge under S. 477Aof the Indian Penal
Code. Bilgrami must, therefore, bo
acquitted of the charge under Ss. 465 and
477-A of the Indian Penal Oode in respect
of the sum of Bs. 10.
It remains to consider what orders
should be passed by us in this case. The
learned Sessions Judge's charge to the
jury is so careful and complete that no
room is left for any complaint of mis-
direction or non-direction. A re-trial
•cannot, therefore, lie ordered, and it is
our duty to convict the accused Maulavi
Saiyid Zahir Haider Bilgrami of the
offence of criminal breach of trust under
S. 406 of the Indian Penal Oode in respect
of the sums of Bs. 1,300 and Bs. 406, also
of the offence of committing forgery under
S. 465 in respect of the false entries in
his cash-book in respect of the sum of
Bs. 1,300, also of the offence of falsifica-
tion of accounts under S. 477A of the
Indian Penal Oode in respect of the sums
of Bs. 1,300 and Bs. 406.
He is acquitted of all the remaining
•charges. The accused Alimuddin alitfs
Ansar Hussain alias Allan must be con-
victed of the offence of abetment of cri-
minal breach of trust under S. 109 of the
Indian Penal Oode read with S. 406 of
the Indian Penal Oode in respect of the
sum of Bs. 1,300 and Bs. 406. With
regard to the sentence to be passed on
Maulavi Saiyid Zahir Haider Bilgrami
we take into account his good service
during the period of employment in the
District of Darbhanga as well as the
social and official ruin which will follow
upon a sentence of imprisonment, and
the fact that he has already suffered so
much anguish of mind that he made an
attempt upon his own life. The learned
counsel who has represented him before
us has said everything that could possibly
have been said on his behalf but it must
be remembered that he was entrusted
with public funds and that he has endea-
voured to place the blame on two
perfectly innocent men.
The order of the Gourt is that he be
sentenced under S. 406 of the Indian
Penal Oode to rigorous imprisonment for a
period of two years. We pass no sentence
in respect of the other charges of which
he has been found guilty. As for the
accused Alimuddin alias Ansar Hussain
alias /Ulan, he appears to have been a
mere tool in Zahir Haider Bilgrami's
hands and the order of tho Court is that
he be sentenced under S. 109 of the
Indian Penal Oode read with S. 406 of
the Indian Penal Oode to rigorous im-
prisonment for six months.
Reference accepted.
A. I. R.I 926 Patna 569
DAWSON-MILLER, 0. J., AND FOSTER, J,
Rambirich Ahir and another — Accused
— Petitioners.
v.
King-Emperor — Opposite Party.
Criminal Bevision No. 386 of 1926,
Decided on 15th July 1926, from an order
of the S. J., Saran, D/- 10th May 1926.
Criminal P. C., 8. 109 (a)— Cl. (a) I* not limi-
ted to cases where the accused has not been arres*
ted, nor is It necessary to prove a continuous
effort at concealment— Mere effort to run away
on the approach of police *s not sufficient —
Whether a particular case < falls within CL (a)
depends on the facts of that case.
The application of clause (a) cannot be
limited only to cases where a person has not
bean brought under arrest, nor is it necessary in
all oases to prove that the accused has followed
a continuous coarse of eonduct in takln
-r.70 Patna
EAMBIRICII v. KING-EMPEKOR (Dawson-Miller, 0. J.)
1926
precautions to conceal his presence : 22 C.U'. N
103 atid 41 C.L.J. 142, Dissented from.
A person, whether he bo of good or bad char-
actor, who merely shows a disinclination for tho
society of the police and endu.ivourd to avoid
them by running away on their approach can-
not be .said to come within the mischief aimed
at in Cl. (a).
Ifc is certainly undesirable to lay down any
general principles as to tho conditions which
would bring a case within tho purview of the
clause, for tho circumstances which may arise
are so multiple aud various, but there must be
HOHI.J definite attempt at concealment by taking
precautions with that object in view, whether it
bo by disguino or otherwise, indicating a desire to
hide tho fact that the accused i° present within
tho local limits of the Magistrate's jurisdiction,
Tho clause is ono which should bo used with
proper discretion and was never intended to
apply to a person merely found talking at night
time with b-td character in a place which is open
to tho public, [P 571 C 1, 2]
Jaftir Imam — for Petitioners.
//. fj. Nandkeolijar — for Crown.
Dawson-Miller, C. J,— This is an
application in revision seeking to sot
asid') an order of tho Sessions 'Judge of
Saran dismissing an appeal from tho
Deputy Magistrate.
Tho petitioners Rambirich Ahir and
Mosafir were brought before the Deputy
Magistrate under S. 100 of tho Code of
Criminal Procedure on tho iMth April
la^fc and wore each ordered *to execute a
bond of Ifo. L'OO with two sureties
of Rs. 100 each to be of good
behaviour for ono year. An appeal to
the Sessions Judge was dismissed on the
lOfch May.
Mr. Jafar Imam now appears on behalf
of the petitioners and asks us to sot
aside the order on the ground that tho
facts proved do not bring tho case with-
in the .provisions of 8. 109. The section
enables tho Magistrates there enumera-
ted to call upon persons to show cause
why they should not be ordered to exe-
cute a bond with sureties for their good
behaviour. The circumstances under
which tho Magistrate may take action
are set out in Cls. (a) and (b) of the sec-
tion. He may act on receiving informa-
tion : *
(a) That any person is taking precautions to
conceal hi* presence .within tho local limits of
such Magistrate's jurisdiction, and that there is
reason to believe that such person is taking such
pipcnut:ons with a view to coinmittirjg any
offence ; or
(b) That there is within such limits a perse n
who has i o ostensible means of subsistence, or
who cannot give a satisfactory account of him-
self.
• The facts proved in so far as they are
material appear from the judgrpent of
the Sessions Judge and are as follows :
On the 15th March last a constable o!
the Ekma police-station was deputed to
go round on night duty at villages
Chainwa, Charwa and Rasulpur. H&
took two chaukidars and a daffadar with
him, and at about 9-30 p.m. went to a
bagicha, a short distance away from
Chainwa railway station, on hearing soft
voices. There they found about a dozen
men armed with lathis, danta and bhalas
talking to one another. On being accos-
ted by tho constable they began to run
away. An alarm was raised and the
men began to use their lathis. The con-
stable and his men, however, warded off
the blows and it does not appear that
anybody received any injury. With tho
help of villagers who came upon tho
scene they managed to arrest four per-
sons including the two petitioners. The
petitioner Mosafir was carrying a spear
and Rambirich carried a danta which, I
understand, is a stick of any kind less
formidable than a lathi. They gave
their names but apparently not correct
addresses These, however, were sup*
plied later.
Rambirich lives at Rasulpur within
the local limits of tho Magistrate's juris-
diction. Mosafir lives at Maharajganj.
Mosafir was unable to give a satisfactory
account of himself and was dealt with as
coming within 01. (b) of the section. So
far as he is concerned tho learned coun-
sel who appeared on his behalf was
unable to suggest any valid reason why
the order should be set aside and ac-
cordingly the application in his case
must be dismissed.
With regard to Rambirich it was
shown that he and his father had 'cerjjain
property at Rasulpur and that he wafir
engaged in a law suit in connexion there-
with. He stated that he was going to
Chapra to get copies of certain documents
in connexion with the law suit and was
arrested by the constable and the chau-
kidars at Ghainwa railway station. This
was not quite accurate as the place where
he was arrested was some distance from
the station. He was able, however, to-
give a satisfactory account of himself and
was not a person of no ostensible means
of subsistence so that 01. (b) of the
section was not applicable in his case.
He was, how&ver, found by the Magis~
1526
EAMBIRICH v. KING-EMPEROR (Dawson Miller, C. J.) Patna 571
trate to come within the provisions of
01. (a).' Before a person can be ordered
to'execute a bond under 01. (a) it must
be sbown tbat he was taking precautions
to conceal his presence within the local
limits of the Magistrate's jurisdiction and
further, that such precautions were
taken with a view to committing some
offence. The offence is not definitely
stated but it appears from the evidence
of the Sub-Inspector that Eambirich was
reported to be a had character. It does
not appear, however, that he was ever
convicted of any crime. Ho called some
witnesses who spoke to his character
but apparently their evidence did not
impress the Magistrate.
It was contended on behalf of Ram-
birich that a mere momentary effort at
concealment in order to avoid detection
or arrest was not sufficient to bring tho
ease within CI. (a) of the section but that
there must bo some continuous course of
conduct sliowing that the suspect was
taking precautions to conceal his
presence within tho local limits
of the Magistrate's jurisdiction. In
support of this contention the caso
of Reshu *Kaciraj v. King'Eviperor
(l) was referred to in which Sarasul
Huda, T., is reported to h.vvo said that
in his opinion 01. (a) of S. 101) rofor.-, fco a
continuous act and does not therefore
apply to a case whore there is a momen-
tary effort at concealment to avoid
detection or arrest, and further that that
clause cannot apply to the case of a per-
son brought under arrest, i'oi it Cannot
be said of such a person that ho is taking
precautions to conceal his presence.
That case was referred to with approval
in a later case of the same High Court,
Sheikh Pirn v. King-Emperor (2).
•I am not prepared to go so far as to
limit the application of the clause to
oases where a person has not been
brought under arrest. A reference to
S. 55 of the Act shows that an officer in
charge of a police-station may arrest any
person found taking precautions to con-
ceal his presence within tho local limits
of such station under circumstances
which afford reason to believe that he is
fcaking such precautions with a view to
committing a cognizable offence, or any
person who has no ostensible means of
subsistence, or who cannot ^ivn a satis*
(if ~^^^G^^ri^^^i7^^.
(2) A. I. B. 1925 Gal. 61C.
factory account of himself. If it is to
be held that after he is onco arrested and
brought before the Magistrate no action
' can be taken under S. 109 (a) on the
ground that the arrested person is no
longer taking precautions to conceal his
presence, there would appear to be little
object in allowing him to be arrested at
all, for the only manner in which he can
be dealt with is under S, 109, and a large
proportion of the cases dealt with under
that section are cases where tho person
has already been arrested. Nor am I
prepared to say that it must in all such
cases be proved that the accused has
followed a continuous course of conduct
in taking precautions to conceal his pre-
sence. I consider, however, that a per-
son, whether ho be of good or bad chrar-
acter, who merely shows a disinclination
for tho society of the police and endea-
vours to avoid them by running away on
their approach cannot bo said to come
within tho mischief aimed at in 01. (a).
Now, apart from tho fact that the
potititioner and 1m companions endea-
voured to run away from the police there
is practically nothing in this case which
caa be said to shew fcnat tho petitioner
JUmbirich was taking precautions to
conceal his presence. The fact that ho
was found Ji£ half -past nine at nighfc
talking to a number of other men, sonui
of whom aro proved to have been persons
of bad character, in a bagicba close lo a
public railway station is, hi my opinion,
no evidence that ho was taking preeau-
tions to conceal his presence. It is per-
haps impossible, it is certainly undesir-
able, to lay down any general principles
as to the conditions which would bring a
case within the purview of the clause,
for the circumstances which may arise
are so multiple and various, but I, think
it may be said that there must be some
definite attempt at concealment by
taking precautions with that object in
view, whether it be by disguise or other-
wise, indicating a desire to hide the fact
that the accused is present within the
local limits of the Magistrate's jurisdic-
tion. The clause is one which should be
used with proper discretion and was
never intended to apply to a person
merely found talking at night time with
bad characters in a place which is open
to the public.
I am unable to find tbat in the circum-
stances proved the petitioner Eambirich
572 Patna BAM LAGAN SINGH v. MBS. MAHY COFFIN (Adami, J.)
1926
was taking any precautions to conceal
his presence. The orders of the Magis-
trate and of the Sessions Judge must be
set aside and the petitioner Rambirich
who has been unable to find securities
and is at present in prison must be re-
leased.
Foster, J.— I agree.
Application allowed.
A. I. R. 1926Patna 572
ADAMI AND MACPHEIISON, JJ.
Ram fjayan tiinyh and others — Ap-
pellants.
v.
Afrs. Mary Coffin and others — Res-
pondents.
Appeals NOB. 318 and 319 of 1924,
Decided ontlith August 192(>, from ap-
pellate decrees of the Dist. J., Muzaffer-
|)ur, D/- 20th July 1923.
Tranter of Property Act, S. 6.3— Mortgagor
allowing mortgagee to remain In possession of
the accession at occupancy tenant — Subsequently
mortgagor cannot clalir as accession.
Under 8, C3, if the mortgagor desires to have
possession of accession, ho should, on the expiry
of the mortgage, tundor to the mortgagee the
coata incurred by him in making the acquisi-
tion*, Jf tho mortgagor never treats tho lauds
an accession or m.ikas any claim and allows tho
mortgagee to remain in possession of tho lands
as occupancy raiyat, he cannot subsequently
olaim thu accessions. [P. 574 C. 2J
L. N. Singh and Sambku Sarau — tor
Appellants.
S. Hasati Imam, S. K. Mitra, Khur-
shed Hussain, S. M. Mullickbnd Sultan-
ud'din Hussain — for ^Respondents.
Adami, J.— These two second appeals
arise out of a suit in which the plain-
tiffs, as proprietors of Mouza Nawtanwa,
fiou;<ht for reoovory of possession of cer-
tain lands in the village from tho defen-
dants 1st and 3rd parties. The village
was in 16-annas mokarari istimrari of
three persona who. in 1902, granted a
aadhaua pataua lease to Defendant No. 1
who was the owner of the Bhasu-
rari factory, and who is now represented
by his wife, Mrs. Coffin. In 1907 the
plaintiffs purchased the mukarrari share
but Defendant No. 1 continued in pos-
session under the sadhaua pataua up to
1319 ; that is to say, 1911—1912. When
the period of the sadhaua pataua lease
bad expired in 1320 the plaintiffs granted
to Defendant NJ. 1 a simple lease from
1321 to 1327. After the expiry of this
lease in 1327 the defendant gave up
• possession of the lands leased with the
exception of the lands, which are the
subject of the suit. These lands were
divided into six different clauses in the
schedule to the plaint.
Schedule IKh was shown in the Settle-
ment Record to be tho kasht lands of the
factory, Schedule IKh was entered as
the shikmi lands of the defendants
2nd party as under-tenants of the factory
and Schedule 16r was shown as the kasht
of the defendants 3rd party, Schedule
27C was shown as the kasht of the factory
and gaiimazrua : Schedule %Kh was
entered as the kasht of the defendants
3rd party and Schedule 2$ as the gair-
ruazrua lands of tho factory. It is tho
plaintiffs' case that on the expiry of the
lease the defendants should have given
over these lands to the plaintiff. It
appears that Mr. Goffin had held a lease
of tho village previous to 1902 when he
obtained tho sadhaua lease. Tho defen-
dants did not contest -the plaintiffs'
claim to Schedules 2K ,tnd 2(3 lands for
they admitted them to be the gairrnazrua
lands of tho plaintiffs wrongly8*reoorded in
the name of fcho defondant-j so that with
regard to these lands there is no appeal
for both tho Courts below have found
that tho defendants had no olaim to
them.
Defendant No. 1 in his written
statement claimed that 11'42 acres had
been purchased by him with the consent
of tho landlord, who had registeed his
name in his shorista, whilo all tho rest
of the lands in fchat schedule and the
lands in Schedule IKh had been acquired
by him by purchase in Court sales in
the execution of rent-decrees against
different tenants, and that he had been
in possession of all these lands, either
himself or through his sub-tenants, ever
since the purchase, and had acquired the
right of occupancy, which the plaintiffs
had admitted by their pafcta dated 1322
F.S. The lands in Schedule 1C? of the
plain* had been settled by Defendant
No. 1 with tenants after the abandon*
ment of surrender of the lands by previ*
ous, tenants ; the lands in Schedule 2 Kh
had been in possession of the tenants from
before the time when Defendant No.l
had received the lease of the village and
thev had their houses on these land*.
BAM LAGAN SINGH v. MBS. MARY OOPFIN (Adami, J.) Patn* 57£
1926
' It was the plaintiffs' case that on the
expiry of the lease they settled tenants
on the lands and that, when these
tenants sought to cultivate the lands
there was opposition resulting in crimi-
nal proceedings in which the men of the
plaintiffs were convicted, and this gave
rise to the present suit.
The Courts below havo found that
this allegation of the plaintiffs was not
true, and that the defendants havo been
in possession of these lands all the time
up to the date of the suit. This finding
has not been contested before this Court.
The learned Subordinate Judge found
that the purchase of holdings made by
Defendant No. 1 having been made before
1907, when 8. 22 of the Bengal Tenancy
Act was amended defendant would
acquire occupancy rights in those lands,
and that the consent of the plaintiffs
or of their predecessors-in-interest
would not be necessary to validate those
purchases. Defendant No. 1, there-
fore, had * acquired tho right of
occupancy in the lands, or, at any
rate, a non-occupancy right.and that
the plaintiffs' suit with regard to these
lands would be barred by limitation.
This finding related to the lands in
Schedule IK and Schedule IKh, for the
lands in Schedule IKh are really the
raiyati lands of Defendant No. 1 put in
shikmi possession of the under-tenants,
the defend ints 2nd party.
With regard to the lands in Schedule
IG and Schedule %Kh in possession of the
defendants 3rd party, with regard to
which defendant No. I asserted that he
had made settlement with the defendants
3rd party after .surrender or abandon-
ment by the tenants of the holdings, the
learned Subordinate Judge has found
that as the settlement was made in 1914
the defendants 3rd party could not have
acquired the right of occupancy in them.
He, however, did not come to any find-
ing with regard to the right of the plain-
tiffs to eject the defendants 3rd party
•;^s being non-occupancy raiyats. He
decreed the suit in part as against the
defendants 3rd party as regards all the
lands in Schedules 1O and ZKh. With
regard to the gairmazrua lands in
Schedule 2Kh he found that Abdul
Karim Sani had failed to prove that
these defendants had been recognized by
the landlord or that he had obtained the
eonds from Plaintiff No. 19. With
regard to the lauds in all the Schedules
other then IG, and %Kh and the lands
Schedules 2£ and 2G, the learned Sub-
ordinate Judge dismissed the plaintiffs'
suit.
Two appeals were filed against this
judgmeat : one was by the defendants ^rd
party and the other was by tho plaintiffs
and there was cross-appeal by Defendant
No. 1 regarding the costs allowed to tho
plaintiffs with respect to tho lands in
Schedules ZK and 2G. The learned
District Judge found that the lands of
Schedules 17t and IKh had been acquired
by Defendent No. 1 in or before 1905
and that thus he had acquired a right of
occupancy. He considered the argu-
ment that the sadhaua pataua was-
a mortgage and not a lease and that
Defendant No. 1 could not acquire
rights for himself while he was a mort-
gagee, but must pas3 on the benefit of
all accessions of the property to tho
mortgagor on the expiry of the mort-
gage ; but he oamo to a finding that the
sadhaua pataua was not a mortgage but
a lease of lands for a fixed period, and he
remarked that the point had not been*
raised before the Subordinate Judge.
The chief reason why the learned Sub-
ordinate Judge allowed the claim of the
plaintiffs against the defendants 3rd
party was that they had failed to show
that they were settled raiyats of the
village such as they claimed to be>
because they had failed to produce the
Cadastral Survey khatian to show that
they held occupancy "rights in the village.
On appeal, however, these defendants
produced tho Cadastral Survey khatians
which the learned District Judge exa-
mined and allowed to be taken in evi-
dence, and from the entries in those
khatians he found that as a fact four of
the defendants 3rd party, namely, Isrnail,
Muharram, Walayat and Abdul Karim
were settled raiyats of the village and
had acquired occupancy rights in the
lands held by them, whereas the defen-
dants Thakur, Bamdat and Bindesari,
who had not produced any \ Cadastral
Survey khatians failed to prove that they
were occupancy raiyats. He, therefore,
allowed the appeal of the four defen-
dants I have named and dismissed the
appeal of Thakur Bamdat and Bindesari.
The result then was that the plaintiffs'
appeal was dismissed and the appeal of
the four members of the defendants 3rd
£74 Patna BAM LAGAN SINGH v. MRS. MARY COFFIN (Adami, J.)
1926
party was allowed. The cross-objection
of fche defendants 1st party regarding
the CDsfcs in respect to the lands in Sche-
dules 2K and 2G was allowed, the
District Judge holding that since the
defendants 1st party had never assorted
any claim to those lands, they should
not be subjected to costs.
The first point taken is that the
defendants 1st party failed to show
which lands were purchased at auction
flales and which were surrendered
and abandoned, it being
contended that in any case the lands
surrendered or abandoned would have
to go back to the landlords on the expiry
of the lease.
Now looking to the written statement,
it was found that Defendant No. 1
averred that none of the lands in Sche-
dule IK or IKh were lands which were
surrendered or abandoned. The lands
in Schedule IG had been settled by
Defendant No. 1, after their abandon-
ment, with the defendants of the 3rd
party. The plaintiffs failed to show,
as far as one can see from the judgments
of the lower Courts, that any of tho
lands in Schedule IK or IKh, were
lands which had been surrendered or
abandoned by the tenants and taken into
possession by Defendant No. 1. With
regard to the lands in Schedule IG, it
has been found by the lower Court that
the tenants with whom these lands were
settled by Defendant No. 1 were settled
raiyats of tho village and having ac-
quired an occupancy right they could
not bo ejected.
The next contention was that the
sadhaua pataua was really a mortgage
and not a lease as found by the District
Judge. Being a mortgage, it is argued
that the Defendant No. 1 was bound to
make over to the landlord nil the lands
which he had acquired by abandonment,
surrender, or purchase on the expiry of
his sadhaua pataua lease.
Now with regard to this : after looking
at the sadhaua pataua, I am of opinion
that it was in reality a mortgage. The
executant of the document states that
he is in need of money and, therefore,
" I mortgage 8 annas of the pataua pro-
perty in security of Bs. 4,500." Under
the terms of the sadhaua pataua prin-
cipal and interest were to be satisfied
out of the rents and profits. But even
eo, the point was not taken in the trial
Court that the plaintiffs were entitled
to all accessions, and, furthermore, when
the sadhaua expired in 1912, the plain-
tiffs made no claim to the accessions nor
did they offer to pay to the mortgagee
the expense of acquiring the accessions ;
they in fact allowed Defendant No. 1 to
remain in possession of the lands as an
occupancy raiyat. Under S. 63 of the
Transfer of Property Act, if the plain-
tiffs had desired to have possession of
these lands acquired by Defendant No, 1,
they should, on the expiry of the mort-
gage, have tendered to Defendant No. 1
tho costs incurred by thorn in making
tho acquisitions. Tho plaintiffs never
treated tho lands as accessions or made
any claim. Under th'e conditions of the
sadhaua pataua there was really no
redemption. The debt and interest
were paid out of the rents and profits,
and when tho term had expired, the
whole of the principal and interest had
been paid ; so that oven if the sadhaua
pataua was a mortgage, the plaintiffs
cannot now come forward and claim the
lands acquired by Defendant No. 1
before 1907.
Tho next contention is that the learned
District Judge was wrong in allowing
the Cadastral Survey khatian to bo filed
during tho appellate stage, and that there
Tvas no reason to permit the additional
evidence. The learned District Judge
gave reasons for admitting the evidence
and they seem quite sound. It was
necessary to determine the point whether
the defendants 3rd party were in fact
settled raiyat 3, and tho evidence was
wanting. But Mr. Lachmi Narayan
Singh points out that Exs. L to L-4,
which the District Judge says are
Cadastral Survey khatians are in fact
Revisional Survey khatians and cannot
help the defendants 3rd party. It seems-
that the learned District Judge made
some mistake in referring to the Cadas-
tral Survey khacians as Exs. L to L-4.
There are Cadastral Survey khatians on
the record which show that the four
defendants of the 3rd party or their
ancestors held occupancy rights in the
village with regard to other lands and
thus they are settled raiyats. It was to
these other papers that the learned
District Judge was evidently referring,
but he made a mistake in calling them
Exs. L to L-4. There is no doubt in
my mind that the District Judge, as be
1926
RAMLAKHAN v. DHARAMDEO (Bucknill, J.)
Patna 575
stated, saw the Cadastral Survey khati-
ans showing these defendants to be
settled raiyats.
I see'no reason to find that the deci-
sion to which the District Judge has
come is wrong, and I would, therefore,
dismiss both the appeals with costs.
Macpherson, J.— I agree to the
order proposed.
Appeals dismissed.
A. I. R 1926 Patna 575
BUCKNILL, J.
Ramlalchan Pande— Petitioner.
v.
Dharamdeo Misir — Opposite Party.
Civil Eevision No. 185 of 1926, Deci-
led on 16th June 1926, from an order of
ihe Small Cause Court J., Arrah, D/- 17th
March 1926.
(al Evidence Act, S. 45 — Evidence of Finger
Print Expert as to age of thumb Impression op-
posed to rfqp on the document — Court should be
oareful to accept expert opinion.
A Court should bo very cliary in accepting an
opinion of Firmer Print Expert as to the age of a
bhumb mark as fixing the date of the documeut
when such date is markedly opposed to the date
which appears upon the dopument itself so long
&s no serious extraneous testimony controverts
khe date which appears on the document.
[P. 575, C. 2]
(6) Provincial Small Cause Courts Act, S. '25—
Failure to forthwith apply In revision on Inter-
locutory order does not bar the right to apply wtien
the case is over— -Civil P. C., S 115.
Where a Small Cause Court Judge refuses to
aummon witnesses, the aggrieved party can forth
with apply in revision against that order, but
his failure to do fio does not bar his right to ai^
ply in revision when tho case is over. [P ,576 C. J]
B. P. Varma — for Petitioner.
Naioadip Ch. Ghose — for Opposite
Party.
Judgment. — This was an application
in civil revisionai jurisdiction made under
the provisions of S. 25 of the Provincial
Small Cause Courts Act. The facts in
the case were very simple. The plain-
tiff "brought a suit against the present
applicant on a hand note for Bs. 400 al-
leged to have been executed by the ap-
plicant in favour of the plaintiff on the
llth November 1923. The suit was
brought on the 13th November 1925.
The defence was in effect that the thumb
impression of the defendant had been
taken on a blank piece of paper by the
maliks of lands which he cultivated on
bhaoli rent for the purpose of converting
such rent into naqdi rent and that the
plaintiff succeeded in some way or other,
in collusion with one Kanahya Lai, who
was a servant of the maliks, in turning
this blank thumb marked paper into a
hand-note.
The Small Cause Court Judge found in
favour of the plaintiff and decreed the
suit. The applicant has put forward
two points in respect of which he claims
that this Court should exercise its re-
visional jurisdiction.
I will take the second point first. The
learned vakil suggests that, although the
plaintiff's case was that the hand-note
was executed in November, 1923, yet,
when giving evidence in March 1926,
the Finger Print Expert, who was called
for the plaintiff, deposed that the thumb
impression might be five years old or
more. The learned vakil suggests that,
under such circumstances, such a state-
ment would throw considerable doubt
upon the date attributed to the hand-
note by the plaintiff and would support
the applicant's claim that the actual
date on which the thumb impression had
been placed upon a blank piece of paper
was of a date considerably anterior to
November 1923. I do not think there is
much force in this contention ; for if the
evidence of the linger Print Expert is
examined, it will be observed that he
frankly admits that there is doubt as to
the age of the thumb impression : and,
indeed, I should bo very chary in accept-
ing an opinion as to the age of a thumb
mark as fixing the date of the document
when such date is markedly opposed to
the date which appears upon the docu-
ment itself so long as no serious extra-
neous testimony controverts the date
which appears on the document.
Now, the first point which is put for-
ward by the learned vakil who appears
for the applicant has considerably greater
force. It appears, as I have said, in the
first instance, that the suit was com-
menced on the 30th November 1925, and
that the 8th January was fixed for its
disposal. On that date the defendant
was present : he filed his written state-
ment : the plaintiff prayed for time and
the matter was adjourned to the 25th
January and it was directed that the
parties should be ready with their evi-
dence on that date. On the 9th January
the plaintiff filed his list of witnesses and
diet expenses and it was directed that
summonses should issue to these wit-
nesses at onoe. On the 16th January
defendant filed his list of witnesses :
576 Patna
BAMLAKHAN v. DHABAMDEO (Buoknill, J.)
192&
according to his list he desired to examine
four persons : the defendant at the same
time filed the diet expenses.
Now for some reason or other, which
is not altogether very clear to me (un-
less it be as is suggested by the learned
vakil, who appears for the opposite party
here, that it is customary to expect that
at least a fortnight's notice is given by
parties wishing to summon witnesses) the
Small Cause Court Judge did not make
any order as to summoning the defen-
dant's witnesses on his application : wha
he did do was to say ; ' Put up on the
data fixed as it is near. " On the 25th
January no summonses had been issued
by the Court to the defendant's wit"
nesses and the defendant asked for an
adjournment which was refused. Then
the Judge passed an order to the effect
that the defendant had applied too late
on the 16bh January and that he (the
Small Cause Court Judge) would not is-
sue any summonses to the defendant's
witnesses. The case then proceeded and
the defendant did what he could. He
examined himself and one witness whom
he had succeeded in obtaining, but the
other three were not present as no sum*
monses had been issued to them. The
plaintiff's efforts, as I have said, were
unsuccessful, but he now complains, and
I think with some justification, that
under the circumstances the Small Cause
Court Judge was at fault in acting as he
did. After all, the defendant did put
forward a bona fide list of witnesses on
the 16th whatever rule of practice there
may be in the mofussil as to the period
which must exist between the filing of
the list of witnesses and the date fixed
for hearing.
We find that, as a fact, the case did
not conclude until the 17th of March
and there was in my view ample time
for the Small Cause Court Judge to have
issued the summonses to the defendant's
witnesses even without, on the 16th, con-
templating an adjournment of the date
of the hearing itself which, as I have
said, was fixed for the 25th of January.
Under these circumstances I have come
to the conclusion that justice has no
been done to the defendant.
The principles upon which trial Courts
should be governed with regard to the
issue of processes to witnesses may be
seen in such cases aa Bhagwat Das
Debi Din (I) and Jadunaudan Singh v.
Sheonandan Prasad Singh (2).
The learned vakil who has appeared
here for the opposite party has ingeni-
ously suggested that the proper course
for the applicant to have taken was to
have applied in revision to this Court
immediately after the brder of the 25tb
January, when, for the first time it seemed
clear that the Small Cause Court Judge-
refused definitely to summon the defen-
dant's witnesses, I think that it is pos-
sible that ho might have applied then
and there : but I do not know of any rea-
son why he should not now apply, as he>
has done" after the case is over. There-
are sometimes advantages in applying to
this Court in an interlocutory matter
but there is also obviously at times some
disadvantage; if applications in revision
were forthwith made in every case where
it was thought that part or thAwhole of
an interlocutory order of the trial Court
was wrong this Court would be inun-
dated with a vast number of applications
with which it would be praactically im-
possible to deal. . At any roter no auth-
rity has been quoted to me, and I am
satisfied that there is probably no good
authority, for the suggestion that it is
not possible now for the applicant to-
raise this point in revision before me.
Having, therefore, come to the con-
clusion that the Small Cause Court Judge
has acted illegally and to the serious
i^ejudice of the applicant in refusing to
summon his witnesses I think that the
only course properly to bo adopted will
be to send the matter back for a ro-trial.
As Mr. T. D. Mukherji, the Subordi-
nate Judgeof Arrah, sitting as a Small
Cause Court Judge has already tried and
decided the case, I think that it would
be undesirable that he should deal with
it again as he must perforco have made
up his mind to a large extent upon the
merits of the action. Under these cir-
cumstances, therefore, the case must be
re-tried by another competent judicial
officer possessing the powers of a Small-
Cause Court Jud^e. The judgment,
therefore, of the Small Cause Court Judge
of the 17th of March last will be set as-
side and the case remanded for re-hear-
ing in accordance with the directions
given above.
Caw remanded.
(1) [1894] 16 All. 218=(1K94~) A. W. N. 45.
(2) A. I. R, 19*2 Pfttoa 27d=l Pat. 644.
1926
KESHO PRASAD v. KIRTABATH (Dawson-Miller, 0. J.)
Patna 577
A. I. R. 1926 Patna 577
. DAWSON-MILLER, 0. J.,AND FOSTER, J.
Kesho Prasad Singh— Plaintiff— Ap-
pellant.
v.
Kirtarath and others — Defendants —
[Respondents.
Second Appeals Nos. 294 to 316 and
360 to 374 of 1923, Decided on 13th
July 1926, from a decree of the Sub-J.,
Shahabad, D/- 15th December 1922.
(a) Bengal Regulation (11 of 1793)— EC-adjust-
ment of revenue does not confer new title.
Where a permanently settled estate is sub-
jected to re-adjustment of revenue under Regula-
tion 11 of 1793 on account of additional areas
coming into cultivation, that does not amount
to new settlement enforcing new title.
[P 579, C 2]
(6) Evidence Act, S. 40 — A judgment ts not
evidence against persons not parties to It — It
ts admissible only in so far as It shows assertion
ef title made therein.
A judgment^ not being a judgment in rem, is
not admissible in evidence against those who
are neither parties to it nor derive title through
such parties as proof of the facts determined
therein. At the most it is admissible as an
assertion of title claimed in that suit.
[P 579, C Ij
Z/. N. Singh , N. N. Sink a and Sunder
Lai — for Appellant.
P. Dayalt Murari Prasad and S. N.
Bose — for Kespondents.
Dawson Miller, C. J.— These 38
appeals which were heard together
arise out of suits instituted by the ap-
pellant, the Maharaja of Dumraon, as
proprietor of an estate in Shahabad
known as Sheopur Diar Naubarar, or
more shortly Naubarar, against the pro-
prietors of the adjoining estate known as
Sheopur Gangbarar Janubi, or Gang-
barar, and certain tenants whose hold-
ings^ it is alleged, lie partly within one
and partly within the other of those
t'wo estates,
Fifty-one such suits in all were in-
instituted inJSeptember 1920, and were
tried together before the Munsif of
Buxar. The object of the litigation was
to establish the appellant's title to a
certain defined area of each of the hold-
ings in question appertaining to his
estate of Naubarar and to obtain an ap-
portionment between himself and the
neighbouring proprietors of Gangbarar
of the rent payable by the .tenants of
those holdings who for many years have
T>/«7Q Jr »JM
been paying the entire rent to the Gang-
barar maliks. He also claimed from the
tenants arrears for the four years before
the suits of so much of the rent as was
proportionate to the area of their hold-
ings which he contended fell within his
estate.
Various defences were raised by the
respective defendants in the suits and
were dealt with by the third Court, but
for the purposes of this appeal two mat-
ters only remain for consideration.
They concern the title of the appellant
and a question of limitation.
But these questions were questions of
fact and both were decided in favour of
the respondents by the Subordinate
Judge of Shahabad on appeal from the
Munsif, and the findings of fact of the
lower appellate Court are binding on
this Court unless it can be shown thafc
the learned Subordinate Judge has erred
on some point of law material to the
decision.
In the trial Court the plaintiff suc-
ceeded, or partly succeeded, in 13 of the
suits. Of the rest, three were with-
drawn with permission to sue afresh and
the others were dismissed.
Prom the trial Court's decisions ap-
peals were preferred by the plaintiff in
23 cases to the Subordinate Judge of
Shahabad and ten appeals were preferred
by some or other of the defendants. Of
these two were remanded to the trial
Court for disposal in accordance with
the Subordinate Judge's directions and
the remainder were decided against the
plaintiff. The plaintiff has preferred
the present appeals, 38 in number, which
have been heard together the arguments
in each case being the same.
It appears that the lands comprised in
Naubarar and the vicinity, which are
diara lands, were at one time submerged
by the river Ganges which in that
neighbourhood is liable to change its
course, sometimes suddenly. In 1862,
owing to changes in the course of the
river in the preceding years, a large area
of land to the south of Gangbarar be-
came exposed as the river receded to the
northward with a consequent encroach-
ment on the lands of Gangbarar. '* This
newly exposed area was re-measured by
the Bevenue Authorities and a certain
portion was ic eluded in Gangbarar
whilst the remainder lying to the south
ward, said to measure some 2877 bighas
078 Patna KESHO PRASAD v. KIRTAKATH (Dawson-Miller, 0. J.)
1926
was formed into a new estate named
Naubarar with a revenue of Rs. 1,104
estimated upon the area then fit for
cultivation, said to measure 570 bighas.
This newly formed estate was also
settled with the proprietors of Gang-
barar. As both estates belonged to the
same proprietors the demarcation line
between them was a matter of small im-
portance at that time, and it is not im~
probable that the lands were settled
with tenants comprising an area partly
in one and partly in the other, which
is the plaintiff's case,
In 190 i, the revenue of Naubarar hav-
ing fallen into arrears, that estate was
advertised for sale by the Collector
under the revenue sale law and was
purchased by Maharani Beni Prasad
Kuar of Dumracn, the predecessor-in-
interest of the plaintiff. Subsequently
boundary disputes arose between the
plaintiff and the maliks of Gangbarar;
and in 1911 a suit was instituted by the
plaintiff against a number of the pro-
prietors of Gangbarar the object of which
was to obtain a judicial decision as to
the line of demarcation between the two
estates. That suit was afterwards re"
registered as Suit No. 4 of 1913. The
plaintiff succeeded in that litigation and
obtained a decree from the trial Court
in June 1918. That decree was adirmed
on appeal by the High Court in 1919,
and a further apneal to His Majesty in
Council was dismissed in January 1925.
The result of that litigation was to
establish, as against the defendants in
that suit, that the boundary line bet-
ween the two estates was that shown on
a map prepared by Mr. C. H. Parker,
the District Engineer of Arrah, a Com-
missioner appointed in the case. The
boundary so demarcated is the boundary
now, claimed by the plaintiff in the pres-
ent suit. In pursuance of this decree
obtained in the trial Court in 1926 the
plaintiff, in the same year, obtained
dakhildahani, or symoblical possession
of the area awarded to him in that suit ;
but it does not appear that he ever got
actual possession of the lands in dispute
in the present appeal.
In«1917 the revenue of Naubarar was
considerably increased by the Revenue
Authorities and settled for a period of
five years at a sum of Rs. 6,911 This
was due to the fact that the cultivable
area had materially increased since the
original Settlement of 1862. There can
be little doubt also that the Revenue
Authorities accepted as accurate the
boundary line determined by fhe pre-
vious litigation. It appears, however,
that Naubarar is spilt up into a number
of different pattis. It is stated that
there are 17 separate pattis and each
patti is sub-divided into several khewats
the proprietors of which appear to be in
possession of separate areas with a sepa-
rate collection of rent from the tenants.
The present respondents, as found by the
lower appellute Court, were not parties
to the previous litigation and contended
that they are not bound by the decree
passed therein or the dakhildahani
which followed it. They dispute the
boundary line as shown in Mr. Parker's
map and contend that the lands claimed
lie within the Gangbarar estate. They
also contend that they have all along
collected the rants as proprietors of
Gangbarar without interruption and
have in any case acquired title thereto
by adverse possession even if the lands
lie geographically within the plaintiff's
estate.
The learned Munsif who tried the suit
found that in certain cases the defendant
proprietors had been parties to the pre-
vious litigation in which the plaintiff's
title had baen decreed and that the
dakhildahani obtained in execution of
the decree was conclusive of the question
of possession against those parties, and
in such cases he found for the plaintiff.
With regard to those defendants who
were not parties to the previous suit he
held, and I consider rightly, that the
decree and dakhildahani were not bind-
ing on them or evidence of title or pos-
session in the plaintiff and, therefore, it
was for the plaintiff to establish his
title by other means than the production
of the decree. He found that, a'parfc
from the decree there was absolutely
no evidence on which the Naubarar lands
could be demarcated and, therefore, the
claim for an apportionment failed. He
further found that the plaintiff sincer
the inception of his title in 1904, had
never been in actual possession of the
lands claimed and that the defendants
had during that time been realizing the
rents and dealing with the lands as their
own. Therefore, whether the suit was
to be treated as governed by Art. 142 or
Art. 144 of the Indian Limitation Act
1926
KESHO PBASAD v KIRTARATH (Dawsou-Miller, 0, J.) Patna 579
the plaintiff's claim must fail even if he
should establish his title. He further
found that the enhancement of revenue
in L917 did not operate as a new settle"
ment creating a new title, but was
merely a re-assessment of Naubarar
whatever it might include.
On appeal, the Subordinate Judge of
Shahabad in the cases in which the defen-
dant-proprietors had appealed, reversed
fche trial Court's finding that they had
been parties to the previous suit and
found as a fact that they had not been
parties, or represented therein. This
finding is not, and cannot be, questioned.
In other respects in all the suits, with
the exception of the two which were
remitted to the trial Court for correction
of certain errors of apportionment which
have not been questioned before us, he
aftirmed fche trial Court's decision.
From that decision bhe present appeals
are preferred fco this Court. The ques-
tions argued before us are three in
number : (l) that the judgment in Suit
No. 4 of 1913 is strong evidence of the
plaintiff's title ; (2) that certain maps and
papers prepared by Government for
revenue purposes are admissible in evi-
dence and must be taken, as correct un-
less rebutted, and (3) that no question of
limitation can arise in face of the fact
that Government re-settled the lauds
with the plaintiff in 1917.
On the first point it is sufficient to say
that a judgment, not being a judgment
in rem, is not admissible in evidence
against those who are neither parties to
it nor derive title through such parties,
as proof of the facts determined therein.
At the most it is admissible as an as-
sertion ^ of title to the land claimed in
that suit.
On the second point it is to be ob-
served that the evidentiary value of the
documents referred to was weighed by
t'he trial Court and the lower appellate
Court who considered that they came
into existence as a sequel to the plain-
tiff's success in the previous litigation,
'and added little or nothing to the
authority of the decree in that suit and
ought not to be taken as binding on the
defendants who were not parties tliereto,
and, when weighed with the other evi-
dence in the case, the value of these
documents was small. It was also found
that the daurapanchsaia map (Ex, 12 in
<^e suit) which is much relied on by the
plaintiff was not supported by any evi-
dence to show that it in fact proved the
demarcation line between the two estates.
The plaintiff appears to have fallen
into the error of supposing that the
judgment in the earlier litigation would
be proof of the matters therein decided
and to have come before the Court in-
sufficiently supplied with evidence on
material points. It was for the lower
appellate Court to appraise the value of
the evidence on either side, and even if
we should on that evidence have taken
a different view, it is not open to us to
interfere on that ground alone. It is not
made out that the lower appellate Court
has contravened any law ar usage having
the force of law or erred in any matter
of procedure affecting the merits of the
case.
As to fche third point fche argument as-
sumes that a re- adjustment of revenue
is a new settlement conferring a new
title, but this is not sj. Naubarar estate
was settled permanently in 1862 at a low
revenue based on the existing cultivable
area. The same estate was sold to fche
plaintiff's predecessor in 1901. It was
subject to a re-adjustment of revenue, ag
additional areas came under cultivation,
ucider fche provisions of Regulation XI of
1793, and that is what happened in 1917,
There is nobbing fco show that a new
estate was settled wifch the plaintiff in
1917. The argument, therefore, fails.
Before concluding this judgment I
wish fco add fchafc the learned Subordinate
Judge considered that fche plaintiff had
failed fco prove his possession wifchin 12
years of fche suifc and fchafc on that ac-
count it was barred by limitation. Ef
Art. 142 of Limitation Act applies, his
decision on this point is correct. It is
by no means clear, however, that fche
suifc is founded upon dispossession of ^ the
plainfciff so as to attract the operation
of Art. 142. Paragraph 5 of the plaint
appears to refer to the lands claimed in
the previous suit, and is not an averment
of dispossession of the plaintiff by the
defendants of the lands now claimed.
In my opinion the proper article of the
Limitation Aofc is Art. 144, in which
case fche onus would be upon the defen-
dants to show that they had acquired
title by adverse possession. Although
the trial Court dealt with the case upon
the hypothesis that Art. 144 applies and
found that the defendants had been in
580 Patna
KIBTYA NAND v. BAMLAL (Boss, J.)
1926
possession for more than 12 years, the
learned Subordinate Judge on appeal did
not consider the case from this point of
view, although he does not differ from
the findings of the trial Court. If, how-
ever, it is found, as it was, that the
plaintiff has failed to make out his title,
then the defendants' possession cannot be
disturbed and the question of limitation
does not arise.
In my opinion these appeals must be
dismissed with costs. There will be one
set of costs payable to the respondents
who have appeared.
Foster, J.— I agree.
Appeals dismissed.
A.I. R. 1926 Patna 580
DAS AND Boss, JJ.
Kirtya Nand Sink a and another —
Plaintiffs — Appellants,
v.
Ram Lai Dube and others — Defen-
dants— Bespondents.
Appeal No, 566 of 1924, Decided on
5th July 1926, from the appellate decree
of the Dist. J., Purnea, D/~ 13th Feb-
ruary 1924.
Bengal Tenancy Act, S. 22 (2) —Co- sharers-
Part of proprietary right of a part of holding
falling to a co-sharer purchasing the entire
holding at rent sale — IHs status is not affected.
The fact that the proprietary right of part of a
holding after partition has fallen to the co-
sharer who purchased the entire holding in sale
in execution of a rent decree, will not affect the
question of his status with regard to that portion
of the holding which falls in the takhta of
another landlord.
If for the purposes of the partition, the name
of a tenant who had long ceased to have any
interest iu the holding was recorded, that cannot
affect the real rights of the parties, nor does the
fact that the purchaser has settled the lands
with a tenant make him a landlord. The pecu-
liar status enforced in him by 3. 22 (2) continues
notwithstanding the settlement ; 4. J. R. 1925
Patna 547, Appl. . [p 531, C 1, 2]
S. N. Palit and G. P. Das— for Appel-
lants.
Bam Prasad — for Bespondents.
Ross, J.— The plaintiffs, who will^be
hereafter referred to as the Banaill Baj,
represent 13-annas 3-pies interest in
Mouza Parora; the defendants first
party, who will be hereafter referred to
as the Srinagar Baj, represent the re-
maining 2-annas 9-pies interest ; the
defendant second party is the receiver of
the Srinagar estate ; the defendant third-
party, Bamla) Dubey, is the son of
Subaklal Dubey, who was the tenant of
a holding of 153 bighas 5 kathas and
17 dhurs in the village. He sold this
holding to Dwarkanath Thakur and
Bikan Thakur and in the Becord of
Bights, prepared somewhere about 1890,
the name of Subaklal as vendor and
Dwarkanath and another as vendees
were both entered in respect of this
holding.
The plaintiffs brought a suit for rent
in 1897 against these vendees and sold
the holding in execution of the decree
in 1898 and purchased it themselves.
They settled the land with different
tenants from time to time and, even-
tually, the defendant fourth party be-
came the tenant in 1911. Subsequently
there was a partition of Mouza Parora
between the Banaili Baj and the Srinagar
Baj and by partition 71 bighas 15 kathas
and 7 dhurs of that holding was allotted
to the Banaili Baj and 81 bighas 10
kathas and 10 dhurs to the Srinagar Baj ;
but, in the partition papers the Becord
of Bights was used with the result that
the name of the recorded tenant was
given as Subaklal Dubey. Even after
the partition, the Banaili Baj continued
to pay to the Srinagar Baj the rent of
that portion of the holding which had
fallen to their takhta and received rent
receipts, Notwithstanding this, the
Srinagar Baj, in 1917, instituted a suit
for rent of the 81 bighas against the
defendant third party and obtained a
decree and took proceedings for sale of
the holding. This suit was, therefore,
brought by the Banaili Baj for a declara-
tion that the defendant third party had
no connexion with the land ; that1 the
Srinagar Baj was only entitled to the
proportionate rent of the 81 bighas ; that
the rent-decree was null and void4; and
that the property could not be sold in
execution thereof.
The suit was defended only by Bamlal
Dubey, defendant third party ; and hfe
contention was that since the partition
the Banaili Baj had no concern with
this holding and that they had no right
to maintain the suit. The Munsif found
that Subaklal Dnbey had parted with his
interest in the holding and that Dwarka-
nath Thakur and Bikan Thakur were in
1926
KIRTYA NAND v. RAMLAL (Boss, J.)
Patna 581
possession as purchasers. He further
held fchajj the Banaili Raj had obtained
possession of the holding and had paid
rent to the Srinagar Eaj both before and
after the partition ; and that the Banaili
Raj had been realizing from the persons
in aotual possession and had been pay
ing rent to the Srinagar Raj. He held,
however, that inasmuch as the defendant
fourth party must be deemed to be the
raiyat of the land under S. 22 (2) of the
Bengal Tenancy Act, he became a raiyat
under all the proprietors and, therefore,
since the partition, the plaintiffs have
no interest now in the land in suit.
He, therefore, dismissed the suit. The
learned District Judge agreed with this
view and dismissed the appeal of the
plaintiffs.
It is now contended in second appeal
that the partition did not affect the
rights of the Banaili Raj in this land
except to this extent that the Srinagar
Raj became entitled to the entire rent of
81 bighas instead of a proportionate rent
in the entire 153 bighas ; that the Banaili
Raj is still in possession through the
defendant fourth party, and that they
have been recognized by the Srinagar
Raj who have accepted rent from them
•subsequently to the partition. Reference
was made to the decisions of this Court
in Jhapsi Sao v. Bibi Aliman (1); Nand-
Jcishore Singh v. Mathura Sahu (2); and
Basudeo Narain v. Radha Kishun (3).
The learned advocate for the respon-
dents sought to distinguish these last-
mentioned cases on the ground that they
deal with a case where an enfcire holding
has fallen to a co-sharer other than the
purchasing co-sharer, whereas in the
present case the purchasing co-sharer
has in faot obtained 71 bighas and odd
kathfts out of the holding already and is,
therefore, not entitled to claim dny
interest in the remainder which has
fallen to the other takhta. This distinc-
tion does not seem to me to proceed on
any principle. The faot that the pro-
prietary right of part of a holding after
partition has fallen to the co-sharer who
purchased the enfcire holding will not
affect the question of his status with
regard to that portion of the holding
which falls in the takhta of another
landlord. The first mentioned decision
(1) A. L B. 1926 Patna 263=5 Pat. 281.
(2) A. I. B. 1922 Patna 193.
J3) ALB. 1922 P*tna 62.
is sought to be distinguished on the
ground that it was a case between co-
sharers, whereas the present case is a
case between a co-sharer and a person
alleging himself to be a tenant. That,
however, would be no ground for dis"
tinguishing the decision so far as it deals
with the effect of a partition upon the
interest of a purchasing co-sharer.
It was further contended that the
Banaili Raj ought to have set up this
right in the partition proceedings ; but,
on the contrary, they allowed the name
of the contesting defendant to be re-
corded in respect of this holding. In
my opinion, nothing turns on this. It is
stated in the plaint that the partition
was made according to the Survey papers
and that statement has not been con-
troverted. If, for the purposes of the
partition, the name of a tenant who
had long ceased to have any interest in
the holding was recorded, that cannot
affect the real rights of the parties.
The main contention, however, on be-
half of the respondents is that inasmuch
as when the purchasing co- sharer settles
the land, the tenant becomes a raiyat
under S. 22 (2), the position of the pur-
chasing co-sharer then becomes that of
landlord and, consequently, on partition
his interest ceases when the holding falls
to the takhta of another landlord ; when
the purchaser makes a settlement, he is
not himself a tenant nor a tenure-holder
and must, therefore, be a proprietor.
The question is not free from difficulty ;
but it is important to observe the exact
language of S. 22 (2). It is not enacted
that if the transferee sub-lets the land
to a third person, such person shall be a
tenure-holder or a raiyat, as the case
may be, in respect of the land, but that
such person shall be deemed to b'e a
tenure-holder or a raiyat ; that is to say,
the section itself recognizes the relation-
ship as artificial and, by implication
suggests that, by making such a settle*
ment, the transferee is not a landlord,
but that the peculiar status conferred
upon him by the section as held in
Bambhadur Lai v. Qungora Kat^r (4)
still continues notwithstanding the settle-
* ment. Nor is it apparent on principle
why the interest of the transferee co-
sharer should he affected merely by his
making a settlement with a tenant. It
has been held in many decisions in this
U) A. I. B. 1925 Patna 547,
582 Patna
RAM SUMRAN v. GOVIND DAS
1926
Court that he is entitled to hold the
land which he has acquired, after parti-
tion, and I do not see how it can make
any difference to this right that he has
settled it with a person who is deemed
to be a raiyat. The position is certainly
anomalous ; but the anomaly is the ere*
ation of 8. 22 (2).
In my opinion, therefore, this appeal
mast be decree i with costs, and the
decrees of the Courts below set aside and
the suit of the plaintiffs decreed with
costs throughout against the defendant
third party.
D*«, J.— • I agree.
Appeal Mowed.
# # A, I. R. 1926 Palm 582
VIWALA PKASAD AND BCTCKNILL, JJ.
Earn Sutnran Prasad — Plaintiffs —
Appellants. ,
v.
Govind Das — Defendant — Respon-
dent.
Appeal No. 189 of 1922, Decided on
3rd May 1926, from the Original Decree
of the Dist. J., Darbhanga, D/- 29th
March 1921.
(a) Ileyistration Act, S. 2ti— Including a smafl
property In the deed In a particular District to
effect registration In that District — Property
really existing and no fraud committed — Property
really Intended to be transferred — Registration is
valid although trantferrer does not take posses-
sion.
The registration of a document by the
Registrar having jurisdiction over: the pro-
perty covered by it is not invalid in the
absence of fraud or collusion on the part of
or between the parties if in fact the property
in question does exist : (14 C. W. N. 532 Foil.).
It is enough for the purpose of registration that
the donoi had a good title to th>3 property and
intended to part with that property in favour of
the donee. Whether the donee really exercised
his right conferred by the deed is not at all
essential : 41 Col. 972 (P. C.) and 4. 1. R 1921
P. C. 8, Dist. ' [P 584 0 2, P 585 C 1]
(b) Prada nashtn Lady— Execution of document
— Want of independent advice will not make docu-
ment Invalid unless such advice tvould have
affected the execution.
Even if no independent advice was taken by a *
pardmashin lady, the document executed by
her will not be invalid, unless it is shown that
independent advice would have affected the exe-
cution of the document by the lady ; 46 J. A.
272 (P. C.) and A. L R. 1922 Cal. 208, Rel. on.
[P 587 0 1]
* * (c) Contract Act, 8. W—Glft by bride's
parents, to bridegroom and his relation in const-
deration of marriage are not prohibited — Qifta
actually made cannot be recovered although tlieif
may not be enforceable by suit.
Per Jwala Prasai, J. — The settlement of »
nuptial gift on the bride or bridegroom at the
time of tho marriage is not prohibited. » In prao
tictj the receiving of a gift by the bride's parents
or relations at any time in connexion with the
marriage is not permissible, but gifts by the
bride's parents to the bridegroom and his rela-
tion is not considered to be bad aud is in vogue.
But, where the gift is actually made whether to
the bride, the bridegroom or the father of the
bridegroom by the bride's parents it cannot be
recovered back when once the marriage is solem-
nized, though it may not be enforced in a suit :
3*2 Mad. 185 (F. B.) and 1 U. P. L. R. 119, Eel.
on. In other words, a suit may not lie to re-
cover the promised dowry, but when once the
dowry is paid as a consideration for the marriage
and the marriage is performed, the dowry cannofc
bo recovered back. A nuptial gift includes not
only the gift of money but also lyand and the
like, [P 588 C 1, 2]
Per Bucknlll, J. — It is generally contrary to-
public policy for a father to be paid money in
consideration of giving his son or daughter in
marriage and a contract to th it efiect cannot be
enforced in a Court of Law, but an agreement to
pay money to the parents or guardian of a bride
or bridegroom in consideration of their consent-
ing to the betrothal is not necessarily immoral
or opposed to public policy. [P 600 C 2j
& $ (d) Hindu Law — Widoiv — Sonless widow
succeeding her husband takes absolute estate, but
her power of alienation is limited like that of a
coparcener — Small gifts of immovables for spiri-
tual benefit of licr husband are not Invalid —
(rift of immovables to her daughter or son-in-law
at the time of marriage will be upheld to a reawn-
able extent — Gifts may be promised at marriage
and given afterwards.
A sonless widow succeeds as any other male
member to the entire estate of her husband
(moveable and immovable) and takes possession
of it as an absolute owner thereof. Her interest
is nob in any way limited nor does she hold a
life estate only as sometimes it is supposed to be.
Only her power of disposition is a qualified one
aud is analogous to the power of a male co-
parcener in a joint Mitakshara tamily. In* this-
respect the property inherited by a widow c from
her husband differs from the properties which a
woman receives as her stridhan.
[P589 C 2, P 590 Cl]
Within a proper limit a widow can alienate
her husband's property for the performance of
religious acts which are supposed to conduce to
his spiritual benefit : 43 Cal 574 and 11 Bengi
L. R. 413, Rtl. on. [P 691 C 2]
If the property sold or gifted by the widow
bears a small proportion to the estate inherited
and the occasion of the disposition or expendi-
ture is reasonable and proper according to the
common notions of the Hindus, it is justifiable
and cannot be impeached by the reversioners ;
34 Mad. 288, Rel. on. [P 692 C 1]
The widow can make a gift of landed property
to her daughter or son-in-law on the occasion of
her marriage or any ceremonies connected with
the marriage and that the promise made may ba
1926
BAM SUMRAN v. GOVIND DAS (Jwala Prasad, J.) Patna 683
Mt. Jainti Kumari possessed and the fact
that she 'had only a daughter and no
other child male or female. The ex-
penses of marriage came to about) Bs. 600
or Rs. 700 and those of incidental cere'
monies about Be. 200 to Bs. SOO. After-
wards Mt, Jainti Kumari executed a
deed of gift by which she made a gift of
the property in dispute to the defendant,
her son-in-law, in Olao, valued at
Bs. 50,000. The deed recited that the
defendant Gobind Das and his father
Bishwambhar Das had agreed to the
marriage on the condition that the said
property would be given to the defen*
dant on Jibe occasion of the marriage
and that in pursuance thereof she had
verbally declared the gift at the time of
the Gantha Pakrai (catching hold of the
skirt of the mother-in-law) performed
during the marriage. The defendant
acquired possession of the property and
remained in possession during the life-
time of Mt. Jainti Kumari and was still
in possession of the same at the date of
suit.
After the death of Mt. Jainti Kumari
the plaintiffs as reversioners came into
possession of all the properties, moveable
and immovable. The plaintiffs, however,
did not get possession of the property
covered by the deed of gift, which was in
possession of the defendant. Therefore,
they instituted the present suit in the
Court of the Subordinate Judge of Dar*
bhanga, for ejecting the defendant and
for recovering possession of the property
in dispute, on the ground that the deed
of gift executed by the lady was not
valid. The suit was tried by the District
Judge of Darbhanga who dismissed the
plaintiff's claim. Plaintiff appealed and
the deed of gift was attacked as being
invalid on various grounds.
Jwala Prasad, J.—- (His Lordship set
out the facts of the case as narrated
above and proceeded). In the Court
below the parties went to trial on vari*
ous issues as set forth in the judgment of
the Court below ; most of these issues
have been set at rest by the decision of
the trial Court and have not been raised
in this Court. We are concerned only
with the issues which relate to the vali-
dity or otherwise of the deed of gift.
These are Issues Nos. 6 to 11 of the Court
below. Some of these issues again attack
the validity of the gift on some technical
grounds and may be dealt with in the
fulfilled afterwards ; and it is not essential to
make a gift at the time of the marmge but that
it may her made afterwards, upon the ground
that* the gift when made fulfils the moral and
religious obligation of giving a portion of the
property for the benefit ot the daughter and the
son-in-law. The only limitation placed upon
this power of making a gift is that it should
bear a reasonable proportion to the entire pro-
perty of the deceased father and that it should
be justifiable in the circumstances of ^ the case ;
Case-law fully discussed. [* 5Gt> G 1]
K. P. Jayaswal, S. M. Gupta and L. K.
Jha — for Appellants.
N. C. Sink a and A. P. Upadhya—tor
Respondent.
Facts. — A suit was brought by the
plaintiff to recover possession of the
property in dispute as revemoners
to the estate of one Banarsi Prasad,
who was a wealthy banker and zamin-
dar of Olao in the district of Mon-
ghyr. The whole case turned upon
the validity or otherwise of a deed of
gift executed by the widow of Banarsi
Prasad on the 28th July 1901, whereby
she conveyed the property to her son-in"
law, the defendant Gobind Das, on the
occasion of a certain ceremony connected
with her daughter's marriage.
In 1888 there was a complete separa-
tion between Banarsi Prasad and his
three brothers Madan Mohan Lai, Braj
Mohan Lai and Krishna Mohan Lai.
Banarsi Prasad died on 24th September
1897, leaving him surviving his widow
Mt. Jainti Kumari and an unmarried
daughter Ohhotan Bibi. He left; consider-
able properties, both moveable and im-
movable. Mfe. Jainti Kumari inherited
the properties and remained in posses-
sion thereof till her death as the widow
of Banarsi Prasad.
Since the death of Banarsi Prasad
Chhotan Bibi's marriage appeared to
have occupied her mother's attention and
at her instance her sister's husband Sheo
Shankar Das entered into negotiations
for marriage and ultimately Chhotan
Bibi was married in the year 1899 to
defendant Gobind Das, nephew of Sheo
Shankar Das. When the negotiations
were going on, a year before the marriage
Bam Krishna Das, brother of Mt. Jainti
Kumari, was also consulted by Sheo
Shankar Das and he appeared to have
approved of it as the horoscopes of the
bride and bridegroom agreed.
The marriage was performed at a very
moderate expense, considering the posi-
tion of the families, the wealth which
584 Patni
RlM
v. GoviND DAS (Jwala Praaad, J,)
1926
first instance. It is said that the deed
is i lucrative, inasmuch as it was not
validly registered under S. 28 of the,
Indian Registration Act (Act 16 of 1908)
by the Sub-Registrar of Beguserai, he
having no jurisdiction to register it.
Now, the deed of gift in question
deals with two properties : (l) eight-
annas pokhta share out of sixteen-annas
of Mahal Barsaon, old Tauzi No. 1404
and present Tauzi No. 6507, and (2) one
bigha of jote land situate in inauza
Semaris, otherwise known as Olao. The
first property, Mahal Barsaon, which in
facfc is the bulk of the gifted pro-
perties, is situate in pargana Havi in the
district of Darbhanga within the juris-
diction of the Sub-Registrar of Bahera ;
the second which consists only of one
bigha of jote land, is situate within the
jurisdiction of the Registrar of Beguserai
in the district of Monghyr. The plain-
tiff's case is that this one bigha of land
did not belong to Mt, Jainti Kumari and
that it was falsely alleged in the deed
in question that it was purchased
by her and was her property, with
a view to give jurisdiction to the Sub-
Registrar of Beguserai to register it.
Reliance is placed for this conten-
tion upon the survey khatian, Ex. F (2),
wherein the land is shown as the qaimi
land of Sukhan Barhai, with a note that
the produce rent of it is paid to Mt.
Jainti Kumari as malik thereof. Sukan
Barhai has not been examined. His
son, Ram Lai Barhai, Witness No. 3,
examined on behalf of the plaintiffs,
admits that Mt. Jainti Kumari 19 the
malik of this land and that he used to
pay the manhundi rent for the land to
her and after her to Jagdhar Babu
Plaintiff No. 2. He admits that the
land.
wa£ formerly in the khas cultivation of Mt.
Jainti Kumari.
Now the deed of gift was executed on
the 28fch July, 1901, whereas the survey
reoord-of-righta was published on the 9th
November 1902. The plaintiffs, there-
fore, have failed to prove that the land
was not in the khas possession of Mt.
Jainti Kumari when the deed of gift was
executed. Mb. Janti Kumari had two-
fold rights over the land ; she was ad-
mittedly the proprietress of it and it
was in her khas cultivation (probably
at tbe time when the deed of gift was
executed) as admitted by tbe aforesaid
plaintiffs' witness Ram Lai Barhai. The
fact that she was not in khas possession
subsequent to the deed of gift does .not
in any way affect the validity of the
registration of the document. It is
immaterial how she had obtained khas
possession over the land, whether by
purchase as stated in the deed of gift or
otherwise. The recital in the deed of
gift about the lady's title to the land in
question far from being in any way dis-
proved finds support from the aforesaid
evidence. The plaintiffs rely upon the
fact that the defendant was not in khas
possession of the land. He has given a
reasonable explanation of it. He says
that the land was at a great distance
from Benares where he resides and he
did not care to retain possession of it.
It must be remembered that the land
was given, as stated in the deed, pro-
bably with a view that the defendant
might plant a garden on it. It is
enough for the purpose of .registration
that the donor had a good title to the
property and intended to part with that
property in favour of the donee. Whe-
ther the donee really exercised his right
conferred by the deed is not at all
essential. He might change his mind,
and in fact in this case it seems that the
defendant did change his mind as to his
retaining his possession over the pro-
perty. S. 28 of the Registration Act
does not require anything more than the
existence of the property within the
jurisdiction of the Sub-Registrar where
it is sought to be registered.
The learned counsel on behalf of the
appellants has relied upon the decisions
of their Lordships of the Judicial Com-
mittee in the cases of Harendra Lai Boy
v. Hari Das Devi (1) and Biswanath
Prasad v. Chandra Narain Chowdfiury
(2). In the former case the property
sought to be dealt with in the d.eed in
question was a fictitious property and
had no existence. In the latter case it
was found that to the knowledge of both
the parties the transferror had no title
to the property and that be never
intended to part with it. These deci-
sions do not affect the present ease,
inasmuch as the property dealt with in
the deed of gift admittedly does exist
and it belonged to the donor Mt. Jainti
(1) [1914] 41 Oal. 972=23 I. 0. 637. =41 L A.
110 (P.O.)
(SI) A. I. R. 19121 P. G. 8=48 Oal. 509.
BAM SUMBAN v. GOVIND DAS (Jwala Prasad, J.) Patna 585
1926
Kumari, as proprietress thereof and at
one time she was in possession of it,
probably at the time the deed of gift
was executed, and that she bona fide
intended to make a gift of it to the
defendant. Far from denying the title
of Mt. Jainti Kumari to the land in
question the plaintiffs are said to have
taken possession of it after her death as
reversioners to her husband. It is pos-
sible that the lady transferred the small
piece of land in Olao in order to save
herself the trouble of going to the Sub-
Registrar's office at Bahera in the dis-
trict of Darbhanga far off from her resi-
dence at Olao within the jurisdiction
of the Sub-Registrar of Beguserai, she
being a pardahnashin lady. This in it-
self is not a bad motive, and in fact
nowhere has it been suggested that
there was any fraud or collusion prac-
tised by the parties in the matter of
getting the deed registered by the Sub-
Registrar of. Beguserai by including in
it the land in question situated within
his jurisdiction. It was pointed out in
the case of Brojo Gopal Mukerjee v.
Abilash Chandra Biswas (3) that the
registration of a document by the Regis-
trar having jurisdiction over the pro-
perty covered by it is not invalid in the
absence of fraud or collusion on the part
of or between the parties if in fact the
property in question does exist. Similar
is the view taken by all the High Courts
in India : vide Durgaprasad Sahu v.
Tameshar Prasad (4), Muhammad Abdul
Hasan v. Fida Husain (5), Lakshmi
Ka'ntaraju Garu v. Sri Rajah Dantuluri
Pada Venkata Jagannadharaju Garu (6),
Mt. Ram Dai v. Ram Chandrabala Devi
(7), Mt. Jasoda Kuer v. Janak Missir (8)
and Pirthi Din v. Ram Lal~A. I. R.
1926 Oudh 136.
The two recent cases J decided by this
Court- to one of which I was a party
seem to be on all fours with the present
case. In those cases the registration
was held to be valid. The learned
District Judge has found, and we agree
with his finding, that the land dealt with
by the deed of gift in the present case
did exist and that the lady had good
(8) [1910] 14 0. W. N. 532=5 I. 0. 127.
(4) A. 1. R. 1924 All. 897=46 All. 764.
(5) A. I. R. 1924 All. 473.
(6) A. I. R. 1924 Mad. 281.
.(7) [1919] 4 Pat. L. J. 438=52 I. 0. 446.
i&) A. I. R, 1925 Patna- 787=4 Pat. 394.
title to it and in fact intended bona fide
to make a gift of it to the defendant
and that there was no fraud or collusion
practised by her or any of the parties
to the deed in including the property in
the deed in order to give jurisdiction to
the Sub-Registrar of Beguserai.
I, therefore, in agreement with the
learned District Judge hold that the
registration of the document in question
was valid under S. 28 of the Indian
Registration Act. The contention of the
appellants must, therefore, be overruled.
This disposes of the second part of Issue
No. 6 framed by the Court below. The
first part of that issue is :
Did Mt. Jainti Kumari sign the deed of gif fr
after undorstandiag its contents and after in-
dependent advice.
There is the positive evidence of
Banaidhar (Witness No. 4= for the defend -
ant), one of the marginal witnesses to
the deed, that the document was read out
to the Mussamat and she understood the
contents thereof and then signed the
deed and thereafter the witnesses to the
deed attested it. The witness was in
service of the Mussamat at that time and
was in charge of the bahis or account
books which used to be written at her
deorhi. He says that the Mussamat
used to understand business and look
after her affairs. There is no suggestion
that the Mussamat was like other par*
dahnashin ladies ignorant of her affairs
and in fact her able management of
such a large estate is not disputed. Ac-
cording to the evidence of the witnesses
on behalf of the plaintiffs Ram Sumran
Prasad and others she so diligently man-
aged her business that she augmented
the income of the property during her
management. Bansidhar also proves the
identification of the lady by Sheo Earan
Upadhyaya (Plaintiffs' Witness No. 9)
before the Sub-Registrar, and that when
asked by the Sub-Registrar she said to
him that she had understood the docu-
ment. The endorsement of the Sub-
Registrar on the document supports this
witness. Sheo Karan Upadhyaya (Wit-
ness No. 9 examined on behalf of the
plaintiffs) does not deny the admission
of the execution of the document by the
Mussamat before the Sub- Registrar nor
does he say that the Mussamat did not
understand the document or that the
Sub-Registrar did not satisfy himself as
586 Patna
RAM SUMRAN v. GoviND DAS (Jwaia Prasad, J.)
to her having executed it after under-
standing it, although he was examined
on the 21st of March long after Bansi-
dhar who was examined on the 5th of
March 1921. Curiously enough, he is
silent as regards the circumstances under
which the document was executed,
admitted and registered. In cross-exami-
nation ho admits that he identified
the Mussamat at the time of registra-
tion.
The other attesting witnesses to the
deed Bam Krishna Das (P. W. 5), Sri
Narain (P. W. 8) and Parmeshwari
Prasad (P. W. 10), scribe of the docu-
ment, want to make out that the docu-
ment was written and attested at
Monghyr, and not at Olao whore the
Mussamat is said to have executed it.
The first two say that they signed the
document as witnesses without the sig-
nature of the Musasmat thereon as
they were told to do so by Bishwambhar
Das, father of the defendant. This evi-
dence is obviously false, inasmuch as
the witnesses described themselves in
the document as residing at that- time
at Olao, and the position of their signa-
tures in the document indicates that
they attested it after it was executed by
the Mussamat. Bam Krishna Das is the
brother of the Mussamat, it is not likely
that he would attest it when it was not
executed by the Mussamat in his pres-
ence and was executed at Monghyr where
the Mussamat was not living, simply
because he was told to do no by Bish-
wambhar Dap,
The scribe was the karparclaz of Ban-
arsi Prasad, husband of the Mussamat and
continued to be so after his death during
the time of the lady. He says that he
came to Olao 10 or 12 days after he
wrote the document on stamp-paper,
but ho did not tell the fact of his having
written the document to the Mussamat.
It is absurd. These witnesses are self-con-
demned for on their own showing they
falsely described themselves in the docu-
ment as residing at Olao at the time and
attested the document without having
seen its execution by the Mussamat. None
of th'ese witnesses for the plaintiffs pro-
ves that the document was not read out
to the lady or that she did not under-
stand it or that no independent advice
was given to her, for, according to their
own showing, the document was- not
signed by the Mussamat in their pre-
sence. Agreeing with the Court below-
I disbelieve them, and would prefer the
straightforward evidence of the defend-
ant's witness Bansidhar who was an
accredited servant of the Mussamat and
was her mukhtear-am, getting a decent
salary of Bs. 50 a month.
It is suggested by the plaintiffs that
the document was executed on account
of the undue influence of Bishwambhar
Das, but Bishwambhar Das at that time
was not the manager of the Mussamat.
He was appointed manager subsequently
by managernamah (Exhibit A), dated
the 5th October 1901. It may be that
he used to be consulted in important
matters and probably he was consulted
with respect to the execution of thia
document. But it seems that the per-
sons employed by the Mussamat in
connexion with the transaction in ques-
tion were the accredited servants of her
from the time of her husband.
The learned District Judge was, there-
fore, right in holding that the plaintiffs'
case of any undue influence having been
exercised upon the Mussamat in the
execution of the document in question,
or her not having understood the con-
tents thereof before executing it, is a
myth. This is corroborated by the fact
that the document was given effect to
and the donee, the defendant, came in
possession of it forthwith and has been
so for over 16 years up to 1916 during
the time of the Mussamat, without any
objection on her part, although the
connexion between the two families had
to a large extent been severed by the
death of the daughter Chhotan Bibi in
1904 and of 'her second son in 1906. All
this time she has not been shown to be
in any suspected atmosphere.
There is no substance in the conten-
tion of the plaintiffs. It must be held
upon the evidence on the record and the
circumstances of the case that the docu-
ment was executed by the lady inde-
pendently and that she understood its.
full nature and effect. She hardly
needed any advice in the matter, she
had before her the accredited servants
to seek their advice in the matter. In
fact, the nature of the transaction does
not necessitate that she should have the
advice of anybody. She was nominally
a pardahnashin lady, but, as observed
above, she had the full capacity of under-
standing business transactions.
1926
KAM SUMRAN v. GOVIND DAS (Jwala Prasad, J.)
Patna 587
Accepting the case of the plaintiffs,
she was in touch with Bishwambhar
Das' who was shortly after appointed
manager, and the document was executed
upon the advice of Bishwambhar Das,
There is no reason to suppose that this
was not independent advice, simply be-
cause Bishwambhar Das's son the defen-
dant, was the beneficiary under tha deed.
This would only require the transaction
to be examined with caution. It must
be remembered that the defendant was
her son-in-law and the only person upon
whom she could bestow her affection.
Then her brother was also there, besides
responsible servants of the estate. What
more is needed for independent advice
in a matter of this kind, I fail to under-
stand. It will be too much to hold that
a document of this kind should be held
invalid simply because no independent
Advice was offered to the lady. The
authorities have not gone so far, nor is
the rule that- a pardahnashin lady should
have independent advice inflexible. Even
if no independent advice was taken by
her, the document will not be invalid,
unless it was shown that independent
advice would have affected the execu-
tion of the document by the lady. It
is amply proved in this case, and the
circumstances unmistakably point to the
fact that the Mussaman intended to, give
the property in dispute to her son-in-law
as a gift and she, as a matter of fact, did
give effect to her intention by parting
with the possession of tho property.
Any advice, therefore, would not have
affected her action in the matter. The
principles are well laid down in re
Coomber (9), Santi Bala v. Dharasun-
dari (10) and Satish Chandra Ghosh v.
Kalidasi (11).
It is not denied that the lady signed
the document. In fact, her signature
ihereon is admitted. The document was
presented by her to the Sub-Registrar
Before whom she admitted its execution
and signed the endorsement made by the
Sub-Registrar. It must, therefore, be
held that the deed of gift was executed
by the lady of her own free will and that
it was properly registered by the Sub-
Registrar of Beguserai. (His Lordship then
dealt with other issues of fact and pro-
(9) [1911] 1 Ch. 723=80 L. J. Ch. 8<J9=10*
L. T. 517.
(10) [1919J 46 I. A. 272=17 A. L. J. 997 = 53
* I. 0. 131=37 M. L. J. 488.
(11) A. I. E. 1922 Cal. 203.
ceeded). On behalf of the plaintiffs it is-
contended that the agreement was in the
nature of marriage brokerage and as sucb
it is immoral and opposed f;o public*
policy. It is said that under S. 23 of the
Indian Contract Act the consideration of
the gift was unlawful and hence the gift
itself is vitiafced. The section is based
upon tho English Law, as according to
notions in the West every marriage ought
to be free and open : Scott v. Tyler (12).
In certain cases in India it was held that
the aforesaid rule cannot bo applied in
its entirety in this country, as marriages
are scarcely, if ever, free and open, the
real contracting parties being the parents
and the guardians. The Gouru has to
consider the relation of the contracting
party (the promisee) to the boy or girl
given in marriage and the motive, that
is, whether the main object was to benefit
himself without considering the fitness or
unsuitableness of the marriage, or whe-
ther the latter was the prime consider-
ation, the benefit to himself being inci-
dental. All the cases were considered
by Mookerji, J., in Bakshi Das v. Nandw
Das (13). In that case the brothers
agreed to give their sister in marriage to
the plaintiff upon his agreeing to pay
them Rs. 190 as pan money, out of which
Rs. 135 was paid in cash* and the balance
was to be paid on the day of the marriage.
The plaintiff performed all the cere-
monies and incurred expenses ; but when
lie went to marry the defendants' sister
they refused. He brought a suit for
recovery of the money paid by him and
damages for the expenses incurred. The*
lower Courts gave a decree to the plaintiff
and Mookerji, J., in second appeal, upheld
it. Upon a review of the authorities he
laid down the following rules :
(1) Au agreement to reward a. third person in
consideration of negotiating a marriage is con-
trary to public policy.
(2) An agreement to pay money to the parents-
or guardians of the bride or bridegroom in con-
sideration of their consenting to the betrothal is
not necessarily immoral or opposed to public
policy. Where the parents of the bride are not
seeking her welfare but give her to a husband
otherwise ineligible the agreement by which
such benefit is secured is opposed to public policy
and ought not to be enforced.
(3) An agreement to pay money to the parents-
or guardian of a bride or bridegroom in con-
sideration of their consenting to the betrothal i*
under the circumstances of the case neither
immoral nor opposed f) public i policy. It will*
(12) [1787] 1 Wh. & T. L. C. 578, ~~
(13) [1905] 1 C. L. J. 261.
588 Patna
RAM SUMBAN v. GOVIND DAS (Jwala Prasad, J.)
1926
be enforced and damages also will be awarded for
breach of it : Umed Klka v. Naglndas Narotam-
d<n (14) ; Mulji Thakersay v. Gomtl (15) ; and
Ranee Lallun Monee Dossee v. Nobin Mohun
.Singh (16). The onus of proving that the agree
ment was opposed to public policy is upon the
party who alleges it to be so. In this respect the
English Lrtw is not to be followed.
Tho text of Manu relative to the sub-
ject is as follows :
Lst no father who knows the law receive a
.gratuity (sulka), however small, for giving his
daughter in marriage, since the man who through
avarice takes gratuity for that purpose is a seller
of his offspring : M*nu, Chapter III, S. 51.
Even the acceptance of a bovine pair by the
lather of the bride from the bridegroom is
designated as a dowry by certain authorities.
The acceptance of a dowry, be it costly or be it of
insignificant value, constitutes the sale of the
.girl : Manu, Ohaptar III, S, 53.
A marriage in which the bride's relations do
accept the dowry voluntarily presented by the
bridegroom's father, etc., is no sale of the bride
since auch a present is but an adoration ot the
brido done out of love or affection : Manu,
Chapter III, S. 54.
This is a prohibition against the father
taking gratuity for giving his daughter,
which amounts t3 selling her. This rule
in Manu agrees with the English Law on
the subject and with S. 23 of the Indian
Contract Act with this difference that a
gift voluntarily made out of love or
affection IB not a sale of the bride as laid
down in Manu,^ Chapter III, S. 54, re-
ferred to above! But Manu does not
seem to prohibit the settlement of a
nuptial gift on the bride or bridegroom
at the time of the marriage. In practice
the receiving of a gift by the bride's
parents or relations at any time in con*
nexion with the marriage is not per-
missible ; but gifts by the bride's parents
to the bridegroom and his relations is
not considered to be bad and is in vogue.
Such is also the evidence in this case as
referred to above. On the other hand,
the* Hindu Law requires gifts to be made
to the bride and the bridegroom during
marriage, and without suoh a gift the
marriage is not considered to be properly
solemnized and performed.
The Bombay High Court, in the case
of Dholidas Ishvar v. Fulchand Chhagan
{17) held that a stipulation for monetary
payment for himself is an incentive and
is dangerous both in the case of a father
seeking a wife for his son and in the ca*e
of a father seeking a husband for his
(14) [1870] 7 B. H7C. O. G. 1*2. "
(15) [1887] 11 Bom. 412.
<16) [1875] 20 W. R. 82.
417) [1898] 22 Bom. 6£8.
daughter. This was followed by a Full
Bench of the Madras High Court
in Kalavagunta Venkata Krishnayya v.
Kalavagunta Lakshmi Narayan (18)
which held that a contract to make a
payment to a father in consideration of
his giving his daughter in marriage must
be regarded as immoral or opposed to
public policy within the meaning of S. 23
of the Indian Contract Act and the
money cannot be recovered by suit. If
the money had been paid and the
marriage solemnized, the money cannot
be recovered back. In England such a
practice will not be enforced as law :
Kean v. Potter (19).
The prohibition in fcjie text of Manu is
against receiving a gift by the father of
the girl or her relations through avarice
or greed which amounts to selling the
girl. But the gift actually made whether
to the bride, the bridegroom or the father
of the bridegroom by the bride's parents
cannot be recovered back when once the
marriage is solaomized, though it may
not be enforced in a suit : vide Kalava-
gunta Venka6a Krishnayya v. Kalava-
gunta Labshmi Narayana (18) and
Jagdishwar Prasad v. Sheo Bukhsh Rai
(20). In other words, a suit may not Hel
to recover the promised dowry, but when
once the dowry is paid as a consideration
for the marriage and the marriage is
performed, the dowry cannot be recovered
back.
Colebrooke, in his Digest, volume I,
pages 449-450, quotes the texts of Virhas-
pati and Narada, to show that a nuptial
gift to the bride or her family is valid
and not revocable. A nuptial gift is said
to be a general term and to comprehend
what is given to a bridegroom on his
marriage by the parents of the bride. It
includes not only the gift of money but
also land and the like.
Shyamaoharan Sarkar in his Yyavastha
Darpana, 2nd edition, at page 621, men-
tions a nuptial gift as valid and irrevok-
able and relies upon the texts of V irh as-
pat i and Narada referred to above : a
nuptial gift or gratuity given to the bride-
groom on his marriage to the daughter is
not revocable nor is the property which
is received after marriage from the wife's
parents and kindred. Property given by
(18) [1909] 82 Mad. 185=18 M. L, J. 403=3
I. 0. 554=4 M. L. T. 1 (F. B.).
(19) 3 P. Will 76=8tory'8 Eq. J. Plac. 26.
(20) [1919] 1 U. P. L. B. 119=51 1. 0. 856.
1926
BAM SUMRAN v.GoviND DAS (Jwala Prasad, J.) Patn* 589*
the husband's father at the bridal
procession is also not revocable.
In the present case, in accordance with
the • promise or agreement made, Mt.
Jainti Kumari actually made over the
property to her son-in-law who has been
in possession thereof. The question is
whether the plaintiffs can now recover
the property back. S. 23, which renders
the consideration of an agreement, which
is opposed to public policy, as unlawful,
does nob go far enough to entitle the
plaintiffs to recover the property after
the object of the agreement was fulfilled ;
otherwise the defendant would be put to
a great hardship. If the lady had not
agreed to give the property in question
to the defendant.Ji is father and others
who^were in charge of the marriage would
not have agreed to the marriage and the
marriage would not have taken place.
Mt. Jainti Kumari herself was anxious,
/considering the position of the family,
the fitness of the bridegroom and the
former connexion with the uncle of the
bridegroom through her sister, to have
the marriage of he'r daughter settled with
the defendant. Her wishes would not
have been fulfilled at all if she had not
promised to make the gift in question.
After having obtained the object and
having fulfilled the promise, I do not
think that she could have availed herself
of the provisions of S. 23 and recover
back the property in question, far less
could the plaintiffs, who have succeeded
as reversioners of her husband, recover it
back on that ground.
We have now to consider the most
difficult question in this case covered by
Issue No. 11, and that is, whether, under
the Hindu Law, the lady having succeeded
to her husband with the restrictions
;mposed upon her in the matter of the
use and enjoyment and power of alien-
ation, could validly make a gift of an
immovable property to her son-in-law.
It is undisputed that she inherited the
property of her husband both moveable
^nd immovable as a lawfully wedded
wife of her husband, Babu Banarsi
Prasad, who died in the year 1897 with-
out leaving any male issue. The parties
belong to the Agarwala community, a
sect of Vaisya class called Bisa Agar-
walas. The plaintiffs are the Purbia
(eastern) Agarwalas of Monghyr district in
Bihar, and the defendant is a Pachhanhi
(western) Agarwala of Benares in the
United Provinces. This division does not
create any difference in the status, res-
pectability or dignity of the parties. They
are both high class and are governed
by the Mitakshara (Benares) School of
Hindu Law. According to this School,
Mt. Jainti Kumari, after the death of her
husband in 1897, without any male issue,
inherited the entire estate of her husband
consisting of moveable and immovable
property.
The widow's right of succession is based
upon the text of Yajnavalk) a, Chapter II,
verses 138-139, under which in default
of a son the wife takes the estate of her
husband in preference to the other heirs.
Vriddha Manu and Katyayana also declare
the widow's right to the whole estate of
her sonless husband.
The commentary of Yajnavalkya by
Vijnaneswara which is followed as an
authority by the Benares School dis-
coursing on the text regarding the sue-
cession of the widow sums up his con-
clusions as follows : »
Therefore it has been established that a
wedded wife (patni) takes the whole estate of a
man who being separated (from his co-heirs) and
not subsequently re-united (with them) dies
leaving no male issue " : Tide Colebrookers
Translation, Chapter II, S. 1, Cl. 39.
She, thus, succeeds as any other mafe
member to the entire estate of her hus-
band (moveable and immovable) and takes
possession of it as an absolute owner
thereof. Her interest is not in any way
limited nor does she hold a life estate
only as sometimes it is supposed to be.
Only her power of disposition is a qualifiedi
one and is analogous to the power of a
male co-parcener in a joint Mitakshara
. family, and the reason of this is in the
nature of her relationship with her hus-
band. She is supposed to be half the
body of her husband and confers so much
temporal and spiritual benefit on 'her
husband as half of his own body does and
associates with him in the performance
of religious sacrifices : Smiritichandrika,
Chapter XI, paragraph 6, A lawfully
wedded wife is called ' patni ' as a cor-
relative of the term ' pati ' (husband).
The marriage is attended with nuptial
rite and the object of such a marriage is
to enable the husband to offer sacrifices
and to discharge his religious duties and
to beget a son unto him in order that he
may be delivered from the hell called
' put ' to which the shades of a sonless
man. according to Hindu ideas, descend :
590 Patna
BAM SUMBAN v. GOVIND DAS (Jwala PrasarJ, J.)
1926
Manu, Chapter IX, paragraph 138 ; Daya-
bhaga, Chapter V, paragraph 6, Dattak
Mimansi, Chapter I, paragraphs 3 and
5 ; Colebrooke's Digest, Volume III, pages
159, 293 and 291. A man is enjoined by
fchp Sastras to marry a wife as his last
Sanskara or religious rite. During the
lifetime of tho husband the wife acquires
ownership of a dependant character
and on his demise she obtains indepen-
dent power over it. Vriddha Manu
says'
The widow (patni) of a childless man, keeping
unsullied her husband's bed and persevering in
religious observances, shall alone present his
funeral oblivions and obtain also his entire
«haro ( fTr^TfT^T'iJ ) : vide quotation in the Mitak-
eharji on widow's succession and Viramitrodayn,
Chapter lit, part 1, S. 2.
She takes the entire estate of her hus-
band and is enjoined to perform acts
calculated to increase tho prosperity of
her and her lord, such as, performing
sraddhas, digging wells, etc., and giving
presents with pjious liberality in propor-
tion to the wealth inherited by her. Thus,
tho performance of religious and chari-
table purposes and acts conducive to the
welfare of her husband are the objects
for which she takes the estate of her
husband. Accordingly, Smiritiohandrika
in Chapter XI says that she possesses
independent power of making gifcs for re-
ligious and charitable purposes, for such
gifts
her husband, oven if wanting a son, shall reach
the heavouly abodes,
and for purposes not being religious or
charitable but purely temporal, such as,
gifts to dancers, etc., she has no indepen-
dent power. Hence arises the restric-
tion imposed upon the widow's power of
disposition,
In this respect the property inherited
by a widow from her husband differs
from those properties which a woman re-
ceives as presents at the time of marriage
or at the time of going to her husband's
family or on happy rites or ceremonies or
those given to her by hei father, mother
Dr brother which are called Stridhan, or
her own property or peoalium. Over
these latter she has absolute dominion
and her power of disposition is not res-
tricted.
Mitakshara in Chapter II, S. 11, clause
(2) includes in the word Adya ( 3TFT ) in
Yajnavalkya's text among the aforesaid
kinds of stridhan such property which a
woman "may have acquired by inheri-
tance." Interpreting the said clause in
the light of Causes 11 to 25 of the same
section, Sir James W. Colville, in the,
case of Bhugwandeen Doobey v. Myna
Baee (21) would make it applicable only
to property inherited in the husband's
lifetime or from some persons other than
him. The conclusion to which his Lord-
ship arrived is summed up in the fol-
lowing words :
Their Lordships, therefore, have come to the
conclusion that, according to the law of the
Benares School, notwithstanding the ambiguous
passage in the Mitakshara, no part of her hus-
band's estate whether moveable or immovable,
to which a Hindu woman succeeds by inherit-
ance, forms part of her stridhan or particular
property ; and that the text of Katyayana which
is general in its terms and of which the authori-
ty is undoubted must be taken to determine first;
that her power of disposition over both is limi-
ted to certain purposes ; and secondly, that on
her death both pass to the next heir of her hus-
band.
The text of Katyayana referred to
above, which imposes restriction upon
the widow's power of disposition is as fol-
lows :
Lot the sonless widow preserving unsullied or
inviolate tho bed of her landlord and abiding
with her venerable protector or s'trictly obedient
to her spiritual parents enjoy her husband's pro-
perty being moderate (or with moderation) until
her death, and after'her let, the co-htirs (da>adab)
take.
A similar passage in Mahabharata
Dandharama dealing with the religious
merits of gifts runs as follows :
It is ordained that the property of the husband
when devolving on wives has enjoyment for its
use. Let not woman on any account make a
waste or apahara of her husband's property^
Viramitrodaya, citing these texts and
in commenting upon them!in Chapter III.
part I, S. 3, says that by the phrase "on
any account" in the texts it is intended
that waste under all oricumstances is
reprehensive. Literally apahara (waste)
is theft. Making useless gifts to dancers,
players and the like and the wearing of
delicate apparel, etc., the tasting of
rich food, etc., and the like being
improper for a widow who is enjoined to
restrain her passions are equal to theft.
Thus, the term 'apahara' i*> used in a
secondary sense, but gifts and the like
for religious purposes are not so and can-
not be included under the term 'apahara'
or waste.
Viramitrodaya sums'up his conclusions:
Therefore it is established that making
gifts for spiritual purposes as well as
(21) [1866-67]"
Suth. 124:
11 I. A. 467=9 W. E. 23=2
=2 Sar. 327 (P. C.).
1926
RAM SUMBAN v. GOVIND DAS (Jwala Prasad, J.) Patna 591
making sale or mortgage for the purpose
of performing what is- necessary in a spiri-
tual or. temporal point of view, the
widow's right does certainly extend to
the entire estate of her husband. The
restriction, however, is intended to pro-
hibit gift to players, dancers and the like
as well as sale or gift without necessity.
• Katyayana's text enjoins the widow
to use the husband's property being mod-
erate or with moderation, which practi-
cally means the same as the word 'waste*
used in Mahabharata, that is, the widow
shall not uselessly spend the property
which prohibits expenditure not useful or
beneficial to the late owner of the pro-
perty. The widow takes the whole pro-
perty as heiress of her husband, and not
merely the use of the whole or part of it.
She is only enjoined by law not to
•commit waste. Thus, she has power to
make a gift, mortgage or sale of the pro-
perty at her pleasure for lawful purposes
conformable to her duty as a Hindu
widow and after her death what is left by
her after the lawful use of it goes to the
next heirs of her husband. They take
only the residue of the estate remaining
<lue after the use of it by the widow.
Accordingly, she has power of disposition
for religious or charitable purposes or
those which are supposed to« conduce to
the spiritual welfare of her husband as
well as for legal necessity.
Lord Gilford, in delivering the opinion
of their Lordships in the case of Cossinut
Bysack v. Hurroosoondry Dossee (22),
which was heard by the Supreme Court
at Calcutta in 1819, and by the Judicial
Committee in 1826, stated that a Hindu
widow had for cerrain purposes a clear
authority to dispose of her husband's pro-
perty and might do it for religious pur-
poses including dowry to a daughter.
His Lordship further stated that it is
impossible to define
the extent and limit of her power of disposing
of it because it must depend upon the circum-
stances of the disposition whenever such disposi-
tion shall be made and must be consistent with
{he law regulating such disposition.
•This was a Dayabhaga case, but the
rule laid down is the same as regards the
Mitakshara Law. This has been firmly
established by their Lordships of the
Judicial Committee. At the Bar the
following authorities were cited : Col-
lector of Masulipatam v. Cavaly Vencata
' (22) [1820J 2 Mjrley's Digest. I9d~
Narrainapah (23), Bhugwandeen Dooby
v. Myna Baee (21 j, Raj Lukhee Dabea v-
Gokool Chunder Chowdhry (24), Sao
Kurun Singh v. Nawab Mahomed Fyzali
Khan (25), Sham Sunder Lalv.Achhan
Kunwar (26), Lai Sheo Pertab Bahadur
Singh v. Allahabad Bank, Limited (27),
Munshi Karimmud-din v. Kunwar Gobind
Krishna Narain (28), Janaki Ammal v.
Narayanasami Aiyar(%9), Sadasi Koer v.
Ramgovind Singh (30) and Khab Lai
Singh v. Ajodhya Misser (31).
Justice Turner in the case of Collector
of Masulipatam v. Cavaly Vencata Narm
rainapah (23) stated the law as follows :
For religious or charitable purposes, or those
which are supposed to conduce to the spiritual
welfare of her husband, she has a larger power
of disposition than that which she possesses for
purely worldly purposes. To support an aliena-
tion for the last she must show necessity.
This distinction between legal necessity
for wordly purposes on the one hand and
the promotion of spiritual benefit of the
deceased on the other has been 'recog-
nized by the Indian Courts as well as by
their Lordships of the Judicial Commit-
tee, and within a proper limit a widow
can alienate her husband's property for
the performance of religious acts which
are supposed to conduce to his spiritual
benefit, Khub Lai Singh v. Ajodhya
Misser (31) and Chowdry Janmejoy Mullik
v. Sreemutty Russomoyee Dossee (32 & 34).
In Vuppuluri Tatayya v. Garimilla
Ramakrishnamma (35), Benson and
Krishnaswami Ayyar. JJ. stated that the
spiritual purposes should be such as are
regarded by the.Hindu community as rea*
sonable and;proper though not absolutely,
necessary. If the property sold or gifted
(23) [1859- Gl] 8 M. I. A. 529^- '2 W. R. 61
(24) [1669-70J 13 M. I. A. 209—12 W. B. 47-3
B. L. B. 57 ~2 Suther. 275=2 Sar. 518
(P. C.).
(25) 11871-72] 14 M. I. A. 176=10 B. L. B, 1 =
2 Suther 474—2 Sar. 722. (P. C,).
(2G) [1899] 21 All. 71^25 I. A. 183=2 C W. N.
729^-7 Sar. 417 (P. C.).
(27) [1903] 25 All. 476=30 I. A. 29=5 Bom.
L. B. 833.
(28) [1909] 31 All. 497=3 I. 0. 795=36 I. A.
138 (P. 0.).
(29) [1916] 39 Mad. 634=37 I. C. 161=43 I. A.
207 (P. C.).
(30) [1911] 15 C. W. N. 857=11 1. C. 90=J.4 C.
L. J. 91.
(3D [1916] 43 Gal. 574=31 I. C. 433=22 C. L.
J. 345.
(32 to 34) [1868] 11 B. L. B. 418 Note=10
W. B. 309.
(35) [1911] 34 Mad. 288=20 M. L. J.. 798=6 I.
C. 240=(1910) M. W. N. 222.
692 Pallia BAM SUMRAN v. GOVIND DAS (Jwala Prasad, J.)
1926
bears a small proportion to the estate in-
herited and the occasion of the disposition
or expenditure is reasonable and proper
according to the common notions of the
Hindus, it is justifiable and cannot be
impeached by the reversioners.
She is required to perform not only the
funeral or periodical sraddaha ceremonies
but also such religious ceremonies as the
last holder was bound to perform and she
has power within proper limitations to
alienate the estate inherited by her from
the last male holder thereof. This being
the law, let us examine the gift of the
property in question made by Mt. Jainti
Kumari to her son-in-law on the occasion
of the marriage of her daughter. It is
the imperative and religious duty and a
moral obligation of a father, mother or
guardian to give a girl to be married be-
fore she attains puberty to a suitable
husband capable of procreating children.
Yajnavalkya, in Chapter I, verse 64,
says :
• (A qualified person) not giving away (in mar-
riage, a maiden) will be visited by the sin of the
destruction of fcetus at every time of her menses.
In the absence of a giver the maiden should
herself give her away.
Vasishtha, in Chapter XV, says :
Fearing the appearance of the menses, the
father shall marry his daughter while she still
runs about naked. If she stays (in her father's
house) after menstruating, sin visits the father.
As often as are the menstrual courses of a
maiden, who is desirous of, and is solicited in
marriage by, a qualified bridegroom of the same
oaste, HO often her father and mother are guilty
of (the crime of) killing an embryo : such is the
sacred law,
To the same effect is the enjoinment
of all the Samhitas : Manu, Chapter IX.
paragraph 4 ; Yama, verses 22 and 23 ;
Gautama, Chapter XVIII ; Narada,
Chapter XII, verses 24 to 27, Vyas,
Chapter II, verse 7, and Vishnu, Chapter
XXIV, verse 40.
Vyas, in the chapter referred to above,
says :
He who does not give away his daughter in
marriage before she attains puberty becomes
degraded,
Narada concludes by saying :
This is the rule establishes amongst the virtu-
ous.
Thus, according to the texts, the mar-
riage of a girl by her father is enjoned as
a religious duty in order to prevent
him from being degraded and visited
with sin and crime. There is, however,
direct spiritual benefit also conferred up-
on him by such a marriage. According
to Mann, marriage is religiously enjoined
so that a man may beget a son and thus-
deliver himself from the hell called 'put*
to which the shades of a sonless man, ac-
cording to Hindu ideas, descend. The
word 'putra' (son) literally means deli*
verer from the hell called 'put.' Manu
says that there is no distinction between
a son and the daughter's son in this
world, inasmuch as a daughter's son like
a son's son, can succour a rnan-from hell r
Manu, Chapter IX, slokas 138 and 139.
In the earlier slokas 132-133 he
says that a daughter is like
unto a son and a daughter's son offers
two oblations : one to his deceased father
and another to his mother's father and
that is the reason why a daughter and
daughter's son successively take the
estate of a sonless man: vide also Daya*
bhaga, Chapter V, paragraph 6 ; Dattak
Mimansa, Chapter I, paragraph 3 ; Cole-
brooke's Digest, volume III, pages 159,.
293 and 294. It is obvious, therefore,
that the marriage of a daughter confer^
spiritual benefit on her father. The
authorities also have taken the same)
view.
In the case of Jummona Dassya v.
Bamasoonderi Dassya (36), Sir James W,
Colvile observes —
The foundation for marriages between infants
which so many philosophical 'Hindus ' consider
one of the most objectionable -of their -customs,
is the religious obligation which is supposed to
lie upon parents of providing for their daughter,
so son as she is mature virgo, a husband capable
of procreating children.
Vide also Churaman Sahu v. Gop
Sahu (37}; Venkatacharyalu v. Ranga*
charylu (38); Devulapalli Rameswara*
Sastri v. Polavarapu Veeracharlu (39);.
G. Gopala Krishnam Bazu v. S. Venkat-
anarasa Razu (40); D. Srinivasa Iqengar
v. Thiruvengadathaiyangar (41); Sund-
rabai Javji Dagdu Pardeshi v. Shiva-
narayana Ridkarna (42);\v(Jan#a$ y-
Tulsiram Ukha (43); Bhagirathi v. Jokhu
(86) [1875-76] 3 I. A. 72=25 W. B. 285=3.
Suther 222=3 Bar 602 4P. 0.).
(37) [1910] 37 Cal. 1=10 C. L. J. 545=1 I. 0,
945=13 C. W^N. 994.
(38) [1891] 14 Mad. 916=1 M. L. J. 85.
(39) [1910] 34 Mad. 422=20 M. L. J, 855=8
I. 0. 195=(1910) M. W. N. 649.
(40) [1914] 37 Mad, 273=23 M, L, J. 288=17
I. C. 808=1912 M. W. N. 903.
(41) [1913] 38 Mad. 556=(1913) M. W. N. 1084
=23 I. C. • 264=25 M. L, J. 644.
(42) [1908] 82 Bom. 81=9 Bom. L.B. 1366.
(43) [1912] 36 Born, 88=12 1. 0. 271=18 Bom
L. B. 860.
1926
BAM S0MBAN v. GOBIND DAS (Jwala Prasad, J.)
Patna 59$
Bam Upadhia (44) ; and Kasturi v.
Panna Lai (45).
According to the texts, after the death
of the father the duty of giving his daugh-
ter in marriage falls upon, amongst
other relations, his widow, both under
the Mitakshara and the Dayabhaga, with
this difference that the latter would post-
pone her right to that of a maternal-
grand-father and maternal-uncle.
Marriage, according to the Sastras, is
a religious act. It is the last Sanskara
for a man or woman.
According to Hindu ideas marriage
has for its object the performance of
religious duty. It is a sanskara, that is,
an essential ceremony held indispensable
to constitute the perfect purification of
a Hindu, both male and female. The
sanskaras are ten or eleven in number
and are performed by oblations to fire
and customary offerings fco idols: Wilson's
Glossary, page 463.
According, to Manu, Chapter II, verse
•67, the sacrament of marriage is to a
female what initiation with the thread
is to a male. According to Yajnavalkya,
the purificatory rifces of a woman are
performed without Mantras, except
marriage which is accompanied with
Mantras: Chapter I, verse 13. The
Mitakshara also recognizes marriage as
a religious obligation for both male and
female: Sundrabai Javji Dagdu Pardeshi
v. Shivanarayana, Ridkarna (42).
The texts prescribe details of nuptial
rites to be performed at the time of
marriage and the authorities already
quoted above have recognized it fco bo so.
The widow of a deceased Hindu has a
right not only to provide for the marri-
age of his girl but also the expenses there-
of for the performance of ceremonies, etc.
connected therewith. The moral and
the religious obligation cast upon the
parents or other guardians to provide a
husband for a girl confers upon them the
right to spepd out of the estate, funds
necessary for the performance of marri-
age ceremonies.
• Atri Samhita in Chapter I, sloka 32fr
says,
It is essential to make gifts on the occasion of
an eclipse, the marriage, the last day of month
and at the delivery of a woman.
[1910] 32 All." 575^6 I. 0. 465~7 A. l>73.
667,
(45) [1916] 88 All. 520=36 I. C. 245=14 A.L J.
754.
1926 P /. 75 & 7
Accordingly, he says that such a gift
can be made even in the night time.
Yajnavalkya, in Chapter II, verse 179,
relating to gift, says:
Let the acceptance be public, specially of im-
moeable property ; and delivering what may be
given arid has been promised ; let not a man re-
sume it.* In other words, whatever is promised
to be given shall be given. Having once given it
let him not resume it.
Mitakshara, commenting upon this
with reference to the text of Narada
makes a distinction between valid and in-
valid gifts and says that the valid gifts
if once promised must be performed and
among the seven valid gifts are mention-
ed a gift made "from affection" and
"a woman's sulka." The former is de-
fined as what is given out of aff eotion to
"daughters, sons and the like" and the
latter, namely, sulka as
that which are given to the relations of a
damsel for bringing about the marriage.
Continuing the author says,
These seven kinds of gifts are valid gift* and
must not be resumed" vide Mitakshara by Ghar-
pure, book II, Chapter XII, on the resumption of
gifts, pages 314-815.
Shyamaoharan in his Vyavastha Dar-
pana, 2nd edition, page 54, paragraph 35.
discussing the widow's limited power of
disposition of the property inherited by
her from her husband construes the
word "waste" or "apahara" used in the
Mahabharata Dana Dharma as implying
expenditure not useful or beneficial to the late
owner of the property,
and says that a gift or other alienation
by the widow is permitted for the hus-
band's funeral rites, etc., as that is-for the
benefit of the husband. He sums up hin
conclusion at page 54, paragraph 35, as
follows: —
Widow is, however, competent even without
the consent of the reversioners to make sale or
other disposition of her husband's property for
the liquidation of his debts, for the marriage of
his daughters for the support of such persons as
it was incumbent upon him to support, likewise
to defray expenses of such other acts as are be-
neficial to his soul or very necessary to be per-
formed. Great benefit is done to a departed soul
by paying his debts, by bestowing his daughter
in marriage and supporting bis family indeed if
these debts are neglected he is doomed to hell.
To maiden should be given a nuptial portion of
the father's estate.
In support of bis conclusion he 'refers
to the text of Devala ; see Colebrooke's
Digest, volume I, page 185. In para-
graph 38 he says.
But a gift or other alienation by a widow of
a moderate portion of her husband's property for
hia spiritual benefit (be the same made with or
594 Patna
BAM SCTMRAN v. GOBIND DAS (Jwala Prasaa, J.)
1926
without the consent of hia heire) is religious and
moral as well as valid.
The right of a Hindu daughter, whose
father is dead, to receive a dowry at the
time of marriage from the estate of her
father is based upon the ancient texts :
vide Manu, Chapter IX, verse 118, and
Yajnavaikya, Chapter II, verse 127, which
enjoin upon the brothers to perform the
marriage of their uninitiated sisters by
giving them a quarter of their share.
According to Viahnu, the initiations of
the unmarried daughters are to be de-
frayed in proportion to the wealth.
Mitakshara, Chapter I, S, 7, clauses 5 to
14, discusses the question of allotment
of a portion of the estate of the deceased
for the marriage of his daughter and
comes to the conclusion that ifc is not
right to interpret the text of Yajnavaikya
referred to above, as signifying giving
money sufficient for her marriage and
hence,
after the decease of the father au unmarried
daughter participates in the inheritance and is
entitled to a share," (Golebrooke's translation
of Mitakshara) Chapter I, S. 7, clause 14.
Viramitrodaya in Chapter II, part I,
8. 21, says that shares should be allotted
to uninitiated or unmarried daughter
out of the paternal wealth, which re-
presents her dowry and marriage expenses
and such a share is one-fourth of what
she would have been entitled to receive'
if instead of being a daughter she had
been a son.
These texts, particularly the Mitak-
shara which governs the present case,
make it perfectly clear that when upon
the death of a Hindu governed
by' the Mitakshara law the
property is taken by his widow a
gift by her to her daughter on the occa-
sion of her marriage out of the estate of
he& husband is within her power provided
that the portion so given is reasonable in
amount and the question whether it is
reasonable or not has to be determined
with respect to what should have been
the share of the unmarried daughter
under the above rules laid down in the
Mitakshara, Chapter I, S. 7, paragraphs 5
to 14. Such gifts are recognized in all
the -texts,
Among the sixfold properties of a wo-
man called stridhan or her own peoulium
are the two most permanent ones, namely,
what is given before the nuptial fire and
what is presented in the bridal £rooes-
sion : vide Manu, Chapter IX, verstf 194 ;
Dayabhaga, Chapter X, 8, 1, paragraph
4 ; Narada, Chapter XJII, stanza 8t;
Viihnu Samhita, Chapter XVII, .verse
18 ; Yajnayalkya, Chapter II, verse
146. . .
Thus, gifts of property during the per-
formance of the nuptial rites and in the
bridal procession form two mosfc import-
ant properties of a woman. This supports
the view that during the marriage she is
given out of the estate of her father
dowry which represents her share in her
father's estate.
Gifts during marriage have become
customary and are coming down from the
ancient times : Big Veda, Mandal 10,
Sakta 85, verses 9 and 11, refers to the
presents given by Surjya to his sister in
marriage. Marriage in the first four ap-
proved forms of Brahma, Daiva, Arsba
and Prajaptya is a gift of the girl to the
bridegroom, and the gift of the girl is
accompanied with gifts of all kinds olt
necessaries in life including property to
her and to the son-in-law so that both
might live together with comfort and
perform the religious duties having been
united into one by the religious rites.
The religious ceremony of giving the girl
to the bridegroom must be accompanied
with a gift of property to the gon-in-law
in order to enhance the merit of the
spiritual ceremony of giving the girl in
marriage, which is one of the highest
Yajna or religious ceremony performed
and a Yajna cannot become meritorious
without a gift. The giffc of land is or-
dained on every occasion of a Yajna
as being efficacious for conferring
spiritual benefit : vide Yichaspati
Sarnhifca, For these reasons Bishya
Shringa. ordains that one should give to
the son-in-law according to his or her
means lands cows, maids, cloths, she*
buffaloes, horses, gold and jewels.* The
sloka runs as follows :
;i
It has been quoted in : (l) Viramitr6-
daya, Yivaha Sanskara, page 831, edited
by Parvatiya Nifcyananda Sarma, the
Chowkhamba Sanskrit Series, No. 141,
page 831 ; it also quotes at that page , a
similar passage from Linga Purana ; (2j
Nirnaya Sindhu, page 228, Bombay edi*
tion, Venkafceshwara Press, Sambat 1965 ;
3) Dana Chandrika, page 28, Venkatesh-
wara Press edition ; (4) Dana Mayukha
BAM SUMKAN v, GOBIND DAS (Jwala Prasad, J.)
1926
page 170 (in the Bhagwanta Bhaskar by
Nilkantha) edited by Pandit Batna Gopala
3hattat Benares edition, 1909. To the
same effect is the sloka in Dana Mayukha
4>ii page 171 which enjoins, among other
fchings, gift of land according to the
means of the giver in order to enhance
the merit of kanyadana **3KN (giving
the girl in marriage.)
The learned vakil on behalf of the
defendant produced manuscript editions
of Parayoga Batan, page 62, Girhya
Karika by Bhatta Kumarila Swami, page
13, verses 7 and 8, and Nirnaya Sagar
Press edition of Sanskara Bhaskara, page
248, which recommend giving of land to
the son-in-law after marriage and also at
the time of departure.
Parashar Grihya Sutra (Hari Har
Bhashya), Venkateshwara Press edition,
Sambat 1950, pages 28-29, recommends,
among other things, gift of villages by
the father of the girl ; other relations
should also give dowry or yautaka at the
time of marriage. Such gifts to the son-
in-law are also recommended on occa-
sions other than marriage : vide Dana
Mayukha, page 404, which quotes from
Bhavishya Purana and Vishnu in support
of it.
Hence gift of land to a son-in-law on
.the occasion of marriage or at the time
of departure, that is, bidagi, is meritori-
ous. Such a gift by the mother cannot
IQQ considered to be an apahara or waste
which alone is a restriction placed upon
her use of the property inherited from
her husband, provided the gift is reason-
able in extent and not extensive.
Thus the gift of a reasonable portion
of landed property to the daughter or
son-in-law by the widow is supportable
by the texts as a part of religious cere-
e^ny of marriage of the daughter and as
ing» conducive to the spiritual welfare
of her; husband. It is her duty to perform
the marriage ceremony accompanied with
,gift as discharging an obligation of her
own husband. In making a gift of landed
^property to her son-in-law she only gires
what is due to her as the nuptial portion
of the estate of her father. The gift can
be made at the time of the actual mar-
riage, or in connexion with the ceremonies
connected therewith ; for gifts in the
bridal procession as well as nuptial rites
tkre permissible.
The authorities in India seem to have
interpreted the texts as abovo. The well-
Patna 595
known passage in Lord Gifford's judgment
in the case of Oossinaut Bysack v. Hurroo"
soondry Dossee (22), referred to above,
gives the widow power to dispose of pro-
perty for religious purposes including
dowry to a daughter.
In Damoodur Misssr v. Senabutty Mis-
rain (46), a MHhila case, it was held that
property sufficient to defray all the nup-
tials should be given to unmarried
daughters, and accordingly l/24th share
of the estate in view of there being
several sons and daughters was directed
to be set apart for nuptial purposes.
In the case of Churaman Sahu v. Gopi
Sahu (37), Mookerji, J., reviewed the
texts and the authorities and upheld a
gift of a house made by the widow to her
daughter a few days after the perform-
ance of the dwiragaman of gauna cere-
mony (that is, sending off the girl to re-
side in the family of her husband), a
ceremony which was performed two
years after the marriage. His Lordship
overruled the contention that the gift
should not be supported as the gauna
ceremony had nothing to do with the
marriage, and observed that the cere-
mony was connected with the marriage
and there was no substantial distinction
between gifts made at the nuptial fire or
in the bridal procession and those made
at the time of dwiragaman ceremony ;
the last may be regarded as dowry defer-
red. He also held that thn gift was rea-
sonable in extent upon the ground that
the house in question was worth only
Bs. 1,200 and the total value of the three
houses inherited by the widow was Bs.
3,800 and the husband of the widow had
left only one daughter,
Shortly after the above case, in 1910,
his Lordship in the case of Oobinda Hani
Dasi v. Badha Ballabh Das (47), upheld
the decree passed by the Subordinate
Court allowing maintenance to the son-
in-law against the mother-in-law when it
was found that the father-in-law had ag-
reed to the marriage upon the under-
standing that he would be brought up in
the family as a gharjamai. This case was
decided upon the principle of putrika
putra which finds place in the Sastras
under which the marriage takes place
upon the condition that the son born of
the girl would belong to her father and
(47)
,
[1910] 12 O.LJ, 179=7 I.C. 118=1* C.W,
N.205,
596 Patn*
RAM SUMBAN v. GOBIND DAS (Jwala Prasad, J.}
1926*
would be treated as his son and successor.
"Putrika putra" means a " son of an ap-
pointed daughter.
The Madras High Court in the case of
JRamaswami Ayyar v. Vengidusami Ayyar
(48), upheld a gift of a portion of the
landed property by the mother to the son-
in-law at the time of the marriage of
her daughter. The parties were Brah-
mans and it was found that there was
a practice in that community of
(bhudan) making a gift of land along
with other things at the time of giving
the girl in marriage. Subramania Aiyar,
J., however, supported the gift also upon
the ground that the gift was a provision
for the married couple and that it was
believed to enhance the merit of the
primary act, namely, the giving of a
virgin in marriage which from a religi-
ous point of view is supposed to be pro-
ductive of considerable spiritual benefits
to the parents. Referring to the texts
relating to^the allotment of a quarter of
a share of a son by the brothers to the
unmarried sisters, his Lordship held that
the text^ justify something more than the
disbursement out of the estate of only
the price of things required in connexion
with the celebration of the marriage.
Following this case, the Madras High
Court uphold the gift of landed property
in favour of a son-in-law in the case of
T. 7?. Sundaram Aiyar v. Rrishnasami
Aii/ar (49).
In the case of Kudiitamma v. Nara-
simha Charyalu (50), the plaintiffs were
sisters and were married by their father to
men of small means and were maintained
by the father until his death which
happened three years after the marriage.
His son, Defendant No. 1, became the
managing member of the family. He
executed a deed of gift whereby be gave
to his sisters, the plaintiffs, certain por-
tions of the joint family property. He
and his son subsequently resiled from the
gift and hence the plaintiffs brought the
suit to obtain possession of the gifted
property. The plaintiffs' suit was
decreed and the gift was upheld, upon
the ground stated by their Lordships
that there was a strong moral obligation
on the joint family of which the father
was the managing member to make a
gift of the joint family property on the
(48) [1899] 22 Mad. 113=8 M.L.J, 170.
(49) [1915] 28 1.0. 992.
<50) [1907] 17 M. L, J. 528=5 M.L.F. 40.
occasion of the marriage either to the
girls or to their husbands as a provision
for them; and the (act that the father
maintained the daughters and their bus*
bands out of the family property until
his death may be regarded as the conti*
nuing recognition of such moral obliga*
tion which obligation continued until it
was discharged by the deed of gift exe-
cuted by the brother of the plaintiffs.
The gift was found not to be in excess o£
the powers of the brother as the manag*
ing member of the family and therefore
it could not be recalled by him or avoi-
ded by his son.
In PuQulia, V ettorammal v. Vettor
Goundan (51) (Sundara Aiyar and Spencer
JJ.), the gift to the girl by her father's
brother some years after the marriage
which was performed by him was upheld
as against his minor son who was joint
with him. The property gifted was
worth Rs. 400, and the family property
was worth Rs. 2,4QO, that is, l/6th of the
entire joint family estate. The father of
the girl had died without marrying her,,
leaving his brother and iihe minor son of
the brother as the surviving male mem-
bers of the family.
Following this decision a gift of l/10th
of the immovable property by a father ta
his daughters at the time of their
marriage was upheld as against the
nephew who was a co-parcener : vide
in re Subba Naicker minor (52)
In A. Sundararamayya v. C. Sitamma
(53), a gift by a father to his daughter of
a small portion of ancestral property 40
years after the marriage was upheld a&
binding upon the coparcener, the son of
the donor. There was no promise proved
as having been made by the father at the
time of the marriage. The gift was up-
held, as it being a moral obligation coulJ
be discharged at any time. The impor-
tant pronouncement in that case is that
the gift to daughters stands in the same
position as gifts to sons-in-law, for such
gifts are intended to provide for the
married couple and are probably given in
lieu of her share of the family property
when by marriage she is leaving it for
another family. Such a gift is permis-
sible both of moveable and immovable
property. .
(51) [1011] 22 M.L.J, 321=13 1.0. 475^(1912^
M.W.N. 89.
(52) [1915] 2 L.W. 754—30 1.0. 781,
(63) [1911] 85 Mad. 688=21 M.L.J. 695^10*
I.C. 56=(1911) 1 M.W.N. 422.'
BAM SUMRAX v. GOBIND DAS (Jwala Prasad, Jj Patna 597
The Lahore High Court in Jowala Ran
v. Hari Kisken Singh (54), upheld a gift
of«70 bighas out of 300 bighas as being
less than i4th of the entire property by
a Hindu widow as a dowry to her daugh-
ter on the occasion of her marriage,
In Bachoo Harkisondas v. Mankorebai
f(55), Harkishun Das and Bhagwan Das
were brothers. Hirkishun Das died on
14th September 1898, leaving behind
him as his survivors his wife who was
pregnant and his brother Bhagwan Das.
On the 5th November 1900, Bhagwan
Das made a gift to his daughter, who
was his only child, of promissory nodes
worth Es. 20,000. On the 30th
November 1900, he made a will directing
his wife, to adopt even if a son was
born to the widow of his deceased
brother Bhagwan Das, and directing
further that in the event of a son being
born to his brother's widow she should
before making an adoption enter into an
agreement with the adopted son that he
would be bound to accept as valid the
provision made for his daughter and his
wife. Bhagwan Das died on the 17th
December 1900, and the next clay a
posthumous s^n was born to his brother.
3n the 13th February 1901, Bhagwan
Das's widow already adopted Nagar Das
Pitambar, The widow -of his deceased
brother brought a suit contesting the
adoption and the gift on behalf of her
posthumous son. Taiyabji, •!., upheld
ihe adoption but decided against the
validity of the gift. On appeal Sir Law-
rence Jenkins, C. J. and Russel, J., upheld
30th the adoption and the gift, setting
iside the decision of Taiyabji, J. The
promissory notes of Us. 20,000 were pur-
jhaaed out of the income of the property,
which represented l/50th part of the
js^ate valued at ten to fifteen lakhs of
rupees, ffhe gift was held to be valid on
The ground that it was a gift of moveable
property tnade through affection under
ihe^ Mitakshara, Chapter I, S. 1, pi. 27
yid Mayukha, Chapter IV, S. 70, pi. 11
ind 13.
This decision was upheld by their
Lordships of the Judicial Committee in
Bachoo Burkisondas v. Mankorebai (56).
In Abhesang Tirabhai v. Raisang Fate*
\ang (57)va Hindu Taidow, shortly after
~
(54) A. L R. 1924 Lab. 429~
(56) [19C6] 29 Bom. 61.
(66) [1907] 31 Bom. 378=34 I.A. 107-9 '
Bom. L.R.646(P.C.).
467)' [1912] 14 Bom. L.B. 602=16 I/C. 561.
the marriage of her daughter, conveyed
all the properties by way of gift to her
sons*in-Jaw. Three days later the rever-
sioners passed a deed of release in favour
of the widow on receiving consideration.
More than 50 years after, one of the sons
of the reversioners questioned the vali-
dity of the gift. It was held that the
consent of the reversioners validated the
alienation as being evidence of the pro-
priety of the gift. It was also observed
that there is authority that gifts by u,
widow on the occasion of the daughter's
marriage are understood in the Hindu
law to conduce to the spiritual benefit of
the widow's husband and, if so, it is
another reason for upholding the trans-
action.
In RustomSjAgh v. Mcti Singh (58), it
was held thauwhen a Hindu father does
not leave sufficient means to provide for
the marriage of his daughter the mother
of the girl can mortgage properties of her
own stridhan, which she had inherited
from her father, to meet the expenses of
the daughter's marriage and that such
an alienation was binding on the , rever-
sionary heirs of her father. It is notice-
able that the property alienated in this
case was not that of the father of the
girl but that of the father of her mother,
which the mother had got from her own
father. The principle upon wh;ch the
alienation was upheld against the heirs
of the father of the mother to the pro-
perty in question, with which the girl
could have no concern, is that it is not
only the duty of the father of the girl to
provide for her marriage but that of the
mother also to provide from her perso-
nal property in order to confer spiritual
benefit upon her husband and upon her-
self.
In the case of Bhagwati Shukul v.
Ram Jatan Tewari (59) Sir Grimwood
Mears, G. J., and Stuart, J., upheld the
gift of the entire property which the
widow had inherited from her husband
to her son -in law as a dowry as against
the claim of the husband's brother's son.
The daughter married was blind and a
cripple, and the property was very small
in value. The ground for the decision
was stated to be that it was the duty
of the mother to provide a husband for
her daughter and the alienation was
for sheer legal necesssity, and that
(581 [18961 18 All. 474^(1896) A.W. 155.
(59) A. I. B. 1924 All. 23—45 All. 297.
598 Patna BAM STJMRAN v. GOBIND DAS (Jwala Prasad,
1926*
she had power to dispose of her hus-
band's property for religious purposes
including dowry to a daughter, and that
the extent of the power depends upon
the circumstances of each case as held
by Lord Gifford.
In the case Madhusudan Prasad Singh
v. Bamji Das (60) (Sir Dawson Miller,
C. J., and Mullick, J.), a verbal gift of
cash and grains as monthly allowance
to the son-in-law and his sons and heirs
by a Hindu father at the time of his
daughter's marriage was upheld. The
father posseted considerable wealth,
and the allowance was made with a view
to maintain the position of the bride-
groom and also the bride. The father's
intention was to benefit the daughter.
The co-ntract was hold V, be legal and
enforoible, and not in the nature of a
marriage brokerage^ though the son-in-
law had statod that he would not have
married in the family if the allowance
had not been promised.
The case-law on the subject sum-
marized above fully indicates the
inclination of all the FTigh Courts to
uphold a gift l>v a widow of landed
property to her daughter or son-in-law
on the occasion of the marriage or any
ceremonies connected with the marriage
and that the promise made may be
fulfilled afterwards; and it is not
essential to make a gift at the time
|of the marriage, but that it may
i be made afterwards, upon the ground
• that the gift, when made, fulfills the
jmoral and religious obligation of giving
;a portion of tho property for the benefit
jof the daughter and the son-in-law.
'The only limitation placed upon this
power of making a gift is that it should
bear a reasonable proportion to the entire
property of the deceased father and that
it should be justifiable in the circum-
stances of the case in terms of the
principle laid down in Cossinaut Bysack
v. Hurrosoondry Dossee (22),
Now, gifts of a small portion of the
deceased are permissible by a widow
even if it 19 not for the performance of
the strictly religious duties such as are
expressly enjoined by the Sastras, pro-
vided the gifts are made upon the
occasions which are conducive to the
spiritual welfare of the deceased : vide
Vuppuluri Tatayya v. Oarimilla Rama.
(60) [1920] 5 P*t>. L.J. 516=67 I. 0, 341=1
Pat, L. T. 541.
Jcrishnamma (35) ; Narainbali Kunwar*
v. Bamdhari Singh (61) and Khub Lai
Singh v. Ajodhya Misser (31). *
In Gopaljj Sah v. Manbirti Kuer (62),,
the gift by a widow of a house on the/
occasion of her husband's anniversary
ear add ha ceremony was upheld upon
the ground that it was conducive to her
husband's spiritual benefit, and that it
was not excessive.
Their Lordships of the Judicial Com-
mittee, in the case of Sardar Singh v.
Kunj Behari Lai (63), upheld the gift
of a small portion of the estate inherited
by the widow for the observance of
bhog or food offerings to the deity of
Puri and the maintenance of the priest.
In that case their Lordships observed-
that the lady had of course sufficient
income to provide for the observances
without any alienation of the part of
the estate. The alienation was, however,
held to be valid upon the ground that
the property given formed only a small
portion of tho whole estate and the gift
was for the continuous spiritual benefit
of the deceased, though not for an obser-
vance essential to the salvation accord-
ing to the Hindu religious law. It was.
pointed out that there were two sets-
ot religious acts ; one essential for
the performance of obsequial rites
and other pious observances which
conduced to the bliss of the deceased soul.
In the case of the former if the in-
come is not sufficient to cover the
expenses she is entitled to sell the
whole of the property. In the other
case she can alienate a small portion
for the pious or charitable purposes she
may have in view. It depends upon
the circumstances of each case what is-
reasonable.
These decisions are based upon fche
texts already referred to that the, widow
takes the estate for the performance or
religious duties and acts conducive to
the welfare of her and her lord by
" pious liberality." I need not quote tb,e
texts in extenso again. The words
11 pious liberality " imply acts conducive
to the spiritual benefit of her husband
and herself, such as, performing srad-
dhas, digging wells, and giving presents*
all requiring for the accomplishment
pecuniary aid.
(61) [1916] Pat. L. J. 91=20 C, W. N,
I. C. 277=8 PAt. L. W. 377.
(68) [1919] P. H. C. C. 896=52 I. C. 990.
(63) A. I. B. 1922 P. C. 261=41 All. 503.
1926
BAM SUMRAN v. GOBIND DAS (Baoknill, J.)
Pataa 599
It has already been shown by reference
to 'the texts and authorities that the
marriage of the daughter and the gift
made to the daughter and the son-in-law
areaots which confer spiritual benefit
upon the husband of the widow and such
gifts are enjoined to be made on account
of the unmarried daughters having share
in the estate ad her nuptial portion to
be given to her in the shape of dowry
and for meeting the marriage expenses.
No prohibition anywhere in the texts
or in the authorities against a gift of
immovable property by the widow on
the occasion of her girl's marriage or in
connexion with any of the marriage
ceremonies has been pointed out.
Therefore, the gift of the landed pro-
perty in question in the present case by
Mt. Jainfci Kumari to Qobind Das, the
defendant, is not in any way prohibited
by the texts or the authorities. The
gift in question has not been challenged
as being in any way -excessive. On the
other hand, it* has been shown that the
property is only worth Us. 50,000,
whereas the deceased father of the girl
had left behind property of very con-
siderable value yielding an income of over
a lakh of rupees from the landed pro-
perty, the promissory notes and the
money-lending business. The property
gifted bears but a very small fraction
of not more than one'fortieth of the
entire estate. Chhotan Bibi was the
only child of the deceased and would
have succeeded to the estate in case she
had survived her mother. The girls of
the family of the brothers of the
deceased were married at considerable
expense, whereas the marriage of the
girl in this case was performed at a very
moderate expense and the property
gifted, including the actual expense ki-
ourretl otherwise at the marriage, does
not iru value exceed the amount spent in
the marriage of the daughters of the
/**nily. The gift wasi therefore, not
unreasonable. It was in no sense a
waste or apah$ra of the property in-
herited by the widow who by her good
management and economy augmented
the income of the estate and added to
the corpus thereof. She has in terms
of the texts used the property with
rftoderatton and without any waste and
left it in a sounder and more substantial
condition than what she inherited from
her husband, in order to be taken by the
reversioners, the plaintiffs in the presea
case. They have no reason for any
complaint. They would certainly have
no grievance if instead of giving the
land the lady would have given cash in
her possession even much more than
the value of the property.
I have already disposed of the conten-
tion of Mr. Jayaswal that the gift is
invalid/ inasmuch as the consideration
of it was in the nature of marriage
brokerage by reason of the promise of
the gift having been made prior to and
as a condition for the bridegroom's party
(father and uncle) consenting to marry
the girl in question. The texts make
such a gift unrevocable, Narada has
gone so far as to make a woman's sulka,
that is, the fee given to the relations of
a damsel for bringing about the marriage
as unresumable or unrevocable. Manu,
while forbidding the acceptance of a gift
by the father of a girl by way of sulka
from the bridegroom 'in verses 51 and 53
of Chapter III condones it in verse 54 if
the bridegroom's father voluntarily and
out of affection presents the sulka.
Manu does not forbid the giving of pre-
sents or dowry by the bride's parents
and relations to the girl or the bride*
groom. On the other hand, nuptial gifts
at the bridal procession to the bride and
the bridegroom are enjoined. The ques-
tion in this case does not arise, inas-
much as the gift in tbe present case was
actually made, and the donee has been
in possession of the property for the last
26 years ever since the deed of gift was
executed. The gift cannot be revoked
or cancelled. The lady herself could
not recover it upon the ground that the
gift was invalid; much less can the plain-
tiffs, who are reversioners, recover it on
that ground.
In the result, in agreement with the
view of the Court below I dismiss the
appeal with costs.
Bucknill, J. — (His Lordship set out
the facts and dealing with the question
of widows having any independent
advice proceeded :) It. is not imperative
that she should have any independent
advice if, from the environing circum-
stances it may safely be assumed ihat
had she had any independent advice her
conduct would not have been materially
affected thereby vide Mt. Hire Bibi r.
Bamftdhan Lai (64), Satis Chandra
(64) A. I. B. 1922 Pat. fO~6 Pat. D. J, 465.
Patam
BAM SUMRAN v. GOBIND DAS (Bucknill, J>
1926
Crhose v. Kalidasi Dasi (11). Now there
was nothing to my mind remarkable in
a transaction of this kind. If one accept a
any substantial part of the whole story,
i. e., that it was with the object of ob-
taining a suitable husband for her daugh-
ter that the widow contemplated and
did make this gift, I do not consider that
the transaction was of such a character
as would have been adversely affected
by the advice of a prudent and indepen-
dent person. As a matter of fact the
widow's own brother was one of the
attesting witnesses to the document and,
although it is true that he now has
given evidence in favour of the plain-
tiffs, yet, as is pointed out by the learn-
ed District Judge, this brother, at any
rate, represented what may be called the
widow's side of the family. Under these
circumstances I do not think that the
widow could be said to have suffered
from the absence of independent advice
even if she did not have such ; indeed,
I am inclined to think that she did have
and take advice which was not improper
in any way.
As to the question of the validity of
the registration it is suggested that, as
there was some evidence to show that
the bigba or jote land situated in Ulaon
was not in the jofce possession of the
widow at the time when she executed
the document, its inclusion in the deed
was fraudulent or improper and solely
for the purpose of enabling the registra-
tion to be effected in the Monghyr and
not in the Darbhanga district. But this
objection to the registration has I think
little or no solid foundation. The re-
cord of rights which was published in
1902 (some time after the execution of
the deed) shows that the bigha of land
was in the zamindari of the widow al-
though it is true that it is not shown as
being in her khas possession. There is
nothing to indicate that there was any
intention on the part of the widow to
effect any fraud on the registry or deli-
berately to do anything of a character
which would invalidate the registration.
The Uw as laid down in a number of
decisions is quite clear that in circum-
stances similar to those disclosed in this
case, the registration cannot be regard-
ed as invalid unless there is some1 inten-
tion definitely to commit a fraud upon
the registry : vide Harendra Lai Roy
Chowdhuri v. Haridvsi Debt (1), Mt. Ram
Dai v. Ram Chandrabati* Debi (7)
and Mt. Jasoda Kuer v. Janak Missir
(8). (His Lordship then dealt with other
issues of fact and proceeded.) Having
dealt with this question of fact one now
passes to the next issue. This issue is
really the main question < of importance
in this case and is whether Mt. Jainti
Kumari had any authority or power .to
make a valid gift of the property in suit
to the defendant ; if she had, of course
the gift binds the revsr si oners ; if she
had not, it does not so bind them.
We have been favoured with referen-
ces to a very large number of ancient
texts from the Hindu sages' works and
with a formidable array of oases bearing
more or less upon the subject-matter of
this point. I think that it would serve
little purpose to attempt to refer to them
all : but one may I think, attempt to col-
late the effect of decided oases (supposed
to interpret the Hindu Law) in a series
of simple statements.
It is, generally, contrary to public
policy for a father to be paid money in
consideration of giving his son or daugh-
ter in marriage and a contract to that
effect cannot be enforced in a Court of
law (per Farran, 0. J. and Tyabji, J.,
in Dholidas Ishvar v. Fulchand Cha-
gan (17), but an agreement to pay
money to the parents or guardian of
a bride or bridegroom in consideration
of their consenting to the betrothal is
not necessarily immoral or opposed to
public policy. Where the parents of thej
bride are not seeking her welfare but
give her to a husband otherwise ineligi-
ble in consideration of a benefit secured
to themselves, the agreement, by which
such benefit is secured, is opposed to
public policy and ought not to be enfor-
ced ; where an agreement to pay money
to the parents or guardian of a bride or
bridegroom io consideration of their, con-
senting to the betrothal is, under the cir-
cumstances of the case, neither immoral
nor opposed to public policy, it will be
enforced and damages will also be award-
ed for breach of it ; and semble an
agreement to remunerate or reward a
third person in consideration of negotia-
ting a marriage is contrary to public
policy and cannot be enforced [per
Mookerjee, J., in Bakshi Das v, Nadu
Das (id)] ; and where a contract provided
that when a marrigage has been arranged
and performed the parent of either the
1926
BAM SUMRAN v. GOBIND DAS (Bucknill, J.)
Patna 601
.boy or girl who is a party to the mar-
riage shall pay a certain sum of money
4he contract is not void»ab initio as hieing
opposed to public policy [per Walsh and
Ryves, JJ., in Jagadishwar v. Sheo
Bakhah Bai (20)] . There is a moral ob-
ligation imposed on a Hindu father to
make a gift to his daughter on the occa-
sion of her marriage ; he may legally for
such purpose give her a small portion of
ancestral property either at or after the
wedding [per Munro and Sankaran
Nair, JJ., in Sundararamayya v. C. Si-
tamma (53)] : see too In re Subba Naiker
<52) (per Sankaran Nair and Oldfield,
JJ.) ; the gift must be of a reasonable
amount ; a Hindu brother, who is the
managing member of a joint family, will
not be acting in excess of his powers as
such, in giving away a reasonable por-
tion of the joint family property to his
sisters, who^ though married in their
father's lifetime, were left, for some rea-
son or other without a marriage portion
[per..Wallis -and Miller, JJ.f in Kudu-
tamma v. Narasimha Chary alu (50)] .
A destitute sonless widow must, how-
ever, look for her maintenance primarily
to her deceased husband's family and not
primarily to her father's family [per
Maclean 0. J., Prinsep and Hill, JJ., in
Mokhada Dassee v, Nundo Lai Haldar
(65)] , but if provision should fail and the
widowed daughter has to return to live
with her father and brother there is a
moral social obligation but cot a legally
enforceable right by which her mainte-
nance can be claimed as a charge on her
father's estates in the hands of the heirs
[per Parsons and Banade, JJ., in Bai
Manqal v. Bai Bukhmini (66)] , and see,
also Mokhada Dassee v. Nuddo Lai Hal-
dar (67), per Ameer Ali, J. So much for
the position as between a Hindu father
and Jhis daughters. Next as to the posi-
tion £8 between a Hindu father and his
son-in-law.
. It is neither contrary to any tenet of
the Hindu law or against public policy
for a Hindu father to contract to main-
tain hia son-in-law and such a contract
•can be enforced. Where a Hindu father
who had no son gave his daughter ia
marriage on the understanding that the
bridegroom should be brought up and
maintained as a member of his family as
(65) [1901]28 Oal. 278=5 0. W. S729£
<66) [18991 23 Bom. 291.
4ft7) [1900] 27CaL 565=4 C. W. N. 669.
also his daughter the bride and any issue,
the son-in-law cannot subsequently be
turned out without any provision for his
and 'his wife's and issue's maintenance and
even his separate maintenance can if the
Court thinks fit be ordered r [per Moo-
kerjee and Teunon, JJ., in Gobinda
Rani Dasi v. Badha Ballabh 'Das (47)] ,
and where a Hindu father agreed to
make an allowance to his son-in-law for
the latter's maintenance, the sons and
grandsons of the grantor are liable to
discharge the debt out of the ancestral
property which devolves on them [per
Dawson Miller, C. J., and Mullick, J., in
Madhusudan Prasad Singh v. Bamji
Das (60)] .
As to the position of a Hindu widow
and her daughter. Where a Hindu
husband dies intestate and without issue,
the widow is entitled to the absolute
possession of the property descended
from him to enjoy it during her lifetime
and to dispose of it under certain res-
trictions. The extent and limit of her
power of disposing of the property are
not definable in the abstract but must be
left to depend upon the circumstances of
the disposition when made and must be
consistent with the law regulating* such
disposition [per East, C. J,, in Cossinauth
Bysack v, Hurroosoondry Dassee (22)J
According to the Hindu Law prevailing in
Benares (Western School) a widow can-
not generally alienate the estate, inherit-
ed from her husband, to the prejudice of
his heirs which at her death devolves on
them [per Sir J.W. Golville in Bhaugwan-
deen Doobey v. Myna Baee (22)] ; a Hindu
widow in possession of the estate of her
deceased husband, who made a gift by
deed of immovable property forming
about one-seventy-fifth of the whole
estate for the observance of bhog (food
offerings) to a deity and for the main-
tenance of the priests was entitled to* do
so, such a widow is entitled to spend or
alienate not only in connexion with the
actual obsequies of her deceased husband
but also for such rites which are con-
sidered as essential for the salvation of
the soul of the deceased [per Mr. Ameer
Ali in Sardar Singh v. Kunj Behari
Lai (63)] ; such a widow is also justified
in alienating a small portion of the
property (which she had inherited) of
her father at the time of performing
her father's sradh ceremony and such
alienation binds the reversioners [per
602 Patna
Benson and Ayyar, JJ., in Vuppuluri
Tatayya Verranna v. Garimilla Bama-
krishnamma (35). A Hindu widow has
a larger power of disposition of her
deceased husband's estate for religious
and charitable purposes or for purposes
which are supposed to conduce to the
spiritual welfare of her husband Jhan
what she possesses for purely wordly
purposes but each case must be con-
sidered on its own merits as to the pro-
priety and legitimacy of the transaction
[per Mookerjee and Newbould, JJ., in
Khyb Lai Singh v. Ajodhya Misser (31).]
A Hindu widow governed by the Mitak-
shara Law is competent to make a valid
gift of a reasonable portion of the im-
movable property of her deceased hus-
band to her daughter on the occasion of
the daughter's gauna (transfer from
father's to husband's house) ceremony
and such a gift is binding upon the rever-
sioners [per Mookerjee and Carnduff, JJ.,
in Churaman Sahu v. Gopi Sahu (37)].
The provision of a dowry for a
daughter is a matter of legal necessity
which would justify the alienation by a
Hindu widow of a larger or smaller por-
tion of her husband's property. No
hard and fast rule can be laid down as
to what proportion of the property may
be alienated, but where the daughter
was. blind and a cripple and the property
was small (Rs. 500 only in value) an
alienation of the whole of it in favour
of the son-in-law was upheld [per Byves,
J., Bhagwati Shukul v. Ram Jatan Tiwari
(68) , such a gift should consist only of
a reasonable and moderate portion of the
deceased's husband's estate [per Scott-
Smith and Fforde, JJ., in Jowala Bam
and others v. Hari Kishen Singh (54)] .
Lastly, as to the position as between
the widow and the son-in-law. The
exact point or at any rate almost pre-
cisely the same point occurring in the
present appeal was dealt with in the
Madras High Court in the case of Bama-
sami Ayyar v. Vengidusami Ayyar (48).
in that suit the circumstances were
that a Hindu man (a Brahman) died in
1895 leaving & widow, a son and a
daughter, the son took the whole of the
estate of his deceased father but died
unmarried and the widow inherited the
property. Later on she gave her
daughter in marriage and at the time of
(68) A. I. B. 1922 All. 881 on appeal A. I. H.
1924' All. 28=45 AIL 297.
BAM SUMBAN v. GOBIND DAS (Bucknill, J,)
1926
" the marriage made a gift of a portion of
the landed property to her son-in-law.
The widow then died and the heir
brought a suit against her son-in-laW to
set aside the alienation ; it was con-
tended by the reversioner that this*
Hindu widow holding btit a widow'*
limited interest in the estate had no
power to make such a gift and that in
any case the particular gift was not a
justifiable one in the sense that it was an
unreasonably large gift. The District-
Munsif and on appeal tbe Subordinate
Judge held that the gift was quite a
reasonable one and also bound the rever-
sioner : the latter appealed. The learned
Judges of the Madras High Court (Su-
bramani Ayyar and Moore, JJ.), dis-
missed the appeal. They agreed with
the lower Courts that the gift, having
regard to the extent of Ihe whole estate
and the other circumstances bearing on
the matter, could not be declared un-
justifiable.
They also held on two grounds thafr
the gift bound the reversioners. One
ground was that :
At the time a girl, belonging to the commu-
nity with which we are concerned in this case,
is handed over in marriage, certain other gifts
have to be made to the bridegroom of which
one is bhudanam or gift of land. That, accord-
ing to the notions of these people, a gift of that
kind on such an occasion is indispensable is-
clear from what is done even in cases in which.
the family of the bride is not really in a posi-
tion to give any land, In such cases conformity
to the requirements of custom is sought to be-
seoured by giving some little money as .and for
land. Nor is it diffieult to understand how such
a practice came to prevail from time immemo-
rial. For apart from its being in reality a provi-
sion for the married couple, the gift is believed
to enhance the merit of the primary act, viz.,
the giving of a virgin in marriage which, froijj
a religious point of view, is supposed to be pro-
ductive of considerable benefits to the parents,
of the virgin.
This was, I take it, a finding that
there was a definite and indispensable1
custom amongst these Brahmans that a
gift of land (or something allegorically
representing land) should be made by a
bride's family to the bridegroom. ^
The learned Judges referred in sup-
port of this custom to the well-knowr*
wtek^by the Abbe J. A. Dubois entitled.
" Description of the character, Man*
ners and customs of the People of India
and of Their Institutions Religious an*
Civil/* • <
Father Dubois was a .missionary in
Mysore and Wrote in the 18th century
BAM SUMRAN v. GOBINDDAS (Bucknill, J.)
19 £6
about the people (chiefly Brahmans)
with whom in that neighbourhood he
was brought into contact. In Chapter 7
describing marriage ceremonies amongst
the Brahmans he observes of the father
of the bride :
He then takes the hand of his daughter and
puts it into that of his son-in-law and pours
water over them in honour of tho great Vishnu.
This is the most solemn of all the ceremonies
of the festival, being the symbol of his resigning
his daughter to the authority of the young
man. She must be accompanied with three
gifts, namely, with a present of one or more
cows, with some property in land, and finally
with a Salagrama, which consists of some little
amulet stones in high esteem among the Brab-
mans, worn by them, as talisman and dignified
even with the homage of sacrifices [P. Ill,
Society for tho Kesusoifcation at Indian Litera-
ture. New edition of English translation, Cal-
cutta, 1905.]
The gifts mentioned are said, by the
learned Judges, to be gifts to the bride-
groom and nofc gifts by the father of the
bride to his daughter, and I think the
proper reading of this passage from
Father Dubois' work must bear that con-
struction. Indeed from othe^r passages
in the same work the meaning of the
extract becomes quite clear. In the
Abbe's time daughters were valuable and
had to be paid for as brides, at the pres-
ent day it is rather the other way and
it is the bridegroom who is the valuable
commodity. On p. 108 of the edition
which I quote of father Dubois1 work he
writes :
To marry, or to buy a wife, are synonymous
terms in this country. Alm< at every parent
makes his daughter an article of traffic, obsti-
nately refusing to give her up to her lawful
husband until he has rigorously paid down the
sum of money which he was bound for accord-
ing to the custom of the caste. This practice
of purchasing the young women whom they are
to marry, 18 the inexhaustible source of 'disputes
and litigation, particularly amongst the poorer
people. These, after the marriage is solemnized,
n#t finding it convenient to pay the stipulated
sum, the father-in-law Commences an action, or
mt>re commonly recalls his daughter home, in
the- expectation that the desire of getting her
back may stimulate the son-in-law to procure
the money. This sometimes succeeds, but if the
young man is incapable of satisfying the avarice
of his father-hi-law, he is obliged to leave his
wife with him in pledge. Now there is time for
reflection, and the father-in-law, finding that
the sum cannot be raised, and that.his daughter
from her youth is exposed to great tempations
which might lead to the disgrace of all his
family, relaxes a littte and takes what the son-
it] -law is'able to pay. A reconciliation is thus
effected and the young man takes his wife
quietly home.
Men of distinction do not appropriate to their
ftommon purposes the money .thus acquired by
Patna 603
giving their daughters in marriage, but lay it-
out in Jewels, which they present to the. lady on
the wedding day. These are her private property
as long as she lives and on no account can be
disposed of by her husband.
The above observations refer to that
part of the judgment which I have called
the first ground upon which the learned
Judges of the Madras High Court held
that the gift bound the reversioners and
as I have stated, it may, I think, be-
regarded as a ground which refers particu-
larly to customs which existed amongst
the Brahmans of whom Father Dubois
was writing and amongst the Brahman&
who were concerned in the case decided
by Ayyar and Moore, JJ. But there
was a second ground upon which they
founded their judgment and which was
of more general application. The learned
Judges observed :
The question therefore is : had Thaiyyu Ammal
(the widow) authority to make a gift of landed
property inherited by her to her son-in-law at
the time of her daughter's marriage. No direct
ruling on the point was citod before us. Refer-
ence was. however, made to certain passages in
the Mitakshara (Chap. I, S. 7, paragraphs C-U)
and the Smriti Chandrika (Ohap. 4, 8. 20, etc.),
wherein the texts of Manu, Yajnavatkya and
other Sinribi writers dealing with the question of
allotment to be made by brothers to their maiden
sisters at the time of partition are commented
upon.
With reference to the true meaning of these
texts, commentators are divided. Some of them
hold that all that tho texts mean i»> that funia
required for the marriage of sisters should be
provided out of their father's estate. Other
commentators — Vijnaneshwara among them —
lay down that, inclusive of their marriage ex-
penses, sisters are entitled to a provision nofc
exceeding a fourth of what they would have got
had they been males. For the purposes of this
oaee it is not necessary to discuss which of the
two views is to be taken as law. Assuming that,
as argued for the appellant, the view advocated
by Vijnaneshwara and his followers is not law,
the fact that so high an authority as tha author
of the Mltakshara propounds a rule thus favour-
able to maiden daughters, ought to m^ke one
hesitate to accept as sound tho exceedingly
limited construction which was insisted on on
behalf of the appellant and which can scarcely
be in itself very reasonable ; viz., that the texts
justify a disbursement oufrof the estate of only
the price of things required in connexion 'with
the celebration of the marriage. In my opinion
th better and sounder view is, as contended for,
the respondents, that the authorities should bo
understood to empower a qualified owner like
Thaiyyu Ammal to do all acts proper-and inci-
dental to the marriage of a female according to
the general practice of the community to which
she belongs.
This very important decision has been
followed in the Madras High Court in
604 Patna
BAM SUMRAN v. GOBIND DAS (Bueknill, J.)
1926
the case of T. R. Sundaram Aiyar v.
Krishnasami Aiyar (49) (per Ay ling and
Tyabji, JJ.), where it was unequivocally
held that a gift of family property to a
son in-law is not necessarily invalid : it
has also been fallowed in the case of
Bhagwati Shukul v. Ram Jatan Tewari
<6B), per Byves, J., and on appeal per
Mears, C. J., and Stuart, J. (59), in which
case it was held that a sonless widow
was justified in alienating in favour of
'her son-in-law the whole of the property
which she inherited from her husband ;
the property was of small value (Bs. 500
only) and the widow's daughter was a
blind cripple ; the gift was in order to
promote the marriage and was held to
be a matter of necessity and therefore to
'bind the reversioner. In this case the
Madras case was cited with approval ;
the Madras case has also been quoted and
referred to (apparently with approval)
in several cases, e. g., by Mookerjee and
Oarnduff, JJ., in 'Churaman Sahu v.
Oopi Sahu (37) ; by Dawson-Miller, 0. J.,
and Mulliok J., in Madhusudan Prasad
Singh v. Ramji Das (60) ; by Mears, C.J.,
and Stuart, J., in Bhagwati Shukul v.
Ram Jitan T-iwari (59), and by Scott-
Smith and Fforde, JJ.. in Jowala Ram
v. Ilari Kishen Singh (54) ; see too Abes-
hang Tirdbhai v. Raisang Fatesany (57),
per Batchelor and Heaton, JJ. In that
case a widow alienated all her inherited
husband's property in favour of her son-
in-law shortly 'sftber his marriage he
undertaking to support her ; the trans-
action was upheld and declared to bind
the reversioners , some of whom had
acquiesced in what waa viewed by the
Court as a very proper " family arrange-
ment."
Now if the decision given in the Madras
case to which I have just referred at
length is correct there can be no doubt
that in the present appeal the gift by
Mt. Jainti Kumari to the defendant must
be regarded as valid. No objection oould
possibly be taken in this case to the value
of the gift because it is common ground
that it only formed a very small portion
of the property in which the widow held
her limited interest. The learned Dis-
trict Judge has pointed out in referring
to the case decided in the Madras High
Court that the fact that a gift of land to
a bridegroom from the bride's family was
regarded as an indispensable part of the
aupt 1 ceremonies of Brahmins is of the
strongest possible effect as indicating that
such a custom could not have grown up
or would not have been tolerated had it
been in any way inconsistent with "the
Sastras and early Hindu Law. He there-
fore came to the conclusion that the
plaintiffs suit must fail. But in this
Court the learned counsel who has
appeared for the appellant has strenuous-
ly argued that the decision of the Judges
of the Madras High Court, if not actually
incorrect, is incapable of being applied
to persons who do not belong to a caste
in which there exists no custom such as
that stated to exist amongst Brahmins
who were the parties in the Madras suit.
It certainly cannot be said that in the
present case any custom of giving landed
property to a bridegroom by the 'family
of the bride on the occasion of a wedding
was satisfactorily proved to exist amongst
the Agarwallas to which oaste the parties
here belong ; on the other hand there
certainly was some evidence amongst
this community that presents are as a
rule made to the bridegroom and are
accepted without demur. But the Madras
case was not decided only on the ground
of caste custom.
An endeavour has been made to show
that there are some texts in some com-
mentaries which indicate that a gift such
as that which was made by the widow
in the present case is invalid according to
Hindu Law. I have had the advantage
of reading the judgment of my learned
brother upon this somewhat intricate
question and I agree entirely with the
views which he has expressed thereon.
I may, however, say that so far as I myself
was able to form any opinion at all
satisfactory to my own judgment, I
thought that it oould, at any rate, be
stated with confidence that no authorita-
tive texts hetd been placed before us
which forbade or declared illegal a gift
such as that made by the widow in this
case.
In my view, therefore, the decision of
the learned District Judge was correct
and this appeal must be dismissed.
Appeal dismissed.
BHAIRO NATH v. SHANKE PAHAN (Kulwant Sahay, J.)
Pfttna
# A* I. R. 1926 Patna 605
ADAMI AND KU&WAST SAHAY, JJ,
BKairo Nath Boy— Plaintiff— Appel-
lant.
v.
Shanke Pah an— Defendant Bespondent.
Appeal No, 158 of 1924, Decided on
30fch June 1925, from a decision of the
Sub-J,. Banchi, D/- 12th July 19^3.
* (a) Landlord and tenant— Zerpeshgidar les-
see from landlord Inducting tenant on ray at I or
bakasht lands— Tenant acquiring status of occu-
pancy— Landlord cannot eject him.
Where the landlord grants zerpeshgi lease,
Unless there is a restriction in the zerpeshgi
lease itself restricting the power of the Zerpe-
shgidar as regards the settlement of raiyati
lands, the zerpeshgidar in the ordinary course of
management would be entitled to settle raiyati
or baksht lands with tenants.
And -therefore where zerpeshgidar has
settled such raiyati land with a tenant
bas beau in possession for more than 12
years and has therefore acquired an occupancy
rights cannot be ejected by the landlord. If the
zerpeshgidar has thereby committed any waste
or created an encumbrance the remedy of the
landlord would be against him. [P 606 C >1]
(6) Words '• Bahsht lands" are lands held by land
lord on surrender or abandonment by tenants—-
They retain the character of raiyati lands
Baksht lands are primarily raiyati lands but
are held by the proprietor for the tixne being on
account of surrender or abandonment or pur-
chase in execution of decrees or by such other
means. Such lands retain the character of rai-
yati lands and occupancy right is acquired as
soon as such lands are setllet1 with settled
raiyats of the village. [P G06 C 1]
Anand Prasad — for Appellant.
S. Dayal — for Bespondent.
Kulwant Sahay, J. — This is an
appeal by the plaintiff and it arises out
of a suit brought by him for recovery of
possession of one pawa of land known as
Da bar Ohaun Don in the village of
Gufia. The plaintiff is admittedly the
•landlord. The defendant claims to be a
tenant of the land. The plaintiff's
fcase was that the land was in his posses-
sion as proprietor and he had let it out
at first in bhugut bandha mortgage to
•one Durjodhan Manjhi and later in zer-
peshgi to Ohaitan Munda. Mangra. Don-
dra Pahan and Jhirka Munda, The zer-
peshgi was granted in 1895 and it was
redeemed in the Sambat year 1975. The
plaintiff's case is that after redeeming
the zerpeshgi he wanted to take posses*
sion but be was resisted by the defen-
dant in respect of the land in dispute.
The plaintiff says that this land was a
part of the bakasht land and the defen-
dant bad no right to remain in posses-
sion. The defendant's case was that it
was not the bakasht land of the proprie-
tor but it was his ancestral raiyati land.
He relied upon the entry in the sur-
vey khatian which showed the defendant
as a raiyat in respect of the land in dis-
pute. Both the Courts below have held
that the land in dispute was not the an-
cestral raiyati land of the defendant.
It has been found by the learned Sub-
ordinate Judge on appeal that the land
in dispute was not manjihas land or the
proprietor's private land in which no
rights of occupancy could be acquired but
that it was land in the khas possession
of the proprietor and appertained to the
raiyati class of lands. The finding fur-
ther is that the defendant was inducted
as a tenant upon the land in dispute by
the zerpeshgidars during the period of
the zerpeshgi. It is further found that
the settlement by the zerpeshgidars with
the defendant was not a collusive settle-
ment but a bona fide settlement. >The
learned Subordinate Judge has further
found that the plaintiff's evidence as re-
gards possession and dispossession by
the defendant was hopelessly conflicting .
and the learned Subordinate Judge agre-
ed with the Munsif in holding that the
defendant had been in possession at
least from the date of the survey
settlement which was more than 12 years
before the institution of the suit.
The position therefore is that the
defendant was inducted upon the land by
the zerpeshgidars who had taken the
land in zerpeshgi from the 'plaintiff for a
period of time and the said period having
expired and, the zerpeshgi having been
redeemed, the question is, whether the
plaintiff is entitled to take possession of
the land in the condition in which
he had granted the same in zerpeshgi to
the zerpeshgidars on ejecting the
defendant. The learned Subordinate
Judge has found that the zerpeshgidars
were in the same position as lessees ;
that lessees are entitled in the ordinary
course of management to induct tenants
upon raiyati lands ; and that such settle-
ment of land by the aerpeshgidars would
be binding upon the proprietor or the
person who had granted the, zerpeshgi.
He relied upon the observations of this
Court iti Sh to Bar at Singh v. Padarath
€06 Patn*
MADHQSUDAN v. JEOLAL (Kulwant Sahay, J.)
1926
M ah ton (l) and Pitambar Singh v.
Kkago Kumhar (2). These two oases
support the decision come fco by the
learned Subordinate Judge.
It has, however, been argued 09 be-
half of the plaintiff in second appeal that
the zerpeshgidar had no right to settle
tenants upon the lands which were in the
possession of the plaintiff at the time
when the zerpeshgis were granted. In
my'opinion there is no suhstanoe in this
contention unless there is a restriction
in the zerpeshgi lease itself restricting
the power of the zerpeshgidar as regards
the settlement of raiyati lands, the zer-
peshgidar in the ordinary course of
management would be entitled to settle
raiyati lands with tenants. The cases
cited, by the learned vakil for the appel-
lant refer to zirat lands or lands which
were private lands of the proprietor and
to which no right of occupancy could be
acquired. Those cases are different from
the raiyati lands « which are temporarily
in possession of the landlord and which
are known technically as bakashfc lands.
Such lands are primarily raiyati lands
but are held by the proprietor for the
time being on account of surrender or ab-
andonment or purchase in execution of
decrees or by such other means. Such
lands retain the character of raiyati
lands and occupancy right is acquired as
soon as such lands are settled with set-
tled raiyats of the village.
In any case here the finding is that the
defendent has been in possession for
more than 112 years and has therefore
acquired an occupancy right kaving re-
gard to the finding arrived afe it is clear
that the plaintiff is not entitled fco eject
the defendant. His argumeut is that
the zerpeshgidars had no right to create
encumbrance or commit acts of waste in
respect of the land given to them in zer-
peshgi. If r,he zerpeshgidars have done
any such thing the remedy of the plain-
tiff would be against them. As against
the tenant who is the only defendant in
the present suit no such claim can be
raised and the settlement with him
which has been found to be a bona fide
settlement oannot be held to be invalid
on account of any act done by the zer-
peshgider to the detriment of the plain-
tiff. I am of opinion that the decision
(1) [1919] 52 I. C. 478.
,(2) [1917] 3 Pat L, W. 333=89 I 0 521.
of the learned Subordinate Judge is
correct and this appeal must therefore
be dismissed with costs.
Adami, J. — I agree.
Appeal dismissed.
A. I. R. 1926 Patna 606
KULWANT SAHAY, J.
Madhusudan Singh and others — Plain-
tiffs— Appellants,
v.
Jeolal and another — Defendants — Res-
pondents.
Appeal No. 344 of 1922, Decided on
loth April 1925, from the appellate
decree of the Sub-J., Gaya, D/- 20th
December 1921.
Bengal Tenancy Act, & 182 — Person not a
ralyat but residing In village Homestead — S. ISf*
does not apply but Contract Act applies — Incidents
of permanent tenancy pointed out. ,
Where it was found that defendant who was
not a raiyat in the village was in possession of a
hduse in the homestead land of proprietors for
about ten years and he had been living in the
village, though not in the same house for about
25 to 30 years, and that for a period of ten or
eleven years the rent had not varied, that there
was no finding that the landlord had treated
the tenancy or defendants as heritable, nor that
the site was let out to defendants for building
house thereof. :
Held : that S. 182, Bengal Tenancy Act, did not
apply ; that the rights of the parties must be
determined b* Contract Act, and that defendants
had not acquired permanent rights of tenancy in
the land : 16 C. W. N. 567, Dist. [P. 607, 0. 2]
S. N. Bose — for Appellants.
S. Dayal — for Respondents.
Kulwant Sahay, J. — This appeal
was heard on the 19fch of March last ;
and, as the parties expressed a desire to
compromise the dispute between them,
judgment was reserved and time«was
allowed to them to effect a compromise.
On the 27th of March it was represented
that the compromise had been eff eated
between the parties and that a petition
setting out the terms of the compromise
would be filed on the 1st of April 1925.
The case was accordingly again allowed
to stand over until the 1st of April. On
the 1st of April it was represented . by
the learned vakils on both sides that the
matter had been finally settled between
the parties and that in order to file -
petition of compromise the khasra
number of one of the plots had to bt
MADHUSUDAN v. JBOLAL (Kulwant Sahay, J.) Patna 607
of their ancestors and that ^ therefore
they h^ve acquired a premfcneafc. right
1926
stated, which was nou available ; and time
was again asked for to obtain the khasra
dumber ok one of the plots in dispute.
The case was accordingly allowed to
stand over till to-day. On the case being
taken up to-day it is represented % the
learned vakils on both sides that no
oompromise has been effected. It is
regrettable that if the compromise had
i>\len through, the matter was not
brought to the notice of the Court
•earlier. I have, however, reheard the
learned vakils on both sides to-day.
The appeal is by the plaintiffs and it
arises out of action in ejectment. The
suit was decreed by the Munsif, but, on
appeal, it has been dismissed by the
learned Subordinate Judge. The plain-
tiff's case was that the land in dispute
was gair mazrua land of the proprietors
and that the defendants, without any
right, had constructed a house thereon in
the year 1321 F. ; that a notice was
given to the defendants to vacate the
landy and they having failed to do so,
the present suit was brought for a decla-
ration that the Defendant No. 1 had no
right to the land in dispute and for re-
covery of possession thereof.
The defence of the defendants was
that the land in dispute was in occupa"
tion ol the defendants for a long period
and that they had built a dwelling house
thereon and that they had acquired a
right to remain on the land as a perma-
nent tenant thereof and could not be
evicted. It is admitted by the defen-
dants that they are not raiyats of the
village and therefore S. 182 of the
Bengal Tenancy Act has no application
to this case.
The learned Munsif found that the
land was the gair mazrua land of the
proprietors and that, as the defendants
couid not acquire any right of occupancy
.undar S. 182 of the Bengal Tenancy Act,
the -relationship between the parties
.must be determined by the provisions of
the Indian Contract Act ; and he fouud
that there was nothing on the record to
show that the tenancy was of a perma-
[nent or transferable nature. The learned
^Subordinate Judge has dismissed the suit
and the reasons given by him are these :
He finds that the allegation of the plain*
tiffs that the defendants built the house
in the year 1321 fasli is false. He
also finds that the defendants have been
to. possession of the house from the time
in t he v land and are not liable to be
ejected* He further observed that, the
defendants are weavers and therefore
members of the village*ccmmunit$ and
therefore are not liable" to be ejected.
Next he finds that the defendants have
paid mutarfa rents and isiye got receipts
for a period of ten $r eleven years from
1316 to 1326 Fs. L*$ly he finds that
the defendants have been living in the
village for the last twenty"five or thirty
years. From these facts he has come to
the conclusion that the defendants are
permanent tenants of the homestead
land and could not be ejected.
On second appeal it has been conten-
ded by the learned vakil for the appel-
lants that the reasons given by the
learned Subordinate Judge are not suffi-
cient in law to come to a finding that
the tenancy of the defendants is of a
permanent character. In my opinion,)
this contention is sound and ought to
prevail. It is admitted by the learned
vakil for the respondents that the reasons'
given by the learned Subordinate Judge
by themselves are not sufficient in law
to create a permanent tenancy in the
defendants. He, however, relies upon
the decision in the case of Moharam
Chaprasi v. T elamuddin Khan (l). The
facts of that case are, distinguishable
from those of the presentA|»se. In that
oase there was a finding thmt th0 original
tenant and his successors had been in
occupation of the land for over 60 years ;
secondly, that rent was never varied ;
thirdly, that the tenancy had been trea-
ted by the landlord as heritable ; and
fourthly, that the land was let out for
residential purposes. From these facts
the Court came to a conclusion that the
tenancy was of a permanent nature. In
the present case it has not been found
that the defendants and their predeces-
sors had been in occupation of the land
for a great length of time ; all that has
been found is that the defendants have
been in possession from 1316 to 1326,
and further that they have been living in
the village (not in the house in dispute)
for the last twenty-five or thirty years.
Next there is no finding that the rent hasl
never varied : all that is found is that
for a period of ten or eleven years the
(1)
[1911J 16 C. W. N. 667=13 I. 0. 606=15
0, L. J. 220.
r>08 Patna
MADHUSpDAN v. JEOLAL (Kulwant Sabay, J.)
192*
game
rent
,9 been paid, and not; that
^_ntiaued unvaried horn the
time of fclie ancestors 6f thf defendants
dowtf vto the Veserft ti^.M Thirdly,
there is no finding that tie landlord has
treated the tenancy of fcHl Defendants as
heritable ; and fourthly/' there is no
allegation ancLao finding as to the land
upon whioH^TOe house stands having
been let out; (ttitfjN* defendants or their
ancestors by the proprietor for the pur-
pose of building a dwelling house there-
on. The 'a^legatipn in the writton
abatement mr*s that the defendants and
their ancestors had been in occupation
Q^lihe house in dispute. It may be that
toi hbuse was standing on the land at
tSe time the defendants and their ances-
tor •» first came to occupy ib. No doubt
the allegation of the plaintiffs that the
defendants built the house upon the land
for the first time in the year 1321 has
been found to be false ; but upon the
findings arrived at by the Courts below
it is clear that the defendants cannot
Hcquire a permanent right of tenancy in
the land. There was an allegation in*
the plaint that a notice to quit had been
served upon the defendants. This was
not denied in the written statement >
and it appears that the sufficiency of tho
notice was admitted. In my opinion
unless the defendants succeeded in prov-
ing upon evidence that there was a
permanent lease granted to them or to
their ancestors, the position of the
defendants must be that of a tenant at
will or from month to month or from
year to year, and the tenancy is liable to
be determined on a proper notice to
quit. *the legality or sufficiency of the
notice in the present case has not been
disputed and it must be 'taken that the
notice given in the present case was
sufficient.
In my opinion the decree madd by the
Munsif was correct. The decree of the
Subordinate Judge must be set aside and
that of the Munsif restored. The plain-
tiffs are entitled to their costs through-
out.
Appeal alloived.
END
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